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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 wager!. Debt lies upon a foreign judgmentm; 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 prima facie evidence of a simple contract debt: it is competent, how

ver, 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 judgeo. 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 9, 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

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.

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

venue

1 Ld. Raym. 69.

Appleton v. Lord Braybrook, 2 Stark. m Walker v. Witter, Doug. 1.

N. P. C. 6; 6 M. and S. 34. n Henry v. Adey, 3 East, 221. See o Alves v. Bunbury, 4 Campb. 28. Buchanan v. Rucker, 1 Campb. 63. 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 exceedr nor fall short of its. 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 Benchų, 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 2001. and verdict for 1001., 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 goods sold and delivered, if the defendant plead “ that he never was indebted, he will not be permitted to give evidence to show, that the goods were sold on credit, which had not expired. Such a defence should be pleaded specially. The form given, “ that the defendant never was indebted," must be strictly pursuedy; where the defendant denies the sale and delivery. With every declaration, if delivered, or with notice of declaration, if filed, containing counts in indebitatus assumpsit, or debt on simple contract, the plaintiff shall deliver fuil particulars of his demand under those counts, where such particulars can be comprised within three folios, and where the same cannot be so comprised, he shall deliver such a statement of the nature of his claim, and the amount of the sum or balance which he claims to be due, as may be comprised within that number of folios: R. G. T. T. 1 W. 4. The rule is not imperative; but if plaintiff omit to deliver particulars, he will not be allowed for them in costs, if afterwards called for and delivered. See Jervis's new rules, p. 28. n. A copy of the particulars shall be annexed to the record by plaintiff's attorney: when so annexed, the delivery of them need not be proved at the trial. See ante, p. 71. “ Whilst it was considered to be law, that an action of debt on simple contract was founded on one entire single contract, and that the plaintiff could not recover less than the whole, a special plea of payment was also' entire; and if the full amount was not proved to be paid, the plaintiff was entitled to a verdict; but since it has been established, that the demand in debt on simple contract is divisible, and the plaintiff may recover less, and since several contracts may be included in one sum in debt on simple contract, as well as indebitatus assumpsit, and since a plea of payment, whether pleaded to a declaration in one form or other, must have the same meaning, and does not, of necessity, import that one entire sum was paid at one time, there is not any satisfactory reason why it may not be considered as capable of being severed in one case as well as the other, whether pleaded to the whole declaration, or to part. The only difference between the two actions will therefore be, that in assumpsit the plea to the whole declaration admits no certain sum to have been originally due from the defendant to the plaintiff, whilst the plea to the whole declaration in debt admits the sum nominally claimed to have been originally due. In either, the verdict may be found for the whole, or for the part actually paid, according to the factz"

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.

x Edmunds v. Harris, 2 Ad. and Eli. in his declaration, viz. to pay on re414.

But per Parke, B.-"I be- quest.” Taylor v. Hilary, 1 Cr. lieve, some doubts have been ex- M. and R. 743. See also Alexander pressed with regard to that decision. v. Gardner, 1 Bingh. N. C. 671. If the time of credit has not expired, y Smedley v. Joyce, 2 Cr. M. and R. the plaintiff proves a different con- 721 ; 1 Tyr. & Gr. 84. tract from that which he has stated

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; GamingSale of Office-Si

monyUsury.
5. Infancy.
6. Payment-Solvit ad Diem-Solvit post Diem,

and Evidence thereon.
7. Release.
8. Set-off

Debt on Bond.—If a bond be dated on a day certain, with a penalty conditioned for the payment of the lesser suma, and there be not any day fixed for the payment of the lesser sum, such sum is payable on the day of the date; and if an action be brought upon the bond, the court will refer it to the master to compute principal, interest, and costs, and on payment of the same, will stay the proceedings under the stat. 4 Ann. c. 16. s. 13. Interest will become due on such bondb, although not expressly reserved, and is to be computed from the day on which the money secured by the bond becomes payable, viz. the day of the date. At law and in equity the penalty is the debto; and interest cannot be recovered beyond the penalty, except under special circumstances. In an action upon the bond, interest cannot be recovered beyond the penalty; but after judgment recovered, transit in rem judicatam; the nature of the demand is altered, and in an action on the judgmentd, it is competent to the jury to allow interest to the amount of what is due, although such amount exceed the penalty of the bond and costs of the judgment; and in this respect there is not any difference between a foreign judgment and a judgment in a court of record here.

z Per Parke, B. delivering judgment,

Cousins v. Paddon, 2 Cr. M. and R.

560, a Farquhar v. Morris, 7 T. R. 124.

See also Nose v. Bacon, Cro. Eliz.

798 ; 1 Inst. 208. a. b 7 T. R. 124. c Per Sir W. Grant, Clarke v. Seton,

6 Ves. jun. 411.

If a person be bound to pay a certain sum of money at several days, the obligee cannot maintain an action of debt until the last day be past (2). But upon a bond with a penalty conditioned to pay several sums of money at different daysf, debt will lie immediately on default of payment at either of the days (3); for the condition is thereby broken, and consequently the bond becomes absolute. And this rule holds, although the condition of the bond does not expressly provide," that in default of payment at any of the said times, the bond shall be in force.”* If A. enter into a bond to pay money on two several contingencies, the obligee may maintain debt on the happening of either contingency. If an instalment of an annuityh, secured by bond, be not paid on the day, the bond is forfeited, and the penalty is the debt in law, for which judgment may be entered, which shall stand as a security for the growing arrears of the annuity. Where a place of date is mentioned in the bond, it is incumbent on

d M'Clure v. Dunkin, 1 East, 436. g 1 Lev. 54.
e 1 Inst. 47. b. 292. b. F. N. B. 304. h Judd v. Evans, 6 T. R. 399.
f Coates v. Hewit, I Wils. 80. Bull. i Robert v. Harnage, Ld. Raym. 1043.

N. P. 168. S. C. Hallett v. Hodges, Salk. 659. S. C. 1 Inst. 261. b. See
cited by the Reporter, 1 Wils. 80. also Dutch W. I. Company v. Van
and Say. R. 29. S. P.

Moses, 1 Str. 612.

4

(2) Debt will not lie on a promissory note payable by instalments, until the last day of payment be past. Rudder v. Price, 1 H. Bl. 547. See the elaborate judgment of the court, and the distinction there taken between debt and assumpsit in this respect.

(3) So on a covenant or promise to pay a sum of money by instalments, an action of covenant or assumpsit will lie immediately on the non-payment of the first instalment. 1 Inst. 292. b. Milles v. Milles, Cro. Car. 241. So if money is awarded to be paid at different days, assumpsit will lie on the award for each sum as it becomes due, and the plaintiff shall recover damages accordingly; and when another sum of the

money

awarded shall become due, the plaintiff may commence a new action for that also, and so on toties quoties. Cooke v. Whorwood, 2 Saund. 337. The same rule holds in respect of duties which touch the realty. 1 Inst. 292. b.

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