goods sold and delivered, if the defendant plead "that he never was indebted, he will not be permitted to give evidencex 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 full 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 de x Edmunds v. Harris, 2 Ad. and Ell. 414. But per Parke, B.-"I believe. some doubts have been expressed with regard to that decision. If the time of credit has not expired, the plaintiff proves a different contract from that which he has stated in his declaration, viz. to pay on request." Taylor v. Hilary, 1 Cr. M. and R. 743. See also Alexander v. Gardner, 1 Bingh. N. C. 671. y Smedley v. Joyce, 2 Cr. M. and R. 721; 1 Tyr. & Gr. 84. claration 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 fact." III. Debt on Bond-Of the Pleadings: 1. General Issue, non est factum, and Evidence 2. Accord and Satisfaction. 3. Duress. 4. Illegal Consideration, 1. By the Common Law; immoral—in Restraint of Trade, &c. 2. By Statute; Gaming-Sule of Office-Si- 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 bond, 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 debt; and interest cannot be recovered beyond the penalty, except under special circumstances. In an ac 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. b 7 T. R. 124. c Per Sir W. Grant, Clarke v. Seton, tion 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 judgment, 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. 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 days, 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 contingencyg. If an instalment of an annuity, 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 bondi, it is incumbent on d M'Clure v. Dunkin, 1 East, 436. g 1 Lev. 54. h Judd v. Evans, 6 T. R. 399. i Robert v. Harnage, Ld. Raym. 1043. (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. 4 the plaintiff to set it forth in the declaration, so that the bond produced in evidence may agree with the bond declared on. Hence, if a bond be dated abroad, the declaration must state the place of such date, and then the venue must be added for a place of trial. But where a promissory note was dated at Paris, and the declaration merely stated that it was made at London omitting the place of date, Lord Ellenborough held the omission to be immaterialk. In debt upon bond, the court would not permit money to be paid into court, but would refer it to the master to compute what was due for principal and interest: But see stat. 3 & 4 W. 4. c. 42. s. 21. ante p. 137. Of the Pleadings: 1. General Issue, non est factum, and Evidence thereon—New Rules. THE general issue to an action of debt on bond, is non est factum; because the action is grounded upon the specialty. But by R. G. H. T. 4 W. 4, in debt on specialty or covenant, the plea of non est factum shall operate as a denial of the execution of the deed in point of fact only, and all other defences shall be specially pleaded, including matters which make the deed absolutely void, as well as those which make it voidable. Under the operation of this rule, many grounds of defence, of which the defendant might heretofore have availed himself, by evidence upon non est factum, must now be pleaded specially; as razure, interlineation, addition to, or other alteration of the deed in a material part; coverture or lunacy, at the time of the execution, or that the bond was delivered as an escrow, or that defendant was made to execute it when he was so drunk, that he did not know what he did. If the defendant crave oyer of the bond and condition, and does not set out them or either of them truly, and then pleads non est factum, the plaintiff ought to pray to have the bond and condition, or either, (as the case may be) inrolled, and then demurm, or sign judgment for want of a plea", or move to quash the plea°; for if the plaintiff omits to take the foregoing steps, and joins issue on the non est factum, the defen k Houriet v. Morris, 3 Campb. 303. 1 Anon. E. 25 G. 3. B. R. MSS. n Per Cur. Wallace v. Duchess of Cumberland, 4 T. R. 371. o Ib. dant may take advantage of the variance P. But see stat. 9 G. 4. c. 15. ante, p. 526. Upon the issue of non est factum, the plaintiff must prove the execution of the bond by the defendant. Proof that one, who called himself D., executed, is not sufficient, if the witness did not know it to be the defendantч. To prove the execution of a bond, the sealing and delivery must be proved. Proof of the sealing only is not sufficient. Hence, in a case' where the jury found that the defendant sealed the bond and cast it upon the table, and the plaintiff took it without any other delivery, or any other thing amounting to a delivery, the court were of opinion, that this was insufficient; observing, that it was not like the case which had then lately been adjudgeds, where the obligor had sealed the bond, and cast it upon the table, saying, "this will serve," which was holden a good delivery; because from the expressions used by the obligor, it appeared to be his intention that it should be his deed. If the obligor says to the obligee, "it is sufficient for you," or, "take it as my deed," or the like words, it is a sufficient delivery. If a person deliver a writing sealed to the party to whom it is made, as an escrow, that is, to be his deed upon certain conditions, that is an absolute delivery of the deed, being made to the party himself". But a deed may be delivered to a stranger as an escrow. If there is a subscribing witness to the bond who is living, and capable of being examined, such witness alone is competent to prove the execution; because he may know and be able to explain the circumstances of the transaction, of which a stranger may be ignorant (4); and for this reason it has been holdeny, that a confession or acknowledgment of the party executing the bond will not dispense with this testimony. Even the admission of the obligor of the execution of a bond in an answer to a bill in ohancery, filed for the p Gunter v. Smith, Peake's Ad. Cases, s 1 Inst. 36. a. r Chamberlain v. Stainton, Cro. Eliz. y Abbott v. Plumbe, Doug. 215. 1 Leon. 140. Dyer in marg. z Call v. Dunning, 4 East, 53. 122. (4) This rule is religiously adhered to, nor can it be dispensed with, even where the instrument is not the foundation of the action, but only given in evidence collaterally. See the opinion of Lord Alvanley, C. J. in Manners q. t. v. Postan, 4 Esp. N. P. C. 240. |