for any man may take the goods of another into possession, if he finds them; but no finder is allowed to acquire a property therein, which the law presumes him to do, if he refuses to restore them to the owner; for which reason such refusal alone is, primâ facie, sufficient evidence of a conversion. If the plaintiff proves that the goods are his property, and that the defendant had them in his possession, then in this action he shall recover damages equal to the value of the thing converted.

Injuries direct or consequential. These may occur in many ways, as a man may be deprived either of goods or money in consequence of false representation as to the circumstances or character of another, and other similar acts. The remedy for such is by action on the case. Where there are representations as to character, ability, or dealings, by Lord Tenterden's Act, Geo. IV., c. 14, s. 6, the representation must have been made in writing.

Abusing and damaging things personal while in the possession of the owner-hunting a man's deer, shooting his dogs, or in any way injuring his chattels; the remedies given by law to redress these wrongs are by action of trespass or by action on the case. It is not material whether the damage be done by the defendant himself or by his servant, for the action will lie against the master as well as against the servant. If a man keeps a dog which does mischief, the owner must now answer for the consequences thereof, whether he knows of such evil habit or not; for, by 28 & 29 Vict., c. 60, s. 1, "it shall not be necessary for the party seeking such damages to show a previous mischievous propensity, or that the injury was attributable to neglect on the part of such owner."

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Explain "Injuries" affecting rights founded on "Contract," both "Express" and "Implied," with their respective "Remedies."

A Contract, as formerly stated,* is “ an agreement, upon sufficient consideration, to do or not to do a particular thing," and the violation or non-performance of such contract is an injury, for which the law provides a remedy.

* See "Contracts," page 179.

P

Express contracts include three distinct species-debts, covenants, and promises.

Debt is a sum of money due by certain and express agreement; as, by a bond or other instrument under seal for a certain sum; a bill or note; a special bargain; or a rent reserved on a lease, where the amount is fixed and specific, and does not depend upon any subsequent valuation to settle it. The non-payment of these is an injury, for which the proper remedy is by action of debt or covenant, to compel the performance of the contract or recover the sum due.

A Covenant is an agreement, convention, or promise of two or more parties by deed in writing, signed, sealed, and delivered by the parties, who pledge themselves to do a direct act, or to omit one, the violation of which is a civil injury. The remedy for either party is by action of covenant; but in the case of a covenant or a lease to pay rent, the breach of it may be redressed either by action of covenant or of debt.

A Promise is in the nature of a verbal covenant, and wants nothing but the solemnity of writing and sealing to make it absolutely the same. If therefore it be to do any explicit act, it is an express contract, as much as any covenant; and the breach of it is an equal injury. The remedy indeed is not exactly the same; since, instead of an action of covenant, there only lies an action upon the case, for what is called the assumpsit (promise) or undertaking of the defendant; the failure of performing which is the wrong or injury done to the plaintiff, the amount of damage a jury is to estimate and settle.

Implied contracts, as formerly stated,* are such as reason and justice dictate, and which, therefore, the law presumes that every man has contracted to perform. Of this nature are the fundamental constitutions of government, to which every man is assumed to be a contracting party; and thus it is that every person is bound and hath virtually agreed to pay such particular sums of money as are legally charged on him, assessed by the interpretation of the law; for it is a part of the original contract entered into by all mankind who partake of the benefits of society to submit in all points to the

*See "Contracts," page 179.

municipal constitutions and local ordinances of the State. Whatever, therefore, the law orders any one to pay, that becomes instantly a debt, the payment of which the law enforces. Also, where a person has laid out and expended his own money for the use of another, at his request, the law implies a promise* of repayment, and an action of debt will lie on this assumpsit.

* The promise of a debtor to pay a debt barred by the Statute of Limitations,

or of an adult to pay a debt contracted during his nonage, is void, unless it be in writing and signed by the party.

CHAPTER VIII.

"WRONGS" TO "REAL" PROPERTY.

We shall now consider such injuries as affect that species of Property which the laws of England have denominated "Real;" being, as previously stated, of a more substantial and permanent nature than the more transitory rights of which personal chattels are the object.

What are the "Wrongs" that affect "Real Property," and explain those Wrongs?

The injuries affecting real property are principally :—1. Ouster. -2. Trespass.- -3. Nuisance.- 4. Waste. -5. Subtraction. -6. Disturbance.

1. Ouster, or dispossession, is a wrong, or injury in respect of hereditaments, either corporeal or incorporeal, that carries with it the amotion of possession; for thereby the wrong-doer gets into the actual occupation of the land or hereditament, and obliges him that has a right to seek his legal remedy, in order to gain possession of it, and damages for the injury sustained; as for instance, "where the tenant, though not entitled, had entered, without fraud or tort, into possession of land, by the deed or consent of one who himself either came into possession of such land unlawfully, or had but a particular or defeasible estate in it."

In the time of our Saxon ancestors, possession seems only to have been recoverable by writ of entry, which, after the Conquest, when all causes were drawn into the King's Courts, became much more dilatory than it had been before.* The law underwent many changes, but ultimately real actions for * For the old law respecting writs of assize, writs of entry, &c., see Blackstone, vol. iii.

the recovery of land were abolished by stat. 3 & 4 Wm. IV., and now the only direct mode of procedure for trying the title to real property is by action of ejectment.*

I. EJECTMENT is now a very important action, and by it alone possession of land is recovered. The form of the action is totally remodelled, and the proceedings in it are minutely pointed out by the common Law Procedure Act of 1852.

A writ is issued out of any of the superior courts of common law, directed to the person or persons in possession, and to all persons alleged to be entitled to defend the possession of the premises therein described, and commanding those to whom it is directed to appear in the court out of which the writ issued within sixteen days of the service thereof, to defend the possession of the property, or such part of it as they shall see fit. It also contains a notice that in default of appearance the defendants will be turned out of possession. The writ is served by delivering it personally to the tenant in possession, on the land or elsewhere, or by delivering it personally on the premises to some member of the family or household; and in either case it should be read over, or its purport explained.

The trial of the issue joined then proceeds in the usual way, and a verdict is found. If it is for the plaintiff, judgment is entered up for the possession of premises with costs, and possession will be delivered to him by the sheriff.

Upon the judgment, after a special verdict, or a bill of exceptions, or by consent after a special case, error may be brought in the same manner as in other actions. To complete the remedy in an ordinary case, recourse is had to another supplementary action, viz., an ordinary action of trespass, quare clausum fregit, to recover the mesne profits which the defendant has received during the period of his wrongful possession.

In the case of what is called a vacant possession, where the premises are wholly deserted, the writ must be served by pasting a copy upon the door of the dwelling-house or other conspicuous part of the property sought to be recovered.

* See 15 & 16 Vict., c. 76; 23 & 24 Vict., c. 126; 80 & 31 Vict., c. 142.