II. III. INJURIES TO PERSONAL PROPERTY. remedy for a debt on record is by action of debt or scire facias; CHAP. III. the former will be proper if there be a large arrear of interest, which it is probable will be recovered; but if the judgment has been only recently recovered, the plaintiff would obtain no costs without the leave of the judge, which would not be obtained in general; and, therefore, in general, scire facias, after a year has elapsed, is most proper. (t) If the debt be secured by specialty, then it is to be recovered by action of debt or covenant. If by simple contract, then by action of assumpsit, or by action of debt, provided the whole sum payable be completely due, but not if payable by instalments, and one of them be not yet due. (u) Sometimes also a summary remedy by arbitration, or by application to magistrates for wages of labourers and servants in trade, is compulsory. (x) If the contract were to perform affirmatively some other act than the mere payment of money, as if it were to convey an estate or an interest in land, or made upon the transfer of the goodwill of a business, and to deliver certain books relating thereto, (and not a mere ordinary sale of a personal chattel, the remedy for the breach of which would be adequately compensated by a verdict for damages at law,) a bill in equity may sometimes be filed to compel specific performance. (y) And on the other hand, if the contract were negatively, as not to do some act, as upon the sale of a coach concern or other business, not to run an opposition coach, or interrupt the concern, then the purchaser may file a bill against the vendor, and restrain him by injunction from running any coach, or otherwise violating his express contract. (~) In cases also of breaches of stipulations in leases, in respect of which a clause of forfeiture or re-entry is expressly provided, effectual redress may be obtained, when the lease is valuable, by entering and vacating the lease. (a) But in general the remedy for the breach of contract to perform or omit the performance of any act, is an action of cove (t) 43 Gen. 3, c. 46. (u) 1 H. Bla. 547; 5 Bing. 200. (1) 9 Geo. 4, c. 92, as to friendly societies; Crisp v. Banbury, 8 Bing. 394; and as to servants, 5 Geo. 4, c. 96, post. (y) 1 Sim. & S. 174, 690; Chit. Eq. Dig. Agreement, XI., 42 to 63, post. When a bill lies to compel performance of specific agreement to enter into partner ship for a term, 16 Ves. J. 49; so to de- (*) 2 Swanst. 253; 2 Mad. 198; Chit. CHAP. III. nant, if the instrument were under seal; (b) and if not, then II. III. INJURIES ΤΟ PERSONAL PROPERTY. Sixthly, Injuries by deceit, but relating to a contract. an action of assumpsit. There are numerous choses in action or rights to sue, which are in some measure connected with contracts, and yet the remedy is not for a breach of contract, but for deceit or misrepresentation, which has occasioned damage to a party. Thus if a person assuming to accept a bill for another, represent that he is authorized so to do, and the holder in consequence retain the bill, and sue the supposed acceptor, and be nonsuited, and have to pay costs, he may afterwards sue the pretended agent for the amount of the bill and the costs, though the jury negative fraud.(c) So if a person fraudulently obtain goods on credit, he may be sued specially in case for the fraud before the expiration of the credit, though he could not be sued as for goods sold until after the credit had expired. (d) So if a party be induced to give more for goods sold by written particulars by a verbal misrepresentation of the auctioneer, he must sue specially for the deceit, and is bound to perform his written contract. (e) And whenever there has been actionable deceit, the action should be expressly founded thereon. (f) Actions for misrepresenting the solvency or character of a third person, in order to induce a trader to give him credit, have been restrained by the recent enactments requiring such representations to be in writing, and signed by the party making it. (g) Choses in action, independently of contracts, are claims for legacies, distributive shares, and rights to receive or recover payment of money or damages, or a penalty under various statutes, such as contribution towards the expense of a partywall, &c. In general no action is sustainable even for specific legacy, still less for a legacy payable out of general assets, and the same is only recoverable in a Court of Equity or in the Spiritual Court. But in the case of a specific legacy of a moveable chattel or a chattel real, if the executor express his assent, the legal interest therein immediately vests in the legatee; and he may take possession or maintain actions as if in actual possession, (b) Com. Dig. Covenant, A. 3 Bar. & Adol. 114; 7 Bing. 107; 6 Bing. 396. (d) 9 Bar. & Cres. 59. (e) 12 East, 11; 6 Taunt. 522. 4 Taunt. 488, 647, 779; 6 Taunt. 522. (g) 9 Geo. 4, c. 14, s. 6. By a singular mistake in printing that clause, the reading is not clear. Semble, that it should be "obtain money or goods upon credit," and not "credit, money, or goods upon, unless," &c. and may maintain ejectment to recover the property if entitled to immediate possession.(h) In case of a legacy or distributive share to be paid out of the general assets of the testator, the mere assent of the executor will vest no legal interest, nor can any action be supported to recover the value, unless the executor expressly promise in writing to pay, and then there also must be a new consideration, such as forbearance, to give effect to such a promise, and enable the legatee to sue at law. (i) Unless there be an express new consideration, and express promise thereon, the remedy for such pecuniary legacy is only in equity, (k) or in the Ecclesiastical Courts; () or by action on the administration bond after (and not before) decree in the Spiritual Court. (m) If the executor offer to pay the legacy, but impose certain conditions, the performance of which he has no right to require, he will be liable to pay the costs of a suit in equity against him. (n) With respect to the remedy to compel contribution towards the expense of a party-wall, the building act expressly provides an action. (o) II. III. INJURIES ΤΟ PERSONAL PROPERTY. Criminal injuin action, and ries to choses The criminal injuries relating to choses in action are principally the false making or forgery, prohibited and punished by several acts, but principally by the 11 Geo. 4, and 1 W. 4, punishment. c. 66; (p) and the act 2 & 3 W. 4, c. 123, taking away the punishment of death, excepting in cases of forgery of certain public documents; and the offences of larceny, embezzlement, and false pretences, as regards bills of exchange and other valuable securities, are also punishable under the 7 & 8 Geo. 4, c. 29. The forging an instrument having the semblance of a valid instrument, and likely to deceive, is an offence, though the instrument would not be perfectly valid for civil purposes. (q) But as to larceny and other offences of that nature, they are not committed unless the bill or valuable security stolen would have been valid and duly stamped, and enforceable in a civil action. (r) The stealing or injuring of records and legal proceedings and 70; a legacy may also be secured by in- (0) 14 Geo. 3, c. 78, s. 41; Chitt. Col. (p) See cases and proceedings thereon, Chit, on Bills, 8 ed. 734 to 764. (q) See Chitty on Bills, 8 ed. 742, 743. (r) Rex v. Pooley, 2 Leach, 887; Rex v. Yeates, cor. twelve judges, A. D. 1828 ; Car. Crim. L. 3 ed. 273. CHAP. III. documents, (s) and the concealing or destroying any will, codi II. III. INJURIES ΤΟ PERSONAL PROPERTY. cil, or any testamentary instrument; (t) and the stealing writings relating to real estate, (u) and the stealing bills of exchange and other valuable securities before enumerated, (x) are made criminal. But it does not appear that there is any particular criminal enactment against damaging or injuring any bill of exchange or other valuable security, excepting a record or a will as above prohibited, or excepting where the act amounts to a larceny or forgery; though, where any malicious injury has not exceeded 57. it would be punishable under the general clause against wilful and malicious injuries to any public or private property; (y) and it should seem that an action on the case might be supported for illegally cancelling the acceptance of a bill, or altering the bill itself, so as to render it invalid, unless the owner assented to the alteration. (z) (s) 7 & 8 Geo. 4, c. 29, s. 21; Rer v. Walker, R. & M. C. C. 155. (t) Id. s. 22. (u) Id. s. 23. (r) Id. s. 5. (y) 7 & 8 Geo. 4, c. 30, s. 24. property and REAL Property is legally distinguished from Personalty prin- Distinctions cipally in two respects; first, its permanent fixed and immove- between real able quality; and secondly, that the interest therein must be personalty in not less than for the term of the life of the owner, or of another general. person or persons; whereas Personalty is either moveable or readily capable of being so, or, as in the case of a lease for years, is considered as of so inferior a nature that it is not allowed the incidents and privileges of real property. (a) The several circumstances which distinguish real property from personalty are, 1st. Its permanent and immoveable property, and the necessity for the owner having at least an estate for life therein, and on which account this property was formerly more regarded than personalty, and particular laws were more carefully pro (a) 2 Bla. Com. 386. Even a long term of years perpetually renewable, is not real, but only personal property, ante, 84, n. (a). VOL. I. L |