DEBT. courts of U. Our own supreme court, however, have held it to be unconOf circuit stitutional, so far as it provides for the effect of records of terS., foreign. ritorial courts in the state courts.46 It would seem that the records of the circuit courts of the United States are foreign records.47 Debt on specialties, and 48 50 Thirdly-Debt lies upon specialties or contracts under seal to pay money, as on single bonds,49 on charter parties,5 and on bonds conditioned for the payment of money, or for the performance of any other act, by or against the parties thereto, or their personal representatives.51 Debt formerly lay against the heirs and devisees of a debtor,52 but now they can be sued in a court of equity only, for the debts of their anceson bail & re- tor or testator.53 It lies by the sheriff or his assignee on bail bonds, and replevin bonds ;55 on leases, for rent56 or penalties, as for ploughing up meadow &c. ;57 on annuity deeds,5o and on judgments mortgage deeds. Under this class of contracts, may be mentioned, a judgmentof a justice's court of this state, which is neither a debt of record, nor by simple contract, but a specialty.59 plevin bonds, of justices' courts. Debt on sim ple contracts. 54 Fourthly-Debt lies on simple contracts and legal liabilities, as for money lent, paid, had and received, and due on an account stated;60 for interest due on the loan or forbear 46 Sturges v. Davis, decided 48 2 Str. Rep. 1089. 49 Ib. Com. Dig. Debt A. 4. 50 Ib. 51 Com. Dig. Debt A. 4. 52 1 Rev. Laws, 318. 53 2 R. St. 454. P. 3. Ch. 8. T. 3. s. 42.60. 4. s. 19. 20. 21. 22. 23. 57 Com. Dig. Debt A. 5. B. 3. Bl. Com. 231. 1 Bos. & Pul. Rep. 104. 109. 58 1 Chitty pl. 103. 59 14 John. Rep. 479. This decision, made upon the former statute of limitations, would seem not now to be law, as the statute has been altered so as to bar judgments 54 2 R. St. 348. P. 3. Ch. 6. T. recovered in courts not of record 1. s. 11. 12. 55 2 R. St. 523. 528. 533. P. 3. Ch. 8. T. 12. s. 7. 32. 64. like simple contracts. 2 R. St. 296. s. 18. 60 Com. Dig. Debt A. 1 Roll. 562 R. St. 747. P. 2. Ch. 1. T. Abr. 593. pl. 25. Hob. Rep. 206. ance of money;61 for work and labour and a quantum meruit COVENANT. thereon;62 for fees;63 for goods sold ;64 for use and occupation of houses, land, &c. on a demise not under seal;65 and for .66 every duty created by common law or custom;6 as on a bill of exchange by the payee against the drawer, on the default of the acceptor; on a promissory note by the payee against the maker; by the payee or endorsee of a bill of exchange against the acceptor;67 and by the endorsee of a note, or the holder of a note payable to bearer, against the maker,6 the bill or note being expressed to be for value received. And it is a general rule, that where general indebitatus assumpsit will lie, debt will.69 Before the revision of the statutes, an action of debt was given to legatees to recover a legacy of executors and administrators. The revised statutes give such action as the case may require after the expiration of a year from the granting of letters, to any legatee, or next of kin, to recover a legacy or distributive share of the estate, of executors or administrators having assets." COVENANT. This action is the remedy provided by law, by which the COVENANT. party injured may recover damages, in proportion to his injury, for the breach of agreements or covenants contained in a deed, or writing under seal. Covenants are of two kinds-express covenants, and im lies on deeds. "5 Term Rep. 553. 56 Term Rep. 62. 6 East's Rep. 348. Sed vid. contra. 2 Bos. & Pul. Rep. 63 Cases last cited. 69 2 Wheat, Rep. 387. 3 Caines' **Com. Dig. Debt A. 9. Hob. Rep. 29. Rep. 206. 2 Wheat. Rep. 385. 1 Mason's Rep. 243. 12 John. Rep. 90. 70 2 R. St. 114. P. 2. Ch. 6. T. 5. s. 9. COVENANT. plied, or covenants in law. An express covenant is an agreeExpress and ment entered into by deed between two or more persons for implied. Consideration. Construction of. Accident, when it ex formance. the performance of certain acts, or for the forbearance to do Where the law creates a duty or charge, and the party is cuses per- disabled from performing it, without any default on his part, and has not any remedy over, the law will excuse him; but where the party by his own contract, imposes on himself a duty or charge, he is bound to make it good, notwithstanding inevitable accident; because he might have provided against it.79 711 Selw. N. P. 339. 1 Brod. & Bing. Rep. 319. 11 72 4 John. Rep. 415. 4 Bur. Rep. East's Rep. 633. 2 John. Rep. 2225. 595. 10 John. Rep. 266. 73 Moor Rep. 135. 1 Saund. Rep. 319. 1 Lev. Rep. 274. 74 5 Term. Rep. 523. 526. 75 Plowd. Rep. 329. 7 East's Rep. 241. 9 John. Rep. 106. 76 1 Bos. & Pul. Rep. 78. 79 1 Selw. N. P. 344. Aleyn's Rep. 27. 10 East's Rep. 533. 3 Bos. & Pul. 420. Dyer's Rep. 33. a. Str. Rep. 763. 2 Ld. Raym. Rep. 1477. 6 Term Rep. 323.310. 650. 750. Com. Rep. 627. 16 779 East's Rep. 15. 3 Bos. & Mass. Rep. 238. 3 Burr. Rep. Pul. Rep. 399. 442. 78 2 John. Cas. 203. 1 Leon. Rep. 116. 7 East's Rep. 116. 237. 241. Moor's Rep. 58. 8 East's Rep. 89. 2 Bos. & Pul. Rep. 13. 449. 1637. For relief in equity, see Rep. Temp. Northington, 219. Amb. Rep. 619. 3 Anstr. Rep. 687. 18 Ves. 115. conveyances of land. Covenants in conveyances of land are very various, and COVENANT. many persons, besides the original parties to them, are often, Covenants in from privity of estate, bound by them. The operation and effect of covenants of this description have so long been settled, that it is only necessary to allude to the subject here; but it is proper to notice some alterations introduced by the revised statutes. They provide that, "No mortgage shall be construed as implying a covenant for the payment of the sum intended to be secured; and where there shall be no express covenant for such payment contained in the mortgage, and no bond or other separate instrument to secure such payment, shall have been given, the remedies of the mortgagee shall be confined to the lands mentioned in the mortgage, ;" also that "no covenant shall be implied in any conveyance of real estate, whether such conveyance contain special covenants or not;" and that "lineal and collateral warranties, with all their incidents, are abolished; but the heirs and devisees of every person who shall have made any covenant or agreement, shall be answerable upon such covenant or agreement, to the extent of the lands descended or devised to them, in the cases and in the manner prescibed by law."83 REPLEVIN. statute, The action of replevin, by which, and by which only, the REPLEVIN goods and chattels themselves, of which a person is wrongfully regulated by deprived, may be recovered, is now so entirely the work of the revised statutes, that it is unnecessary to speak of it as it formerly existed. The statutes declare, that "whenever any goods or chattels shall have been wrongfully distrained, or otherwise 30 See 1 Selw. N. P. 346. 83 Ib. P. 2 Ch. 1 T. 2. s. 141. wrongful ta king or goods. of REPLEVIN. Wrongfully taken, or shall be wrongfully detained, an action and lies for a of replevin may be brought for the recovery thereof, and for tension der the recovery of the damages sustained by reason of such unjust caption or detention, except in the cases herein after specified;" that "whenever, by any statute, executors or other persons, suing in the right of another, are authorized to maintain actions of trespass for any personal property, wrongfully taken, such persons may maintain actions of replevin for such property ;"25 but that "no replevin shall lie for any property taken by virtue of any warrant for the collection of any tax, assessment, or fine, in pursuance of any statute of this state,' and that "no replevin shall lie at the suit of the defendant in any execution or attachment, to recover goods or chattels seized by virtue thereof, unless such goods and chattels are exempted by law from such execution or attachment; nor shall a replevin lie for such goods or chattels at the suit of any other person, unless he shall, at the time, have a right to reduce into his possession the goods taken."87 1986 This action is rendered highly remedial, and is intended as a substitute for detinue, and a concurrent remedy with trespass and trover. TRESPASS. TRESPASS The action of trespass lies for immediate injuries to the perwhen it lies. Son or the personal property of another, accompanied with force either actual or implied, whether the act be wilful or unintentional, or whether it be committed by the defendant, or by another at his command or procurement, or having been done for his use or benefit, he afterwards assents to it.89 For injuries to the person, it lies for an assault and battery, of the plaintiff himself, or of his wife or servant, per quod con Assault and battery. 88 85 Ib. s. 2. 36 Ib. s. 4. 37 Ib. s. 5. 88 4 John. Rep. 450. 14 John. Rep. 406. 9 John. Rep. 117. 89 13 John. Rep. 416. 1 Selw. N. P. 1019. |