tained when there is any other remedy. The remedy in a court of law for breach of contract Remedy at law is by action. is by action, and there are distinct forms of action applicable to the breach of distinct species of contract. If the contract be by record, the remedy is by writ of scire facias, which lies only upon a record, and which has obtained its name from the Latin words it formerly contained commanding the sheriff to make the defendant know that the court commanded his appearance to answer why execution should not issue against him. (a) If the record create a debt, render a sum certain payable by the one party to the other, an action of debt will lie to enforce payment, if the plaintiff prefer that form of proceeding to a scire facias. Scire facias on record. contracts by debt. The action of debt lies in every case where The action of there is a liquidated pecuniary duty from one (a) It is used for a variety of purposes, but perhaps one of the most common to which it is applied, is to revive a judgment after it has become extinct; for all writs of execution must be sued out within a year and a day after the judgment is entered, other wise the court concludes primâ facie that the judgment is satisfied and extinct, yet, however, it will grant this writ of scire facias, Cases where person to another (a), and it is frequently found an extremely useful form of action; for suppose A. have three separate demands against B., one (a) That is to say, for a sum definite, or debt eo nomine and in numero. Thus it lies on an award for the money awarded (see 2 Wms. Saund. 62 b. note 5.); for calls of shares upon bills between the immediate parties, as, for instance, between indorsee and his indorser, but not between indorsee and acceptor, or indorsee and a distant indorser, or between indorsee and drawer, for in such case there is no privity of contract. (Lewin v. Edwards, 9 M. & W. 720.) Neither will it lie on notes payable by instalments until all are due, though assumpsit will. (2 Wms. Saund. 303 a. note 9.) Debt lies on all the common counts; such as goods sold, work and labour, money lent, for use and occupation, &c., even though there is an express demise if there be no deed, and for interest of money, without alleging any special contract. (1 Wms. Saunders, 201. note a.) cured thereon; such as demises by deed for rent, money bonds, policies of insurance, mortgage deeds, &c.; and also where no money payment is secured by the mortgage, if there be a parol contract to which the security is collateral. (Yates v. Aston, 4 Q. B. 182. See also Baber v. Harris, 9 A. & E. 532.) It lies also on all unsatisfied judgments, whether of superior or inferior courts, even if not of record. (Jones v. Jones, 5 M. & W. 523.; and of county courts, Williams v. Jones, 13 M. & W. 628.; and on those of foreign courts and Scotch decrees, where a specific sum is recovered. See Robinson v. Bland, per Lord MANSFIELD, 2 Burr. 1077., and Russell v. Smyth, 9 M. & W. 810. And debt lies for all penalties given of sums made recoverable by statute, unless otherwise directed. This action is brought to recover the specific debt due, and not for damages, except for those fictitiously arising from the detention of the It lies on specialties to re- Where es. on a judgment, one upon a bond, and one upon covenant. If the contract be by deed, the remedy is by By action of action of covenant, which lies to enforce a contract by deed, and to enforce that only unless the contract be for payment of a liquidated sum, in which case, as I have already said, the plaintiff may, if he prefer it, maintain an action of debt. If the contract be neither by record nor by deed, if, in other words, it be a simple Action of contract either reduced to writing, or by mere words without writing, the remedy, unless it be for payment of money, in which case debt (a) Assumpsit lies in very ssumpsit many cases concurrently with debt, and is brought both upon express promises and in all cases where the law implies a promise from an obligation; damages for the breach of which are the sole object of this action. Assumpsit, therefore, lies on all the common counts concurrently with debt, and upon every kind of simple contract, ex- assumpsit. Tortious breaches of contract. of trespass upon case, and was called assumpsit from the words undertook and promised, which subsequently executed. (Filmer v. Burby, 2 M. & Gr. 529.) Assumpsit lies also against a sheriff to recover money received under a fieri facias. So physicians and counsel may maintain it to recover fees expressly promised; and it lies against a factor or an agent refusing to account, and in all merchants' accounts for the balance due, however numerous the items. It lies also for breach of contract, not under seal by the vendor or vendee, on the sale of real property, or for the non-delivery of goods and chattels sold, or for the nonperformance of any contract. It is the only remedy for breach of warranty. It lies also in all cases of mismanagement of farms, and generally for all acts of nonfeasance. It is often a question in cases of tortious breach of contract, whether to bring an action of assumpsit for the breach of promise, or an action upon the case for the tort. It has been laid down, that wherever the cause of action is such that it can best be explained by circumstantial declaration, the action should man V. be in case rather than in assumpsit, as it affords better means of doing this. In more recent cases this distinction seems to have been disregarded; and it has been held that actions of this kind may be brought indifferently in case or assumpsit. In BoorBrown, 11 Cl. & Fin. 1. (where a broker had delivered goods on sale without payment against the instruction given him), the judgment of the Exchequer Chamber (3 Q. B. 525.) was upheld, in which TINDAL C. J. said, "There is a large class of cases in which the foundation of the action springs out of privity of contract between the parties, but in which, nevertheless, the remedy for the breach or nonperformance is indifferently either assumpsit or case upon tort, is not disputed. Such are actions against attorneys, surgeons, and other professional men, for want of competent skill or proper care in the service they undertake to render: actions against common carriers, against shipowners on bills of lading, against bailees of different de AN When the always appeared in the declaration. uniformity of process act was passed, the sche scriptions; and numerous other instances occur in which the action is brought in tort or contract at the election of the plaintiff: and, as to the objection, that this election is only given where the plaintiff sues for a misfeasance, and not for a nonfeasance, it may be answered, that in many cases it is extremely difficult to distinguish a mere nonfeasance from a misfeasance; as in the particular case now before us, where the contract stated in the declaration on the part of the broker is, in substance, to deliver the goods of the plaintiffs to the purchaser on payment of the price in ready money, and where, if the broker delivers without receiving the price, the breach of his direct undertaking is as much a wrongful act done by him, that is a misfeasance, as it is a nonfeasance, the distinction between the two being, in that case, very fine and scarcely perceptible. But, further, the action of case upon tort very frequently occurs where there is a simple nonperformance of the contract, as in the ordinary instance of case against shipowners, simply for not safely and securely delivering goods according to their bill of lading; and as in the case of Coggs v. Bernard, 2 Ld. Raym. 909., where an undertaking is stated in the declaration as the ground of action; and, to give no further instance, the case of Marzetti v. Williams, 1 B. & Add. 415., where the decision, that the plaintiff was entitled to nominal damages without proof of any actual damage, rests entirely on the consideration that the action, an action on the case, was founded on a contract, not on a general duty implied by law. The principle in all these cases would seem to be that the contract creates a duty, and the neglect to perform that duty, or the nonfeasance, is a ground of action upon a tort.” In the case of Russell v. Bell, 10 M. & W. 340., after a bankruptcy, 85 bundles of yarn, of the value of 1147., were delivered by the bankrupt to the defendants, as they alleged, to meet an accommodation bill which they were about to give the bankrupt. The goods were ac |