wich he had entered into in his representative capacity (f); and now by 3 & 4 W. 4, c. 14, s. 14, it is enacted, "that an action of debt on a simple contract shall be maintainable in any Court of common law against any executor or administrator (1). Debt cannot be supported for a debt payable by instalments till the whole of them be due (g) (2), though for rent payable quarterly, or otherwise, or for an annuity, or on stipulation to pay £10 on one day, and £10 on another, debt lies on each default (h); and even where one sum is payable by instalments, if the payment be secured by a penalty, debt is sustainable for such penalty (i) (3). When the landlord has accepted rent from the assignee of a lessee, he cannot sustain debt against the lessee or his personal representative, but must proceed by action of covenant on the express contract (k); and debt is not sustainable on a collateral contract, as on a promise to pay the debt of another in consideration of forbearance, &c. (1) (4), nor against the endorser of a bill or note, or by an indorsee against the acceptor (m); and it seems questionable whether it is sustainable in any case upon a note or bill, unless on the face of it it appears that it was given for value received (n). But it may be supported by the drawer against the acceptor of a bill of exchange, payable to the drawer or his order, for value received in goods (o) (5). II. DEBT law and oth Formerly, when trial by wager of law was in practice, the action of Of Wager of assumpsit was preferable to that of debt on simple contract (p). That er difficulmode of defence and trial was in general in force *when the debt was due ties and adon a simple verbal contract (q) (), and it might have been adopted (ex- vantages. (7) Hardr. 486; Com. Dig. Deht, B; 2 B. (n) Creswell v. Crisp, 2 Dowl. 635; Lyons (0) 1 B. & C. 674; 3 D. & R. 165, S. C. (q) 3 Bla. Com. 347; Barry v. Robinson, 1 (1) Debt will lie on an implied promise against an executor having assets. ford, 6 Conn. 170. See Tupper v. Tupper, 3 Ham. 387. Knapp v. Han (2) Fontaine v. Aresta, 2 McLean, 127; Farnham v. Hay, 3 Black f. 167. (3) It has been held that where the condition of a bond was for the payment of interest annually, and the principal at a distant day, the interest might be recovered before the principal was due, by an action of debt on the bond. Sparks v. Garigues, 1 Binn. 152. (4) Tappan v. Campbell, 9 Yerger, 436; Long v. Long, 1 Hill, 579. But debt was held to lie upon a guaranty in these words, "I guaranty the payment of the within note to A. for value received." Brown v. Bussey, 7 Humph. 573; Hall v. Rogers, 7 Humph. 536. (5) See ante, 108, notes. An action of debt will lie for the payment of a stipulated sum in property, Snell v. Kirby, It is said that debt will not lie on a writing obligatory for the payment of a sum certain in bank notes. Wilson v. Hickson, 1 Blackf. 230; Osborn v. Fulton, ib. 231; Scott v. Connover, 1 Halst. 222; Campbell v. Weister, 1 Litt. 30; Sinclair v. Piercy, 5 J. J. Marsh. 63. Ante, 108, note. Beirne v. Dunlap, 8 Leigh, 514; Hudspeth v. Gray, 5 Pike 157; January v. Henry, 2 Munroe, 58; S. C. 3 Munroe, 8; Deberry v. Darnell, 5 Yerger, 451; Young v. Scott, 5 Alabama, 475. (6) By the act for the amendment of the law, wager of law is abolished in every case except that of non summons in real actions. Laws N. Y. sess 36, c. 56, s. 24.-1 R. L. 525. It still exists as part of the law of Pennsylvania, 1 Binn. 543; and there are other recognitions of its existence to be found in various Acts of Assembly, which provide that in certain actions it shall not be admitted. See 8th sec. of the Act of 18th of Feb. 1785, [habeas corpus] 2 Sm. Laws, VOL. I. 18 [ *114 ] II. DEBT. Declara tions, plead ings, &c. cept in the Exchequer, or when the creditor has become so by legal necessity, as in the case of a debt to a goaler, or innkeeper, &c. for fees) (r); but of late it was so disused and discountenanced (s) (1,) that debt had become very frequent, and was preferable in some respects to the action of assumpsit, the judgment therein being final in the first instance, and not interlocutory as in assumpsit. And at length the 3 & 4 W. 4, c. 42, sect. 13, enacts "that no wager of law shall hereafter be allowed." It was once considered that in an action of debt the plaintiff could not in any case recover less than the sum demanded (1), and that if the plaintiff could not, upon the indebitatus or quantum meruit count, prove that he was entitled to recover the precise sum alleged to be due, he must be nonsuited. It is, however, now completely settled, that the plaintiff may, in debt on simple contract, prove and recover less than the sum stated to be due in his declaration (u) (2); for the difference is, that where debt is brought upon a covenant to pay a sum certain, a variance in the statement of the sum mentioned in the deed will vitiate; but where the deed relates to the matter of fact, there, though the plaintiff demand more than is due, he may enter a remittitur (x). The declaration in this action, if on simple contract, must show the consideration on which the contract was founded, precisely as in assumpsit: and should state either a legal liability, or an express agreement; but it must be alleged that the defendant agreed, not that he promised, to pay the debt, (y). But on specialties, or records, no consideration need be shown, unless where the performance of the consideration constitutes a condition precedent, when performance of such consideration must be averred: and where the action is founded on a deed, it must be declared upon, except in the instance of debt for rent (z). If the declaration go for damages for the detention of the sum expressly agreed to be paid, as for interest, the damages at the conclusion must be proportionably increased and not as usual be merely nominal (a). The plea of the general issue to debt on simple contracts, or on statutes, or where the deed was only matter of inducement, was formerly nil debet. But now, by reg. gen. Hil. T. 4 W. 4, 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 *115] defendant may plead "that he never was indebted in manner and form as in the declaration alleged," &c. (b). In debt on specialty, the plea denying the execution of the deed set out in the declaration, is non est factum (c); and to debt on record, nul tiel record; and as those pleas (r) 3 Bla. Com. 345, 346; 1 Saund. 216 a. n. 1; 9 Co. 87 b. (s) 4 D. & R. 206. (t) 3 Bla. Com. 155; 2 Sir W. Bla. 1221; 2 T. R. 28; Bul. N. P. 171; Stra. 1089. (u) 1 Hen. Bla. 249, 550; Dougl. 6; 11 East, 62. (x) Per Holt, C. J., 2 Lord Raym. 816. (a) Watkins v. Morgan, 6 C. & P. 661. 275; and sect. 9 of the Act of 22d April, 1794, [vice, &c.] 3 Sm. Laws, 182.-10 Serg. & R. 821, 322. See, however, Childres v. Emory, 8 Wheat. 642, denying the doctrine of Barry v. Robinison, 1 B. & P. N. R. 293. (1) In a recent instance, however, a defendant succeeded in forcing the plaintiff to abandon his action, by having recourse to it. King v. Williams, 2 B. & C. 538. (2) Newlin v. Palmer, 11 Serg. & R. 100; United States v. Colt, Peters' U. S. 145. Where a penalty of double the value of a specific article, was given by statute to a common informer, it was held that the plaintiff might recover in debt less than the sum stated in the declaration. Perrin v. Sikes, 1 Day, 19. merely deny the existence of the deed, or record, most matters or grounds of defense must now in debt on a deed be specially pleaded. The pleadings in debt will be fully noticed in subsequent parts of the work. The judgment in the plaintiff's favor, which at common law is final, in all cases is, that the plaintiff recover his debt, and, in general, nominal damages for the detention thereof; and in cases under the 8 & 9 W. 3, c. 11, it may also be awarded, that the plaintiff have execution for the damages sustained by the breach of a bond, conditioned for the performance of covenants; and the plaintiff, unless in some penal and other particular actions, is in general entitled to full costs of suit, although the damages recovered be under 40s. (d); unless the judge certify under the statute (e). (1) III. COVENANT.' The rules respecting this action are few and simple. It is a remedy provided by law for the recovery of damages for the breach of a covenant or contract under seal (g) (2). It cannot be maintained except against a person who, by himself, or some other person acting on his behalf, has executed a deed under seal, or who, under some very peculiar circumstances, which will be noticed hereafter (h), has agreed by deed to do a certain thing (i) (3). In the case of a covenant under seal, an ac II. DEBT. 111. COVENANT. In general. Implied for tion of covenant may be supported, whether such covenant be contained in a deed-poll or indenture (k); or be express or implied by law from the terms of the deed (1) (4); or be for the performance of something title, 6 Bing. in futuro, or that something has been done (m). In some cases it is sus- 656. tainable, although the covenant relate to matter in præsenti, as that the covenantor is seized and hath good title (n): though it is said, that in general covenant will not lie on a contract in præsenti as on a covenant to stand seized; or that a certain horse is yours; or shall henceforth be [ *116 ] the property of another (9). It is not essential that the word "covenant" should be in the instrument, in order to render the defendant liable in covenant (p); nor is it material that the covenantee has not exe What is considered an implied covenant, so (n) 3 Woodd. 85, 86; 2 B. & P. 13; 2 (1) The verdict and judgment in debt should show how much is for debt and how much for dam ages. Loose v. Loose, 36 Penn. State, 528. (2) Gale v. Nixon, 6 Cowen, 445; Ludlow v. Wood, 1 Pen. 55; Bilderbach v. Ponner, 2 Halst. 64; Trible v. Oldham, 5 J. J. Marsh. 137; Vicary v. Moore, 2 Watts, 451; M'Voy v. Wheeler, 6 Porter, 201. (3) See Somerville v. Stephenson, 2 Stewart, 271; Vicary v. Moore, 2 Watts, 451; Rees v. Overbaugh, 6 Cowen, 746; Powers v. Ware, 2 Pick. 451; Bassett v. Jordan, 1 Stewart, 352; U. States v. Brown, Paine, 422; Powell v. Clark, 2 Penn. 517; Bell v. Curtis, 1 Pen. 142. (4) As to implied covenants of title or warranty, see Frost v. Raymond, Caines, 88. Kent v. Welch, 7 John. 258; Dorsey v. Jackman, 1 Serg. & R. 42. Implied covenants may be set forth in the declaration in the same manner as if they were expressed in the instrument. Grannis v. Clark, 8 Cowen, 36; Barney v. Keith, 5 Wend. 502. III COVENANT. On what particular deeds and Covenants it lies. On leases. cuted the deed (q). It would be foreign to the present inquiry, relating merely to the application of remedy, to examine into the nature and description of the different covenants, which are to be found in the works referred to in the note (r). Covenant is the usual remedy upon indentures of apprenticeship, against the master for not instructing his apprentice, or against the party who covenanted for the due service of such apprentice, but it will not lie against an infant apprentice (s) (1). It lies also on articles of agreement under seal (t), or deeds or separate maintenance (u); and on covenants in deeds of conveyance, &c. for good title, &c. (x); on charter-parties of affreightment (y); on policies of insurance under seal against fire, &c. (z); and on annuity and mortgage deeds; though debt in the last instances is in general preferable when the demand is for money; and it seems that covenant lies on a bond, for it proves an agreement (a). An action of covenant is also the usual remedy on leases at the suit of the lessee, his executor or assignee, against the lessor, &c. for the breach of a covenant for quiet enjoyment, &c. and by the lessor, &c. against the lessee, for non-payment of rent, not repairing, &c. At common law, upon the death of a lessor seised in fee, his heir might sue for subsequent breach of a covenant running with the land, although not named in the lease (b); and the action of debt lay for the assignee of the reversion for rent, at common law (c); but no persons could formerly support an action of covenant, or take advantage of any covenant or condition, except such as were parties or privies thereto; and of course no grantee or assignee of any reversion or rent could maintain this form of action. To remedy this the statute 32 Hen. 8, c. 34 (2), gives the assignee of a reversion the same remedies against the lessee, or his assignee, or their personal representatives, upon covenants running with the land as the lessor or his heir, or their successor, had at common law; and on the [ *117] other hand, *such assignee is liable by the statute to an action for a breach of the covenant running with the land, as the lessor, &c. was at common law (d). An assignee of part of the reversion (e), and the remainder man (ƒ), are within the statute. We have already observed, that debt is the remedy given by the 32 Hen. 8, c. 37, to executors of persons who were seized in fee, or for life of property, to recover arrears of rent which accrue due to the testators; and to husbands, who survive (1) Aliter in Pennsylvania, where the remedy is given by statute, and where an infant cannot be bound apprentice unless by an instrument under seal. Comm. v. Wiltbank, 10 Serg. & R. 416. (2) Vide Laws N. Y. sess. 36, c. 31 R. L. 363. The English statute is in force in Pennsyl vania, except such parts as relate to the king of England and his grantees. Roberts' Dig. 226 8 Binn. 620. their wives to recover rents which became due in the life-time of the latter, in respect of their freehold property (1). Where the demand is for rent or any other liquidated sum, the lessor has an election to proceed in debt, or covenant, against the lessee, unless he has accepted the assignee as his tenant, or his lessee has become bankrupt, in which case the action of debt is not in general sustainable; and the lessor can only sue the lessee, after such assignment, in covenant, and then only upon an express covenant, and not upon a covenant in law (g). On the other hand, as a personal contract cannot be apportioned, where there has been an eviction from a part of the land, even by a stranger, the lessee cannot be sued in covenant, but only in debt; though a distress may be supported (h). With respect to the assignee of the lessee, the lessor may support debt (2), or covenant, at common law (i); and an assignee of a part of the premises may be sued in covenant (k) (3) though not in debt (1), and it lies for an apportionment against the assignee of the lessee, in case of a partial eviction by a stranger, though we have seen that it is not in such case sustainable against the lessee (m). It is a general rule, as before observed (2), that covenant lies upon. an implied covenant, or a covenant in law; as on the word "demise," which amounts, in general, in the absence of an express covenant to a stipulation for quiet enjoyment during the term (4) but we may remember that such implied covenant ceases with the estate of the covenantor, and will not furnish the lessee with a remedy against the executors of his lessor, if the latter were only tenant for life, and the remainder-man evict the lessec (9). III. COVENANT. From the preceding observations, it appears that the action of covenant, being for the recovery of damages for the non-performance of a contract under seal, differs very materially from the actions of assumpsit and debt. Assumpsit, though for the recovery of damages, is not in general sustainable where the contract was originally under seal, or where a [118 ] deed has been taken in satisfaction (p); and though debt is sustainable upon a simple contract, a specialty, a record, or a statute, yet it lies only for the recovery of a sum of money in numero, and not where the damages are unliquidated and incapable of being reduced by averment to a certainty (q); and though, where the object of the action of the covenant is the recovery of a money demand, the distinction between the terms "damages," and "money in numero," may not on the first view appear substantial, yet we shall find it material to be attended to (r). Covenant and debt are concurrent remedies for the recovery of any (g) Ante, 49; 1 Saund. 241, n. 5; 1 T. R. 92; Cro. Jac. 523; Cullen, 392, 393. (h) 2 East. 575; 2 M. & Sel. 277. (i) 1 Saund. 241 c.; 3 Co. 22 b.; 2 East, 580. (k) Congham v. King, Cro. Car. 221, cited 1 Bing. N. C. 758; Sir W. Jo. 245; 2 East, 580. (1) Curtis v. Spitty, 1 Bing. N. C. 756. (m) 2 East, 575; 2 M. & Sel. 277. (0) 6 Bing. 656; ante, 58. (q) 3 Lev. 129; Bul. N. P. 167. (r) Rien in arrere is a good plea in debt for rent, but not in covenant, because the latter action is for damages, Cowp. 588, 589. (1) A warranty of lands, in a deed in fee, is the subject of a personal action of covenant against the executors of the warrantor, in New York and New Jersey. Townsend v. Morris, 6 Cowen, 123; Chapman v. Holmes, 5 Halst. 20. (2) Norton v. Vultee, 1 Hall, 384. (3) But see Fulton v. Stewart, 2 Ohio, 215. (4) Grannis v. Clark, 8 Cowen, 36. |