penalty, separate from the deed; but the penalty is considered only as a security for the amount of damage actually sustained.

The common use of covenants is for assuring quiet enjoyment of land, for payment of rent reserved, and concerning repairs, damages, and accidents. They are generally construed most strongly against the covenantor, and in favour of the covenantee.

VI. PROMISE.

A promise is of the nature of a verbal covenant, and, when made upon sufficient consideration, wants only the formality of writing and sealing to be absolutely the same. The legal remedy, however, for nonperformance was formerly different; since, instead of an action of covenant, there was an action on the case for the assumpsit, or undertaking of the defendant; the failure of performing which is the wrong or injury done to the plaintiff, the damages whereof a jury are to estimate and determine. These technicalities, however, are for the most part abolished.

The Statute of Frauds enacts, that, in the five following cases, no verbal promise shall be sufficient to ground an action upon, without, at the least, some note or memorandum of the transaction be made in writing, and signed by the party to be charged therewith, or some other person lawfully authorized by him :-1. Where an executor or an administrator promises to answer damages out of his own estate. 2. Where a man undertakes to answer for the debt, default, or miscarriage of another and in this case even a written undertaking was formerly void, unless a good consideration appeared in the writing; but this was altered by 19 & 20 V. c. 97. 3. Where an agreement is made upon consideration of marriage. 4. Where any contract or sale is made of lands, tenements, hereditaments, or any interest therein. 5. And, lastly, where there is any agreement that is not to be performed within a year from the making thereof.

Though the statute imposes the necessity of writing, it does not thereby waive any of the prior requisites to make a valid promise; as, for example, the want of a valuable consideration.

The statute requires the "agreement, or some memorandum or note thereof," to be put in writing; this means not merely the bare promise, but the terms of the contract and consideration.

The third clause does not include mutual promises to marry; it relates only to agreements to pay marriage portions, make settlements, or to do other acts in consideration of marriage.

If a promise depend upon a contingency, which may or may not fall within a year, it is not within the statute: as a promise to pay a sum of money upon a death or marriage, or upon the return of a ship, or to leave a legacy by will, is good by parol; for such a promise may, by possibility, be performed within the year.

A court of equity will decree a specific performance of a verbal

contract when it is confessed by a defendant in his answer, or when there has been part performance of it, as by delivery of possession, or the like for such acts preclude the party from denying the existence of the contract, and prove that there can be no fraud or perjury in compelling the execution of it. But a specific performance cannot be decreed if the defendant, in his answer, admit a parol agreement, and at the same time insist upon the benefit of the statute, 6 Ves. Jun. 37.

If one party only sign an agreement, he is bound by it and if an agreement be by parol, but it is agreed it shall be reduced into writing, and this is prevented by the fraud of one of the parties, performance of it will be decreed.

When a man is under a moral obligation, as a minor to pay the debts contracted in his minority; or a debt protected by the Statute of Limitations; the honesty and rectitude of the thing in these cases is deemed a sufficient consideration, although there be no strict legal debt existing.

By 9 G. 4, c. 14, no confirmation, after full age, of any promise or contract made by an infant, is sufficient to sustain an action unless given in writing, signed by the party to be charged therewith. Nor is any promise to pay a debt, protected by the Statute of Limitations, valid, unless in writing, and signed in a similar

manner.

See Promises, as a guarantee, in chapter on CONTRACTS, p. 398.

VII. FINDING.

The law of finding, after much discordant decision, has been lately determined in the Court of Criminal Appeal in Reg. v. Wood, and again in Reg. v. Moore (Easter Term, 1861). 1. If a man find goods that have been actually lost, or are reasonably supposed by him to have been lost, and appropriates them with intent to take the entire property of them, really believing, when he takes them, that the owner cannot be found, it is not theft. 2. But if he takes them with the like intent, though lost, or reasonably supposed to be lost, but reasonably believing that the owner can be found, it is larceny. In this case the prisoner had found a banknote, but had no means of knowing who was the owner. Afterwards he was informed who the owner was, but notwithstanding he changed it and applied the money to his own use. He was held not to be guilty of larceny, because, when he found it, he did not know that the owner could be found.

This version of the law of finding doubtless applies to parcels, packets, or other chattel property, left by oversight or negligence in the possession of a stranger. They can be appropriated by the finder or possessor only in the entire absence of any likelihood or natural possibility of the real owner appearing or being found.

CHAPTER XIV.

Debtors and Creditors.

CONSIDERABLE efforts have been made of late years to improve the Debtor Laws, and to lessen the costs of litigation in the recovery of debts, especially those of small amount; still, the anxiety, loss of time, and expense incurred in suits are such as to render considerate persons very cautious in instituting them. Whether an action is begun in a superior court, or in one of more limited jurisdiction, the costs are onerous, and which the debtor not, unfrequently, by availing himself of the Bankrupt Acts, throws upon the creditor. Another discouraging accompaniment of law.

suits is the rule that allows no more than taxed costs to a successful litigant, leaving him to pay the difference between them and the law charges of his legal adviser. It often happens that a person who sues for a trifling debt, and gains the day with costs, is minus three or fourfold as much for his own share of the expenses.

Having prefaced these admonitory hints, we shall briefly notice the legal changes in the relations of Debtor and Creditor. By 1 & 2 V. c. 110, the power to arrest in mesne process was abolished, and the debtor could only be arrested after judgment obtained from a competent tribunal, except he was likely to leave the kingdom, under which apprehension, if the debt amounted to £20, a special order might be obtained to hold him to bail. In compensation for the loss of power over the person, more effectual remedies given to judgment creditors over the property of their debtors, by empowering the sheriff to deliver execution of all lands and tenements, freehold or copyhold, of which the debtor, or any one in trust for him, shall be possessed, or over which he has any disposing power, for his own benefit, at or after the time of entering up judgment. The sheriff may also, under a fieri facias, seize money or bank-notes of any kind, and any cheques, bills of exchange, promissory notes, bonds, specialities, or other securities for money, the money and bank-notes to be paid over to the creditors, and the cheques, bills, &c., to be held by the sheriff as security. Judgments are to carry interest at the rate of four per cent.

In 1844 another important experiment was made in the Debtor Laws; the act of 1838 having abolished the power of arrest in mesne process, the 7 & 8 V. c. 96, s. 57, abolished arrest on final process, and prohibited imprisonment upon any judgment obtained in any court when the debt recovered did not exceed twenty pounds, exclusive of costs. Persons under execution at the time of this act for debts of less amount than £20, might obtain their discharge

on application to a judge, and in consequence the prisons were immediately cleared of all debtors incarcerated for small sums. But a power of imprisonment was allowed to the creditor by s. 59, if the debt had been contracted under false pretences, or with a fraudulent intent, or without having at the time any reasonable assurance of being able to pay.

The abolition of the power of imprisonment, both on mesne process and for judgment debts not exceeding £20, was a great curtailment of creditorial coercion, especially of retail tradesmen, whose current book-debts are chiefly below that amount; and consequently it deprived them of all compulsory process against the person for the recovery of small debts, even under judgment, leaving them solely to an execution against property, which, in the case of debtors who were not householders, or without seizable chattels, might be evaded, either by the clandestine removal or disposal of their goods. The act, therefore, was equivalent to the confiscation of debts under £20 owing from the numerous floating class of debtors; but a remedy was attempted in the following session, by the 8 & 9 V. c. 127.

Under this act it is provided, that any creditor obtaining a judgment or order from any court of competent jurisdiction in England, in respect of a debt not exceeding £20, besides costs of suit, may obtain a summons for such debtor from any commissioner of bankruptey, or any inferior court for the recovery of small debts having for a judge either a barrister, special pleader, or an attorney of not less than ten years' standing, such courts having jurisdiction over the district in which the debtor resides. The application is to be by petition. On the debtor appearing he may be examined, and, if the creditor think fit, be interrogated as to the manner and time of his contracting the debt, the means or prospect of payment he had, or may then have, and as to the disposal of any of his property since contracting the debt; the creditor may also be examined, if the court think fit or the debtor desire it, as to the nature of the claim; and the court is to make an order on the debtor for the payment of the debt in instalments or otherwise. If the debtor fail to attend, without affording a satisfactory excuse for nonattendance, or if he refuse to disclose his property or transactions respecting the same, or not answer to the satisfaction of the court, or shall appear to have been guilty of fraud in contracting the debt, or of having concealed or made away with his property in order to defeat his creditors, or if he appear to have the means of paying the instalments ordered by the court and neglect to do so, the court is empowered to commit any such debtor to the common gaol for debtors for any time not exceeding forty days. No protection or interim order from the Bankruptcy or Insolvent Debtors' Court, nor any certificate obtained after such order for imprisonment is issued, is available to protect the person of the debtor. Imprisonment under the act does not operate as an extinguishment of the

debt; but, on payment of debt and costs, or the instalment due, the debtor may be liberated from confinement, with the consent of the creditor and the court. In applications to the court, either by creditor or debtor, it is not requisite to employ either counsel or attorney. Wearing apparel, bedding, and implements of trade, to the value of £5, are protected from execution. Suits, in which the claim exceeds £10, may be removed by certiorari, or the leave of a judge, into the superior courts of Westminster. Power is given to execute warrants and levy executions, out of the jurisdiction of the court, by procuring the endorsement of a justice of the peace for the district. The application under the act to summon a debtor, must be signed by the creditor himself: the signature of an attorney or agent of the creditor will not suffice.

The 32 & 33 V, c. 62, abolishes imprisonment for debt, with exceptions, namely, default in payment of a penalty, except in respect of any contract; or a sum recoverable summarily before a justice; or a trustee acting in a fiduciary capacity; with other exceptions: but in no case is imprisonment to be for a longer period than one year. By s. 5, a saving power of committal for small debts, for any term not exceeding six weeks, or until payment of the sum due. But by s. 6, power is given to arrest a defendant, proved to the satisfaction of a judge as about to quit England, and the cause of action is to the amount of fifty pounds or upwards. The second part of this Act, s. 11, provides for the punishment of fraudulent debtors by imprisonment for any time not exceeding two years, with or without hard labour. The frauds specified amount to sixteen, consisting, generally, of false representations of property, collusive transfers of it, and other practices for the misleading and deception of creditors. By s. 12, if any person who is adjudged a bankrupt, or has his affairs liquidated by arrangement after the presentation of a bankruptcy petition against him, or the commencement of the liquidation, or within four months before such presentation or commencement, quits England, and takes with him any part of his property to the amount of twenty pounds or upwards. which ought to be divided amongst his creditors, he shall (unless the jury is satisfied that he had no intent to defraud) be guilty of felony, punishable with imprisonment for not exceeding two years, with or without hard labour.

For fraudulently obtaining credit, s. 13 provides that any person shall in each of the cases following be deemed guilty of a misdemeanor, and on conviction be liable to be imprisoned for any time not exceeding one year, with or without hard labour: that is to say, if in incurring any debt or liability he has obtained credit under false pretences, or by means of any other fraud; if he has, with intent to defraud, made or caused to be made any gift, delivery, or transfer of or any charge on his property; or if he has, with intent to defraud, concealed or removed any part of his