common law, that the debt must be destroyed by evidence of as high a nature as the debt itself. In England there is no relief at law, against the payment of the whole penalty, upon a breach of the conditional part of the bond, which rendered it neceffary to apply in chancery for relief against the penal part, upon the payment of the fum actually due. But in this ftate, by force of a statute for that purpose, courts are vefied with the equitable power to chancer the bond to the fum which is juftly due, according to the conditions. Recognizances,are bonds acknowledged before fome court, conditioned to abide final judgment, or to profecute appeals, or for other purpofes, as the cafe may be, and are cor fidered as matters of record. On thefe, actions of debt as well as fcire facias, will lie. 3. Of debt on leafes, or for rent. • Rents referved on leafes for years, are at all times when due recoverable by action of debt. So where one is tenant at will, with a rent reserved, the leffor may always have action of debt, for rents in arrear. But this action does not lie for rent against tenants at fuiferance ;, nor will it lie for arrears of a freehold rent, during the continuance of the leafe. If there is leffee for years, and he affigns all his interest to another, yet the leffor may ftill have action of debt against him for rent in arrear, after affignment; firft, because the leffee shall not prevent by his own act fuch remedy as the leffor has against him, on his own contract; fecondly, that the leffee might grant his term to a poor man, who not being able to manure the land, and fo for need, or malice, it would lie untilled, and the leffor be without remedy by action of debt. But the leffor may accept the affignee for his tenant, and fo difcharge the original leffee. And if he once accepts rent from the affignee, he can never resort back to the first leflee. But the affignee is bound to pay the rent no longer than while in poffeffion, and he may at any time effign over his term, and fo difcharge himself, even if it be to an infolvent perfou; for the action between theleffor and the affignee, is founded on the privity of eftate, which is gone by the affign a Lit. feat. 58. Clo. Jac, 334. b Idem, fe & 72. f 2 Strange, 1221. ment c Co. Litt. 162. a d3 Coke, 22. Salk. 81. ment. a But if leffee for years, dies, his executor, or adminiftrator may affign the term, and fhall not be chargeable for rent after the affignment; for as they could fell the term to pay debts, fo they can affign it, and be discharged from ali fubfequent demands of rent. If leflee for years, affigns over his term, and dies, the executor fhall not be charged for rent, due after his death, for by the death, both the privity of the estate and of the contract, are at an end. 4. Of Debt on Judgment. It is a rule of the common law of England, that whenever a perfon has recovered a judgment, an action of debt will at any time lie on that judgment, while it is fubfifting. That the plaintiff may at any time within a year and a day after the rendering of the judgment, pray out an execution; but that after the expiration of that time, he must by the common law have recourfe to his action of debt, and by the flatute of Westminifter the fecond, he may bring fcire-facias, and obtain execution, which is now the common practice. But in this ftate, our courts have deviated from the common law of England, and have adopted this rule that execution may be prayed out on a judgment at any time during the life of all the parties; and to avoid vexation and multiplicity of faits," they have determined, that no action will lie on a judgment during the life of the parties, and when execution can be prayed out, and fatisfactior. obtained. But if the judgment creditor can obtain an advantage by a new action on the judgment, which he cannot have by taking out the execution, then action will lie;" eas where a judgment debtor abfconds, leaving estate in the hands of an agent, or trustee, but no eftate on which the execu tion can be levied; then an action of debt on the judgment will lie, to enable the plaintiff to recover his due out of the effects of the abfconding debtor, in the hands of his agent or truffee, by foreign attachment: but it must be averred in the declaration, that an execution has been iffued upon the judgment declared on, and a non eft inventus returned, or that no goods, or perfonal eftate of the debtor could be found, on which the execution might be levied, and fatisfaction of the debt obtained. Cro. Eliz. 715. 1 Efpin. Dig. 213. Ky's, Rep. 311. If any of the parties are dead, then debt or fcire facias will lie on the judgment, to enable the parties to carry it into effect by obtaining execution. Action of debt will lie on judgments rendered by any of the courts of the United States, or any of the States in the Union. If the judgment be rendered where both the praties are within the jurifdiction of the court, it is conclufive evidence of the debt, and cannot be impeached, Full credence ought to be given to the judgments of the courts in any of the United States, where both the parties are within the jurifdiction of fuch court, at the time of commencing the fuit, and are duly ferved with the process, and had or might have had a fair trial of the caufe: all which, with the original caufe of action ought to appear by the plaintiff's declaration, in an action of debt on fuch judgment. But where it appears, that the defendant was out of the jurifdiction of fuch court, when the fuit was commenced, and had no legal notice of the fuit, no action ought to be admitted on fuch judgment. a As where a person in the Commonwealth of Maflachufects, commenced an action against an inhabitant of the State of Connecticut, and service was made on the defendant by attaching in Maffachusetts by the sheriff there, an handkerchief, pretended to be the property of the defendant, and then fending by the hands of two perfons a fuminon, which was left at the houfe of of the defendant, which was averred to be according to the laws of Massachusetts; but the court determined that the defendant being out of the jurifdiction of the courts of the Cominonwealth of Maflachusetts, at the time of commenc ing the fuit, no legal service could be made of a procefs ifluing from fuch court upon him while in this ftate, and therefore refu. fed to fuftain the action, If judgment be obtained in another ftate, and the debtor has there property fufficient to fatisfy the fame, and which may be taken on execution, the creditor is bound to feek fatisfaction for his debt there, and action will not lie on the judgment. It is not neceffàry that there should be a return of non eft inven. tus Kirby's, Rep. 119. Idem, $77. tus of the execution, to prove that eftate cannot be had to fatiffy the debt; but if it appear on evidence that no estate could have been obtained, on which to levy the execution, or if the right to the property be difputable, or the fufficiency doubtful, the officer is not bound to run any hazard; the judgment cre ditor, has a right to purfue him into any other ftate, and obtain fatisfaction for his debt in a mode which will not expofe him to any inconvenience, by rendering his body liable to be taken in execution and imprisoned till he will difcharge the debt. But where an action of debt on judgment rendered in another state, was brought, and the defendant pleaded that on the original fuit he was attached, and procured bail to abide final judgment-and that fuch bail was liable and able to refpond fucli judgment, and therefore the plaintiff had no right of action; the court decermined that the plaintiff was not bound to purfue the bail, but might proceed against the principal by action of debt. • Action of debt, or indubitatus affumpfit, will lie on a foreign judgment-in which cafe the judgment is prima facie evidence of the debt, a fufficient ground for the action, and the plaintiff is not boundto fhew any other confideration. Such judgments however are examinable, but it belongs to the defendant to impeach the juftice thereof, or fhew the fame to have been uudaly or irregularly obtained. But affumpit will not lie upon a judg ment rendered by any of the courts of this, or any of the United States-debt only will lie in fuch cafes. 5. Of Debt on Awards. In all cafes of awards, debt may be fuftained upon them, tho the party may have a bond, or other written agreement to abide the award; in which cafe, he may bring action on the agreement, or debt on the award. Where there is no agreement to abide the award, and there is a naked fubmiffion, yet when the award is publifhed, the law implies from the fubmiffion an agreement to abide, and debt will lie on the award. The action must fet cut the award and aver a fulfilment on the part of the plaintif, of every thing neceffary to be done on lis part. a Douglass. I. It It is a general rule, that debt will lie in all cafes whers indubitatus affumpfit will lie. The old doctrine, that in debt, the plaintiff can recover only the precife fum he fues for, is exploded-and later decisions warrant the recovery of a lefs fum than fued for. COVENANT is an action brought for the recovery of dam ages, for a breach of any agreement, entered into by deed between the parties under hand and feal. Covenants, are either in deed, or in law. Covenants in deed are fuch as are exprefsly mentioned and recited in the agreement between the partes. Covenants in law are fuch as the law raifes, or implies, tho not expreffèd. As if leffor demifes to leffee, for a certain term, the law always implies a covenant on the leffer's part, that the leffee fhall quietly enjoy during the term. Covenants may again be confidered with reference to the ob ject, as real or perfonal; that is annexed to the land, or merely to the perfon. To illuflrate this fubject fully, I fhall confider, 1. The creation of Covenants. 2. The conftruction of Covenants. 3. The breach of Covenants. 4. Covenants as they refpect Affignee, Heir, and Executor. 5. The declaration and defence in actions of Covenant. 1. Of the creation of Covenants. There is no need of the word covenant, nor of any particular form of words to constitute a covenant in deed-for any thing under the hand and feal of the parties, importing an agreement, fhall fupport this action as amounting to a covenant. As in the cafe of a leafe for lands, in which are the words yielding and paying fo much rent. This is a covenant, and this a Vail vs. Mumford, Sup. C. 1789. Rep. 1221. Espir. Dig. 311. Cowp. 128. Douglafs, 6. action |