Page images
PDF
EPUB

plaintiff under a covenant for good title. A formedon was afterwards brought against plaintiff by a party having better title, and the plaintiff compromised it for a large sum. It was holdene, that in an action for breach of the covenant for good title, the plaintiff might recover the whole sum so paid, and also his costs as between attorney and client, in the compromised suit, although he had not given any notice of that suit to the defendant; for the only effect of want of notice in such a case is to let in the party called upon for an indemnity, to shew that the plaintiff has no claim in respect of the alleged loss, or not to the amount alleged, or that he made an improvident bargain, and that defendant might have obtained better terms, if the opportunity had been given him.

Judgment. The judgment is for the recovery of the damages sustained'. If the defendant has judgment against him upon nil dicit, confession, or demurrer, a writ of inquiry shall be awarded to inquire of the damages &. Where the breach was assigned on two covenantsh, and plaintiff had good cause of action only on one, and issue was joined on both, and verdict for plaintiff on both, and damages entirely assessed, it was holden that plaintiff could not have judgment. Covenant was brought against two defendants for not building a house'; one suffered judgment to go by default, the other pleaded performance, which was found for him; it was holden, that the plaintiff could not have a writ of inquiry of damages, or judgment against that defendant who had suffered judgment by default; because the covenant being joint, and the performance of it having been established by the verdict, it appeared, that plaintiff had not any cause of action.

If on the whole record it appears, that the defendant has committed a breach of the covenant declared on, although the plaintiff states his real gravamen informally, judgment cannot be arrested; for, however defective the pleadings are, the court are bound ex officio to give such judgment as the law requires them to do:

As where A. declared that B. before her intermarriage with Ck, by deed covenanted with A. to leave certain matters to arbitration, and to abide by the award, provided it were made during their lives; and protesting that B. had not before her intermarriage performed her part of the covenant, averred that e Smith v. Compton, 3 B. and Ad. h Anon. Cro. Eliz. 685. 407.

i Porter v. Harris, 1 Lev. 63. f See the form, Townesend, 2 Bk. k Charnley v. Winstanley and Wife, Judg. 55.

5 East, 266. g See the form, 1 Saund. 47.

after making of the indenture and the intermarriage of the defendants, the arbitrator awarded B. to pay a certain sum : and the breach assigned was the non-payment of the sum so awarded. After verdict for plaintiff, on non est factum pleaded, it was moved, in arrest of judgment, that the marriage of B., after entering into the covenant, and before award made, was a revocation of the arbitrator's authority, and consequently there could not be any breach of an award which he had not any authority to make. Lord Ellenborough, C. J. said, that if the case had come on upon a special demurrer, as for a defective allegation of the breach of covenant by marrying, there would have been good ground for the defendants' objection to the manner of declaring: but although the plaintiff had stated his gravamen informally, yet there was a sufficient allegation of the fact of the marriage being before the award, which constituted a breach of covenant, to warrant the court in giving judgment for the plaintiff on that ground. Rule discharged.

CHAP. XIV.

DEBT.

I. Of the Action of Debt, and in what Cases it may be

maintained. II. Debt on Simple ContractNew Rules. III. Debt on Bond-Of the Pleadings :

1. General Issue, non est factum, and evidence thereon

New Rules.
2. Accord and Satisfaction.
3. Duress,
4. Illegal Consideration,

1. By the Common Law; immoralin restraint of

Trade, &c. 2. By Statute ;-Gaming -Sale of Office-Simony

-Usury. 5. Infancy. 6. PaymentSolvit ad DiemSolvit post Diem, and

Evidence thereon. 7. Release.

8. Set-off IV. Debt on Bail-Bond-Stat. 23 H. 6. c. 10.— Assignment

of Bail-Bond under Stat. 4 Ann, c. 16.—Declaration by Assignee-Of the Pleadings ; comperuit ad Diem

—Nul tiel Record. V. Debt on Bond, with Condition to perform Covenants

Assigning Breaches under stat. 8 & 9 W. 3. c. 11,

8. 8.

VI. Debt on Bond of Ancestor against Heir-Pleadings,

Riens per Descent ReplicationOf the Liability of the Heir for the Value of the Land aliened under 3 8 4 W. & M. c. 14. s. 5. repealed by 11 G. 4, 8 1 W. 4. c. 47.- Of the Liability of Devisee under the Statute-Judgment Execution.

VII. Debt on Judgment.
VIII. Debt for Rent Arrear-Stat. 4 G. 2. c. 28, against

Tenants holding over after Notice from Landlord-
Stat. 11 G. 2, c. 19, against Tenants holding over after
Notice given by themselves Declaration-Debt for

Use and OccupationPleadingsEvidence.
IX. Debt against Sheriff, &c. for Escape of Prisoner in

ExecutionStat. 13 Ed. 1. c. ll. 1 R. 2. c. 12.-
What shall be deemed an Escape-By whom the
Action for an Escape may be brought-Against whom

-DeclarationPleadingsEvidence.
X. Of the Statutes, and general Rules, relative to Actions

founded on Penal Statutes. XI. Debt on Stat. 2 G. 2, c. 24.—Bribery at Elections

Provisions of the Statute-Declaration. Evidence-
Stat. 7 8 8 W. 3. C. 4. Treating Act.

1. Of the Action of Debt, and in what Cases it may be

maintained.

An action of debt lies for the recovery of a sum certain upon simple contract, bond, other specialty, or record; for rent arreara; against a gaoler for the escape of a prisoner in execution; or upon statute by the party grieved, or common informer. If a statute prohibit the doing an act under a certain penalty b, but does not prescribe any mode for recovering the penalty, the party entitled may recover the penalty by action of debt. Debt also lies for the

recovery

of a sum of money

due under an awardc. So on the decreed of a colonial court for payment of the balance due on a partnership account. But debt will not lie for money, ascertained by the master's report and ordered to be paid by a decree of a court of equity for interest and costs, on bill filed for specific performancee.

a Carth. 161,
b 1 Rol. Abr. 598. pl. 18, 19.
c Adm. 2 Saund. 66.

d Henley v. Soper, & B. and C. 16.
e Carpenter v. Thornton, 3 B. and A.

52.

Debt lies for an amerciament in a court leetf. In this case it ought to be alleged in the declaration, that the defendant was an inhabitant, as well at the time of the amerciament, as of the offence; but the omission of this averment will be cured by verdict. The plaintiff declared in debt on a deeds, whereby the defendant covenanted to pay the plaintiff so much per hundred for every hundred stacks of wood in such a place, and bound himself in a penalty for the performance; it was averred, that there were so many stacks, which amounted to a sum exceeding the penalty, for which sum the plaintiff brought his action. On demurrer it was objected, that, as there was a penalty for a certain sum, the plaintiff could not have an action for more than that sum; but the objection was overruled, Holt, C. J. observing, that the plaintiff had an election either to sue for the penalty, or for the rate agreed on, although it exceeded the penalty; for the penalty was inserted only to enforce payment. It was then objected, that the proper form of action was covenant, and not debt; but per Cur. the plain

may have covenant or debt at his election; for the rate being certain, when the defendant has the wood, the agreement becomes certain, for which debt lies. In the action of debt, the plaintiff is to recover the sum in numero, and not a compensation in damages, as in those actions which sound in damages only; such as assumpsith, &c. The damages given in the action of debt, for the detention of the debt, are merely nominal.

tiff

II. Debt on Simple ContractNew Rules.

Debt lies upon a simple contract, either express or implied', to pay a sum certain.

Debt lies by the payee against the maker of a promissory note, expressing a consideration on the face of it; as where it is expressed to be for value receivedk. But debt will not lie upon a bill of exchange against the acceptor; for, though the acceptance binds by the custom of merchants, yet it does not

f Wicker v. Norris, Bull. N. P. 167. i Speake v. Richards, Hob. 206.

Ca. Temp. Hardw. 116, S. C. k Bishop v. Young, 2 Bos. and Ful. g Ingledew v. Cripps, Ld. Raym. 814. 78, cited in Cresswell v. Crisp. Salk. 658. S. C.

4 Tyrwh. 991. h Bull. N. P. 167.

« EelmineJätka »