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c. V, Contract, 210 (Cambridge 1895).

Sec. 137

ACTION OF DEBT

279


case there is no quid pro quo passing to the defendant.
Debt is to be distinguished from Indebita­tus Assurnpsit, being in many respects much broader than the latter action. It is true that Debt and Indebitatus Assumpsit are concurrent remedies in the Field of Simple (Executed) Contract, but Tndebitatus As­sumpsit will not lie upon a Sealed Contract, a Record, or, with some exceptions, upon a Statute. In the sense that Indebitatus Assumpsit came to be the remedy for recov­ery of Quasi-Contractual Obligations through the use of the Common Counts, it may be said to be broader than Debt. This advan­tage was later lessened by the fact that in some jurisdictions Debt also came to be recognized as a Quasi-Contractual Remedy, by a process which is not clear. And, of course, Debt was subject to Wager of Law, whereas Indebitatus Assumpsit was not, and it was this fact which led to the obsolescence of Debt some time after ,Slade’s Case 15 when the Two Actions were concurrent remedies on a Simple (Executed) Contract.
Generally, Debt and Covenant are exclu­sive remedies, except where the amount of Damages due upon the breach of a sealed instrument are liquidated. In such instance, Debt and Covenant are concurrent remedies; where, however, the Damages upon Breach of a Specialty are unliquidated, Covenant is the only remedy.’°
Finally, under certain circumstances, Debt, Special Assumpsit and Indebitatus Assump­Rep. 883 (1704); Hard’s Case, 1 Salk. 23, p1. 3, 01

Eng.Rep. 22 (1690); Rovoy v. castleman, 1 Ld.1taym.

CD, 91 Eng.Rep. 942 (1695); New Jersey: Furman

V. Parke, 21 N.JL. 318 (1848).
15. 4 Co. 92b, 76 Eng.Itep. 1074 (1602).
16. Originally this concurrence did not obtain; Cov~ enant would not lie for a Debt where evidenced by a sealed jnstrnment; it must arise from some ti-ansaction such as a loan or sate or the like. 2 Polloek and Maitland, History of English Law, c. V, Contract, 217 (Cambridge 1895).

sit, were concurrent remedies. To illustrate, let us suppose that A says to B, “I will de­liver ten cords of wood to you at five dollars a cord,” to which B replies, “Go ahead and deliver it and I will pay for it.” A then de­livers the wood, but B refuses to pay. Debt will lie, for a quid pro quo—a benefit—has passed from A to B and B has failed to give A what, by operation of law, belongs to him. Indebitatus Assumpsit will lie as it is a con­current remedy with Debt on Simple (Ex­ecuted) Contract; and Special Assumpsit will also lie, because over and above the benefit received by B—the delivery of the wood—the defendant B has breached his ex­press promise to pay. Thus, Debt, Special Assumpsit, and Indebitatus Assumpsit were concurrent remedies, where, over and above a Simple (Executed) Contract, there was also an Express Promise which had been breached.


FORMS OF DECLARATIONS

137. Included in this section are forms of Declarations in Debt on a Simple Contract, Debt on a Spedalty, Debt on a Statute, and Debt on a Judgment.


DECLARATION IN DEBT ON SIMPLE
CONTRACT
IN THE KING’S BENCH, Term, in the year of the reign of King George the Fourth.

to wit, C.D. was summoned to answer A.B. of a plea that he render to the said A.B. the sum of £ , of good and lawful money of Great Britain, which he owes to and unjustly detains from him.



And thereupon the said A.R, by

his attorney, complains: For that whereas the said C.D. heretofore, to wit, on the

day of , in the year of our Lord ______ at , in the county of

was indebted to the said LB. in the sum of L , of lawful money of Great Britain, for divers goods, wares, and mer­chandise by the said AR. before that time

280

OFFENSIVE PLEADINGS

Cli. 13


sold and delivered to the said C.D., at his special instance and request, to be paid by the said C.D. to the said A.B. when he, the said C.D. should be thereto afterwards requested; whereby, and by reason of the said last-mentioned sum of money being and remaining wholly unpaid, an action bath ac­cited to the said LB. to demand and have of and from the said C.D. the said sum of £______ above demanded. Yet the said C.D. (although often requested) hath not as yet paid the said sum of £______ above demand­ed, or any part thereof, to the said A.R, but so to do hath hitherto wholly refused, and still refuses, to the damage of the said A.B. of £ ; and therefore he brings his suit, &c.
STEPHEN, A Treatise on the Principles of Pleading in Civil Actions, 67 (3d Am. ed., Washington, D.C. 1892).

DEcLARATION IN DEBT ON A SPECIALTY 17 ON A COMMON MONEY BOND

IN THE COURT OF KING’S BENCH (or Common Pleas).



On the day of , AD.

(Venue) to wit. A.B. by E.F. his attorney (or in his own proper person) com­plains of CD. who has been summoned to answer the said A.B. (or plaintiff) in an action on debt on a common money bond. For that whereas the defendant, on the

day of , A.D. ,by his

certain writing obligatory sealed with his seal, and now shown to the said Court here, acknowledged himself to be held and firmly bound to the plaintiff in the sum of £______ above demanded, to be paid to the plaintiff,


17. Debt on a Specialty and Covenant are concurrent remedies where the amount Joe upon the breach of a sealed instrument is a sum certain or a liquidated amount, Anonymous, 3 Leo. 119, 74 Eng.Rep. 570 (1585).
Wager of law had no application In Debt on a Spe­cialty. Morgan, The Study of Law, C. VI, Debt, 02 (2d ed. Chicago 1948).

yet the defendant (although often requested so to do) hath not as yet paid the said sum of t above demanded, or any part thereof, to the plaintiff, but hath hitherto wholly neglected and refused, and still neg­lects and refuses to do so; to the damage of the plaintiff of c and therefore he brings his suit, &c.


2 CH1’TTY, Precedents in Pleading, 43S (Springfield 1859).
DECLARATION IN DEBT ON A STATUTE ‘~
IN THE KING’S BENCH [or Common

Pleas], Term, in the ______ Year of the reign of King

For that whereas the defendant before and at the time of the giving of the notice and making the demand as hereinafter mention­ed, and from thence until a certain day. to wit, the Day of , ______ held and enjoyed a certain messuage

and premises, with the appurtenances, as tenant thereof to the plaintiff, to wit, from year to year, for so long a time as the plaintiff and defendant should respectively please, the reversion of the said premises,. with the appurtenances, during all that time belonging to the plaintiff; and thereupon, whilst the defendant so held and enjoyed the said tenements, with the appurtenances, as tenant thereof to the plaintiff as aforesaid, and whilst the said reversion thereof belonged to the plaintiff as aforesaid, to wit, on [8cc.] the plaintiff gave notice in writing to the defendant, and then and there demanded of and required the defendant to deliver up the possession of the said tenements, with the appurtenances, to the plaintiff, on the said

day of ______ A.D. ; and the plaintiff avers that the tenancy aforesaid
IS. This specific form was used by a landlord who sought to recover Debt on the Statute of 2 Oco. II, C. 28, ~ 1 (1728) for double value for holding oVet after notice to quit, and was taken In substance from the form used in WilkInson t. Ball, 3 Bing­N.O. 508, 132 Eng.Rep. 506 (1837).

Sec. 137

ACTION OF DEBT

281


ended and was duly determined on the last-mentioned day by the said notice. Never­theless the ‘defendant, not regarding the statute in such case made and provided, did not nor would, on the determination of the said term and tenancy as aforesaid, deliver the possession of the said tenements, with the appurtenances, to the plaintiff, according to the said notice so given, and the demand so made as aforesaid, but wholly neglected and refused so to do, and on the contrary thereof, the defendant wilfully held over the said tenements, with the appurtenances, after the determination of the said term and tenancy, and after the said notice had ex­pired, and after the said demand so made as aforesaid, for a long space of time, to wit, for the space of then next following, during all which time the defendant did keep the plaintiff out of the possession of the said tenements, with the appurtenances, (he, the plaintiff, during all that time being entitled to the possession thereof), contrary to the / orm~ of the statute in such case ,ntxde and provided; and the plaintiff avers, that the said tenements, with the appurtenances, during the said time of holding over the same, and keeping the plaintiff out of the possession thereof as aforesaid, were of great value, to wit, the yearly value of £_______ and by reason of the premises and by force of the statute in such case made and provid­ed, the defendant became liable to pay the plaintiff a large sum of money, to wit, the sum of £ , being at the rate of double the yearly value of the said tenements, with the appurtenances, for so long as the same were so detained as aforesaid; and thereby and by force of the said statute, an action hath accrued to the plaintiff, to demand and have of and from the defendant the said sum of I’ , being the sum above demanded, yet the defendant hath not paid the same or any part thereof, to the damage of the

plaintiff of £ and therefore he brings

his suit, &c.

2 CHrJTY, Precedents in Pleading,

493 (Springfield, 1859).
DECLARATION IN DEBT ON A JUDGMENT19
IN THE KING’S BENCH [or Common

Pleas], Term, in the year of

the reign of King
For that whereas the plaintiff heretofore,

to wit, in Term, in the year of our

Lord [or ‘on the day of

AiD. ,“] in the Court of our Lord the King at Westminster, in the county of Middlesex, by the consideration and judg­ment of the said Court, recovered against the defendant in the sum of £______ above de­manded, which in and by the said Court was then and there adjudged to the plaintiff for his damages, which he had sustained as well by reason of the non-performance by the defendant of certain promises and undertak­ings, then lately made by the defendant to the plaintiff, as for his costs and charges, by him about his suit in that behalf expended, whereof the defendant was convicted as by the record and proceedings thereof, remain­ing in the said Court of our said Lord the King, more fully appears; which said judg­ment still remains in full force and effect, un­reversed, and unsatisfied, and not otherwise vacated; and the plaintiff hath not obtained any execution or satisfaction of or upon the said judgment; whereby an action hath accrued to the plaintiff to demand and have,



19. The Judgment in Debt on a Record provides that the plaintiff “do have and recover of the defend­ant” a given sum of money or a specific nrticle. This language implies that the plaintiff is entitled not to something new, but to regain property which belongs to him although unlawfully possessed by the defendant, Likewise with a Becogoizance en­tered upon the Records of a Court declaring one person indebted to another. In both eases the Judg­ment establishes the plaintiff’s right to the money or the chattel and at the same time imposes upon the defendant a duty to pay the money declared due or to deliver the specific chattel to the com­plainant. Once the indebtedness is established by a Record, Debt, by reason of its proprietary nature, becomes an effective remedy.

282


OFFENSIVE PLEADINGS

Ch. ia

of and from the defendant the said sum of £_....... above demanded, yet the de­fendant hath not paid the same or any part thereof, to the plaintiff’s damage of £



and thereupon he brings his suit, Sac.
2 CHITTY, Precedents in Pleading, 480 (Springfield, 1859).
DECLARATION IN DEBT—ESSENTIAL AL­

LEGATIONS: (1) IN GENERAL
138. The Essential Allegations of the Dec­laration are:

(I) In Debt on Simple (Executed) Con­tract:
(A) A Statement of the Debt and

quid pro quo;
(B) The Breach—Nonpayment;

(C) The Damages. (II) In Debt on Specialty:

(A) A Statement of the Execu­tion of the Specialty;

(B) Nonpayment by the def end-

ant

(C) The Damages (III) In Debt on Statutes:

(A) A Statement of the Act or Omission in Violation of the Statute;

(B) Nonpayment of the Debt or Penalty;

(C) The Damages



(W) In Debt on Judgments:

(A) A Statement of the Judg­ment;

(B) Nonpayment or Nonsatisfac­tion;

(C) The Damages

For Sum Certain Only

THE Mode of Stating the Cause of Action in Debt varies according to the source or basis of the obligation, which may be either a Simple (Executed) Contract, a Specialty, a Statute, or a Judgment. However, before considering the Essential Allegations appli­cable to each of the Four Varieties of Debt,

it may be helpful to discuss in more detail the requirement that the action must be for a sum certain—a requirement which is com­mon in each of the Four Forms of Debt.


The action of Debt lies only for a liquidat­ed sum of money; that is, a pecuniary de­mand where the amount due is fixed and spe­cific or where it can readily be reduced to certainty by a mathematical computation. Blackstone tells us that in an Action of Debt the plaintiff must prove the whole debt he claims, or recover nothing at all, for the debt is only a single cause of action fixed and de­termined, and which, therefore, if the proof varies from the claim, cannot be looked up­on as the same contract whereof the per­formance is sued for. “If, therefore, I bring an action for £30, I am not at liberty to prove a debt of £20 and recover a Verdict thereon, any more than, if I bring an Action of Detinue for a horse, I cannot thereby re­cover an ox.” 20
In Rudder v. Price,2however, Lord Loughborough says, that while the demand in an Action of Debt must have been for a sum certain in its nature, yet it was by no means so necessary that the amount be set out precisely that less could not be recov­ered.22 A promise to pay so much as certain services or goods were worth would not for­merly support a Count in Debt, as the price
20. 3 J3lackstone, Commentaries on the Laws of Eng­land, e. 9, Of Injuries to Personal Property, 154 (7th ed. Oxford 1775). See, also, the following eas­es: Arkansas: Gregory v. Bewly, 5 Ark. 318 (1843);

Illinois: Mix v. Nettleton, 29 III. 245 (1862): Roy v. floy, 44 Ill. 469 (1867); Raynes v. Lucas, 50 III. 436 (1869}; Massachusetts: Knowles v. Inhabitants of Eastham, 11 Gush, (Mass.) 429 (1853) Pennsyl­vania: Banal v. Tonkin, 110 Pa. 569, 1 AU. 585 (1885).


21. 1 ELI!. 54?, 126 Eng.Rep. 314 (1791).
22. Maine: Norris cc School Dist. No. 1 in Windsor,

12 Me. 293. 28 Antbee. 182 (1885); TennesSee

Thompson v. French, 10 Yerg. (Tenn.) 452 (1837);

Federal: United States v, Colt, Fed.Oas.No.14,839

(Uet.C.C.) 145 (1818).

Sec. 138

ACTION OF DEBT

283


must be fixed.23 But at the present day either Debt or Indebitatus Assumpsit will lie for the reasonable value of services or goods, though not fixed by the parties. If the claim is for the value of something giv­en as contrasted with unliquidated damages, that is sufficiently certain.
Debt will not lie, for instance, for a re­fusal to convey shares in a building accord­ing to the terms of a contract under seal. The remedy is by Action of Covenant.24 Neither wifi Debt lie for breach of a prom­ise of indemnity against loss or damage by fire contained in a fire insurance policy, al­though on principle this may well be ques­tioned as the duty to pay is absolute.25
Debt will not lie on a guaranty contract, as on a promise to pay the debt of another in consideration of forbearance, etc.,2° or in some jurisdictions against the indorser of a bill or note, or by an indorsee against the
23. Young and Ashburnsbam’s Case, 3 Leo. 161, 74

Eng.Rep. 606 (1578). Cf. Norris v. School District

No. 1 in Windsor, 12 Me. 293, 28 Am.Dee. 182 (1835);

Seretto v. Rockland, S. T. & 0. H. fly., 101 Me, 140,



63 AtI. 651 (1006).
24. Fox River Mfg. Co. v. Reeves, 68 IlL 403 (1873).
25. See Flanagan v. Camden Mut. Ins. Co., 25 N.J.L.

506 (1856). See, also, Heifron v. Rochester Ins. Co.,

220 Ill. 514, 77 N.E. 262 (1906), in which it was held

there could be no recovery on a policy of fire insur­ance under the Common Counts. Cf. People’s Ins.

Co. v. Spencer, 58 Pa. 353, 91 Am.Dce. 217 (1866).
26. ~ Chitty, Treatise on Pleading and Parties to Ac­tion, with Precedents and Forms, e, TI, Of the Forms of Action, 127 (16th Am. ed. by Perkins, Springfield 1876); English: Bishop v. Young, 2 Bos. & P. 83, 126 Eng.Rep. 1169 (1800); New Jersey: Gregory v. Thompson, 81 N.J.L. 166 (1865); Tennessee: Tap-pan v. Campbell, 9 Yerg. (Tenn.) 436 (1836). But see, also, and compare: Illinois: Potter v. Gron­heck, 174 IH. 404, 7 N.E. 586 (1886); Tennessee:

Hall v. Rodgers, 7 Humph. (Tenn.) 536 (1847); Brown v. Bussey, 7 Humph. (Tenn.) 573 (1847);

Federal: Cubbins v. Mississippi River Comma., 241 U.S. 351, 36 S.Ct. 671, 60 LEd. 1041 (1915). See, aiso, Ames, Lectures on Legal History, Lecture VII, Debt, 93 (Cambridge 1913); Ames, Parol Contracts Prior to Assumpsit, 8 Harv.L.Rev. 252, 261 (1894)

acceptor of a bill.2’ But the Action of Debt has been allowed more extensively in Amer­ica as a remedy on Bills and Notes than in England, even against parties secondarily liable. In general Debt will lie wherever a duty is created to pay a sum certain. If the one primarily liable does not pay, the in­dorser or drawer comes under a duty to pay the amount of the note or bill.28


The action cannot generally be supported for one entire debt, payable in installments, till all are due,2° though for rent payable quarterly, or otherwise, or for an annuity, or on a stipulation to pay a certain sum on one day and a certain sum on another day, Debt
27. English: Bishop cc Young, 2 Bos, & P. 78, 126 Eng.Rep. 1166 (1800); Cloves v. Williams, 3 fling. (NC.) 268, 132 Eng.ltep. 645 (1837); VIrginia: Smith v. Segar, 3 Hen. & M. (va.) 394 (1800); Stovall’s Ear v. Woodson, 2 Mumf. (Va.) 303 (1811); Quare, Hil­born v. Artus, 3 Scam. (Ill.) 344 (1841) ; Contra:

Tennessee: Planters’ Bank v. Galloway, 11 Humph. (Tenn.) 342 (1850); Federal: Raborg v. Peyton, 15 U.S. 385, 4 LEd. 268 (1811); Home cc Semple, 3 McLean 150, Fed.Cas.No.6,658 (1843).


In Watkins v. Wake, 7 Mees. & W. 488, 151 Eng.Rep. 858 (1841), it was held that the action would lie by the Indorsee against his immediate indorser. See, also, Stratton v. Hill, 3 Price 253, 146 Eng.Rep. 253 (1816).
And it has been held that Debt will lie by the indorsee

of a bill or note against the drawer or maker. New

York: Willmarth v. Crawford, 10 Wend. (N.Y.) 343

(1833); Pennsylvania: Camp v. Bank of Oswego, 10

Watts (Pa.) 130 (1840).
Anti in Loose v. Loose, 36 Pa. 538 (1860), it was main­tained by the indorsee against a remote indorser. See, also, Onondaga County Bank v. Bates, 3 Hill (N.Y.) 53 (1842). Cf. the following: Pennsylvania:

Weiss v. Maneh Chunk Iron Co., 58 Pa. 295 (1868):

Federal: Raborg v. Feyton, 15 U.S. 385, 4 LEd. 268 (1817); 3 Street, Foundations of Legal Liability, c. XI, Action of Debt, 139 (Northport 1906).
23. Raborg v. Feyton, 15 U.S. 385, 4 LEd. 268 (1817).
20. English: Hunt’s Case, Owen 42, 74 Eng.Rep. 886

(1588); Rudder v. Price, I BIll. 547, 126 Rng.Rep.

314 (1791); Illinois: Boy v. Roy, 44 Ill. 469 (1867);

Indiana: Parnham v. Hay, 3 Blaekf. (md.) 167

(1833); Pennsylvania: Sparks v. Garrigues, I Bin.

(Pa.) 152 (1806); Federal: Fontaine v. Aresta, 2

M’Lean 121, Fed.Cas.No.4,905 (1840). See, also,

West Virginia: Jamesoa v. Board of Education, 78



W.Va. 612, 8 S.E. 255, L.R.A.1916F, 926 (1916).

284


OFFENSIVE PLEADINGS

Ch. 13


lies on each default.3° And even where one sum is payable by installments, if the pay­ment is secured by a penalty, Debt may be maintained for the penalty.3
Debt will not lie to recover on a promise to pay a debt out of a particular fund, or in services, or in a particular kind of currency not legal tender.32 It does not lie, for in­stance, on a note or writing obligatory for the payment of a certain sum in “United States bank notes, or its branches,” or in notes of a particular bank,33 or in lumber,’4
30. English: Hunt’s Case, Owen 42, 74 Eng.Rep. 886 (1588); Budder v. Price, 1 Bl.H. 547, 126 Eng.Rep. 314 (1701); Illinois: Hoy v. floy, 44 Ill. 460 (1867).
31. English: Coates v. Hewit, 1 Wils. (K.B.) 80, 95

Eng.Rep. 503 (1744); Illinois: Hey v. Roy, 44 Ill.

469 (1867); Federal: Fontaine v. Aresta, 2 M’Lean

127, Fed.Cas.No.4,905 (1840).


32. Alabama: Young v. Scott, 5 Ala. 475 (1843); Ar­kansas: Hudspeth v. Gray, 5 Ark. 157 (1842); 1111-nois: Illinois State Hospital for Insane v. Higgins, 15 Xli. 185 (1853); Mix v. Nettleton, 29 Ill. 245 (1862); Indiana: Wilson v. Hiekson, 1 Blaekf. (md.) 230 (1822); Osborne v. Fulton, 1 Blaekf. (md.) 234 (1822); Kentucky: Sinclair v. Pierey, 5 J.J.Marsh. (Ky.) 63 (1830); January v. Henry, 3 T.B.Mon. (Ky.) 8 (1825); Missouri: Snell c. Kirby, 3 Mo. 21, 22 Am.Dec. 456 (1831); New Jersey: Scott v. Con­over, 6 N.J.L. 222 (1822); Tennessee: Deberry v. Darnell, 5 Yerg. (Tenn.) 451 (1830); Virginia:

Beirne v. Dunlap, 8 Leigh (Va.) 514 (1837). Cf. Gift

v. Hall, 1 Humph. (Tenn.) 480 (1840),
Debt will lie on a contract to pay either in property

“or” in money. Alabama: Henry v. Gamble, Minor

(Ala.) 15 (1820); Bradford v. Stewart, Minor (Ala.)

44 (1821); Kentucky: Dorsey v. Lawrence, Hardin

(Ky.) 517 (1808); Tennessee: Crockett v. Moore, 3

Sneed (Tenn.) 145 (1855); Virginia: Minniek v.

Williams, 77 Va. 758 (1883).
33. Wilson v. Hickson, I Blackf. (Ind.) 230 (1822);

Osborne v. Fulton, 1 Blaekf. (Ind.) 234 (1822). Cf.

Belford v. Woodward, 158 Ill. 122, 41 N.E. 1007, 29

L.R.A. 593 (1895), involving gold coin.


St Cassady v. Laughlin, 3 Blaekf. (md.) 134 (1832).
It seems, however, that Debt lies if the debtor merely had the option to pay In goods, or do some other act, and has not done so. Illinois: Pox River Mfg. Co. v. Reeves, 68 Iii. 403 (1873); Ohio: Nelson v. Ford, 5 Ohio 473 (1832); Tennessee: Bloomfield v. Hancock, 1 Yerg. (Term.) 101 (1826); Young v. Haw­king, 4 Yerg. (Term.) 171 (1833),
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