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or in county orders.35 But it will lie for a

debt payable in money or goods at the op­tion of either party, or to pay a definite sum in goods.3°


In the cases mentioned the only remedy is by Special Assuinpsit or Covenant to recov­er Damages for Breach of Promise as con­trasted with specific enforcement of the Du­ty to Pay a Sum Certain.
The Breach

AS this Action is only sustainable for the recovery of a debt, the Breach is necessar­ily confined to a Statement of the Nonpay­ment of the Money previously alleged to be payable; and such Breach is nearly similar, whether the Action be on Simple Contract, Specialty, Record, or Statute.37 It is an Al­legation that the defendant, though often re­quested so to do, has not paid to the plain­tiff the sum demanded, but has wholly neg­lected and refused so to do.°5 If the Action be on a Bond, whether a Common Money Bond or a Special Bond for the Performance of Covenants, within the Statute,39 the pen-


35. See Mix v. Nettleton, 29 Ill. 245 (1862), In which it was held that Debt ~vill lie on a Judgment pay­able In United States gold coin. Cf. Belford v. Woodward, 158 III. 122, 41 N.E. 1097, 29 L.R.A. 593. (1805).
36. English: Emery v. Fell, 2 T.R. 28, 100 Eng.Rep.

16 (1787); Illinois: MeKinnie v. Lane, 230 Ill. 544,

82 N.E. 878, 120 Am.St.Rep. 338 (1907), Involving

Indebitatus Assumpsit; 3 Street, Foundations of

Legal Liability, c. XVI, The Action of Indebitatus

Assumpslt, 188 (Northport, 1906); Ames, Lectures

on Legal History, Lecture XIV, Implied Assumpsit,

153 (Cambridge, 1913).
37. Illinois: llynders cc Cone, 80 Iil.App. 629 (1898); New York: Gale v. O’Bryan, 12 Johns. (N.Y.) 216 (1815).
38. The Allegation of a Demand is necessary, though the omission is cured by a Verdict Lusk V. Cassell~ 25 Ill. 209 (1861),
39. The act referred to is the English Statute of 8 &

9 WIlliam III, c. 11 (1096), whIch has been substan­tially adopted into the Common Law of this coun­try. New Jersey: Morris Canal & Banking Co. v. Von Voorst, 20 N.J.L. iei (1843); West Virginia:



Reynolds v. Hurst, 18 W,Va, 648 (1881).

Sec. 139

ACTION OF DEBT

285

alty is the debt at law, and the Breach by Nonpayment should therefore be alleged in the above form; but, if the Bond have a Condition within the Statute, the Breaches of such Condition should be Assigned.4° Real Conditions Subsequent need not be Neg­atived In the Declaration.4



Thc Damages

BY the term “Damages” is here meant a demand additional to and independent of the sum or debt claimed, which, if for the deten­tion of the sum expressly agreed to be paid, as for interest, should be for more than a nominal sum, and for sufficient to cover the amount of the demand.42 The Damages in this action are usually nominal only, for a small sum. Though they are only an inci­dent to the main object of the suit, some Damages must always be alleged for the de­tention of the debt.


In an Action on a Penal Bond, the Dam­ages assessed for Breach of Condition Sub­sequent are not included in the Judgment, and will be greater than those laid for the detention of the debt,43
40. PatrIck v. Bucker, 19 III. 428 (1858).
The burden of Assigning and Proving Breaches of the Condition of a Penal Bond Is now thrown on the plaintiff. Barrett v. Douglas Park Bldg. Ass’n, 75 Ill.App. 93 (1897); Cf. Douglas v. Hennessy, 15 RI. 272, 3 AU. 213, 7 AtI. 1 (1886). See, also, 2 WIllis-ton, A Treatise on the Law of Contracts, c. XXIV, ~ 067, 1287 (New York, 1936—1945).
4’. Lesher v. United States Fidelity & Guaranty Co.,

230 Iii. 502, 88 N.E. 208 (1909); 2 Wllliston, A.

Treatise on the Law of Contracts, e. XXIV, 0 867,

1287 (New York, 1936—1945).



42. flflnols: Russell v. City of Chicago, 22 III. 283 (1859); Brown v. SmIth, 24 lB. 196 (1860); Under v. Monroe’s Ex’rs., 83 UI. 388 (1864); Magulre V. Town of Xenia, 54 III. 299 (1870); New Jersey: Al’ len v. SmIth, 12 NJ.L, 159 (1631).

DECLARATION IN DEBT—ESSENTIAL AL­

LEGATIONS: (2) IN DEBT ON SIMPLE (EXECUTED) CONTRACT
.139. In Debt on Sinipic (Executed) Contract,

the Declaration must allege facts showing that the defendant received a quid pro quo, that is, the receipt of value from which, by operation of law, the debt arises; in addition it must allege, by way of the Breach, Nonpayment of the Debt, and Damages.


BEFORE discussing the problem of stat­ing a cause of action in Debt as applied to Simple Contracts, it is essential to consid­er the distinction between what were called Executed Contracts at Common Law and what are considered as Contracts Under Modem Law; also the distinction between Executed and Executory contracts as they originated at Common Law, together with some of the characteristics and peculiarities of each. Thereafter, with an understanding of the source or basis of the obligation sought to be enforced, we may intelligently consid­er the essential obligations necessary to state a good cause of action in Debt.
Executed Contracts
BOTH an Executed and an Executory Con­tract, if broken, will subiect the parties who commit a breach, to liability, but upon whol­ly different theories. Thus, if B agrees to buy certain goods from A, and to pay for the same, if .4. delivers the goods, and B fails to pay for the goods, B is clearly liable to it, as a matter of morality, but not because of his promise. His obligation is entirely in­dependent of the promise, and would be equally binding if there were no promise. But if B refused to accept the goods when delivered, A, the vendor might hold B liable in damages for any loss sustained by reason of B breaking his promise to accept and pay for the goods. The theory of liability in this latter situation is that B has breached his contract, not that B has received anything wifich entitled A to an equivalent amount.

43. Alien t SmIth, 12 N.LL. ISO (1831). Ct. Stephens
v. Sweeney, 2 Gil. (Ill.) 375 (1845).

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Such Damages will usually be nominal, or at least bear little proportion to the value of the goods which the vendor sold. In oth­er words, as we have seen, prior to the ad­vent of Special Assumpsit A would have had no remedy at all where B refused to receive the goods, as a parol promise created no le­gal obligations, nor did it give the promisee a right of action for its breach. But prior to Special Assumpsit, under which the ven­dor could recover for his loss of a profit re­sulting from B’s breach, a purchaser could not take or receive another’s property with­out compensation therefor. Such accept­ance of goods constituted a cau,sa debendi, upon which the Action of Debt might be sustained.


(I) Debt Not in General Available on a Broken Promise..—Debt, then, was applied to such cases on a theory not generally un­derstood by the modern mind. To adapt the Ancient Real Action—the Writ of Right— to the recovery of a loan, sale or other Exe­cuted Contract, it was essential to first, estimate the amount owed as a specific sum of money, and second, to impute to the plain­tiff a property in that pecuniary res~ by treating the sum owed as a specific piece of property in the hands of the debtor and which, by means of the force and effect of the so-called Executed Contract, had been transmitted to the ownership of the creditor, becoming his, by operation of law, the equiv­alent of the quid pro quo which the creditor had transferred to the debtor. And under this theory the law sometimes recognized such reciprocal transfer of title, even where there was no passing of a quid pro quo, as in the case where B bargained to buy a horse from A, the Court held that the property was in B, hence lie was entitled to bring Det­lime, where A, the seller, was entitled to have a Writ of Debt for the price.44
44. Y.B. 20 Henry VI, 35 (1442). See, also, a state­mont by Mr. Justice Holmes, in 1916, In the ease of

In consequence of the foregoing, then, we may say that Debt lies upon what we now refer to as Simple (Executed) Contracts, up­on any parol agreement which has been car­ried out by the plaintiff in such a manner as to transfer a quid pro quo, goods, labor, or money, to the defendant, so as to entitle the plaintiff to recover the corresponding price which is still in the hands of the defendant debtor. Says Professor Keigwin: “The effi­cient fact is the meritorious performance on the one side which—of itself and apart from the agreement—engenders the duty to make recompense for the benefit thereby imparted to the other side. The obligation enforced results from the facts accomplished by the plaintiff, and is founded upon the emolument inuring to the defendant from the transac­tion.” ~


(II) Debt Lies on the Simple (Executed) Contract, Assumpsit on the Promise.—What, then, was meant when it was said that Debt lies on the Contract, Assumpsit on the Prom­ise? ‘° The distinction may be dearly per­ceived if we examine the case of Sands v. Tre­velian,47 decided in 1630. In that case .4 re­11, 37 SOt. 3, 4, 61 LEd. 116, 118, In which he said:

“When a man sells a horse, what he does from the point of view of the law is to transfer a right, and a right, being regarded by the law as a thing, even though a res inoorporalis, It is not illogical to ap­ply the same rule to a debt that would be applied to a horse.”


45. Keigwln, cases on Common Law Pleading, C. II, The Common Law Actions, 58 (2d ed. Rochester, 1034).
46. 11n Comyn’s Digest, written about 1740 and pub­lished in 1762 after the author’s death, It is laid down that ‘Debt lies upon every contract in deed or In law’; and the instance given to illustrate the doctrine is a use of the action to recover a statu­tory penalty, the unlawful act being the contract. So in 1677, in the Fourth Section of the Statute of Frauds, provision Is made concerning, not any con­tract for the sale of lands, but any contract or sale of lands, apparently distinguishing between an Ex­ecuted Transaction and an Executory Agreement.” Keigwin, The Action of Debt, 11 Geo.L.J. 28, 37 (1923).

Portuguese-American Bank v. Welles, 242 U.S. 7,



47. Cro.Car, 193.

Sec. 139



ACTION OF DEBT

297

quested B, an attorney at law, to defend his friend C, who had been sued, and A undertook to pay for the service rendered. B performed the service requested and C, having failed to pay, B demanded payment by A, and upon his refusal, sued A in Debt upon his under­taking. In the Court of Common Pleas it was held that Debt by B against A would not lie, but that Special Assumpsit would lie on A’s promise to B to pay the debt of C~ Special Assumpsit is the only remedy, the theory being that there was no quid pro quo passing from B to A, and hence no debt.
From the result in the Sands case, two in­ferences may be drawn, first, that in the le­gal mind of the late Sixteenth and early Seventeenth Centuries, the word “contract” meant only a Simple (Executed) Contract, which covered factual situations, in which there had been an engagement to swap some­thing of material benefit, the effect of which was an emolument moving from one party to the other, as in the instant case, from the attorney B, to his client C; second, a debt could not be created by a promise, where it was made to pay a debt chargeable to an­other other than the promisee. In the Sands case the only debt was that created by B’s performance of services to C, which per­forinance, by operation of law, imposed a legal duty upon C to pay B, which was re­mediable in Debt by B against A. No debt existed as between B mid A, and A had re­ceived no quid pro quo from B. As to A, then, no causa debendi in Debt existed; there was, however, an undertaking which did not involve any benefit to A, the prom­isor, but which did involve a breach of prom­ise, remediable in Special Assumpsit, and for which the object of the action was the recov­ery of Damages and not a Specific Sum Cer­tain, as required in Debt.
It follows from the foregoing discussion that when there is what we now refer to as a Contract in the early Common-Law sense,

there is a Simple (Executed) Contract which
involves the performance of meritorious services by one party for the benefit of an­other. Even if there be a promise in such case, as there often may be, the Action of Debt which lies, is not grounded upon that promise; indeed, if only a promise existed, without the delivery of some benefit from the plaintiff to the defendant, Debt could not be sustained.
(UI) Debt and Special Assumpsit, While Sometimes Concurrent Remedies, are Grounded on Different Theories.—Jt was for this very reason that Special Assumpsit was, as we shall see later, developed as a remedy whereby a plaintiff might recover Damages for the breach of an express promise, as in the sale of goods, the loan of money, or the rendition of services of value to the defend­ant. Special Assumpsit may be concurrent with Debt, where over and above the Simple Executed Contract, performed on one side but not on the other, there is also an Express Promise to Pay, but, in general, the action lies in many factual situations wherein no debt exists. Where concurrent, it should be observed, that the theory upon which each action proceeds, is different. Debt lies upon the Contract, as conceived by the Common Law, long prior to the emergence of the Mo­dern Contract as an incident of the develop­ment of Special Assumpsit, and under which the plaintiff seeks recovery of the equiva­lent of the benefit or quid pro quo which has passed to the defendant. In such case Debt proceeds independently of any promise to pay, and not upon any promise; Special As­sumpsit proceeds upon the theory of the Breach of an Express Promise, and its occa­sional concurrence with Debt may be attrib­uted to the presence of a Breach of an Ex­press Promise over and above a Simple (Executed) Contract as known under the early Common Law. if a promise is essen­tial to recovery Debt will not lie. This was made clear in Hersey v. Northern Assurance

Kofflor & floppy Com.Law Plep. H.5..—11

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Ch. 13

Co.~,49 in which the plaintiff sought to recov­er in two Common Counts in Indebitatus As­sumpsit, which became a substitute for Debt, upon a fire insurance policy, under which the Insurance Company undertook to indemnify against loss by fire. The Court held that Debt or Indebitatus Assumpsit would not lie, as the Allegations of Fact, aside from the Express Promise to indemnify in case of loss by fire, were not sufficient to create a Com­mon-Law Debt—a Debt created by a Simple (Executed) Contract. Said the Court: “In the present case the facts aside from the promise, via.: the plaintiff’s ownership of the property, its destruction by fire without his fault—even the payment of the premi­uins,—do not raise an implied promise by the defendant to pay; it is only the fact that it promised, upon certain conditions, to pay, that makes it liable. Consequently, at Com­mon Law, the promise, the conditions, and the fulfillment of the conditions, must be set forth—in other words the Count must be special.” ~ And the same rule applies in the case of a wager, a breach of warranty, or where the vendor fails to deliver the goods to the vendee.5° In all such cases, nothing of value having passed to the defendant, no debt has been created, or no causa det’endi making it his duty to pay; the remedy in such case is Special Assumpsit for the breach of an express promise.5
48. 75 V~t. 441, 56 AU. 95 (1903).
49. Homey v. Northern Assurance Co. 75 vt. 441, 56 Atl. 95 (1903), citing as authority the leading Bug­lish case of Cutter v. Powell, 2 Smith’s Lending Cases 8 (13th ed. London, 1929).

.10. AtkInson v. Bell, S B. & C. 277, 108 Eng.Rep. 1046 (1828).


And this nile was applied even after the Abolition of

the Common Law Actions under the Codes. See

Henry Glass & Co. v. Misroclt, 210 App.Dlv. 783, 206

N,Y.Supp. 373 (1924) modified in 239 N.Y. 475, 147

N.E. 71 (1925).
Si. “But the distinction between Debt and Assumpsit is fundamental. For while Assumpsit might al­ways be brought where Debt would lie upon a Sim­ple Contract, the converse is not true. There were

Executory Contracts
WHERE a person promises to perform a certain act and then fails to perform, there is no basis for supporting an Action of Debt. There is no Simple (Executed) Contract, no Specialty Contract, no Judgment and no Statute. The only operative fact fixing lia­bility of the contractor is his breach of prom­ise. At Common Law, there were two rea­sons why a mere Breach of Promise would not support an Action of Debt. In the first place, at Common Law, the breach of a parol promise, while a lie, and hence immoral, was not regarded as a civil wrong, and therefore there was no remedy provided for breach of a parol promise; in short, the wrong was of such a character as to be not justiciable. However, by a long process of development which extended from Watton v. Brinth ~ in 1400, up to Cook and Songate’s Case53 in

1588, the Action of Special Assumpsit, as a remedy for the Breach of Parol Promises, was created by extending the tort Action of Trespass on the Case Super Se Assumpsit into the Modem Field of Contract, thus fin­ing the lacuna or gap which has been de­scribed as a deficiency in the Common Law Scheme of Remedial Justice.5~ But this de­velopment in no way affected the Nature or Scope of Debt. In the second place, Special Assumpsit, as the remedy for the Breach of a Promise, was not proprietary in char­acter; the injury to the deceived promisee could not be treated, as in Debt, as a specific res, of either chattels or money, in the pos­many cases where Assuinpslt was the only remedy.

.Assumpsit would lie both where the plaintiff had incurred a detriment upon the faith of the defend­ant’s promise, and where the defendant bad re­ceived a benefit. Debt would lie only In the latter class of cases. in other words, Debt could be brought only upon a Real Contract, Aasumpsit up­on any paroi contract” Ames, Parol Contracts Prior to Assumpsit, 8 Harv.L.Rev. 252 (1894).



~ Y.B. 2 Henry iv, ta. p1. 9 (1400).
63. 4 Leo. 31, 74 Eng.Rep. 708.

64. Thorne v. Deas, 4 Johns. (N.Y.) 84 (1809).



See, 139

ACTION OF DEBT

289


session of the wrongdoer. If the promisor­defendant. was to pay for his breach by mak­ing reparation in Damages, it had to be on some other theory than that which existed in Debt, as Debt could not be used as a rem­edy to recover Damages for a Breach of Con­tract, without destroying its character as a Real Action.
(I) The Common Law Versus the Modern Law Meaning of the Term “Uontract”.—As previously suggested, at Common Law, when it was said that Debt lies on a Simple Con­tract, it was used to describe transactions not included within the term “Contract” as understood in Modern Law. Originally, it was used in a very narrow sense and to de­scribe a Real Contract, under which the de­fendant was, by operation of law, placed un­der a duty to recompense the plaintiff in a sum equivalent in value to the quid pro quo received. The Specialty Contract, by way of contrast, was described as a Covenant, Grant or Obligation, but not as a Contract. As Pro­fessor James Barr Ames observes: “A Sim­ple Contract Debt, as well as a Debt by Spe­cialty, was originally conceived of, not as a Contract, in the Modern Sense of the Term, that is, as a Promise, but as a Grant. A bar­gain and sale and a loan were exchanges of values. The Action of Debt, as several writ­ers have remarked, was a Real rather than a Personal Action. The Judgment was not for Damages, but for the recovery of a Debt, regarded as a i-es.”
Such a view of the Common-Law Concep­tiOn of Contract excludes those factual situ­ations where the defendant’s obligation is founded on a mere promise to perform, un­accompanied by the receipt of a quid pro
~5- According to Bovier, Law Oietionary, p. 660, (3rd Rev. PhIladelphia, 1914) Real Contracts are those in which It is necessary that there be something more than mere conseifi, such as a loan of money, deposit or pledge, which from their nature require a delivery or the thing, v-es.

50. Ames, Lectures on Legal History, Lecture XIV, Implied Assuznpslt 1.~9, 151 (CambrIdge, 1913).

quo. The word “Contract” meant an Execut­ed Contract, under which a res passed from the plaintiff to the defendant. If the under­taking was executory, or dependent alone upon a promise, with provision for mutual exchange of benefit, Debt would not lie. Thus, cases involving suretyship or warran­ty, were not referred to as contract. And this explains why, as late as 1630, in the case of Sands v. Trevilian,5the Court held that a Contract of Guaranty was unenforceable in an Action of Debt, as the guarantor had re­ceived no quid pro quo from the promisee. In consequence, even unto this day, Debt will not lie for the mere Breach of a Promise, and this remains true even where the considera­tion itself creates an obligation to restore it if the promise be not performed, as where there is a payment on account for goods sold, and there is a failure of delivery. In such case the money paid constitutes a debt for which Debt will lie; ~ but any loss result­ing from the failure of the sale is remediable only in Special Assumpsit for Damages, as opposed to Debt for a Sum Certain. And, of course, as previously observed, the ex­change of Mutual Promises does not create a Contract upon which Debt will lie, as there is no quid pro quo passing to the de­fendant; there is, however, a Contract in the Modern Sense, upon the Breach of which Special Assumpsit will lie.
(II) Debt Not Available Upon a Collateral Contratt.—The Common-Law Rule was that Debt would not lie upon a Collateral Promise to pay the Debt of Another,~°—a principle
57. Cro.Car. 193, 79 Eng.Itep. 769
58. See Maylard v. Kister, Moore K.li. 711, 72 Eng. Rep. 857 (1598), in which the Court of Queen’s Bench held that Special Assumpsit was not available upon a promise to pay for goods sold and delivered, ‘be­cause Debt properly lay, and not an action on the Case [Special Assumpslt], the matter proving a per­fect sale and contract.’~
69. “Thus, In one of the oldest eases upon the sub­ject, is Edw-. III, 13 (1344), It is said: ‘If A bought of Inc certain goods for a certain sum, and B at the

290


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Ch. 13

established at an early period in the English Law. Thus, Reeves, in his History of English Law,°° commenting on the changes in legal proceedings between the time of William the Conqueror (1066—1087) and that of King John (1199—1216), declared: “When they (the parties) were both in Court, then it was to be considered how the demand arose. This might be of various kinds, as ex causa mutui, upon a borrowing; a causa venditionis, up­on a sale; cx conimodato, upon a lending; cx deposito, upon a deposit; or by some other cause, by which a debt arose; for at this time all matters of Personal Contract were con­sidered as binding only in the light of debts; and the only means of recovery, in a Court, was by this action of debt.” In each of these cases the common characteristic was that the consideration passed from the creditor to the debtor, so that the contract of the party receiving the quid pro quo, or benefit, was to pay his own debt and not that of another. Such transactions were in no way connected with third parties; the debtor was the party securing the benefit, lie alone owed the debt and Debt lay only against him.


In view of this origin of the action, it is not surprising to find that Debt, as a remedy, had no application, in case of a Breach of Promise to pay money which was primarily due from a third party. In an early case, the law was stated as follows:

“If C recover £10 against A, and B shall say to C that if he will release the £10 to A he will be his debtor, and accordingly the £10 are released to A, an Action of Debt will not lie against B, as this sounds in covenant.” ~ In the subtle theory of the thy it was held


same time undertook to pay for them at the day if A did not; if A should not pay for them, debt could not be brought against B, because it would sound In covenant.’” Beasley, C. 3., In Gregory v. Thompson, 31 N.J.L. 166, 168 (1865).
~O. I Reeves, History of English Law, e. IV, 425 (Finlason’s .Ani.EL, Philadelphia 1880).

that such a promise by B did not create a debt; the party originally liable, A, remain­ed the debtor; B, who made himself a Surety did not by that act impose upon himself a debt.


It thus appears that the existence of this ancient rule of law has never been denied, although Chief Justice Beasley, in Gregory

v. Thompson,°2 suggests that in some in­stances it has been misapplied. He discusses the Anonymous63 case, in which it was held that an Action of Debt brought by the payee of a Bill of Exchange against the acceptor, could not be supported, on the ground that the engagement was collateral. Chief Justice Beasley observes that while this decision has since been overruled in this country, it in no way affected the principal doctrine, as the reversal did not rest on grounds which in­volved the doctrine under elucidation. Chitty, a modern English authority, sustains the ancient doctrine, declaring:

“Where a Simple Contract creates a Collat­eral Liability, as for the payment of the debt of a third person, Debt not being sustainable, Assumpsit is the only Form of Action.” ~ The same rule, Chief Justice Beasley ob­serves, has found sanction in Amer­ica in Pierce v. Crafts ~ and Willmarth v. Craw jord7 and the principle is not affected because the engagement sued upon has l~een expressed in an instrument under seal. This very issue was presented in 1838 in the case
62. 31 NiL. 166 (1805).
83. Hardres 485, 145 Eng.Rep. 560 (1660).
In Bishop v. Young, 2 Boa. & P. 78, 126 Eng.Rep. 1166 (1800), Lord Eldon reviewed the Anonymous case reported in Hardres, and held that it rested on solid ground; and it was also treated with like respect by Justice Laurence in Priddy v. Henbray, 1 B. & C. 074, 107 Eng.Rep. 248 (1823).
SI. I Chitty, treatise on Pleading and Parties to Ac­tion, with Precedents and Forms, c. III, Of the Forms of Action, 176 (16th Am. ed. by Perkins, Springfield 1870).
65. 12 Johns. (N.Y.) 90 (1815).
68. 10 Wend, (N.Y.) 341 (1833).

61. o Henry V. 14~ p1. 23(1421).

Sec. 139

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291


of Randall v. Rigby,67 in which Debt was brought upon an indenture whereby A had granted to B and C certain lands in fee sim­ple, reserving to himself and his heirs for­ever an annual rent, and B and C had cove­nanted that they or one of them, or some one of their heirs, would pay the rent. The Dec­laration alleged that one of the stipulated installments of rent was unpaid. A brought Debt against C, and a Demurrer to the Dec­laration was sustained, the Court holding that Covenant under which the defendant C, jointly with another, had undertaken to se­cure the payment of an annuity issuing out of the land, was Collateral, and hence would not, support an Action of Debt.°8 Finally Chief Justice Beasley refused to follow Mr. Justice Story’s suggestion in Bid lard v. Be1t,~ that it would not be overstraining the doctrine of Debt to apply it to Collateral Un­dertakings to pay a sum certain.
(III) A Single Quid Pro Quo Will Not Cre­ate Two Debts.—As previously observed, Debt was not available against a defendant if a benefit was conferred on a third person even though at the defendant’s request, as there was no quid pro quo essential to create a debt. As a result, however, of a case de­cided during the reign of Henry VI (1422— 1461),~° it was established that whatever would constitute a quid pro quo, if rendered to the defendant himself, would constitute a quid pro quo if delivered to a third person, provided it was delivered at the defendant’s request, and that such third person did not become liable therefor to the plaintiff, as one quid pro quo could not give rise to two debts.1’ This was the principle on which
67, 4 \l, & \V. 130, 150 Eng.Rep. 1372 (1835).
68. 8c~, in this connection, Harrison v. Mathews, 10

M. & W.. 767, 152 Eng.Rep. 682 (1842). 69. 1 Mason (U.S.) 202 (1816).



70. Ames, Lectures on Legal History, Lecture Viii, Debt, 93, 94 (cambridge, 1913).
71- Marriott v. Llster, 2 Wils. (KB.) 144, 95 Eng.Rep.

731 (1762).



Shandois v. Simson ‘~ was decided, a woman being held liable in Debt by a tailor for em­broidering a gown for the maid of her daugh­ter.
(IV) The Statute of Frauds and the Rule that Debt Will Not Lie Upon a Collateral Promise.—The principle that Debt will not lie on a Collateral Promise to pay money pri­marily due from another is vital when it comes to the application of the Fourth Sec­tion of the Statute of Frauds,73 which pro­vided that no action shall be brought upon a promise to answer for the debt of another unless the agreement shall be in ~iting. The Statute would, of course, have no ap­plication except where the promise to pay the debt of another was Collateral and was not in Writing.74
The Mode of Declaring on Simple Contracts

WHERE the action is brought on a Simple Contract Debt, the Declaration must show the Consideration on which such Contract was founded with exactitude, and it must ap­pear that there is a liability established either by law or by an express agreement of the defendant. The Form of the State­ment should be that the defendant agreed to pay the debt, and not that he promised; the


72. CroEliz. 880, 78 Eng.Rep. 1104 (1602).
See, also, Stonehouse v. Bodvil, Raym.T. 67 83 Eng, Rep. 37 (1662), in which the action was Indcbitatus Assumpsit instead of Debt.
73. 29 Car. II (1677). See, also, on this point, article by Ames, Parol Contract Prior to Assrnnpsit, 8 Harv. L.Rev. 252 (1895); Hening, A New and Old Reading on the Fourth Section of the Statute of Frauds, 57 U. of Pa.L.Rev. 611 (1909).
The whole Doctrine as to Collateral Promises to Pay exercised a restraining influence on the issue which long divided the Courts as to whether the Actions of Debt and Indebitatus Assumpsit should be ex­tended t’ penuit recovery for debts created by Bills of Exchange and Promissory Notes.
fl. Honing, A New, and Old Beading on the Fourth section of the statute of Frauds, ‘57 U. of Pa.L.Rev. 011 (1909); Ames, Lectures on Legal History, Lee­ture VIIi, Debt, 94, 95 (Cambridge, 1913).

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OFFENSIVE PLEADINGS

Ch. 13

basis of the action being the receipt of value and the duty arising from an Executed Con­sideration, and not, as in Special Assumpsit, from the promise.’5


The indebitatus Count in Debt differs from those in Indebitatus Assumpsit; for, al­though it states that the defendant was in­debted to the plaintiff in a named sum of money “for goods sold,” etc., precisely as in Indebitatus Assumpsit, and it is not neces­sary to set forth the nature or particulars of the transaction in detail, yet no promise should be stated, as in Assumpsit. The quantum meruit and quantum valebant Counts were formerly used in Debt, and re­sembled those in Assumpsit, except the words “agreed to pay” were used, instead of “promised to pay.”
DECLARATION IN DEBT—ESSENTIAL

ALLEGATIONS: (3) IN DEBT

ON A SPECIALTY
140. Jn Debt on a Specialty, the deed or instrument relied upon must be stated in the Declaration in precise words, that is, verbatim, or according to its substance and legal ef­fect. The Consideration need not be alleged, unless performance of it is a condition precedent.
THE second variety of Debt was Debt on a Specialty, or upon an instrument under seal, which in the English law was known as a Formal Contract. It fixed an obligation in either one of two forms: (1) such an instru­ment might declare that an indebtedness is a presently existing fact; or (2) it might assure that a specified sum of money would be paid in the future. Regardless of whether the instrument took on a present or future aspect, if the obligation created was to ren­der a specific, certain sum of money to the promisee or obligee, the Action of Debt lay to recover the specific res mentioned in the instrument, and as indicated by the instru­ment to be the property of the obligee to

whom payment is thereby assured. As the implications of an instrument creating a Present Obligation under a Seal were differ­ent from those created by a Future Obliga­tion under Seal, each will be considered separately.


A Sealed Instrument Fixing a Present Obl~­gation
SEALED instruments creating a Present Obligation might take the form of a bond to pay a specific sum of money, as on a single or common money bond, with­out any condition, or they may take the form of a bond with a penalty or with a collateral condition. In each case the debt was creat­ed by the act of the parties to be charged in executing the instniment under seal which is the basis of the suit. Thus, where a bond is drawn in the conventional form and for the purpose of securing the payment of money, it purports and acknowledges that the obli­gor or the person who signs and seals the in­strument is “to be held and firmly bound to the said” ohligee, or the said “plaintiff” in a specific and certain sum of money, which is to be paid to the said plaintiff (obligee), or his personal representatives at once or upon de­mand or at some fixed date or upon the hap­pening of some contingent act or event. The phrase “to be held and firmly bound to the said plaintiff,” as it appears in the Declara­tion imports an obligation on the part of the obligor to render the specific thing—the in­debtedness—to the obligee, and such lan­guage executed under seal amounts to a con­clusive declaration by the person who thus acknowledges his indebtedness that he has in possession money which belongs to the ob­ligee and which he ought to deliver to him. If the obligor fails to perform the duty to pay, as undertaken under seal, an Action of Debt on the bond lies to recover the money specified in the instrument, the theory being that the obligee or plaintiff is the owner of the specific sum designated and hence is

75. MeGinnity v. Laguerenne, 10 Dl. 101 (1848).

Sec. 140

ACTION OF DEBT

293


merely seeking that which belongs to him as provided in the bond. And such an acknowl­edgment under seal of indebtedness by the obligor is conclusive, even where there was in fact no pre-existing debt, or where the debtor-obligor had no property which be­longed to the obligee. The reason for this was that such an acknowledgment of indebt­edness, when widened by the solemn act of seal, operated as an estoppel, at least in a Court of Law; and it had the practical ef­fect of barring the obligor from denying what he had previously so solemnly admit­ted, thus placing the matter beyond dispute and eliminating any necessity of inquiry as to the nature and origin of the debt; and in short, under such an obligation, the issue as to how the debt arose, became immaterial.
By reason of the peculiar characteristics of the sealed instrument creating a present ob­ligation, it became possible for the obligee to use this form of instrument to obtain a bene­fit from the obligor which was clearly some­thing other than the payment of a debt. Thus, suppose B, the obligor, executes a bond agreeing to pay the obligee, A, a certain sum of money. In effect the in­strument becomes evidence of an absolute indebtedness. Now, suppose there is added to this instrument a condition in the form of a clause providing that the entire instru­ment should be void if the debtor-obligor, B, performs some other act, such as indemnif y­ing the obligee against certain contingencies, answering for the defaults of some third person, conducting himself in the proper and legal manner in some public office, paying a smaller sum of money, or performing a col­lateral contract. If the obligor, B, performs the condition set forth in the contract, the condition is said to have been fulfilled, with the result that there is nothing due on the bond; that is, the bond is void. If, however? the obligor, B, fails in any manner to meet the conditions as set forth, the bond is converted to an obligation

as absolute in character as it was upon its original execution, with the result that the obligee, A, may sue in Debt to recover the sum specified in the bond as a conc]usively acknowledged debt.


In such an instance, what the bonl secured was not the sum certain as a debt, but an agreed penalty or Liquidated Damages for ~~tilure to do someting other than paying the debt. Thus, it becomes apparent that the obligor’s acknowledgment of an obligation to pay a specific sum, was, in reality “a cloak to disguise a collateral undertaking; and when the obligee sues on the bond for the amount therein acknowledged to be due, what he actually goes for is not a debt but Dam­ages for the nonperformance of the contract contained in the condition.” ‘~ And under the Common Law, as the Breach of a Con­dition operated to convert the indebtedness into the absolute obligation it purported to be, the obligee, A, recovered the full amount pre­scribed by the bond, in total disregard as to the circumstances under which or the rea­son why the obligor failed to perform or the extent of the damage suffered by the obligee A, which, in some instances, was outrageous­ly small. Thus, to illustrate, suppose B, the obligor, by bond, acknowledges an indebted­ness to A, the obligee, of $10,000, with a con­dition that the bond is to be void upon the payment of $5,000 on a day certain. If, for any reason whatsoever, B failed to pay on the specified date, the larger amount became

absolutely due. And, if thereafter, the obli­gor offered to pay the smaller sum, the amount, let us say, actually owed, his tender was of no avail.
A Sealed Instrument Fixing a Future Obliga­tion

WHERE a sealed instrument contains an agreement to perform a certain act at a fu­Is. See Kelgwin, Cases in Common-Law Pleading, e.

II, The Common Law Actions, 47 (2d ed., Rochester

1934).


294

OFFENSIVE PLEADINGS

Cli. 13

ture time, such as to build a house, the prom­isee cannot sue the obligor upon any predi­cate of prior indebtedness; in such a case Covenant to recover Damages for the breach of the sealed instrument is the appropriate remedy, as Debt does not lie for an obliga­tion originating in that manner. If, how­ever, the sealed instrument had provided for the payment in the future of a specified sum of money, there is a suggestion of a pre-ex­isting duty, the money promised presumably being in discharge of a present debt, as for a loan or for goods, which constitute a causa debendi.77 By the mediaeval mind, such a promise was conceived of and treated as a present Grant of the specified sum, or a transfer of the title to the plaintiff obligee, which created a debt in the present, but a debt which was to be paid in the future. In other words, B’s agreement to pay A a specific sum of money next year, makes A the owner of that sum at once, even though A may make no claim of the property until the day speci­fied. Thus, in the Early Law, it was thought that an Agreement by Specialty for the pay­ment of money on a Future Day, in effect, operated as an immediate transfer of title to the sum mentioned, whereby the plaintiff­obligee was authorized, upon the arrival of the date specified, or the event designated, to demand the specified sum as his own. Debt on Specialty, therefore, is the proper remedy to recover a certain and fixed sum of money, made payable by a sealed instru­ment, and which under the language of the engagement, is not something other than the debt of the obligor. As Professor Keigwin so truly observes: “When, therefore, Action was brought upon a Specialty obligating the defendant to a future payment, the plaintiff did not sue to enforce performance of an Ex­ecutory Engagement, but to recover a spe­cific sum to which the title had become vest­


71. Keigwin, Cases In Common-Law Pleading, C. II, The Common-Law Actions, 52 (24 cii., Rochester

ed in him; he sought, not Damages for breach of an Executory Promise, but posses­sion of an identical res, demanded as the proper object of a Real Action, one which had been made his property by an Anteced­ent Grant.” ‘78


The Mode of Declaring in Debt on Special­ties

IN Debt on Sealed Instruments the Decla­ration usually states the Execution of the Specialty, and makes Profert of it,’° without any mention of the Consideration on which the Contract was founded. It is necessary, however, where performance of the Consid­eration by the plaintiff is a Condition Pre­cedent to his right to sue, to allege Fulfill­ment of the Conditions to defendant’s liabil­ity.89 The Statement of the Specialty must be a correct description of it, as to time, par­ties, etc.; mid it must appear, either by Ex­press Allegation or by the use of descriptive words importing the fact, that it was under seal.81 If not set out verbatim, it must be stated according to its legal operation awl effect.82 It must appear that the contract


IS. See article by Keig~vin, The Action of Dcbt, Pt.

IT, The Nature of the Obligation, 12 Geo.L.J. 28, 35 (1923).


79. Kentucky: Scott v. Curd, Hardin (Ky.) 69 (1806);

Cleveland v. Rodgers, I A.ICMarsb. (Ky.) 193 (1818);

Massachusetts; Bender v. Sampson, 11 Mass. 42

(1814).
80. Florida: United States Fidelity & Guaranty Co.

v. District Grand Lodge No. 27 of Grand United Order of Odd Fellows, 58 FIn. 373, 50 So. 952 (1909);

Illinois: Nash v. Nash, 16 In. 79 (1854); CaIdwell

v. Richmond, 64 III. 30 (1572); New York: Whitney

v. Spencer, 4 Cow. (N.Y.) 39 (1825); virginia: Not­tingham v. Acklss, 110 Va. 810, 67 SE. 351 (1910).


SI. English: Moore v. Jones, 2 Ld.Raym. 1536, 92

EngRep. 496 (1728); New York: Van Santwood V.

Sandford, 12 Johns. (N.Y.) 197 (1813); Vermont:

Barrett v. Cat-den, 65 Vt. 481, 26 AtI. 530, 36 Am.St.

Rep. 876 (1893); west Virginia: JUdd V. Beckley,

64 W.Va. 80, 00 St. 1089 (1908), holding that the

making and signing need not be alleged.
82. Illinois: White v. Thomas, 39 lU. 227 (1866);

Massachusetts: Lent -v. Padelford, 10 Mass. 285, 6 Am.Dec. 119 (1S13); New York: Scott v. Leiber, 2

1934).

ACTION OF DEBT

295


Sec. 141
was by deed, and it is a general rule, as we shall hereafter see, that Prof ert of the deed must be made, unless it is in possession of the adverse party or lost or destroyed.83
In an Action upon a Penal Bond, it was formerly the practice for plaintiff to set out only the defendant’s obligation to pay the penalty, without mentioning the Condition Subsequent which it was the object of the bond to enforce. The defendant, if he thought

he was able to prove performance of the Con­dition, would then crave Oycr of the Con­clition and Plead Pert onnance, and the plain­tiff would Reply, Assigning Breaches of the Condition.84 Upon a Penal Bond the Real Cause of Action is the Breach of the Condi­tion Subsequent. It is in effect a Covenant to Perform the Condition of the Bond. The Ac­tion is only in Form for a Debt, which is recited by way of penalty, and in reality is an Action for Damages for Breach of Contract. Contrary to the situation at Common Law, described above, where the fuJi penal sum was always obtained if the defendant had failed to perform the condition, now only the Actual Damages can be collected.
By statute the plaintiff is usually required to Assign the Breaches Complained of in his Declaration, and the defendant may then meet them in his Pleas. Although Judg­ment may still be entered for the penalty of the bond, this stands merely as security for the Damages caused by the Breach of Con­dition as found by the Jury.83
Wend. (N.Y.) 479 (1829); Vermont: Barrett v. Cat-­den, 65 vt. 431, 26 AtI. 530, 30 Am.St.Rep. 876 (1893).
S3. Massachusetts: Bender v. Sampson, 11 Mass. 42 (1814). See, also, Conwell v. Clifford, 45 md, 392 (1873).
84. New Jersey: Morris Canal & Banking Co. v. Van Voorst, 20 N.J.L. 167 (1843); West Virginia: Rey­nolds v. Hurst, 18 W.Va. 648 (1881). WhIttier, Cas­es on Common-Law Pleading, 377, 388, 389, note (St. Paul 1916).

DECLARATION IN DEBT—ESSENTIAL AL­

LEGATIONS: (4) IN DEBT ON A STATUTE
141. In Debt upon a Statute, the statement should embrace all the material facts to show that the offence or act charged against the de­fendant was within the provisions of the stat­ute, If there is an Exception or Proviso in­corporated in the Enacting Clause of the stat­ute and part of it, the plaintiff must show that the defendant was not within the Exception; but, if the Exception is contained in a subse­quent clause, it is a matter of defense only.
In Genei-al
DEBT is the proper remedy to recover a Specific Sum of Money Due by Virtue of a statute, where the statute prescribes no par­ticular Form of Action.8° Thus, where a statute prohibits the doing of an act under a certain penalty prescribed by the act, to be recovered either by the party aggrieved, or by an informer,57 and provides no particular mode of recovery, Debt will lie.85 Such a statute, in effect, provides that a specific sum of money or a specific chattel which now
86. Comyn, Digest of the Laws of England, Action on Statute, E (5th ed. Philadelphia 1824—1826); Ba­con, Abridgment of the Law, Debt, A (5th ed. Lon­don 1797); English: Tilson v. Town of Warwick Gaslight Co., 4 B. & C. 962, 107 Eng.Rep. 1317 (1825).
81. When a penal statute gives the whole or a part of a penalty to a common informer, and enables him generally to sue for tile same, Debt will lie, and he need not declare qni tuem. I Chilty, Treatise on Pleading and Parties to Actions with Precedents and Forms, ~. II, Of the Forms of Action, 126 (16th Am. ed. by Perk-ins, Springfield 1876); but there must be aa express provision enabling an informer to sue. Rex. v. Malland, 2 Str. 828, 93 Eng.Rep. 877 (1728); Fleming v. Bailey, 5 East 313, 102 Eug.Rep. 1090 (1804).
88. 1 Rolro, Abridgment, 598, pls. 18, 19 (Londoa

1668)- See, also, the following eases: English: Un­derhill v. Eilieombe, McClc. & Yo. 457, 148 Eng. Rep. 489 (1825); Alabama: Rogers v. Brooks, 99 Ala. 31, 11 So. 753 (1892); Illinois: Vaughan v. Thompson, 15 DI. 39 (1853); Ewbanks v. President, etc. of Town of Ashley, 36 III. 177 (1804); President, etc., of Town of Jacksonville v. Block, 36 Ill. 507 (18135); Michigan: Benalseck v.People, 31 Mich. 200 (1875); Federal: Cross v. United States, I Gall. 26, Fcd.Cas.No.3,434 (1812).



88. Patrick v. Reeker, 19 111. 428, 439 (1858), (Condi­tion must be set out and Breaches Assigned).

296


OFFENSIVE PLEADINGS

Ch. 13


belongs to a certain person shall become the property of another; or the effect of such a statute is to create in the latter of these two persons a title to the thing transferred, and to cast upon the former of these two persons a legal obligation to surrender it to the oth­er.8° For example, a statute may provide as a penalty f or engaging in prohibited fishing, hunting or smuggling, that the offender shall forfeit the instruments used in com­mitting the wrongful act, such as a boat, fishing equipment, horse, weapon or other materials used in the process of violating the revenue laws. Such statutes customarily provide that the Forfeited Articles shall pass to the informer, to the officer detecting the offence, or to the Government,.-.--the effect of such provision being to transfer to such person the title to the property in question. Upon the violation of this type of statute, the property of the offender is held without any further right in the offender, but as ‘the property of the per­son to whose benefit it accrues under the terms of the statute. The same rule applies where the statute provides for the Forfeiture of a certain sum of money, the pecuniary amount as a penalty being assimilated to a corporeal chattel, the title to which, by force of the statute, has passed from the wrong­doer to the person designated to take under the Statute. The aggrieved person, whether a Private Informer, or a Government officer, in suing on such a penalty, acts on the theory that he owes the money or other thing For­feited, which the offender is obligated to surrender to its new proprietor, the statute constituting a cau.sa debendi.°°
Debt will also lie to recover, under a stat­ute, money lost and paid on a wager, or to recover usury paid, or to recover a delin­
£9. Kaigwln, Cases in Common Law Pleading, II, The Common Law Actions, 44 (24 ed., Rochester 1934).

guent tax.~ Also, where, by statute, the owners of a bank are obligated to pay all the debts of the business, or a specific por­tion thereof, Debt will lie.92 And whenever a statute gives the right to recover damages for any particular injury, as for waste, extor­tion, etc., and the Damages are ascertained by the act, and are not uncertain, Debt will lie to recover them, if the statute prescribes no other remedy.93


Where, however, the statute giving the right to sue for a penalty, or other debt cre­ated by it, prescribes a specific remedy for its recovery, other than Debt, the Action of Debt will not lie; the form of action provid­ed is then regarded as the exclusive rem­edy.°4
91. Ryan v, Gallatln County, 14 III. 78 (1852); Town of Geneva v. Cole, 61111.397(1871); People, to Use of Christian County v. Davis, 112 III. 272 (1884); People v. Dummer, 274 III. 637, 113 N.E. 934 (1916). A suit in Debt for taxes is not an action upon a contract, express or implied, under the Chicago Mu­nicipal Court Act.
92. Mills v. Scott, 99 U.S. 29 (1878).
93. Whencver a statute gives a right to recover Damages, reduced, pursuant to the provisions of such statute, to a sum certain, an Action of Debt lies, if 110 other specific remedy is provided.” Bigcloiv v. Cambridge, etc., Turnpike Corp., 7 Mass. 202 (1810). See, also, Alabama: Blackburn v. Baker, 7 Port. (Ala.) 284 (1838); Strange v. Powell, 15 Ala.

452 (1849); Illinois: Israel v. President, etc., of Towa of Jacksonville, 1 Seam. (111.) 200 (1886); Cushing v. Dill, 2 Seam. (Ill.) 460 (1840); Vaughan v. Thompson, 15 III. 30 (1853); Kentucky: Portlaad D~’ Dock & Ins. Co. v. Trustees of Portland, 12 B. Mon. (Ky.) 77 (1851).


And in Reed v. Davis, 8 Pick. (Mass.) 514 (18291, where a statute gave the remedy by an Action of Debt generally to recover penalties and forfeitures pre­scribed by the statute, it was held that Debt would lie to recover Treble Damages for Waste given by the statute, though it is evident that the amount was neither ascertained nor certain.
94. English: Stevens v. Evans, 2 Burr. 1152, 1157, 97

Eng.lRep. 761, 763 (1761); Underhlll v. Elileombe,

MeCle. & to. 450, 148 Eng.Rep. 489 (1825); IllinoiS:

Confrey v. Stark, 73 Ill. 187 (1874); Massachuaetts

Smith v. Drew, 5 Mass. 514 (1809); Gedney v. jn~

habitants of Tewksbury, 3 Mass. 307 (1807); New

Hampshfre: Smith v. Woodmas~, 28 NFL. 520 (1854);

SO. Whutneraft v. Vanderver, 12 Ill. 235 (1850).

Sec. 142

ACTION OF DEBT

297


The Mode of Declaring in Debt Upon Stat­utes
IN Debt on a Statute at the suit of the par­ty aggrieved, or by a Common Informer, the statement should embrace all the material facts to show that the offence or act charged against the defendant was within its provi­sions. All circumstances necessary to sup­port the action must be alleged, but it is suf­ficient if these be substantially set forth, and the precise words of the statute need not be used.°5 If there is an Exception or Proviso incorporated in the Enacting Clause of the statute and part of it, the plaintiff must show that the defendant is not within the Excep­tion; but, if the Exception is contained in a Subsequent Clause, it is a matter of Defense only.9° In Framing the Declaration, it is nec­essary to include the words, “against the form of the statute” or “contrary to the form of the statute”, or “statutes,” in or­der to show, on the face of the Record, that the Action is Founded on the Statute.97
New York: Almy v. Harris, 5 Johns. (N.Y.) 173 (1809).
93. A Declaration to Recover Damages given by a Special Statute should embrace nil the niaterial dc­n~ents of the statute. Henniker v. Contooeoolc Val­ley B. Co., 29 N.H. 246 (1854). See, also, the follow­ing cases: Alabama: Gunter v. Dale County, 44 Ala. 639 (1870); Rogers v. Brooks, 90 Ala. 31, 11 So. 753 (1892); Maine: Berry v. Stinson, 23 Me. 140 (18-13);

Massachusetts: Hall v. Bumstearl, 20 Pick. (Mass.) 2 (1838); New York: Brown v. Harmon, 21 Barb, (N.Y.) 508 (1856).


00. English: Jones v. Axen, I Ld.Raym. 120, 01 Rug.

Rep. 976 (1096); Illinois: Whiteeraft v. Vanderver,

12 Ill. 235 (1550); Maine: Smith v. Moore, 6

Greenl. (Me.) 278 (1830), and cases there cited; New

York: Hart v. Cleis, 5 Johns. (N.Y.) 41 (1811); Fed­eral: Smith v. United States, 1 Gall. 201, Fetl.Cas.

No.13,122 (1812).


~7. English: Wells v. Iggulden, 3 B. & C. 180, 107 Eng.Bep. 703 (1824); Connecticut: Town of Ba,-lc­bamsted, v. Parsons, 3 Conn. 1 (1807); Maine: Pcn~ ley v. Whitney, 48 Me. 351 (1861); l~1assaehusetts:

Peabody v. lilayt, 10 Mass. 30 (1813); Federal:

Cross v. United States, 1 Gall. 26, Fetl.Cas.No.3,434

(1812);


DECLARATION IN DEBT—ESSENTIAL AL­

LEGATIONS: (5) IN DEBT ON A JUDGMENT


142. In Debt on a Judgment, where the Ac­tion is based on a Judgment obtained in a Court of Record, no statement of the cause of action on which the Record was founded is necessary; the statement should consist of a Description of the Judgment, which may be in a concise form, and need not state in full the previous proceedings in the Action in which it was obtained.
In General
IN a Court of Record, according to a “for­mulary of immemorial usage,” °~ a Final Judgment declares that “it is considered that the plaintiff do have and recover of the de­fendant” a certain sum of money or a spe­cific chattel; that is, the Judgment merely determines the matter of right between the parties, under which the plaintiff is to re­gain something which already belongs to him and which is wrongfully possessed by the defendant. What the language of the Judgment imports, and what the Judgment does, is to establish the plaintiff’s title to a specific chattel or to a certain sum of money. In like manner, a Recognizance, whereby one person enters upon the records of a court an acknowledgment of his indebt­edness to another, is treated as creating a legal obligation on the part of the de­fendant to pay the debt admitted to be due. And so, in any case where the indebtedness is demonstrated by a Record, the Action of Debt, because of its proprietary Char­acter, was peculiarly appropriate as a rem­edy whereby the plaintiff could recover mon­ey manifested to be his property.
Thus, a Judgment for a sum of money ad­judged by the court to be due from the de­fendant to the plaintiff in any Former Ac­tion, is a Debt of Record; that is, a sum of
OS. 5ee Keigwin, Cases in Com,non-Law Pleading, Bk. 1, The Forms of Action, c. II, The Common Law Ac­tions, Debt Upon Records 45 (2d ed. Rochester,
i934).

298


OFFENSIVE PLEADINGS

Ch. 13

money which is adjudged to be due by a Judgment of a Court of Record. This is an obligation of the highest nature, being estab­lished by the adjudication of a Court of Rec­ord. An Action of Debt was the only means for the enforcement of a Judgment after a Year and a Day had elapsed from the time of its recovery. Alter such time Execution could not issue thereon, as the Judgment was presumed to be satisfied. So that, if one has once obtained a Judgment against another ‘for a certain sum, and neglects to take out Execution thereupon, he may afterwards bring an Action of Debt upon this Judgment, ‘and shall not be put upon.the Proof of the Original Cause of Action; but, upon show­ing the Judgment once obtained, still in force, and yet unsatisfied, he is entitled to a New Judgment for the debt.


Debt thus lies on any obligation of Record

to pay money.99 It lies, for instance, on a

Domestic Judgment of a Court of Record,

and on the Judgment of a Court of Record of

a sister state, which is generaly regarded as

a Specialty.1 Debt will lie on a Judgment of
99. Woods v. Pettis, 4 Vt. 556 (1832).
Debt on a Simple Contract or Assumpeit will not lie on a Judgment rendered in a Court of Record in a sister state, Illinois: Knickerbocker Life Ins. Co. v. Barker, 55 III. 241 (1870); Vermont: Boston In­dia Rubber Factory v. Holt, 14 Vt. 92 (1842).
1. Illinois: Greathouse v. Smith, 3 Seam. (Ill.) 541

(1842) St. Louis, A. & P. 11. It. Co. v. Miller. 43

Ill. 199 (1867); Young v. Cooper, 59 Ill. 121 (1811);

Blattuer v. Frost, 44 Ill.App. 580 (1892); Kentucky:

Williams v, Preston, 3 J.J.Marsfl (Ky.) 000, 20 Am.

Dee. 179 (1830). Assumpslt does not lie in these

cases.
Debt does not lie on a Judgment of Foreclosure of a mortgage, directing, in the alternative, the payment of the amount due, or a sale of the land. Burgess v. Souther, 15 RI. 202, 2 Atl. 441 (1885). Cf. Blatt­ner v. Frost, 44 IlI.App. 580 (1892).
It does lie on a Decree in Equity directing absolutely the payment of a sum certain. Illinois: Warren v. McCarthy, 25 Ill. 95 (1800); New York: Post v. Neafie, 3 Cs.i. (N.Y.) 22 (1805). See, also, articles by flobteld, Relations Between Equity and Law, 11 Mieh.L.Rev. 537, 568 (1913); Cook, The Powers of EquIty, 15 Col.L.Rev. 31 at 237 (1915).

a Court Not of Record and on a Judgment of a Foreign Country, but generally not as on a Record or Specialty, but rather as in the nature of a Debt on a Simple Contract,2 in which action the plaintiff may be required to again prove the Original Cause of Action.3


Debts Upon Recognizance

THESE debts involve a sum of money, rec­ognized or acknowledged to be due to the state or to an individual, in the presence of some Court or Magistrate, with a Condition that such acknowledgment shall be void up­on the appearance of the party in a criminal proceeding, his good behavior, or the like; and these, if Forfeited upon Nonperformance of the Condition, are also ranked among this principal class of debts, viz., Debts of Rec­ord, since the contract on which they are founded is witnessed by the highest kind of evidence, viz, by Matter of Judicial Record.’


The Mode of Declaring in Debt Upon Judg­ments

IF the Action is Based on a Judgment ob­tained in a Court of Record, no statement of the cause of action on which the Record was


2. Cole v. Driskell, 1 Blackf. (md.) 16 (1818),
3. Keiwin, Cases on Common Law Pleading, e. H, The Common Law Actions, 46 (2d ad. Rochester, 1934); Cole v. Driskell, 1 Blacl~f. (Ind.) 16 (1818).
4. Illinois: Pate v. People, IS Ill. 221 (1553); Elmer

-a. Richards, 25111.260 (1861); Maine: State v. Fob som, 20 Me. 200 (1840); Massachusetts: Commis­sioner v. Green, 12 Mass. I (1815); Green v. Dana. 13 Mass. 493 (1S1C~); National Surety Co. v.

zaro, 233 Mass. 74. 123 N.E. 346 (1919), See, also, I Williston, A Treatise on the Law of Contracts, C. VIII, § 220, 664 (New York, 1930—iD-IS).
The Recognizance Is equivalent to a Judgment; aoth­ing remains to be done but Execution. Within a year from the date feted for payment, a Writ of Execution will issue as a matter of course, on the creditor applying for it, unless the debtor, having discharged his duty, has procured the cancellation of the entry which described the confession. The Recognizance was formerly in more common Use than now, and large sums of money were lent upon its security,

Sec. 143

ACTION OF DEBT

299


founded is necessary.5 The Statement should consist of a Description of the Judgment, which may be in a concise form, and need not state in full the previous proceedings in the action in which it was obtained.6 The
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