II. DEBT.

ON SIMPLE

CONTRACTS.

the quantity of which was not then ascertained; or on a quantum meruit (q) (1) for work; or to pay a proportion of the costs of a suit expected to be incurred (r) or to recover the treble value of tithes not set out according to the statute (s). But it is not sustainable when the demand. is rather for unliquidated damages than for money (1); unless the performance of the contract were secured by a penalty, in which case debt may be supported for the penalty, and the real demand is to be ascertained according to the provisions of the 8 & 9 W. 3, c. 11. Debt also lies in the detinet for goods, as upon a contract to deliver a quantity of malt; which action differs from that of detinue in respect of the property in any specific goods, not being necessarily vested in the plaintiff at the time the action is brought, which is essential in detinue (u).

On simple contracts and legal liabilities (x) debt lies to recover money lent, paid, had and received, and due on account stated (y). for interest due on the loan or forbearance of money (z); for work and labor (a); for fees (b); for goods sold (e); and for use and occupation (d) (2). It is sustainable for any debt or duty created by common law or custom (e), as on bill of exchange (3), by the payee against the drawer, on the default of the acceptor, or by the drawer against the acceptor of a bill of exchange, expressed to be for value received (f); and by first indorsee against first indorser, who was also the drawer of a bill payable to his own order (g) (4): and on a promissory note by the payee against the maker when shown to have been drawn for value received (h); but not by or against any other collateral party (i); and for tolls, (5) port duties, and

(b) Bac. Ab. Debt, A.; 1 Roll. Ab. 598; Com. Dig. Pleader, 2 W. 11.

(c) 2 T. R. 28.

(d) 5 Taunt. 25; 6 T. R. 62, 6 East, 348
(e) Com. Dig. Debt, A. 9; Hob. 206.
(f) 3 D. & R. 165; 1 B. & C. 674, S. C.
(g) 3 Price, 253.

(h) Creswell v. Crisp, 2 Dowl. 635; Lyons v Cohen, 3 Dowl. 243; Priddy r. Henbrey, 1 Barn. & Cres. 674; 3 Dowl. & Ryl. 165; and post, 2 vol. 6th ed. 251, 252.

(i) 1 Taunt. 540; 2 B. & P. 78; Chitty on Bills, 7th edit. 428; 2 Campb. 187, n. (a); ante, 102, 103.

(1) An action of debt will lie on a quantum meruit. Smith v. Lowell, 8 Pick. 178; Van Deusen v. Plum, 18 Pick. 229, 231; Norris v. School Dist. No. 1, in Windsor, 3 Fairf. 233; Thompson r. French, 10 Yerger, 452; Mahaffey v Petty, 1 Kelley, 261.

(2) Davis v. Shoemaker, 1 Rawle, 135; McKean v. Whitney, 3 Denio, 452. Vide 3 Reeve's Hist. El. 64.

(3) Vide 1 Cranch, Appendix, 462, 465; Hollinsworth v. Milton, 8 Leigh, 50; Sharpe v. Fowlkes, 7 Humph. 512.

(4) It is said that in Maryland, such an action cannot be sustained. Lindo v. Gardner, 1 Cranch, 343. See also to the same effect, Whiting v. Ring, Minor, 122; Olive v. Rapier, Cooke, 11; Smith v. Segar, 3 Hen. & Mumf. 394; Stovell v. Woodson, 2 Mumf. 302; Frierson v. Reeve, 7 Humph. 357. Since the statute making promissory notes negotiable, the legal operation and effect of the transfer, is that the money due upon the note to the original payee is due from the maker to the assignee or holder, or that in judgment of law there is privity of contract between the maker and indorsee or holder by the terms of the note and the operation of the statute Accordingly, an action of debt on a promissory note may be maintained by an indorsee against the maker. Wilmarth v. Crawford, 10 Wend. 340. See Bentley v. Dickson, 1 Pike 165; Phillips v. Runnels, 1 Morris, 391.

Debt lies by the bearer against the maker of a promissory note payable to bearer, Carroll v Meeks, 3 Porter, 226. Contra Howell v. Hallett, Minor, 102.

(5) See Kellogg v. The Union Company, 12 Conn. 7. Debt lies against attorneys at law and

copyhold fines (k); and for a quit rent (7). And it lies on an award to IN GENERAL. pay money (1), but not if it were to perform any other act, unless there were an arbitration bond, in which case the action must be brought thereon (m). It lies also on by-laws (n), for fines and amerciaments (o) (2), on English judgments not of record (p) (3), as well as on such as are of record, on an Irish judgment (7) and on *foreign judgments (r) (4), and [ *110 ] upon the decree of a Colonial Court for payment of a balance due on a partnership account (s) (5). Debt clearly lies against a corporation for the recovery of a debt in those cases in which assumpsit may be maintained against them (t), and in all those instances in which they contract by deed to pay money. And even assuming that a corporation cannot in general contract but by deed, the Court will presume on general demurrer that there was a deed, in order to suppert a count in debt that the corporation was indebted," &c. (u). And it is laid down as a general rule, that debt lies upon every contract in deed or in law (x) (6). And now by express enactment, debt on simple contract is sustainable against an executor in any court of law (y).

TIES.

Debt lies also to recover money due on any specialty or contract under ON SPECIALseal to pay money (z), as on single bonds (a), on charter-parties (b), on policies of insurance under seal (c) (7), and on bonds conditioned for the payment of money, or for the performance of any other act, by or against the parties thereto and their personal representatives (d), and against the heir of the obligor, if he be expressly named in the deed, or against a

(s) 8 B. & C. 16; 2 M. & R. 153, S. C.
(t) Ante, 106.

(u) 4 B. & C. 962; 7 D. & R. 376

(x) Com. Dig. Debt, A. 1; 1 M'Clel. & Y.

457.

(y) 3 & 4 W. 4, c. 42, s. 14.

(z) 2 Stra. 1089; 12 East, 583.

(a) Com. D. A. 4; Str. 1089; 1 T. R. 40.
(b) Stra. 1989; 1 New Rep. 104.
(c) Marsh, on Ins. 596; 6 G. 1, c. 18, s. 4.
(d) Com. Dig. Debt, A.; post, vol. ii.

physicians for the professional tax. Ohio v. Hibbard, 3 Ohio, 63; Same v. Proudfit, ib. Same v. Gazlay, 5 Ohio, 14.

(1) Stanley v. Chappel, 8 Cowen, 235.

And debt on an award of money will lie without regard to the penalty of the bond. Ex parte Wallis, 7 Cowen, 522.

(2) But debt will not lie on a judgment for damages obtained under the act of the 6th of April, 1802, (Purd. Dig. 621,) “to enable purchasers at sheriffs' and coroners' sales to obtain possession." The remedy prescribed by the act can alone be pursued. Moyer v. Kirby, 14 Serg. &

R. 162.

(3) Pease v. Howard, 14 John. 479. Bennet v. Moody, 2 Hall, 471.

(4) Hubbell v. Cowdry, 5 Johns 132. Andrews v. Montgomery, 19 ib. 162. Duryee, 7 Cranch, 4-1, ante, 106, and note.

Mills v.

(5) Debt lies on the decree of a court of chancery, in another State, for the payment, by the defendant, of money only, without any acts to be done by the plaintiff. Post v. Neafie, 3 Caines, 22. Evans v. Tatem, 9 Serg. & R. 252. Debt lies upon a decree of a court of chancery, fixing the balance of an account between partners. Thrall v. Waller, 13 Vermont, 231. So it lies to recover a sum of money decreed as alimony. Howard v. Howard, 15 Mass. 196. See Elliott v. Ray, 2 Blackf. 31; Irving v. McLean, 4 Black f. 52. But see Van Buskkirk v. Mulock, 3 Marring. 184; Eichelberger v. Smyser, 8 Watts, 181.

(6) Elder v. Rouse, 15 Wend. 220. Debt is a proper remedy on a bond conditioned for the performance of covenants. Meakings v. O'Chiltree, 5 Porter, 395.

(7) Ellicatt v. The U. States Ins. Company, 8 Gill & John. 166. Judgment reversed where an action of assumpsit had been brought against an Insurance Company on a policy sealed with their corporate seal. Marine Insurance Company of Alexandria v. Young, 1 Cranch, 332.

II. DEBT.

[ *111 ]

ON RECORD.

devisee having legal assets (e), and by the sheriff or his assignee on bail bonds (f) (1), and replevin bonds (g) (2), on leases for rent or penalties, as for plowing up meadow, &c. (h), on annuity, deeds, and on mortgage deeds. An action of debt is not sustainable against the assignee of part of land demised (i). Debt is the remedy given by the statute (k) to the executor of a tenant in fee or for life, to recover rent which accrued due to the testator, and to husbands to recover rent which became due to them and their wives, for rents of the wives' freeholds during the life of the wives. Debt is also sustainable for a rent-charge or annuity granted for years, or by the executor of a tenant for life of a rent-charge, or of a tenant pur outre vie after the death of cestui qui vie (1). But it should seem that no action can be supported at law for the arrears of an annuity, unless it be granted by deed, and there must be an express grant in such deed (m). And debt is not sustainable for the arrears of annuity or yearly rent devised, payable out of lands to A. during the life of B., to whom the lands are devised for life, B. paying the same thereout, so long as the estate of freehold continues (n); and this although it is not stated in the declaration that the grantor had a freehold in the premises out of which it was payable, as it must be inferred that he had such an interest, where nothing appears to the contrary (o). The reason assigned is, that the law will not suffer a real injury to be remedied by an action merely personal; neither does the action lie by the statute 8 Ann (p), for that statute applies only to cases of demises from landlord to tenant (q), the assignee of a rent reserved upon a lease, may maintain debt for the arrears (r).

This action lies also on records (3), as upon the judgment of a superior or inferior Court of record (s), either generally, or against an executor or administrator, suggesting a devastavit (). Although the judgment was erroneous, debt lies until it has been reversed (u); and the mere circumstances of the defendant having been rendered, will not bar the action. Where, however, the defendant has been charged in execution on the judgment, no action can be supported on the judgment; although he was discharged out of custody upon a promise to pay the sum recovered by instalments, and which he neglects to do (x) (4). And where the defendant has

(1) It seems to be doubtful whether debt will lie on a bail bond in Massachusetts. See Lane v. Smith, 2 Pick. 281. It has since been decided, that debt does not lie on a bail-bond in Massachusetts. Crane v. Keating, 13 Pick. 339. Pierce v. Reed, 2 N. Hamp. 359; otherwise in Missouri, Palmer v. Atchison, 1 Mis 176.

(2) Manning v. Pierce, 2 Scam. 4; Salter v. Richardson, 3 Monroe, 204.

(3) See Shelburn v. Eldridge, 10 Vermont, 123; Greathouse v. Smith, 3 Scam. 542; Eames v. Pettis, 4 Vermont, 356; Headly v. Rohy, 6 Ohio, 521. Debt is the proper form of action to recover a sum found due by the commissioners upon an insolvent estate, ib. But see Eichelberger v. Symder, 8 Watts, 181.

(4) But debt on a judgment may be supported where an execution has been levied irregularly, and without producing satisfaction. Fish v. Sawyer, 11 Conn, 545.

II. DEBT.

been discharged out of custody under the Lord's Act, debt is not sustainable (y) and an action upon a judgment has become less frequent since the statute () which precludes the plaintiff from recovering costs in an action on a judgment, unless the Court or one of the judges thereof shall otherwise direct (a). It appears that debt lies upon the judgment (1) or decree of a colonial or foreign Court, &c. (b) (2) in those instances in which assumpsit is maintainable upon them, and which have been already. alluded to (c). Debt is often brought upon a recognizance of bail (d) (3), and the remedy by scire facias is also frequently adopted. Upon the proceeding by scire facias, the bail are not liable to the costs of the scire facias, unless they appear and plead thereto (e), nor are damages for detaining the debt recoverable (f). And it appears therefore judicious to proceed by action upon the recognizance in ordinary cases (g). So debt lies upon a statute merchant, though not upon statute staple, because the seal of the party is not affixed to the latter; but it lies on a recognizance in the nature of a statute staple, to which the seal [ *112 ] of the conusor is affixed (h). It lies also on a sheriff's return of fieri feci, which is in nature of a record, to recover the money which he has received

(i).

Debt is frequently the remedy on statutes either at the suit of the party On Statutes grieved, or of a common informer (k). In some cases it is given to the party grieved, by the express words of a statute, as for an escape out of execution (1); though not for an escape out of custody under an attachment for non-payment of costs under a decree in equity (m) (4); or against a tenant for double value for not quitting in pursuance of a notice to quit given by his landlord (n). And if a statute prohibit the doing an act under a penalty or forfeiture to be paid to a party grieved, and do not prescribe any mode of recovery, it may be recovered in this form of action (o) (5); as treble the value of tithes not duly set forth (p)

Debt, A. 3.

(i) 2 Saund. 343, 344, note 2; 2 Show. 79; Hob. 206.

(k) Com. Dig. Action on statute, E., Bac. Ab. Debt, 8.

(7) 1 Ric. 2, c. 12; 1 Saund. 34, 35, 39, 218; Com. Dig. Debt, A.

(m) Blower v. Hollis, Cromp. & M. 93.

(n) 4 Geo. 2, c. 28, s. 1; 1 New Rep. 174. (0) 1 Rol. Ab. 598, pl. 18, 19; 1 M. & Y. 457.

(p) Id. ibid.; 1 Ld. Raym. 682; post, vol. ii.

(1) M'Intyre v. Carruth, 1 Const. Rep. 457; Headley v. Roby, 6 Ham. 527; Carter v. Crews, 2 Porter, 81. Debt lies on a justice's judgment. James v. Henry, 16 John. 233, of another state, Cole v. Driscoll, 1 Blackf. 16. See Johnson v. Hayes, 3 Harring. 486.

(2) Jordan v. Robinson, 3 Shepley, 167; M'Intire v. Caruth, 3 Brevard, 395; Letson v. Wadsworth, 2 Speers, 277.

(3) Debt lies on a recognizance to the commonwealth. Commonwealth v. Green, 12 Mass. 1. (4) Koones v. Maddox, 2 Harr. & Gill, 106.

(5) Adams v. Woods, 3 Cranch, 341; Ex parte Marquand, 2 Gallison, 552. Cushing v. Dill, 2 Scam. 461; Israel v. Jacksonville, 1 Scam. 291. Wherever a statute gives a right to recover damages which are ascertained by the act itself, an action of debt lies and is proper, if no specific remedy is provided. Blackburn v. Baker, 7 Porter, 281. Debt lies to recover the land damages assessed against a Turnpike under the Statute, no specific remedy being provided therein. Bigelow v. Cambridge Turnpike, 7 Mass. 202; Jeffrey v. Blue Hill Turnpike, 10 Mass. 368; Rice v. Barre Turnpike, 4 Pick. 130. But not to recover them against a town, the Statute having provided a specific remedy by distress in such case. Gedney v.

II. DEBT.

When the peculiar remedy.

or treble the amount of damages incurred by extortion (q). Where a
statute, incorporating a gas company, provided that the expenses of ob-
taining the act should be first paid out of the subscriptions, it was held,
that the attornies who obtained the act might recover their costs in an
action of debt founded upon the statute (r) (1). On the other hand,
upon a new statute, which prescribes a particular remedy, no remedy can
be taken but that particular remedy given by the act (2). Therefore no
action of debt will lie for a poor's rate (s); and surveyors of highways
cannot maintain debt to recover composition money duly assessed in lieu
of statute-duty, the remedy by distress being prescribed by the Acts of
Parliament (). Where a
Where a penal statute expressly gives the whole or a
part of a penalty to a common informer, and enables him generally to sue
for the same, debt is sustainable (u); and he need not declare qui tam
unless where a penalty is given for a contempt (x); but if there be no ex-
press provision enabling an informer to sue, debt cannot be supported in his
name for the recovery of the penalty (y).

In some cases this action is the peculiar remedy, as against a lessee for an apportionment of rent, where he has been evicted from part of the premises by a third person; though covenant is in such case sustainable. [ *113] against the assignee of the lessee (z). It is also the only remedy against a devisee of land, for a breach of covenant by the devisor (a).

When not sustainable.

Debt, however, is not in any case sustainable, unless the demand be for a sum certain, or for a pecuniary demand which can readily be reduced to a certainty (3), as in the instances before enumerated (b); nor could it be supported against an executor, on a simple contract made with the testator, unless in the Court of Exchequer (c), or in those cases in which the testator, if living, could not have waged his law (d), though if the executor pleaded, and did not demur, he could not afterwards object to the form of action (e); and an executor might be sued in debt upon a simple contract

(q) 2 Bla. Rep. 1101.

(r) 4 B. & C. 962; 7 D. & R. 376, S. C.
(s) Per Dennison, J., 2 Burr. 1157.
(t) 1 M'Clel. & Y. 450.

(u) Com. Dig. Action, E. 1, 2.

(x) Id. ibid.; 2 Saund. 374, n. 1; 2. Y Saund. 136, n. 1.

(y) 5 East, 313, 315; Stra. 828; Bac. Ab. Action, Qui tam, A.

(≈) 2 East, 579, 580.

(a) 7 East, 12.

(b) Ante, 108, 109

(c) 1 New Rep. 233; Plowd. 182; 9 Co. 86 b.; 1 Saund 68, 216, 286; 2 Saund. 74, n. 2, ante, 116. 117. But no third person can object; 1 Marsh. 280; 5 Taunt. 665; 3 B. & C. 317.

(d) 1 Saund. 216 a. note 4; 9 Co. 87 b. (e) Plowd. 182; 1 Marsh. 72; 5 Taunt. 335, 665, S. C.; 3 B. & C 317.

Tewksbury, 3 Mass. 307. See Smith v. Drew, 5 Mass. 514. But one penalty can be recovered against a justice of the peace under the " supplement to the act for preventing clandestine marriages," passed the 14th day of February, 1729-30. (Purd. Dig. 510.) Hill v. Williams, 12 Serg. & R. 287. Under a penal statute only one penalty is recoverable for one offence or entire transaction. Corporation of New York v. Ordrenan, 12 John. 122. If the party has no other right than what is derived from the statute, his remedy also must be under the statute. Almy v. Harris, 2 John. 175.

(1) See Andover Turnpike v. Gould, 6 Mass. 40; Same v. Hay, 7 Mass. 102; Franklin Glass Co. v. White, 14 Mass. 286, Peabody v. Hoyt, 10 Mass. 36; Commissioners v. Harrington, 1 Blackf. 260; Woods v. Pettis, 4 Vermont 556; Wiley v. Bale, 1 Metcalf, 553. Where the directors of a bank are made by statute responsible for the debts of the bank, debt will lie against them. Falconer v. Campbell, 2 M'Lean, 195.

(2) Smith v. Drew, 5 Mass. 514; Gedney v. Tewksbury, 3 Mass. 307. Smith v. Woodman, 8 Foster, (N. H.) 520. Debt is the proper form of action against a stockholder of a joint company, by the Charter of which stockholders are liable in their individual capacities for the payment of debts, contracted by the Company, to the nominal amount of stock held by them respectively. Simonson v. Spencer, 15 Wend. 518.

(8) Little v. Mercer, 9 Missou. 218.