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| parties, bond. To the same effect, see Section 514, CaliforUnder Modern Statutes, such as Section 7103 of the ala Civil Procedure Code, West’s Civil Procedure
New York Civil Practice Law and Rules (1968), the ~ Probate Codes (1941) 230. Scope of the Action. CHAPTER 13 THE ACTION OF DEBT1 Debt—Distinguished From and Concurrent with Other Actions. Forms of Declarations. 188. Declaration in Debt—Essential Allegations: (1) In General. 139. Declaration in Debt—Essential Allegations: (2) In Debt on Simple (Executed) Gontract. 140. Declaration in Debt—Essential Allegations: (3) In Debt on a Specialty. 141. Declaration in Debt—Essential Allegations: (4) In Debt on a Statute. 142. Declaration in Debt—Essential Allegations: (5) In Debt on a Judgment. 148. Status Under Modern Codes, Practice Acts and Rules of Court.
c. XI, Exigent and the Writ of Debt, 6, 133 (Cambridge 1022); Shipman, Handbook of Common La’,’ Pleading, e. VII, Action of Debt, ~l 52—54, 132—141 (3d ed. by Ballantine, St. Paul 1923); lCeigwin, Cases on Common Law Pleading, c. II, The Common Law Actions, Bk. I, The Action of Debt, 33—59 (2d ed. Rochester 1934); Maltland, The Forms of Action at Common Law, Lecture V, Debt, 63 (Cambridge 1048); Potter, Historical Introduction to English Law, c. V. Debt, 441—443 (3d ed. London 1948); Plucknett, A Concise History of the Common Law, Bk. II, Pt. I, c. I, Debt, 343—345 (4th ed. London 1948); Morgan, The Study of Law, c. I, Debt, 92— 96 (2d cd. Chicago 1048); Fifoot, History and Sources of the Common Law, c. X, 217—233 (London 1949); id., c. XVI, Consideration, 395-412 (London 1949); Walsh, A History of Anglo-American Law, c. XIX, Debt, § 176, 238—239 (2d ed., Indianapolis 1932).
Articles: Saimond, The History of Contract, 3 L.Q, Rev. 166 (1887); Ames, Parol Contract Prior to Assumpsit, S Harv.L,Rev. 252 (1895); Holmes, The Common Law, 57 11. of Pa.L.Rev. 611 (1909); Holds-worth, Debt, Assunipsit and Consideration, 11 blich. L.Rcv. 348 (1913); Henry, Consideration in Contracts, 601 A.D. to 1520 AD., 26 Yale 1,3. 664 (1917); Stone, Concerning the Action of Debt at the Time of the Year Books, 36 L.Q.Rev. 61 (1920); Neig~vin, The Action of Debt, 11 Geo.L.J. 20 (1923); Bailey, Assignments of Debts in England from the Twelfth to the Twentieth Century, Pt. I, 47 L.Q.Rev. 516 (1931); Pt. II, 48 L.Q.Rev. 248 (1932); Pt. III, 48 L.Q.ilev, 546 (1032); Yntema, The Enforcement of Foreign Judgments in Anglo-American Law, 33 Mieh.L.Rev. 1129 (1935); Winfield, Quasi-Contract for Work Done, 63 L,Q.Rev. 35 (1947). Comments: Debt: What Constitutes, 16 Col.L.Rev. 243 (1916); Sum Certain in the Action of Debt, 33 Yale Li. 85 (1023). Sec. 135. 136. 137. HAVING considered the Allegations essen- of Trespass, Trespass on the Case, Trover, hal to establish liability in the Tort actions Ejectment, Detinue and Replevin, we shall 273 274
OFFENSIVE PLEADINGS Ch. 13
in this and succeeding chapters consider the allegations necessary to show liability in the Contract Actions of Debt, Covenant, Account, Special Assumpsit and General (Indebitatus) Assumpsit. Prima Facie Case in Contract Actions IN Contract Actions the plaintiff’s prima fac-ie case consists in showing the normal affirmative elements of a valid contract and the coming into operation of an affirmative contractual duty; on the other hand, negative elements, such as fraud or illegality, which destroy the validity of the contract, and Matters of Excuse and Discharge, as impossibility, performance, or release, must come from the defendant, to prevent plaintiff’s recovery. Thus, where the plaintiff has proved the existence of the debt sued on, the burden of proving payment is on the defendant. The plaintiff must allege nonpayment of the money demand to make the Declaration perfect on its face; but payment is an Affirmative Defense, even in many jurisdictions where it may be raised by the defendant under a Deniai. Thus negative averments may be necessary to the plaintiff’s pleading, though they constitute no part of his original substantive cause of action which he is called upon to prove or establish. Annotation: Necessity in Action on Judgment of Sister State Confessed Under Warrant of Attorney, of Alleging and Proving the Law of the Latter State Permitting Such Judgment, 155 ALit, 021 (1945). In General, on Imprisonment for Debt, see: Treatises: Dawes, Commentaries on the Laws of Arrests in Civil Cases (London 1787); Fancy, Imprisonment for Debt Unconstitutional and Oppressive, Proved from the Fundamental Principles of the British Constitution and the Rights of Nature (London 1788); Crowther, The History of the Law of Arrest in Personal Actions (London 1828); Theobald, The Law for Abolishing Imprisonment for Debt on Mesne Process, Extending the Remedies of Judgment Creditors, and Amendment of the Law Relating to Insolvent Debtors (London 1838). Article: Ford, Imprisonment for Debt, 25 Micb.L. 11ev. 24 (1926).
In Actions upon Contracts for Damages, the plaintiff must assign the breach by the defendant which is relied upon as ground for recovery, and allege the essential facts to apprise the defendant in what particulars he has failed to perform. But when the plaintiff pleads or proves the contract, and the fulfillment of conditions to create an operative duty of performance by the defendant as by tender or performance on his own part, it is then incumbent upon the defendant to prove performance, or sufficient excuse for nonperformance as an Affirmative Defense, without proof of breach on behalf of the plaintiff. Even the burden of proving the General Allegation of Performance by the plaintiff as a Condition Precedent is taken off the plaintiff in Modern English Practice, unless the defendant specially pleads nonperformance of some Condition. As the first of the Contract Actions we shall treat with the Action of Debt, and, as in the case of the Tort Actions, one of our principal considerations is, what facts must be alleged in order to state a good cause of action? SCOPE OF THE ACTION 135. The Action of Debt lies where a party claims the recovery of a debt; that is, a liquidated or certain sum of money due him. The Action is based upon Contract, but the Contract may be Implied, either in Fact or in Law, as well as being Express; and it may be either a Simple Contract or a Specialty. The most common instances of its use are for debts: (I) Upon Unilateral Contracts Express or Implied in Fact; (II) Upon Quasi Contractual Obligations having the force and effect of Simple Contracts; (III) Upon Bonds and Covenants under Seal; (IV) Upon Judgments or Obligations of Record; (V) Upon Obligations Imposed by Statute. Sec. 135 ACTION OF DEBT 275
AS Debt was and, in its nature, is a Real Action, the object of which is to recover a yes which belongs to the plaintiff, it is proprietary in character,3 By this we mean 2. The Action of Debt was the Common Law’s reinedy for the enforcement of its carliest known obligations. See article by Pollock, Contracts in Early English Law, 6 Harv.L.ltev. 50 (1893). 3, “This Action of Debt was nothing in essence but an action in Detinue for the recovery of money unjustly detained, together with Damages for the said wrongful detention, such Damages being claimed, not in the Writ, but in the plaintiff’s first count,” See article by Stone, Debt at the Time of the Year Books, 30 L.Qdtev. 61, 62 (1920). See, also, 3 Holds-worth, History of English Law, c, Ill, Contract and Quasi-Contract, 425 (3d ed. Boston, 1927). An Action for the Recovery of a Debt was thought of as like an action for the recovery of a book lent, or for the recovery of a plot of land which the defendant unjustly detained from the plaintiff. This crude and primitive Common-Law Conception of Debt, that the creditor was demanding the return of his own money, and that the action was “proprietary” or “reU,” seems to be somewhat overemphasized by many legal scholars. See article by Henry, Consideration In Contracts, 601 A.D. to 1520 A.D., 26 Yale L.J. 664, 690—094 (1017). Debt was indeed a “proprietary action,” in the sense of being the vindication or enforcement of a right. The Judgment was not for Damages for breach of promise, but for recovery of the debt itself. Seo Chief Justice vaughan, in Edgeomb v. Dee, Vaughan 89, 124 Eng.Itep. 984 (1670); Ames, Lectures on Legal History, Lecture XIV, Implied Assumpsit, 148, 150—151 (Cambridge 1913). It is said that the duty to restore the money arose not because the debtor had promised or contracted to pay, but because of some transaction, as that he had borrowed It or received value, known as quid pro quo. But the promise or agreement to pay the it does not lie for Damages as reparation for a tort, nor does it proceed upon the theory that the plaintiff’s right to recover, or the defendant’s obligation to surrender the property sued for, is grounded upon a promise. The property sought, whether land, a corporeal chattel, or a sum of money, is demanded because the defendant is withholding something which rightfully belongs to the plaintiff.4 (I) Title as the Basis of the Action of Debt.—Thus, if the plaintiff is to recover, it must be on the basis of some form of title, clear of any claim grounded in tort and independent of any promise. There are two possibilities as to such title: (1) where the goods or money in issue were originally the property of the plaintiff and his claim to recover is based on a prior vested interest, price was just as much a part of the debt transaction as the delivery of the ‘-es. See article by Henry, Consideration in Contracts, 601 A.D. to 1520 AD., 26 Yale Li. 664, 694 (1917), In Debt the word “agreed” must be used instead of “promised,” but this is mere form. MeGinnity v. Laguerenne, 5 Gil. (Ill.) 101 (1848). 4. On Debt for the recovery of a specific amount of unaseertained chattels, see Ames, Lectures on Legal History, Lecture VIIJ, Debt, 89 (Cambridge 1913). This action gives specific enforcement of the duty to pay. It gives the specific thing demanded, namely, the recovery of a debt eo nomine and in numero, and not merely the recovery of damages. 1 Chitty, Treatise oa Pleading and Parties to Action, with Precedents end Forms, c. II, Of the Forms of Action, 121 (16th Am, ed. by Perkins, Springfield 1876); Tennessee: Thoinpsoa v. French, 18 Tenn. 452 (1837); Virgi,ua: Minnick v. Williams, 77 Va. 758 (1883). The action does not lie for the breach of a sealed contract to convey land, or to recover purchase money paid. The action being for the breach, and not for a sum of money Co nornin,e and in nurne;-o, it should be Covenant. Haynes v, Lucas, 50 Ill. 436 (1869). It would lie to recover the purchase money as a debt arising from the obligation created by law to repay It as money had and received. The terms “sum certain” and debt €0 nomine and in numero are used to distinguish a claim for a liquidated debt from a claim for unliquidated damages, which are not ascertainable in amount. 276
OFFENSIVE PLEADINGS Ch. 13
as, for example, where A bailed a chattel to B, or B wrongfully took A’s chattel; or (2) where originally the property was the property of the defendant, the present possessor, but as a result of the happening of some subsequent event, he ought, debet, to deliver it to the plaintiff who has become entitled to recover it, If the plaintiff’s claim is based on a previously vested title, he is demanding the land, chattel or money as a jus in re, that is, a right which belongs to a person, absolutely and immediately, in a thing; if, however, the plaintiff’s claim is grounded on a right to a thing now in the defendant’s possession, a res which as yet has never been in the plaintiff’s possession, but to which the plaintiff, by operation of law is presently entitled, this right of the plaintiff to have the thing is known as a jus ad rem, or a right which belongs to a person only mediately and relatively, and has for its foundation an obligation incurred by a particular person. In the Personal Action of Debt-Detinue, both forms of title were available, that is, the plaintiff in such action might recover because the goods or the money belonged to him originally or because, by operation of law, or otherwise, he had acquired a right to recover the property which as yet was still in the defendant’s possession. And it was this distinction as to title which ultimately led to the differentiation between Debt in the Detinet and Debt in the Debet et Detinet; that is, between the situation in which A bailed his horse, Damascus, to B, for thirty days and where A loaned .3 $500 for thirty days; in the first case, B acquired possession, but not title, hence when A sues B at the end of the thirty days, after demand, he is relying on a prior vested title, a jus in re; in the second case, B acquired both possession and title, hence when A sued B to recover the ~5O0, he was suing by virtue of an accruing title, a jus ad rem. (II) Debt in the Detinet, or for Goods not Pecuniary.—In theory at least that Form of the Action which lay for the recovery of a certain quantity of specified goods and chattels, may still be maintained upon an Executed Contract.5 Apparently the last case 5. Debt will lie on any Simple Contract to recover money due upon an Executed Consideration, whether the contract is verbal or written, express or unplied. People v. Dummer, 274 Ill. 637, 111 N.E. 934 (1916). Simple Contract Debts, of course, must he founded on a quid pro quo or Executed Consideration. See article by Ames, Parol Contracts Prior to Assumpsit, S Harv.L.Rev, 252 (1895). It also lies to enforce a quasi contractual obligation to pay a sum certain. Van Deusen v. 13mm, 18 Pick. (Mass.) 229, 29 Am.Dee. 582 (1836). Debt also lies at the suit of a person entitled to costs in an action, either as a party or as an officer, there being an implied contract. Doyle v. Wilkinson, 220 Iii. 430, 11 N.E. 590 (1887). In Barber v. Chester County, 1 Chest.Co.Bep. (Pa.) 162 (1796), it was said that Debt would lie wherever Indebitatus Assumpsit is maintainable. District of Columbia -v. Washington & 0. B. Co., 1 Mackey (12 DC) 361, 382 (1882); 8 Street, Foundations of Legal Liability, c. XI, The Action of Debt, 133 (Northport, 1906). It will lie to recover money lent, money paid by the plaiati~ for the use of the defendant, money bad and received by the defendant for the use of the plaintiff, or the balance due on an Account Stated. 1 Chitty, Treatise on Pleading and Parties to Action, with Precedents and Forms, e. U, Of the Forms of Action, 122 (16th Am. ed, by Perkins, Springfield, 1876); English: Speafre t Richards, Hob. 207, 80 Eng.Rep, 353 (1617); Tennessee: Young v. Hawkins, 4 Yerg. (Penn.) 171 (1838), Debt will lie to recover interest due on the loan or forbearance of money: English: Berries v, Jamieson, 5 T.R. 553, 101 Eng.Rep. 310 (1794); Pennsylvania: Sparks v. Garrigues, I Bin, (Pa.) 152 (18043); for work and labor, or for work, labor and materials: Comyn Digest, “Debt” B (Philadelphia 1824); Maine: Seretto v. Itockland, S. P. & 0. II. By. Co., 102 Me. 140, 63 A. 651 (WOO); Massachusetts: Smith v. Proprietors of First Congregational Meetinghouse in Lowell, S Pick. (Mass.) 178 (1329); Tennessee: Thompson v, French, 18 Penn. 452 (1837). Debt will lie for goods sold and Delivered, or Bargained and Sold. English: Emery cc FeU, 2 P.R. 28, 100 Eng.Rep. 16 (1787); Federal: Dillingham v. Skein, I Hempst. 181, Fed.Cas.No.3,912a (1882). Sec. 135
ACTION OF DEBT 277
in which Debt was used to recover specific chattels was that of the Earl of Faimauth v. George,6 decided in 1828, in which the plaintiff sought to recover a certain number of fishes alleged to be due by way of toll for the use by the fishing boats of a capstan which the plaintiff maintained on the shore. The Action was said to be Debt in the detinet, the Allegation that the defendant debet, being omitted. In 1769 Blackstone observed that this Form of Debt was “neither more nor less than a mere Writ of Detinue,” and he insisted that nothing but money could constitute a debt, which view has been approved by certain American courts.8 Keigwin, however, declares: “As a matter of historical fact, however, Detinue and Debt for goods have always been distinct, the former lying for goods previously the property of the plaintiff, and going upon his jus in re, while Debt in the detinet went for a body of goods to which, as to a sum of money, the plaintiff was entitled, proceeding upon his Debt will lie for the Use and Occupation of land. English: Egicr V. Marsden, S Taunt. 25, 128 Eng. Rep. 595 (1813); WilkIns v. Wingate, 6 P.R. 62, 101 Eng.ltep. 436 (1794); King v. Fraser, 6 East 348, 102 Eng.Rep. 1320 (1805); Arkansas: Trapnall v. Mcrrick, 21 Ark. 503 (1560); New York: McKeon v. Whitney, 3 Denio (N.Y.) 452 (1846); Pennsylvania: Davis v. Shoemaker, 1 Rawle (Pa.) 135 (1829); South Carolina: McEwcn v. Joy, 7 Bich. (S.C.) 33 (185$).
specific performance of a duty to pay money, namely, where the duty Is an absolute one, not subject to any conditions. •S. 5 Bing. 286, 130 Eng.Rep. 1071 (1828). For earlier eases, see: English: Mayor v’. Clarke, 4 B. & Aid. 268, 106 Eng.Bep. 936 (1821); Paimouth v. Penrose, 6 B. & C. 385, 108 Eng.Rep. 494 (1527). 1. Blackatone, Commentaries on the Laws of England, e. IV, 155 (7th ed. Oxford, 1775). jus ad rem.” ~ We are, therefore, concerned only with that Form of the Action of Debt which remained after Detinue split off from the main Trunk of the Tree; that is, that Form of Debt used to recover money debts, known as Debt in the debet et detinet,1° which, like its ancestor, the Real Action, seeks the recovery of a certain sum of money to which the plaintiff has a right by reason of the defendant’s legal duty to pay. For the plaintiff to recover in Debt, therefore, he must set forth in his Declaration a right to the thing demanded; that such right arises from something other than a promise or voluntary assumption; it must, in truth, be independent of what we now understand as a contractual obligation. Under the ancient law, matter which created in one person a right to something in the possession of another, was called a cau.sa debendi, or “a ground of indebtedness, a basis of the duty to deliver, the origin of an obligation to pay.”” As Pollock and Maitland said: “It enters no one’s head that a promise is the ground of this action. No pleader propounding such an action will think of beginning his Declaration with ‘whereas the defendant promised to pay,’ he will begin with ‘whereas the plaintiff lent or (as the 0. Kclgwin, The Action of Debt, Pt. II, 12 Ceo.LJ. 25, 29-30 (1923). 10. Where one of the parties to the Action of Debt died, the Form of Declaring was in Debt in the detinet, not in Debt in the dsbet et detinet. It was said that these distinctions, which require the Dcc~ laratlon to be only in the detinet, where one of the original parties died, were held to be substantive as late as 1619. Beynell v. Langcastie, Croine. 545, 79 Eng.Rep. 467. A defect as to wording was, however, only available on Special Demurrer after tile Statute of 4 Anne, e. 16, ~ 1 (1705). Child ress v. Emory, S Wheat. (U.S.) 642. But according to 1 Chitty, Treatise on Pleading and Parties to Actions, with Precedents and Forms, e. III, Of Pleading in General, 284, note b (16th Am. ed. by Perkins, Springfield, 1876), an Improper use of the word “debet” was not even subject to a Special Demurrer, being treated as mere surplusage. 11. Keigwln, The Action of Debt, Pt II, 12 Geo.L.J. 28, 30 (1923). S. Illinois: Mix v. Nettieton, 29 DI. 245 (1862); Kentucky: Watson v. M’Nalry, 1 Bibb. (Ky.) 856 (1809). 278
OFFENSIVE PLEADINGS Ch. 13 case may be) sold or leased to the defendant.’ In short, he will mention some causa debendi, and the cause will not be a promise.t’ 12 (III) A Parol Promise Created No Obligation During the Developmental Stages of Debt.—Let us, by way of illustration, suppose that A undertook to sell his horse, Damascus, to B, the defendant, in exchange for two steers, that A delivered Damascus to B, and that B thereupon refused to deliver the steers, but retains them in his possession. Clearly A is entitled to recover the steers. But is this so because B has Executed a Contract Obligating himself to make delivery? Certainly not, and, if this were the only basis of A’s claim, he could not have recovered; the Court might well have told him that he deserved to lose his horse because of his folly in trusting B’s word. In other words, at the time when Debt was reaching maturity, a parol promise, which several Centuries later became enforceable in Special Assuinpsit, created no legal obligation; the obligation, if any, was merely moral, and hence not justiciable. In such a case, however, A would recover, as B has received a benefit at his expense, and one who profits by the act of another ought, debet, to compensate that other in a manner commensurate with the benefit conferred. Or to put it in technical language, B, having received .4’s horse, ought to render a quid pro quo, or the steers, as a balance against the horse, the so-called “Executed Consideration.” Thus, where a Simple Contract has been executed on one side so as to transfer a quid pro quo, or a benefit to the other side, the benefit received creates in the receiver, by operation of Jaw, a legal duty to render an equivalent benefit to the plaintiff, that is, it creates an indebtedness, which may be regarded as an example of causa debendi. And these causa debendi, vaguely understood in the early stages of development, gradually took on definite form, and were ultimately clarified la as being derived from three sources, Simple Contracts, Specialties and Records, including Statutes. DEBT—DISTINGUISIIED FROM AND CONCURRENT WITH OTHER ACTIONS 136. Debt was distinguished from Special .Assumpsit in that it Jay for the recovery of a Sum Certain; whereas the latter was for the recovery of Damages; Debt was a concurrent remedy with Indebitatus Assumpsit in the field of Simple (Executed) Contract, but in being available upon Specialties, Records and Statutes, it was broader than the latter action. Debt and Covenant were concurrent remedies where the Dnmages upon breach of the Sealed Instrument were liquidated. And 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. SPECIAL ASSUMPSIT is to be distinguished from Debt, in that it lies for the Breach of a Modern Contract, in which what is recovered is Damages, whereas, when we say that Debt lies on a Simple Contract. we are referring to the early Common-Law Concept of what is termed “a Simple Executed Contract,” which term is descriptive not of a contract in the modern sense, but in the sense that the plaintiff has delivered a quid pro quo to the defendant, for which the defendant has failed to pay, or has otherwise become indebted to the plaintiff by operation of law. And it is of course settled, as previously observed, that Debt will not lie upon a promise for a promise,14 as in such 12. On the early attempts at classifying the varieties of debt, see Fifoot, History and Sources of the Common Law, e. 10, Debt, 223 (London 1049), in which he cites a ease in which it was said that ‘each writ of Debt is general and in one form, but the count is Special and makes mention of the Contract, the Obligation or the Record, as the case requires.” Anonymous. TM, Ii lien. IV, f. 73, p1. 11 (1410). 14 English: Walker v. Walker, 5 Mod. 13, 87 Eug. Rep. 490 (2694); Smith v. Aii’ey, C Mod. 125, 57 Eng. 12. 2 Pollock and Maitland, History of English Law. Directory: lawschool lawschool -> Handong International Law School Admissions Essays I. Instructions lawschool -> Law School Materials for Success Barbara Glesner Fines Share with your friends:
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