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particular form which should be used may be a brief statement, that at a certain time and in a certain Court of a given County and State, an action was duly brought, and that in such action a Judgment was duly ren­dered in favor of the plaintiff therein for a certain sum; and, while it has been held un­necessary to allege that such Judgment is still in force, it would seem the better prac­tice to do so.7 If the Judgment sued on is a domestic one, rendered by a Court of the State in which it is sought to be enforced, and by a Court of Record, it is not essential to allege that such Court had jurisdiction, the statement that it was a Court of Record being sufficient; but if rendered by an Inferi­or Court, as that of a Justice of the Peace, it should be Averred that the Court had Ju­risdiction, both of the parties and the subject matter. Where the Judgment is a Foreign One, rendered in a Court of a Foreign Coun­try, the Allegation of such Jurisdiction is al­ways necessary, but not where Judgment is rendered by a Court of General Jurisdiction in a sister state,8 and, in declaring upon a Justice’s Judgment of a sister state, the stat­
~. New York: Green v. Ovington, 16 Johns. (N.Y.) 55 11819); Federal: Piddle v. Wilkins, 1 Pet. (U.S.)

086, 7 LEd. 315 (1828).


C. Dcnison v. Williams, 4 Conn. 402 (1822).
7. A Declaration on a Judgment should describe the Court by which it was rendered, the place where it was held, the names of the parties, the date at which it was entered, and the amount of the Judg­ment. 23 Cyc. 1514, n. 43 (1904). -
8. Illinois: Rae v. Hulbert, 17 III. 572 (1856), involv­ing a sister state; Pennsylvania: Mink v. Shaffer~ 124 Ps. 280, 16 Atl. 805 (1889); Texas: Henry v. Allen, 82 Pox. 35,17 SW. 515 (1891); Federal: Pen­nington v. Gibson, 16 How. 65, 14 LEd. 847 (1853).

ute conferring jurisdiction upon the justice must also be pleaded.°

STATUS UNDER MODERN CODES, PRACTICE ACTS AND RULES

OF COURT
143. the basis of the Action of Debt gener­ally exists today as it did at the Common Law, but it is now brought under the Single, Form­less Form of Action as prescribed by Modern Codes, Practice Acts and Rules of Court.
THE Status of the Action of Debt under Modern Codes, Practice Acts and Rules of Court may be made clear by reference to a few cases. Within four years after the Code of Procedure was adopted in 1848, the issue was presented in Allen c~ Carpenter v. Pat­terson,1° in an Action which, under the Code was equivalent to either an Action of Debt or Indebitatus Assumpsit, in which the plain­tiff brought suit for goods sold and delivered, under the Code Provision that the Complaint should contain a plain and concise statement of the facts constituting the cause of action, alleging that the defendant was indebted to the plaintiffs in the sum of $371.01 for goods sold, and that there “is now due them from the defendant” the said sum for which they demand Judgment, &c. The defendant De­murred on the ground that the complaint did not state a cause of action in that the Allega­tion that “there is now due,” did not amount to a statement that the debt had become pay­able, or that it meant no more than the state­ment that the defendant is “indebted.” In af­firming the Judgment for the plaintiffs, the Court of Appeals declared that it was re­quired to treat the term “due” as having been used in the Complaint to express the fact
9. Sheldon v. Hopkins, 7 Wend. (N.Y.) 435 (1831);

See, also, the following cases: Illinois: Spooner v.

Warner, 2 1ll.App. 240 (1878); New York: Stiles v.

Stewart, 12 Wend. (N.Y.) 473, 27 Am.Dec. 142 (1834);

Vermont: Hubbard v. Davis, 1 Aiken (Vt.) 296

(1825).


10. 7 N.Y. 476 (1852).

300


OFFENSIVE PLEADINGS

Cli. 13


that the money sought to he recovered had become payable. The Court declared:
“The Code requires that a Complaint shall contain a plain and concise statement of the facts constituting the Cause of Action (§ 142). Every fact which the plaintiff must prove to enable him to maintain his suit, and which the defendant has a right to controvert in his answer, must be distinctly averred or stated. This rule of pleading in an action for a legal remedy is the same as formerly in this, that facts and not the evidence of facts must be pleaded (1 Chitty Fl. 215; Read v. Brookman, 3 Term, 159, per BULLER, J.; Eno v. Woodworth, 4 Com. 249). * *

“The counsel for the defendant insisted that the statement that there is “due,” &c., did not amount to a statement that the debt had become payable; that it meant no more than the statement that the defendant is “indebted,” &c., and that if the word “due” had two significations, the pleader could not select between them, and impute to it the one which suits his purpose best; for the maxim was that everything should be taken most strongly against the pleader, or if the meaning of the words be equivocal and two meanings present themselves, that construc­tion shall be adopted which is most unfavor­able to the party pleading. In the case of United States v. State Bank of North Caro­lina (6 Pet. 29), Judge Story said that the term “due” was sometimes used to express the mere state of indebtment, and then it was an equivalent to owed or owing, and it was sometimes used to express the fact that the debt had become payable. In the latter sense, I think that the word “due” was used by the pleader in the complaint in this suit, and in that sense it may be deemed to have been used.””


Five years later, in 1857, in the famous case of McKyring v. Bull,’2 the status of the
11. Allen & Carpenter v. Patterson, 7 N.Y. 470 (1852).
12. 16 New York 297, 69 Am.Dee. 000 (1857).

Action of Debt or its substitute, the Action of Indebitatus Assumpsit, came up again. The plaintiff brought an action under the Code, equivalent at Common Law, to an Ac­tion of Debt or Indebitatus Assumpsit, in which he alleged that, as an employee of the defendant, he had performed certain labor and service, which were the sum of ~65O, and concluded as follows: “There is now due to this plaintiff, over and above all pay­ments and offsets, on account of said work, the sum of one hundred and thirty-four dol­lars, which said sum defendant refuses to pay; wherefore plaintiff demands Judgment in tins action” &c. The defendant pleaded a General Denial. At the Trial the defendant offered evidence of payment as a Defense to the Ac­tion, which was objected to and excluded on the ground that it should have been pleaded. The Jury found a Verdict for the plaintiff, upon which Judgment was entered. The de­fendant, having made out a Bill of Exceptions, the Judgment on Appeal was affirmed by the Superior Court at General Term. In affirm­ing the Judgment, the Court of Appeals, speaking through Selden J., declared:


“Although the Code of Procedure has abro­gated the Common-Law System of Pleading, with all of its technical rules, yet, in one respect, the new system which it has intro­duced bears a close analogy to that for which it has been substituted. The general denial allowed by the Code corresponds very nearly with the General Issue, in actions of As­sumpsit and of Debt on Simple Contract, at Common Law. The decisions upon the sub­ject, therefore, in the English courts, al­though not obligatory as precedents since the changes introduced by the Code, will nevertheless be found to throw much light upon the question presented here.
“While the General Issue, both in As­sumpsit and Debt, was, in theory, what the general denial allowed by the Code is in fact, viz., a simple traverse of the material allega­tions of the Declaration or Complaint, yet,

Sec. 143



ACTION OF DEBT

301


from the different phraseology adopted in the Two Forms of Action, a very different result was produced. The Declaration, in Debt, averred an existing indebtedness, and this amount was traversed by the plea of nil debet, in the present tense; hence, noth­ing could be excluded which tended to prove that there was no subsisting debt when the suit was commenced. In Assumpsit, on the contrary, both the averment in the Declara­tion and the traverse in the plea were in the past, instead of the present tense, and related to a time anterior to the commence­ment of the suit. Under non assumpsit, therefore, so long as the rule of pleading which excludes all proof not strictly within the issue was adhered to, no evidence could be received except such as would tend to show that the defendant never made the promise. That this was the view taken of these pleas, in the earlier cases, is clear.”
Judge Selden observes, however, that con­trary to this view in the earlier cases, a prac­tice grew up for centuries under which evi­dence was received of payment, and other special defences under the plea of non as­sumpsit, as well as nil debet. But, he points out, this practice was swept away under the rules of Hilary term, adapted under the au­thority of the act of 3d and 4th William IV., ch. 42, § 1, under which the plea of nil debet was abrogated, and that of non assumpsit re­stored to its earlier status. And, guided by this fact, Judge Selden concludes:
“My conclusion therefore is, that neither payment nor any other defence, which con­fesses and avoids the Cause of Action, can in any case be given in evidence as a defence, under an answer containing simply a General

Denial of the Allegations of the Com­plaint.” 13
Finally, we come to the case of Stinson v. Edgemoor Iron Works,” a 1944 Federal case
U. MeKyrlng v. Bull, 16 N.Y. 297, 298, 299, 69 Sm.

Dee. 006, 697, 704 (1857).


‘4. 53 F.Supp. 864.

involving diversity of citizenship jurisdiction, and decided under the Delaware Law. The plaintiff alleged that he was employed by the defendant for one year from February 22, 1943, under a contractual arrangement reach­ed on March 12, 1943, but retroactive to Feb­ruary 22, 1943, at an annual salary of $8,200; that the defendant breached the contract by wrongfully discharging the plaintiff on March 17, 1943, whereby he became entitled to dam­ages in an amount representing the balance of his unpaid salary, the amount of which is $6,491.65. The defendant Moved to Dismiss the Complaint on the ground that the plain­tiff had failed to state a cause of action. In denying the defendant’s Motion to Dismiss, the United States District Court declared:


“The Delaware System of Pleading and Practice is presently that which prevailed in England at the time of the separation of the Colonies. Whatever may have been the changes in the Action of Debt in other states, that Action in Delaware remains today as it was at Common Law in England even prior to the adoption of the Hilary Rules in 1834. It is very clear that the Action of Debt as developed in England prior to the Hilary Rules of 1834 could not be used to recover Damages for breach of an employ­ment contract. In such suits the amount of Damages—in accordance with the test set forth in the Delaware case of Ogden-Howard

—is necessarily uncertain and unliquidated. The amount of such Damages can only be ascertained by Judgment of the Court or by Verdict of a Jury after the consideration of many factors. The Delaware authorities re­assert the principle that an Action of Debt will not lie, unless the demand is for a sum certain, or for a pecuniary demand which can readily be reduced to certainty by com­putation. No Delaware case has been found which even hints that its Courts are disposed to deviate from the limitations of the Action of Debt as They existed in England at the time of the Revolution. Delaware inherited



302

OFFENSIVE PLEADINGS

Ch. 13

from England the law relative to an Action of Debt, and that law remains in force until it is changed by the Delaware Courts or its Legislature. In fact, there have been no changes in the Delaware law relative to Actions of Debt, except in one instance. In 1933 the Legislature of the State of Dela­ware, Laws of Del., Vol. 38, Chap. 201, abol­ished the distinction between an Action of Covenant and one of Debt. But only to this limited extent has the original Action of Debt been changed from its formal status at Common Law and this was apparently found necessary by the enactment of a spe­cific statute for this particular purpose.

* . *
“Viewed against the Historical Develop­ment of the Action of Debt, it is apparent that Debt would not lie in Delaware to re­cover Damages or compensation for breach of an employment contract regardless of the Allegations in the Declaration. I consequent­ly think it clear that Ogden-Howard Co. v. Brand, supra, merely held that an Action of Debt was not the proper Form of Action, and consequently there is no basis for de­fendant’s contention that there are addi­tional holdings implicit in that decision. The precise problem before me is, therefore, the simple one of whether the Complaint filed in the instant case is sufficient to satisfy the requirements of the Federal Rules of Civil Procedure, 28 U.S.C.A. following sec­tion 723c. I think it sufficient—especially, since the rules are to be construed to ‘se­cure the just, speedy, and inexpensive deter­mination of every action.’ Here, the plain­tiff, after stating the existence of a contract

of employment and a discharge without cause by the defendant-employer, alleges:

‘8. By reason of Defendant’s said breach of its contract with Plaintiff, Plaintiff is en­titled to Damages from Defendant in an amount representing the balance of Plain­tiff’s unpaid salary under his said contract with Defendant, the amount of which is the sum of $6,491.65 * .‘ I think this is a perfectly adequate and clear allegation and one that satisfies the requirement of Rule 8.” ~s
15. Stinson V. Edgenloor Iron Works, Inc., 53 F.Supp.

864, 867, 868 (1944).


In the case of Williamson v. Columbia Gas and Elec­tric Corporation, 110 F (2cl) 15, decided in 1939 the Circuit Court of Appeals took notice of the formal view of Delaware on the Action of Debt, as applied to the Delaware statute of Limitations. Chief Jus­tice Maria declared:

‘In order to apply a statute of Limitations, such as that of Delaware, which reads in terms of Common Law Actions, to a Civil Action brought in a Dis­trict Court, it is necessary for the court through a consideration of the nature of the Cause of Action disclosed in the Complaint to determine the Form of Action which would have been brought upon it at common Law. It is evident that the complaint in the ease before us discloses a Cause of Action which, under the Common Law of Delaware, would be enforceable in an kction on the Case and not in an Action of Debt on a Specialty. The District Court, therefore, properly held that the action was barred by the Delaware Statute of Limitations?’

And this was the view taken despite the plaintiff’s contention that since the “Civil Action” provided for by the Federal Rules of civil Procedure, 28 U.S.C.A. following Section 723c, had abolished all distinc­tions in the Forms of Action, the State Statutes of Limitations based upon differences in Forms of Ac­tion no longer apply.
For a similar unavailing contention under the Su­preme Court of Judicature Act of 1783, see Gibbs v. Guild. [18821 9 O.B.D. 59, 67.

CHAPTER 14


THE ACTION OF COVENANT’
Scope of the Action.

Covenant—Distinguished From and Concurrent With

Form of Declaration in Covenant.

Declaration in Covenant—Essential Allegations:

(1) In General.

148. Declaration in Covenant—Essential Allegations:

(2) The Execution of the Covenant.

149. Declaration in Covenant—Essential Allegations:

(3) The Promise.

150. Declaration in Covenant—Essential Allegations:

(4) The Performance of Conditions Precedent.

151. Declaration in Covenant—Essential Allegations:

(5) The Breach.

152. Declaration in Covenant—Essential Allegations:

(6) The Damages.

153. Status Under Modern Codes, Practice Acts and Rules of Court.

SCOPE OF THE ACTION
144. The Action of Covenant lies for the recovery Of Damages for Breach of a Covenant, that is, a Promise under Seal, whether the Damages are liquidated or unliquidated. When
1. In general, on the Origin, History and Develop­ment of the Action of Covenant, see:

Treatises: Holmes, The Common Law, Lecture VII, Covenants, 271—273 (Boston, 1881); Stephen, A Trea­tise on the Principles of Pleading In Civil Actions, e. I, Covenant, 46 (3d Am. ed. by Tyler, Washington, D.C. 1893); 2 rollock and Maitland, History of English Law, e. V, Covenant, 214—222 (London, 1895); Warren, Law Studies, Pleadings in Particu­lar Actions, II, In Covenant and Debt (New York, 1896); Martin, Civil Procedure at Common Law, c. II, Art. r, Covenant, 42—50 (St. Paul, 1905); 8 Street, Foundations of Legal Liability, c. X, Action of Cove­nant, 114—126 (Northport, 1906); Ames, Lectures on Legal History, Lecture IX, Covenant, 97—102 (Cam­bridge, 1913); Shipman, Handbook of Common Law Pleading, a VII, Covenant, 141—143 (3d ed. by Bal­lantine, St. Paul, 1923); Morgan, The Study of Law, c. V. Covenant, 99—100 (2d ed., Chicago, 1948); Pluck­nett, A Concise History of the Common Law, Bk. II, Pt. I, C. I, The Action of Covenant, 346 (4th ed. lion­don, 1048); Potter, Historical Introduction to Eng­lish Law, c. V1 Covenant, 445—447 (3d ed. London, 1948); Flfoot, History and Sources of the Common Law, c. XI, Covenant, 25f,—259 (London, i949);

the Damages are unliquidated, it is the only proper Form of Action.
THE Action of Covenant—a Writ for the enforcement of an Agreement or Covenant, and a descendant from the ancient breve
Walsh, A History of Anglo-American Law, c. XIX, § 177 Covenant—Contracts Under Seal, 330 (2d ed., Indianapolis 1932).
Articles: Salmond, The History of Contract, 3 L.Q.

Rev. 166, 169 (1887); Ames, Specialty Contracts

and Equitable Defenses, 9 llarv.L.llev. 49 (1895);

Crane, The Magic of the Private Seal, 15 C0LL.Rcv,

24 (1915); Loyd, Consideration and the Seal in New

York—An Unsatisfactory Legislative Program, 46

Col.L.Rev. 1 (1946).
Comments: Agency—Undisclosed Principal—Right to Enforce a Contract Under Seal, 31 Yale L.J. 94 (1921); Principal and Agent—Suit by Undisclosed Principal—Sealed Instrument, 22 Col.L.Rev. 82 (1922); Agency—Right of an Undisclosed Principal to Sue on a Sealed Contract, 7 Corn.L.Q. 143 (1922); Contracts—Contracts Under Seal—Suit by Orally Disclosed Principal When Agent Signs and Seals as Party, 35 Harv.L.Eev. 339 (1922); Agency—Lia­bility of Third Person to Undisclosed Principal on Sealed Contract. 20 Mleh,L.Rev. 441 (1921); The Significance of the Seal in New York, 23 Col.L.Rev-. 663 (1923); The Present Status of the Sealed Obli­gAtion, 24 Illi..Rev. 457 (1939).

Sec.
144.

145.

146.


147.

Other Actions.



303

tie conventione—is a remedy for the recov­ery of Damages for the Breach of a Sealed Contract, According to Street, “This remedy is the exact analogue of (Special) Assump­sit, the only difference between the two ac­tions, being that the latter lies for the Breach of a Simple Promise, while Covenant is main­tainable only upon a Specialty.” ~


The Action of Covenant lies for the Breach of a Contract under Seal, executed by the defendant; and at Common Law it will lie in no other case.3 If the Specialty has been materially varied or modified by a subsequent informal agreement, the remedy is in Assumpsit.4
Where a Contract for the sale of lands is Signed and Seaied both by the Vendor and Vendee, Covenant will lie for Breach of a Promise therein by the Vendee to pay
2- 3 Street, Foundations of Legal Liability, c. X, The Action of Coi-enant, 114 (Nortbport, 1006).
3. Alabama: Jackson -cc Waddill, 1 Stew. (Ala.) 570 (1828); Illinois: Roekford, 11. I. & St. I,. R. Co. v, Beckemeier, 72 Ill. 267 (1874); Kentucky: Tribble v- Oldhajn, 5 J.J.Marsh (Ky.) 137 (1830); New York:

Gale v. NIxon, 6 Cow. (N.Y.) 445 (1826); Pennsyl­vania: Wilson v. Brechemin, Brightly, N.P. (Pa.) 445 (1828); ManIc v. Weaver, 7 Pa. 320 (1847);

Federal: United States v. Brown, I Paine 422, Fed. Cas.No.14,670 (1825); Simonton v. Winter, 5 Pet. (U.S.) 141, 8 L.Ed. 75 (1831).
For the Form of the Declaration in Covenant, sec Sec­tion 146, following hereinafter. In some States, even where Common-Law Procedure stili prevails, the distinctions as to Forms in Actions on Sealed Instruments and Actions on Unsealed Instruments has been abolished by Statute. Adam v. Arnold, 86 Ill. 185 (1877).
But the Statute does not, by allowing Special Assump­sit, prevent the plaintiff from suing in Covenant.

The Action stin lies, Goodrich v. Leland, IS Mich.

110 (1869); Christy v. Farlin, 49 MIch, 319, 13 N.W.

607 (1882).


It has been held that covenant lies on an Instrument purporting to be, and operating as a deed, although not scaled. Jerome v. Ortman, 66 Mieh. 668, 33 N. w. 759 (1887).
4’ Alabama: MeVoy v. Wheeler, 6 Port. (Ala.) 201 (1838); Illinois: Radzlnskl v. Ablswede, 185 HI, App. 513 (1914); Federal: Phillips & C. Construc­tion Co. v, Seymour, 91 U.S. 646, 23 LEd. 341 (1839).

Ch. 14
the purchase money, but if the Contract is Signed and Sealed by the Vendor only, and merely delivered to and accepted by the Ven~ dee, the Vendor cannot maintain Covenant against the Vendee on what purports in the instrument to be a Covenant by the latter to pay the purchase money. The Action must be Assumpsit, or perhaps Debt.5
The Action of Covenant could not be em­ployed for the recovery of a debt, even though the existence of the debt is attested by a Bond or Sealed Instrument. “The Law is economical; the fact that a man has one action is a reason for not giving him anoth­er.” ° Covenant came, however, to be per­mitted in the case of a Sealed Debt, where there was an Express Covenant to pay the Debt, or where there were words that could be construed as such.7
Whenever the defendant has executed and delivered a Contract under Seal, and has broken it, Covenant is the proper remedy.8
5. Illinois: Schmidt v. Glade, 126 III. 485, 18 N.E. 762 (1888), involving a grantee by deed-poll; New York; Gale v. Nixon, 6 Cow. ~N.Y.) 445 (1826); vermont:

First Congregational Meetirighouse Society v. Town of Rochester, 66 Vt. 501, 29 A, 810 (1894). As to Debt, see, Contracts—Damages—Specific Perform­ance at Law, 5 Mian.L,Rev. 225, note (1920).



6. Covenant will not lie where payments are all due and payable. Merryman v. Wheeler, 130 Md. 566, 101 A. 551 (1917). See, also, Ames, The History of Assunipsit, 2 Harv.L.Eev. 50 (1888); 2 PoIlock and Maitland, History of English Law, c. V Contract, 217 (Cambridge, 1895); 3 Street, Foundations of Le­gal Liability. e. X, The Action of Covenant, 119, 120 (Northport, 1906); 3 Holdswortb, History of Eng­lish Law, c. II, Crime and Tort, 324 (London, 1942).
~. Maryland: Outtoun v. Duhn, 72 Md. 536, 20 A. 134 (1889); North Carolina: Taylor v. Wilson, 27 NC. 234 (1844).
S. Illinois: Northwestern Ben. & Mut. Aid Ass’s of

Illinois v, Wanner, 24 fll.App. 357 (1887); Moore v.

Vail, 17 Ill. 185 (1855); Massachusetts: Hopkins v.

Young, 11 Mass. 302 (1814); Morse v. Aldrich, 1

Mete. (Mass.) 544 (1844); Michigan: Goodrich v.

Leland, IS lfleh. 110 (1869); Pennsylvania: New

Holland Turnpike Co. v. Lancaster, 71 Pa. 442

(1872); Bhode Island: Douglass v. Henncssey, 15

R.L 272, 3 A. 213 (1886); 7 A. 1 (1886); 10 A; 583

(1887).


304 OFFENSIVE PLEADINGS

Sec. 145


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