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CHAP. XIV.

DEBT.

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

maintained.

II. Debt on Simple Contract-New 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; immoral—in restraint of Trade, &c.

2. By Statute;-Gaming-Sale of Office-Simony -Usury.

5. Infancy.

6. Payment Solvit ad Diem-Solvit 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-Replication Of the Liability of the Heir for the Value of the Land aliened under 3 & 4 W. & M. c. 14. s. 5. repealed by 11 G. 4, & 1 W. 4.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 Occupation-Pleadings-Evidence.

IX. Debt against Sheriff, &c. for Escape of Prisoner in
Execution-Stat. 13 Ed. 1. c. 11. 1 R. 2. c. 12.—
What shall be deemed an Escape-By whom the
Action for an Escape may be brought-Against whom
-Declaration-Pleadings-Evidence.

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 ElectionsProvisions of the Statute-Declaration. EvidenceStat. 7&8 W. 3. c. 4. Treating Act.

I. 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 penaltyb, 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 due under an award. 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 per

money

formance.

a Carth. 161, 2.

b 1 Rol. Abr. 598. pl. 18, 19. e 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 deed, 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 plaintiff 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.

II. Debt on Simple Contract-New 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 received. 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. Ca. Temp. Hardw. 116, S. C.

g Ingledew v. Cripps, Ld. Raym. 814. Salk. 658. S. C.

h Bull. N. P. 167.

i Speake v. Richards, Hob. 206.

k Bishop v. Young, 2 Bos. and Ful. 78, cited in Cresswell v. Crisp. 4 Tyrwh. 991.

create a duty any more than a promise made by a stranger to pay, &c. if the creditor will forbear his debt. The drawer of the bill is the debtor, and continues to be the debtor, notwithstanding the acceptance; for that is a collateral engagement only (1); nor will debt lie for a wager1. Debt lies upon a foreign judgment; as upon a judgment of the supreme court in Jamaica; and, in an action of this kind it is not necessary for the plaintiff to state the grounds of the judgment, the judgment being of itself primâ facie evidence of a simple contract debt: it is competent, however, to the defendant, to impeach the judgment by shewing it to have been irregularly or unduly obtained. To support an action on a foreign judgment", it is not sufficient to prove the judge's hand-writing subscribed to it; the seal affixed thereto must also be authenticated; or evidence must be given that the court has not any seal; and then the judgment may be established by proving the signature of the judge. In debt on judgment of inferior court, the declaration must contain an averment, that the cause of action arose within the jurisdiction of the inferior court; otherwise it will be bad, on demurrerp. It will not suffice to allege that the plaintiff recovered his damages within that jurisdiction. A declaration in debt for goods sold and delivered, stating that the defendant at W., in the county of M., was indebted to the plaintiff in a certain sum for goods sold and delivered, is sufficient; for the words "sold and delivered" imply a contract; as there cannot be a sale, unless two parties agree; and as the venue goes to the whole declaration, the venue laid must be taken to be the place where the contract was made for the sale of the goods.

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Formerly, it was considered as necessary that the amount of the sums claimed to be due in the several counts of the declaration should correspond exactly with the sum de

1 Ld. Raym. 69.

m Walker v. Witter, Doug. 1.

n Henry v. Adey, 3 East, 221. See Buchanan v. Rucker, 1 Campb. 63.

Appleton v. Lord Braybrook, 2 Stark.

N. P. C. 6; 6 M. and S. 34.

o Alves v. Bunbury, 4 Campb. 28.
p Read v. Pope, 4 Tyrw. 403.
q Emery v. Fell, 2 T. R. 28.

(1) "Indebitatus assumpsit will not lie in any case except where debt lies; therefore it lies not against the acceptor of a bill of exchange; for the acceptance is merely a collateral engagement: but indebitatus assumpsit lies against the drawer, who is really the debtor by the receipt of the money; and debt will lie against the drawer." Hard's case, Salk. 23.

manded in the

recital of the writ, and neither exceed nor fall short of it. But this is not now considered as requisite; and in a late caset, where debt was brought on simple contract, it was holden, on special demurrer to the declaration, that the declaration was good, although the sums claimed to be due in the several counts did not amount to the sum demanded in the recital of the writ; and although the breach was assigned for non-payment of the sum demanded; the court observing, that in debt on simple contract the plaintiff might prove and recover a less sum than he demanded in the writ. In like manner where an action of debt was brought in the Court of King's Bench", on a bond and several simple contracts, and the amount of the sums claimed to be due in the several counts exceeded the sum demanded in the beginning of the declaration, it was holden, on special demurrer. that the declaration was good; for the words "of a plea that he render £ "in the King's Bench, at least are superfluous words, and being rejected there will not be any repugnance on the face of the declaration. See also the opinion expressed by Lord Mansfield, Ç. J. in Walker v. Witter, 1 Doug. 3d edit. 6, "it is not necessary that the plaintiff should recover in debt the exact sum demanded." See also Aylett v. Low, 2 Bl. R. 1221, where in debt on a mutuatus for 2007. and verdict for 1007., the court refused a new trial; although it was urged, that debt being an entire thing, it could not be recovered in part.

By R. G. H. T. 4 W. 4, in actions of debt on simple contract, other than on bills of exchange and promissory notes, the defendant may plead, that "he never was indebted in manner and form as in the declaration alleged," and such plea shall have the same operation as the plea of non-assumpsit in indebitatus assumpsit; and all matters in confession and avoidance shall be pleaded specially, as above directed, in actions of assumpsit. See ante, p. 122. In other actions of debt in which the plea of nil debet has been hitherto allowed, including those on bills of exchange and promissory notes, the defendant shall deny specially some particular matter of fact alleged in the declaration, or plead specially in confession and avoidance. As by the new rules, in an action of indebitatus assumpsit for goods sold and delivered, the plea of non-assumpsit will operate only as a denial of the sale and delivery in point of fact; so in debt for

r Hulme v. Saunders, 2 Lev. 4.

s Smith v. Vowe, Moore, 298.

t M'Quillin v. Cox, 1 H. Bl. 249, re

cognized in Gardner v. Bowman,

4 Tyrw. 412.

u Lord v. Houstoun, 11 East, 62.

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