the time of delivery rendered them unfit for use by mixing hops with them," or where he covenanted to deliver a horse and then poisoned him:54 the covenant must be proved to be substantially broken; if, for example, the covenantor bind himself to keep the trees of an orchard whole and undefaced, reasonable use and wear only excepted, the cutting down of trees past bearing was held to be no breach, because the preservation of the trees for fruit was of the substance of the contract.55

3452. A few examples will be given to show what is a sufficient breach of covenants. The covenants which are thus broken are:

58

Covenants against incumbrances. Proof by any competent evidence that incumbrances existed at the time of signing the covenant is evidence of a breach." As to what shall be considered an incumbrance it has been held that a public highway passing over the land," a private right of way, a lien by judgment," or any mortgage the covenantee was not bound to pay,60 a pre-existing right to take water from the land, are each an incumbrance and a breach of covenant against incumbrances.61

Covenant of seisin. Evidence that the covenantor was not seised in fact will be proof of a breach; but if the covenantor was seised in fact, though by wrong, it is sufficient to support his covenant.6

Covenant of warranty. Evidence of an actual ouster or eviction by one having a lawful title is sufficient proof of the breach of this covenant; and it is not necessary that this should be with force. A judgment in ejectment, when the covenantor has had notice of the action, and was requested to defend it, is also evidence of the breach of this covenant.63 No tortious act of a stranger, by which the covenantee is put out of possessson, will be a breach of the warranty.

If the legal owner of the land seek to recover it, it is not necessary that the covenantee should resist until judgment and actual ouster. If he gives notice to the covenantor to defend the suit, and the latter allows it to go by default, he is concluded by the judgment and cannot plead non infregit. If, however, the covenantor is not notified, the judgment being inter alias partes, he may show in defence that the judgment was erroneous and not founded on a valid title.

Covenant for quiet enjoyment. To prove a breach of this covenant it is in general necessary to show an actual ouster, by reason of some adverse right existing at the time of making the covenant, and not one subsequently acquired."

53 Griffith v. Goodhand, T. Raym. 464.

54 Skinn. 40; Bacon, Abr. Covenant, H.

55 2 Starkie, Ev. 148.

56 Tuft v. Adams, 8 Pick. Mass. 547; Funk v. Voneida, 11 Serg. & R. Penn. 109; Bean v. Mayo, 5 Me. 94; Bacon Abr. Covenant, H.

57 Kellogg v. Ingersoll, 2 Mass. 97; Hubbard v. Norton, 10 Conn. 431; Pritchard v. Atkinson, 3 N. H. 335.

58 Harlow v. Thomas, 15 Pick. Mass. 68.

59 Jenkins v. Hopkins, 8 Pick. Mass. 346.

60 Funk v. Voneida, 11 Serg. & R. Penn. 109; Tuft v. Adams, 8 Pick. Mass. 547; Stewart v. Drake, 4 Halst. N. J. 139.

61 Judevine v. Pennock, 15 Vt. 683; Ragan v. Gaither, 11 Gill & J. Md. 472; Cullum v. Branch Bank, 4 Ala. N. s. 21; Herrick v. Moore, 19 Me. 313; Bacon, Abr. Covenant, H.

62 Marston v. Hobbs, 2 Mass. 433. Thus a covenant of seisin is satisfied if the grantor is in possession of the land under a claim of right, though such possession as against the rightful owner is merely tortious, not amounting to a techinical disseisin. Slater v. Rawson, 6 Metc. Mass. 439; Watts v. Parker, 27 Ill. 224.

63 Hamilton v. Cutts, 4 Mass. 349; Collingwood v. Irwin, 3 Watts, Penn. 306. See Clark v. McAnulty, 3 Serg. & R. Penn. 364; Emerson v. Proprietors of Minot, 1 Mass. 464; Flowers v. Foreman, 23 How. 132.

64 Ellis v. Welch, 6 Mass. 246; Hurd v. Fletcher, 1 Dougl. 43; Evans v. Vaughan, 4 Barnew. & C. 261.

Any tortious entry by the covenantor himself claiming title will be a breach of this covenant.65

Covenant against assigning a lease and under-letting. To constitute a breach of this covenant the assignment of the lessee, or his under-letting, must be voluntary; for if the term be sold by a sheriff by virtue of an execution, or by assignees in bankruptcy, or by an executor, it is no breach of the covenant, unless the assignment is effected by the fraud of the lessee; as, where he confessed a fraudulent judgment with the intent that the creditor should seize the term in execution. Proof must, therefore, be made that the defendant has voluntarily transferred the premises, or evidence of some unlawful act of the defendant by which the assignment has been effected.

When the plaintiff sues as assignee of the covenantee, he must allege and prove the conveyances, or the title by which he claims. When he claims as assignee of a covenant real, he must show himself grantee of the land by a regular conveyance from a person having the right and the legal capacity to convey, and that the breach has occurred since such conveyance.66

When the defendant is sued as assignee of the original covenantor, and the issue is on the assignment, the plaintiff may either prove an actual assignment or give evidence of facts from which it may be inferred; for example, possession of the premises leased or payment of rent to the plaintiff. In his defence the defendant may show he holds as under-tenant, and not as assignee; or that he is an assignee of only a part of the premises; or, if the state of pleadings admit it, he may show that before the breach he had assigned to another person; for after the assignee of the original covenantor has himself assigned to another, he is no longer liable for any breaches that may occur.

3453. When the judgment is for the plaintiff, it is that he recover a named sum for his damages, which he has sustained by reason of the breach of covenant, with full costs of suit. The judgment for the defendant is that he recover his costs by him in this behalf expended.

The general rule of damages is the damage caused by the breach at the time. Thus a covenant of seisin being broken instantly, the damages are the amount of purchase money and interest, being apportioned pro rata if the seisin fail as to part of the premises.67 For a breach of the covenant against incumbrances the actual damage is given, to be assessed by a jury.68 If the incumbrance is a mortgage, the covenantee can recover what he fairly and actually pays to remove the incumbrance; 69 but until he pays the debt, or the mortgage is enforced against the land, and while the covenantor still remains liable for the mortgage debt, the damages are merely nominal.70 As to the covenant of warranty, there is a great discrepancy between the decisions in the different states. In some, the damages are the purchase money with interest; in others, the value of the land at the time of eviction.72

71

65 Sedgwick v. Hollenback, 7 Johns. N. Y. 376; Seldon v. Senate, 13 East, 72.

66 Chase v. Weston, 12 N. H. 413; Roach v. Wadham, 6 East, 289; Milnes v. Branch, 5 M. & S. 411. See, as to what are covenants real, 2 Greenleaf, Ev. ¿ 240.

67 Brandt v. Foster, 5 Iowa, 295; Beaupland v. McKeen, 28 Penn. St. 124; Phillips v. Reichert, 17 Ind. 120.

68 Batchelder v. Sturgis, 3 Cush. Mass. 201; Weatherbee v. Bennett, 2 All. Mass. 438. 69 Bailey v. Scott, 13 Wisc. 618; Grant v. Tallman, 20 N. Y. 191.

70 Funk v. Voneida, 11 Serg. & R. Penn. 112; Brady v. Spurck, 27 Ill. 478; Griggs v. Detroit Co., 10 Mich. 116.

"See Rawle, Cov. 314; Burton v. Reeds, 20 Ind. 87; Major v. Dunnavant, 25 Ill. 262; Foster v. Thompson, 41 N. H. 373; Wade v. Comstock, 11 Ohio, St. 71.

72 This rule is adopted in Maine, Vermont, Connecticut, Massachusetts, and S. Carolina. VOL. II.-2 V

361

CHAPTER XXI.

DEBT AND DETINUE.

3454-3475. The action of debt.

3455-3463. On what claims debt may be maintained.

3456. On judgments.

3457. On specialties of record.

3458. On specialties.

3459. On parol contracts.

3460. When the peculiar remedy.

3461. On statutes.

3462. Debt in the detinet.

3463. The demand must be for a sum certain.

3464-3466. The declaration in debt.

3467. The pleas in debt.

3468-3474. The evidence in debt.

3475. The judgment in debt.

3476-3484. The action of detinue.

3477. What things may be recovered in detinue.
3478. What interest is required to support the action.

3479. For what injury detinue lies.

3480. The pleadings in detinue.

3482. The evidence in detinue.

3483. The verdict and judgment in detinue.

3454. The fourth kind of action arising ex contractu is the action of debt, so called because in legal consideration it is for the recovery of a debt eo nomine and in numero; and though damages are generally awarded for the detention of the debt, yet in most instances they are merely nominal, and are not, as in assumpsit and covenant, the principal object of the suit. The subject will be considered with reference to the kind of claim or obligation on which this action may be maintained, the form of the declaration, the plea, the evidence, and the judgment.1

3455. Debt lies for a sum of money certain due by the defendant to the plaintiff, whether it has been rendered certain by contract between the parties, or by judgment, or by statute, as when a remedy is given for a penalty or for the escape of a judgment debtor. Debts or obligations for which this action may be sustained at common law may be classed under four general heads: judgments obtained in a court of record on a suit, specialties acknowledged to be entered of record as a recognizance, specialties indented or not indented, and contracts without specialty, either express or implied."

3456. This action lies upon the judgment of a superior or inferior court of record, whether such judgment be rendered within the state, in a sister state, or

1 The action of debt was at common law supplanted to a great extent by assumpsit and covenant. It is now abolished in those states which have adopted new codes of practice, and in the others is rarely used. It is used to a limited extent in Illinois, Maine, Connecticut, South Carolina, Pennsylvania, New Jersey, Tennessee, Alabama, Vermont, and perhaps some other states.

2 Respublica v. Lacaze, 2 Dall. 123; 1 Yeates, Penn, 70.

3

a foreign country; but in such case the defendant must have had notice and an opportunity of defending himself. In Alabama it was held that debt might be maintained on a judgment valid in the state where rendered, though not founded on personal service."

At common law debt was the only remedy after a year and a day had elapsed after a judgment had been rendered, though a scire facias is now sustainable. Debt cannot be maintained after the judgment has been satisfied, either by an actual payment or by construction of law; where, therefore, the defendant has been taken in execution on a judgment and discharged by the plaintiff, no action can be supported on the judgment.

6

In some of the states debt may be maintained on the decree of a court of equity in another state for the payment of money,' but in other states the general doctrine is that an action of debt cannot be sustained on a decree of a court of chancery.8

And the action does not lie on a foreign judgment or decree for the performance of any other acts than the payment of money.

3457. Debt lies also on a specialty acknowledged to be entered of record; as, upon a recognizance of bail, on a recognizance to the commonwealth, and on recognizance to a state in a criminal proceeding."

3458. Debt may be maintained on specialties, whether indented or not, or any contract under seal, to recover money due on the same; as, on single bonds, on charter parties, on policies of insurance under seal, and on bonds conditioned for the payment of money, or for the performance of any other act, by or against the parties to such specialties and their personal representatives."

3459. Debt lies upon contracts without specialty, either express or implied; it is a more extensive remedy for the recovery of money than assumpsit or covenant, for it lies to recover money due on legal liabilities, as, for money lent, paid, had, and received, or due on an account stated; 12 for work or labor, or for the price of goods, and a quantum valebant thereon; 13 or upon simple contracts, express or implied, whether oral or written, whenever the demand for a sum is certain, or it is capable of being reduced to a certainty."

McIntire v. Caruth, 1 Const. So. C. 457; Headley v. Roby, 6 Ohio, 527; Carter v. Crews, 11 Ala. 81; Jordan v. Robinson, 15 Me. 167.

Darrach v. Wilson, 2 Miles, Penn. 116; Kilburn v. Woodworth, 5 Johns. N. Y. 37. It lies on a judgment against a trustee. Chandler v. Warren, 30 Vt. 510. Whether it lies on a judgment against an executor quare. Olmsted v. Clark, 30 Conn. 108.

5 Hunt v. Mayfield, 3 Ala. 124.

6 Vigers v. Aldrich, 4 Burr. 2482; Tanner v. Hague, 7 Term, 420; Ponoher v. Holley, 3 Wend. N. Y. 184. The action does not lie on a judgment which has been vacated by an appeal. Atkins v. Wyman, 45 Me. 399.

Evans v. Tatem, 9 Serg. & R. Penn. 252; McKim v. Odom, 12 Me. 94; Williams v. Preston, 3 J. J. Marsh. Ky. 600; Drakely v. Rook, 2 Root, Conn. 138; Green v. Folley, 6 Ala. 441; Thrall v. Waller, 13 Vt. 231.

8 Elliott v. Ray, 2 Blackf. Ind. 31; Van Buskirk v. Mulock, 3 Harr. Del. 184. Warren v. McCarthy, 25 Ill. 95.

10 State v. Folsom, 26 Me. 209; Commonwealth v. Green, 12 Mass. 1; McMillan v. WhitWhitaker, 11 Rich. So. C. 523; Dowlin v. Standifer, 1 Hempst. C. C. 290.

11 Comyn, Dig. Dett, A, 4.

12 Comyn, Dig. Dett, A.

13 Comyn, Dig. Dett, B; United States v. Colt, 1 Pet. C. C. 149; Dillingham v. Skein, 1 Hempst. C. C. 181.

"Collins v. Johnson, 1 Hempst. C. C. 279; Buller, Nisi P. 167. When the obligation is to pay in something else than money, the decisions do not appear to be uniform whether debt can or cannot be maintained. In Kentucky, debt does not lie on an obligation "for eighty dollars, to be discharged in bricks." Mattox v. Craig, 2 Bibb, Ky. 584. In Alabama, debt lies on a specialty for a sum certain, with privilege to the obligor to discharge the same "in cotton." Bradford v. Stewart, 1 Ala. 44. It will lie on a note payable in "Louisiana funds," Hudspeth v. Gray, 5 Ark. 157; or "in Philadelphia funds," January v. Henry, 2 T. B. Monr. Ky. 58; 3 id. 8; or in North Carolina bank notes," Deberry v.

Debt lies by a remote indorsee against the first indorser of a promissory note,15 and on a policy of insurance under seal renewed by a parol indorsement in the name of the assignee of the original assured.

16

3460. This action is the peculiar remedy in some cases; as, against a devisee of land for a breach of the covenant by the devisor." It may also be sustained against a lessee for an apportionment of rent where he has been evicted from a part of the premises by a third person, though in such case covenant may be maintained against the assignee of the lessee.18

3461. On statutes, either at the suit of a common informer or of the party grieved, debt is frequently the proper remedy. In some cases it is given to the party by the express words of a statute, as, for an escape out of execution.19 When a penal statute expressly gives the whole or a part of the penalty to a common informer and enables him to sue for the same, debt may be sustained,20 and he need not declare qui tam unless where a penalty is given for a contempt;" and in general, where a statute prohibits the doing of an act under a penalty and does not prescribe any mode of recovery, an action of debt lies." A tax cannot be recovered by an action of debt.23

25

3462. Debt also lies in the detinet for goods between the contracting parties; this action is instituted for the recovery of goods, as a horse, a ship, and the like; the writ must be in the detinet, for it cannot be said that a man owes a horse or a ship, but only that he detains them from the plaintiff." This action differs from detinue, because it is not essential in this action, as in detinue, that the property in any specific goods should be vested in the plaintiff at the time of the action brought; and debts in the debet and detinet may be maintained on an instrument by which the defendant is bound to pay a sum of money lent, which might have been discharged on or before the day of payment in articles of merchandise. The action must be in the detinet when it is brought by or against an executor or administrator, for there is no duty owing by or to them; when they are plaintiffs, the debt is detained from them; when defendants, they detain, but do not owe the debt; 27 but it is said where the heir is sued on a bond of the ancestor by which he is bound, he should be charged in the debet and detinet.28

26

3463. To maintain an action of debt the demand must be for a sum certain, or for a pecuniary claim which may be readily reduced to a certainty. But it cannot be sustained on an agreement to pay money by instalment, before all the

Darnell, 5 Yerg. Tenn. 451; or "in current bank notes," Young v. Scott, 5 Ala. N. s. 475; Wilson v. Hickson, 1 Blackf. Ind. 230; Osborn v. Fulton, 1 Blackf. Ind. 234; Scott v. Conover, 1 Halst. N. J. 222; Campbell v. Weister, 1 Litt. Ky. 30; Watson v. McNairy, 1 Bibb, Ky. 356. But see Wilburn v. Grier, 6 Ark. 255.

15 Loose v. Loose, 36 Penn. St. 538.

16 Franklin F. Ins. Co. v. Massey, 33 Penn. St. 221.

17 Wilson v. Knubley, 7 East, 12.

18 Stevenson v. Lambard, 2 East, 579.

19 Porter v. Sayward, 7 Mass. 337.

20

Comyn, Dig. Dett, E, 1 and 2; Cato v. Gill, Coxe, N. J. 11; Crane v. N. J. 53.

Coxe,

21 Pinkney v. East Hundred, 2 Saund. 374, n. 1 and 2; Croucher v. Collins, 1 Saund. 136, n. 1.

22 Kelly v. Davis, 1 Head, Tenn. 71; Meaher v. Chattanooga, 1 Head, Tenn. 74. 23 Camden v. Allen, 2 Dutch. N. J. 398.

24 3 Blackstone, Comm. 153; 11 Viner, Abr. 321; Bacon, Abr. Debt, F; 1 Lilly, Reg. 543; Dane, Abr. Debt; Thompson v. Musser, 1 Dall. 458.

25 Dy. 24, b.

26 Young v. Hawkins, 4 Yerg. Tenn. 171; Comyn, Dig. Dett, A, 5; Bacon, Abr. Debt, F. See Taylor v. Meek, 4 Blackf. Ind. 388.

27 Bacon, Abr. Debt, F.

28 Waller v. Ellis, 2 Munf. Va. 88.