dependence previous to the execution; and as it is necessary to file the warrant or cognovit, within twenty-one days from its date, in a public office, that alone is sufficient to deter other persons from giving credit, the fact being easily ascertained of such a sweeping instrument being suspended over the party's head and property.

The 3 G. 4, c. 39, provided that a book should be kept by the clerk of the docquets in the Court of King's Bench, in which every warrant of attorney, or cognovit actionem, or copy thereof, should be entered, to be searched at all reasonable times by any one, on payment of 6d. for each person searched for. The 6 & 7 V. c. 66, directs that, in addition to such book, another book or index should be kept of the names, additions, and descriptions of the persons giving such warrants of attorney, or cognovits, but no further particulars (these being entered into the book under the previous act, as heretofore); this index to be open to inspection, upon payment of 18. for the search for each name sought for.

The Debtors Act, 1869 (32 & 33 V. c. 62), enacts that no warrant of attorney or cognovit shall be of force unless there be present an attorney on behalf of the party executing, expressly named by him, and attending at his request to inform him of its nature and effect before it is executed; which attorney is to subscribe his name as a witness to the execution.

A warrant of attorney is also void against creditors unless filed in the Queen's Bench.

V. COVENANT.

A covenant is the agreement of two or more persons to do or omit some specified act, and is created by deed, in writing, sealed and executed by the parties.

If a man covenant to be in London on a particular day, and is not in London by the time appointed, that is a breach of covenant, for which an action will lie. So, if a man, for a valuable consideration, agree that he will not exercise his trade or profession within a particular place, he is bound by it; but an obligation which binds a person to a total restraint of trade, whether for a limited time or generally, is unlawful and void.

A covenant must be to do what is lawful, or it will not be binding; and if the thing to be done be impossible, the covenant is void.

If a man covenant with one to pay him money on a time to come, and the covenantee die before the day, his executors have an action of covenant for the money. Also in every case where a testator is bound by a covenant, the executor is liable, if it be not determined by the testator's death; but there may be a covenant only to be performed by the parties themselves.

In deeds and articles of covenant, sometimes, a clause for performance with a penalty is inserted; and, at other times, and more

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frequently, bonds are given for the performance, with a sufficient 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 non-performance 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. 465.

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 lawsuits 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 were 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 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.

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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 curtail-, ment 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 judg ment 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 bankruptcy, 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