only, without averring that the interest had been satisfied, was held good, because the sums were separate and distincta. In an action of debt on simple contract, the declaration is good though it specify by the several counts a less sum than appears to be demanded by the recital of the writ, and yet assigns as a breach the non-payment of the sum demanded in the writ, and in such an action the plaintiff may prove and recover a less sum than is stated to be due b. The rules as to the declaration and pleadings in assumpsit and covenant are in general applicable to those in debt on simple contract; and on specialties respectively. If one sue several defendants in debt, and the evidence do not fix all the defendants, the plaintiff must be nonsuited; and the judge will not allow the declaration to be amended by striking out the names of those defendants who are not affected by the evidence. Where A. covenanted to pay B. 270l. on the 15th of December, with interest up to that time, and did not do so, and B. brought an action of debt, laying his damages at 107.; held, that B. could not recover more than the principal, the interest up to the 15th of December, and 107. more, although the interest up to the time of the action amounted to a larger sum; and the judge at the trial would not order the declaration to be amended by inserting a larger sum than 10%. as the damages d. SECTION III. THE PLEADINGS. FORMERLY the general issue in debt on simple contracts or on statutes, or where the deed was only matter of inducement, was nil debet; but now by Reg. Gen. H. T. 4 W. IV. the plea of nil debet is abolished; and it is ordered that 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. In other actions of debt in which the plea of nil debet has hitherto been allowed, including those on bills of exchange and promissory notes, the defendant shall deny specifically some particular matter of fact alleged in the declaration, or plead specially in confession and avoidance. The form of plea prescribed by the above rule must be strictly adhered to. A plea that the defendant never did owe, was held bad on special demurrer, the form being that he never was indebted b. In debt for work and labour on an implied contract, the defendant may shew under nunquam indebitatus that the work was done under circumstances which did not raise an implied contract to pay anything. But upon this plea the defendant cannot go into any evidence of misconduct, except such as shews that there was no implied contract d. A plea that parcel of the money claimed was the residue of a sum agreed to be paid for a boat warranted sound and fit for use, but which was afterwards found to be of no greater value than the sum paid at the time of the sale, was held bad on demurrer as amounting to the general issue. A plea in debt, that the defendant does not owe the said 10l. above demanded (the sum demanded being 18007.) is sufficient; as the amount may be rejected as surplusage. A plea to an indebitatus count in debt, that when the said sum of, &c., became due and payable, the defendant paid it, according to his contract and liability, should conclude with a verification 8. Where a declaration in debt demanded 60l. and contained six counts for 101. each, and the defendant pleaded that he did not owe the said sum of 10l. above demanded, and the plaintiff Cooper r. Whitehouse, 6 C. & P. 545. Cousins v. Paddon, 2 C. e Dicken v. Neale, 1 Mees. & Wels. 556. 5 Dowl. 176. f Attwood v. Bonachich, 1 D. & R. 473. Goodchild v. Pledge, 2 Gale, 7. 1 Mees. & Wels. 363. Debt on scire facias or judg ment. treated the plea as a nullity and signed judgment, the court set the judgment aside. Though under a plea of non assumpsit, evidence of payment is admissible in reduction of the damages, yet, under a plea of nunquam indebitatus, the defendant cannot give evidence of payment, for in an action of debt there is no enquiry of damages . In debt, or scire facias, on a judgment or recognizance, the general issue is nul tiel record, which may be properly pleaded where there is no record at all, or one different from that which the plaintiff has declared upon. The plea of nul tiel record to an action of debt on an Irish judgment must conclude to the country e. Nothing can be pleaded to a scire facias on a judgment which might have been pleaded to the original action. Therefore in a proceeding by scire facias on a judgment, a plea of bankruptcy of the plaintiff must shew distinctly that the bankruptcy happened at such a time that the defendant had no opportunity of pleading the fact to the original action. A plea which left it uncertain whether the bankruptcy happened subsequently to the judgment, was held bad on special demurrer '. Debt lies SECTION IV. DEBT FOR RENT. RENTS reserved on leases for years, or tenancies at will, were a lease for recoverable at common law by an action of debt; and so were for rent on lives or years. the arrears of rent reserved on a lease for life after the expiration of the lease; but debt did not lie at common law for rent reserved on a lease for lives during the continuance of the leases, until the 8 Ann, c. 14. s. 4, which enacted, that "any a Risdale r. Kelly, 1 C. & J. Belbin v. Butt, Exch. T. T. d Gilbert (Debt), 444. Marsh r. Cutler, 3 Mod. 41. Tidd's N. P. 363. e Id. Collins r. Lord Mathew, 5 East, 473. See Guiness v. Carroll, 1 B. & Ad. 459. Baylis v. Hayward, 1 Harr. & Woll. 609. 5 Nev. & M. 613. & 1 Roll. Ab. 594. (G.) pl. 1. Ognel's case, 4 Rep. 49. 2 Saund. 303. person entitled to rent in arrear, on a lease for life or lives, might have an action of debt during the existence of the life, in the same manner as he might have done in case such rent were due or reserved upon a lease for years." a At common law, if a person seised of rent-service, rentcharge, rent-seck or fee-farm in fee-simple died, and there was rent arrear, neither his heir or executor could maintain an action of debt for such rent: the heir was not competent to sue, because he was a stranger to the personal contracts of his ancestor; and the executor was incompetent, inasmuch as he did not represent his testator as to any contracts relating to the freehold and inheritance. To obviate this inconvenience it was enacted by stat. 32 H. VIII. c. 37. s. 1, that an executor or administrator of any person seised of rent-service, rentcharge, or rent-seck, or of a fee-farm rent, in fee, in tail, or for life, might maintain debt against the person who ought to pay the same, and his personal representative b. Debt will lie for rent whether the demise be by deed, by writing not under seal, or by parol. Any words which are sufficient to create a privity of contract between the parties, will enable the landlord to maintain this action. It lies, therefore, for the non-payment of rent on the word " yielding” in a lease for years, for it is an agreement to pay rent which amounts to a contract c. Since the action of debt is maintainable in respect of the It has been held that this provision applies only to the case of rent due from a tenant holding by lease or demise under his landlord, and therefore that debt does not lie for the arrears of an annuity issuing out of lands, and payable to the annuitant for life, although it is not stated in the declaration that the grantor had a freehold in the premises out of which the annuity was payable; as it must be inferred that he had such an interest, where nothing appears to the contrary. Kelly r. Clubbe, 6 Moore, 335. 3B. & B. 130. Nor for the arrears of an annuity or yearly rent devised payable out of lands to A. during the life of B., to whom the lands The executors of tenant for Executors nistrators may maintain debt for rent. and admi Use and privity of contract, it is immaterial whether there is any privity of estate or not; therefore the entry of the tenant on the land demised is not necessary to enable the landlord to maintain an action of debt. If the lessor assign the rent without reversion, the assignee may maintain debt for it, because the privity of contract is transferred b. Debt lies against a devisee of land, for the breach of covenant by the devisor. If a lessee for years assigns all his interest to another the lessor may still have an action of debt against him, for the rent in arrear after the assignment, for the lessee shall not be permitted to prevent, by his own act, such remedy as the lessor had against him on his contract d. But if the landlord has accepted rent from the assignee of the lessee, he cannot maintain debt against the lessee or his representatives; his remedy is by an action of covenant on the express contracte. It is not clearly settled whether debt lies against the assignee of part of the land demised for the rent of the whole f. But debt lies against such assignee for the portion which he holds, or against him and the lessee jointly for the whole rent §. Debt lies for use and occupation on a parol demise where occupation. the premises are held under a lease, not by deed, even though the lessee himself has not occupied the premises; for he is liable in respect of his express contract h. If rent be payable quarterly or otherwise debt lies on each default i. Apportionment of rent. At common law, if the lease was determined before the legal time of payment, there could be no apportionment in respect of part of the time; as if a tenant for life made a lease, rendering rent at Christmas and died at Michaelmas, there could be no apportionment of the rent for three quarters. But now by a Bellasis v. Burbrick, 1 Salk. 209. Eaton r. Jaques, Doug. 455. 1 Saund. 202. a. Allen v. Bryan, 5 B. & C. 512. Robins v. Cox, 1 Lev. 22. Marle v. Flake, 3 Salk. 118. Wilson v. Knubley, 7 East, 127. d Auriol v. Mills, 4 T. R. 98. 758. 1 Hodges, 153. 8 2 Saund. 182. Wilkins v. Wingate, 6 T. R. 62. Egler v. Marsden, 5 Taunt. 25. The Dean of Roshester v. Pierce, 1 Camp. 466. Bull v. Sibbs, 8 T. R. 327. Conolly v. Baxter, 2 Stark. 527. But if the plaintiff has recognized another person as his tenant, he cannot afterwards charge the lessee. Thomas v. Cooke, 2 B. & A. 119. 2 Saund. 303. |