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c. V, Contract, 210 (Cambridge 1895). Sec. 137
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c. V, Contract, 210 (Cambridge 1895). Sec. 137 ACTION OF DEBT 279
case there is no quid pro quo passing to the defendant. Debt is to be distinguished from Indebitatus Assurnpsit, being in many respects much broader than the latter action. It is true that Debt and Indebitatus Assumpsit are concurrent remedies in the Field of Simple (Executed) Contract, but Tndebitatus Assumpsit will not lie upon a Sealed Contract, a Record, or, with some exceptions, upon a Statute. In the sense that Indebitatus Assumpsit came to be the remedy for recovery of Quasi-Contractual Obligations through the use of the Common Counts, it may be said to be broader than Debt. This advantage was later lessened by the fact that in some jurisdictions Debt also came to be recognized as a Quasi-Contractual Remedy, by a process which is not clear. And, of course, Debt was subject to Wager of Law, whereas Indebitatus Assumpsit was not, and it was this fact which led to the obsolescence of Debt some time after ,Slade’s Case 15 when the Two Actions were concurrent remedies on a Simple (Executed) Contract. Generally, Debt and Covenant are exclusive remedies, except where the amount of Damages due upon the breach of a sealed instrument are liquidated. In such instance, Debt and Covenant are concurrent remedies; where, however, the Damages upon Breach of a Specialty are unliquidated, Covenant is the only remedy.’° Finally, under certain circumstances, Debt, Special Assumpsit and Indebitatus AssumpRep. 883 (1704); Hard’s Case, 1 Salk. 23, p1. 3, 01 Eng.Rep. 22 (1690); Rovoy v. castleman, 1 Ld.1taym. CD, 91 Eng.Rep. 942 (1695); New Jersey: Furman
sit, were concurrent remedies. To illustrate, let us suppose that A says to B, “I will deliver ten cords of wood to you at five dollars a cord,” to which B replies, “Go ahead and deliver it and I will pay for it.” A then delivers the wood, but B refuses to pay. Debt will lie, for a quid pro quo—a benefit—has passed from A to B and B has failed to give A what, by operation of law, belongs to him. Indebitatus Assumpsit will lie as it is a concurrent remedy with Debt on Simple (Executed) Contract; and Special Assumpsit will also lie, because over and above the benefit received by B—the delivery of the wood—the defendant B has breached his express promise to pay. Thus, Debt, Special Assumpsit, and Indebitatus Assumpsit were concurrent remedies, where, over and above a Simple (Executed) Contract, there was also an Express Promise which had been breached. FORMS OF DECLARATIONS 137. Included in this section are forms of Declarations in Debt on a Simple Contract, Debt on a Spedalty, Debt on a Statute, and Debt on a Judgment. DECLARATION IN DEBT ON SIMPLE CONTRACT IN THE KING’S BENCH, Term, in the year of the reign of King George the Fourth. to wit, C.D. was summoned to answer A.B. of a plea that he render to the said A.B. the sum of £ , of good and lawful money of Great Britain, which he owes to and unjustly detains from him. And thereupon the said A.R, by his attorney, complains: For that whereas the said C.D. heretofore, to wit, on the day of , in the year of our Lord ______ at , in the county of was indebted to the said LB. in the sum of L , of lawful money of Great Britain, for divers goods, wares, and merchandise by the said AR. before that time 280
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sold and delivered to the said C.D., at his special instance and request, to be paid by the said C.D. to the said A.B. when he, the said C.D. should be thereto afterwards requested; whereby, and by reason of the said last-mentioned sum of money being and remaining wholly unpaid, an action bath accited to the said LB. to demand and have of and from the said C.D. the said sum of £______ above demanded. Yet the said C.D. (although often requested) hath not as yet paid the said sum of £______ above demanded, or any part thereof, to the said A.R, but so to do hath hitherto wholly refused, and still refuses, to the damage of the said A.B. of £ ; and therefore he brings his suit, &c. STEPHEN, A Treatise on the Principles of Pleading in Civil Actions, 67 (3d Am. ed., Washington, D.C. 1892). DEcLARATION IN DEBT ON A SPECIALTY 17 ON A COMMON MONEY BOND IN THE COURT OF KING’S BENCH (or Common Pleas). On the day of , AD. (Venue) to wit. A.B. by E.F. his attorney (or in his own proper person) complains of CD. who has been summoned to answer the said A.B. (or plaintiff) in an action on debt on a common money bond. For that whereas the defendant, on the day of , A.D. ,by his certain writing obligatory sealed with his seal, and now shown to the said Court here, acknowledged himself to be held and firmly bound to the plaintiff in the sum of £______ above demanded, to be paid to the plaintiff, 17. Debt on a Specialty and Covenant are concurrent remedies where the amount Joe upon the breach of a sealed instrument is a sum certain or a liquidated amount, Anonymous, 3 Leo. 119, 74 Eng.Rep. 570 (1585). Wager of law had no application In Debt on a Specialty. Morgan, The Study of Law, C. VI, Debt, 02 (2d ed. Chicago 1948). yet the defendant (although often requested so to do) hath not as yet paid the said sum of t above demanded, or any part thereof, to the plaintiff, but hath hitherto wholly neglected and refused, and still neglects and refuses to do so; to the damage of the plaintiff of c and therefore he brings his suit, &c. 2 CH1’TTY, Precedents in Pleading, 43S (Springfield 1859). DECLARATION IN DEBT ON A STATUTE ‘~ IN THE KING’S BENCH [or Common Pleas], Term, in the ______ Year of the reign of King For that whereas the defendant before and at the time of the giving of the notice and making the demand as hereinafter mentioned, and from thence until a certain day. to wit, the Day of , ______ held and enjoyed a certain messuage and premises, with the appurtenances, as tenant thereof to the plaintiff, to wit, from year to year, for so long a time as the plaintiff and defendant should respectively please, the reversion of the said premises,. with the appurtenances, during all that time belonging to the plaintiff; and thereupon, whilst the defendant so held and enjoyed the said tenements, with the appurtenances, as tenant thereof to the plaintiff as aforesaid, and whilst the said reversion thereof belonged to the plaintiff as aforesaid, to wit, on [8cc.] the plaintiff gave notice in writing to the defendant, and then and there demanded of and required the defendant to deliver up the possession of the said tenements, with the appurtenances, to the plaintiff, on the said day of ______ A.D. ; and the plaintiff avers that the tenancy aforesaid
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ended and was duly determined on the last-mentioned day by the said notice. Nevertheless the ‘defendant, not regarding the statute in such case made and provided, did not nor would, on the determination of the said term and tenancy as aforesaid, deliver the possession of the said tenements, with the appurtenances, to the plaintiff, according to the said notice so given, and the demand so made as aforesaid, but wholly neglected and refused so to do, and on the contrary thereof, the defendant wilfully held over the said tenements, with the appurtenances, after the determination of the said term and tenancy, and after the said notice had expired, and after the said demand so made as aforesaid, for a long space of time, to wit, for the space of then next following, during all which time the defendant did keep the plaintiff out of the possession of the said tenements, with the appurtenances, (he, the plaintiff, during all that time being entitled to the possession thereof), contrary to the / orm~ of the statute in such case ,ntxde and provided; and the plaintiff avers, that the said tenements, with the appurtenances, during the said time of holding over the same, and keeping the plaintiff out of the possession thereof as aforesaid, were of great value, to wit, the yearly value of £_______ and by reason of the premises and by force of the statute in such case made and provided, the defendant became liable to pay the plaintiff a large sum of money, to wit, the sum of £ , being at the rate of double the yearly value of the said tenements, with the appurtenances, for so long as the same were so detained as aforesaid; and thereby and by force of the said statute, an action hath accrued to the plaintiff, to demand and have of and from the defendant the said sum of I’ , being the sum above demanded, yet the defendant hath not paid the same or any part thereof, to the damage of the plaintiff of £ and therefore he brings his suit, &c. 2 CHrJTY, Precedents in Pleading, 493 (Springfield, 1859).
Pleas], Term, in the year of the reign of King
to wit, in Term, in the year of our Lord [or ‘on the day of AiD. ,“] in the Court of our Lord the King at Westminster, in the county of Middlesex, by the consideration and judgment of the said Court, recovered against the defendant in the sum of £______ above demanded, which in and by the said Court was then and there adjudged to the plaintiff for his damages, which he had sustained as well by reason of the non-performance by the defendant of certain promises and undertakings, then lately made by the defendant to the plaintiff, as for his costs and charges, by him about his suit in that behalf expended, whereof the defendant was convicted as by the record and proceedings thereof, remaining in the said Court of our said Lord the King, more fully appears; which said judgment still remains in full force and effect, unreversed, and unsatisfied, and not otherwise vacated; and the plaintiff hath not obtained any execution or satisfaction of or upon the said judgment; whereby an action hath accrued to the plaintiff to demand and have, 19. The Judgment in Debt on a Record provides that the plaintiff “do have and recover of the defendant” a given sum of money or a specific nrticle. This language implies that the plaintiff is entitled not to something new, but to regain property which belongs to him although unlawfully possessed by the defendant, Likewise with a Becogoizance entered upon the Records of a Court declaring one person indebted to another. In both eases the Judgment establishes the plaintiff’s right to the money or the chattel and at the same time imposes upon the defendant a duty to pay the money declared due or to deliver the specific chattel to the complainant. Once the indebtedness is established by a Record, Debt, by reason of its proprietary nature, becomes an effective remedy. 282
OFFENSIVE PLEADINGS Ch. ia of and from the defendant the said sum of £_....... above demanded, yet the defendant hath not paid the same or any part thereof, to the plaintiff’s damage of £ and thereupon he brings his suit, Sac. 2 CHITTY, Precedents in Pleading, 480 (Springfield, 1859). DECLARATION IN DEBT—ESSENTIAL AL LEGATIONS: (1) IN GENERAL 138. The Essential Allegations of the Declaration are: (I) In Debt on Simple (Executed) Contract: (A) A Statement of the Debt and quid pro quo; (B) The Breach—Nonpayment; (C) The Damages. (II) In Debt on Specialty: (A) A Statement of the Execution of the Specialty; (B) Nonpayment by the def end- ant (C) The Damages (III) In Debt on Statutes: (A) A Statement of the Act or Omission in Violation of the Statute; (B) Nonpayment of the Debt or Penalty; (C) The Damages (W) In Debt on Judgments: (A) A Statement of the Judgment; (B) Nonpayment or Nonsatisfaction; (C) The Damages For Sum Certain Only THE Mode of Stating the Cause of Action in Debt varies according to the source or basis of the obligation, which may be either a Simple (Executed) Contract, a Specialty, a Statute, or a Judgment. However, before considering the Essential Allegations applicable to each of the Four Varieties of Debt, it may be helpful to discuss in more detail the requirement that the action must be for a sum certain—a requirement which is common in each of the Four Forms of Debt. The action of Debt lies only for a liquidated sum of money; that is, a pecuniary demand where the amount due is fixed and specific or where it can readily be reduced to certainty by a mathematical computation. Blackstone tells us that in an Action of Debt the plaintiff must prove the whole debt he claims, or recover nothing at all, for the debt is only a single cause of action fixed and determined, and which, therefore, if the proof varies from the claim, cannot be looked upon as the same contract whereof the performance is sued for. “If, therefore, I bring an action for £30, I am not at liberty to prove a debt of £20 and recover a Verdict thereon, any more than, if I bring an Action of Detinue for a horse, I cannot thereby recover an ox.” 20 In Rudder v. Price,2’ however, Lord Loughborough says, that while the demand in an Action of Debt must have been for a sum certain in its nature, yet it was by no means so necessary that the amount be set out precisely that less could not be recovered.22 A promise to pay so much as certain services or goods were worth would not formerly support a Count in Debt, as the price 20. 3 J3lackstone, Commentaries on the Laws of England, e. 9, Of Injuries to Personal Property, 154 (7th ed. Oxford 1775). See, also, the following eases: Arkansas: Gregory v. Bewly, 5 Ark. 318 (1843); Illinois: Mix v. Nettleton, 29 III. 245 (1862): Roy v. floy, 44 Ill. 469 (1867); Raynes v. Lucas, 50 III. 436 (1869}; Massachusetts: Knowles v. Inhabitants of Eastham, 11 Gush, (Mass.) 429 (1853) Pennsylvania: Banal v. Tonkin, 110 Pa. 569, 1 AU. 585 (1885). 21. 1 ELI!. 54?, 126 Eng.Rep. 314 (1791). 22. Maine: Norris cc School Dist. No. 1 in Windsor, 12 Me. 293. 28 Antbee. 182 (1885); TennesSee Thompson v. French, 10 Yerg. (Tenn.) 452 (1837); Federal: United States v, Colt, Fed.Oas.No.14,839 (Uet.C.C.) 145 (1818). Sec. 138
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must be fixed.23 But at the present day either Debt or Indebitatus Assumpsit will lie for the reasonable value of services or goods, though not fixed by the parties. If the claim is for the value of something given as contrasted with unliquidated damages, that is sufficiently certain. Debt will not lie, for instance, for a refusal to convey shares in a building according to the terms of a contract under seal. The remedy is by Action of Covenant.24 Neither wifi Debt lie for breach of a promise of indemnity against loss or damage by fire contained in a fire insurance policy, although on principle this may well be questioned as the duty to pay is absolute.25 Debt will not lie on a guaranty contract, as on a promise to pay the debt of another in consideration of forbearance, etc.,2° or in some jurisdictions against the indorser of a bill or note, or by an indorsee against the 23. Young and Ashburnsbam’s Case, 3 Leo. 161, 74 Eng.Rep. 606 (1578). Cf. Norris v. School District No. 1 in Windsor, 12 Me. 293, 28 Am.Dee. 182 (1835); Seretto v. Rockland, S. T. & 0. H. fly., 101 Me, 140, 63 AtI. 651 (1006). 24. Fox River Mfg. Co. v. Reeves, 68 IlL 403 (1873). 25. See Flanagan v. Camden Mut. Ins. Co., 25 N.J.L. 506 (1856). See, also, Heifron v. Rochester Ins. Co., 220 Ill. 514, 77 N.E. 262 (1906), in which it was held there could be no recovery on a policy of fire insurance under the Common Counts. Cf. People’s Ins. Co. v. Spencer, 58 Pa. 353, 91 Am.Dce. 217 (1866).
Hall v. Rodgers, 7 Humph. (Tenn.) 536 (1847); Brown v. Bussey, 7 Humph. (Tenn.) 573 (1847); Federal: Cubbins v. Mississippi River Comma., 241 U.S. 351, 36 S.Ct. 671, 60 LEd. 1041 (1915). See, aiso, Ames, Lectures on Legal History, Lecture VII, Debt, 93 (Cambridge 1913); Ames, Parol Contracts Prior to Assumpsit, 8 Harv.L.Rev. 252, 261 (1894) acceptor of a bill.2’ But the Action of Debt has been allowed more extensively in America as a remedy on Bills and Notes than in England, even against parties secondarily liable. In general Debt will lie wherever a duty is created to pay a sum certain. If the one primarily liable does not pay, the indorser or drawer comes under a duty to pay the amount of the note or bill.28 The action cannot generally be supported for one entire debt, payable in installments, till all are due,2° though for rent payable quarterly, or otherwise, or for an annuity, or on a stipulation to pay a certain sum on one day and a certain sum on another day, Debt 27. English: Bishop cc Young, 2 Bos, & P. 78, 126 Eng.Rep. 1166 (1800); Cloves v. Williams, 3 fling. (NC.) 268, 132 Eng.ltep. 645 (1837); VIrginia: Smith v. Segar, 3 Hen. & M. (va.) 394 (1800); Stovall’s Ear v. Woodson, 2 Mumf. (Va.) 303 (1811); Quare, Hilborn v. Artus, 3 Scam. (Ill.) 344 (1841) ; Contra: Tennessee: Planters’ Bank v. Galloway, 11 Humph. (Tenn.) 342 (1850); Federal: Raborg v. Peyton, 15 U.S. 385, 4 LEd. 268 (1811); Home cc Semple, 3 McLean 150, Fed.Cas.No.6,658 (1843). In Watkins v. Wake, 7 Mees. & W. 488, 151 Eng.Rep. 858 (1841), it was held that the action would lie by the Indorsee against his immediate indorser. See, also, Stratton v. Hill, 3 Price 253, 146 Eng.Rep. 253 (1816). And it has been held that Debt will lie by the indorsee of a bill or note against the drawer or maker. New York: Willmarth v. Crawford, 10 Wend. (N.Y.) 343 (1833); Pennsylvania: Camp v. Bank of Oswego, 10 Watts (Pa.) 130 (1840).
Weiss v. Maneh Chunk Iron Co., 58 Pa. 295 (1868): Federal: Raborg v. Feyton, 15 U.S. 385, 4 LEd. 268 (1817); 3 Street, Foundations of Legal Liability, c. XI, Action of Debt, 139 (Northport 1906).
(1588); Rudder v. Price, I BIll. 547, 126 Rng.Rep. 314 (1791); Illinois: Boy v. Roy, 44 Ill. 469 (1867); Indiana: Parnham v. Hay, 3 Blaekf. (md.) 167 (1833); Pennsylvania: Sparks v. Garrigues, I Bin. (Pa.) 152 (1806); Federal: Fontaine v. Aresta, 2 M’Lean 121, Fed.Cas.No.4,905 (1840). See, also, West Virginia: Jamesoa v. Board of Education, 78 W.Va. 612, 8 S.E. 255, L.R.A.1916F, 926 (1916). 284
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lies on each default.3° And even where one sum is payable by installments, if the payment is secured by a penalty, Debt may be maintained for the penalty.3’ Debt will not lie to recover on a promise to pay a debt out of a particular fund, or in services, or in a particular kind of currency not legal tender.32 It does not lie, for instance, on a note or writing obligatory for the payment of a certain sum in “United States bank notes, or its branches,” or in notes of a particular bank,33 or in lumber,’4 30. English: Hunt’s Case, Owen 42, 74 Eng.Rep. 886 (1588); Budder v. Price, 1 Bl.H. 547, 126 Eng.Rep. 314 (1701); Illinois: Hoy v. floy, 44 Ill. 460 (1867). 31. English: Coates v. Hewit, 1 Wils. (K.B.) 80, 95 Eng.Rep. 503 (1744); Illinois: Hey v. Roy, 44 Ill. 469 (1867); Federal: Fontaine v. Aresta, 2 M’Lean 127, Fed.Cas.No.4,905 (1840). 32. Alabama: Young v. Scott, 5 Ala. 475 (1843); Arkansas: Hudspeth v. Gray, 5 Ark. 157 (1842); 1111-nois: Illinois State Hospital for Insane v. Higgins, 15 Xli. 185 (1853); Mix v. Nettleton, 29 Ill. 245 (1862); Indiana: Wilson v. Hiekson, 1 Blaekf. (md.) 230 (1822); Osborne v. Fulton, 1 Blaekf. (md.) 234 (1822); Kentucky: Sinclair v. Pierey, 5 J.J.Marsh. (Ky.) 63 (1830); January v. Henry, 3 T.B.Mon. (Ky.) 8 (1825); Missouri: Snell c. Kirby, 3 Mo. 21, 22 Am.Dec. 456 (1831); New Jersey: Scott v. Conover, 6 N.J.L. 222 (1822); Tennessee: Deberry v. Darnell, 5 Yerg. (Tenn.) 451 (1830); Virginia: Beirne v. Dunlap, 8 Leigh (Va.) 514 (1837). Cf. Gift v. Hall, 1 Humph. (Tenn.) 480 (1840),
“or” in money. Alabama: Henry v. Gamble, Minor (Ala.) 15 (1820); Bradford v. Stewart, Minor (Ala.) 44 (1821); Kentucky: Dorsey v. Lawrence, Hardin (Ky.) 517 (1808); Tennessee: Crockett v. Moore, 3 Sneed (Tenn.) 145 (1855); Virginia: Minniek v. Williams, 77 Va. 758 (1883).
Osborne v. Fulton, 1 Blaekf. (Ind.) 234 (1822). Cf. Belford v. Woodward, 158 Ill. 122, 41 N.E. 1007, 29 L.R.A. 593 (1895), involving gold coin. St Cassady v. Laughlin, 3 Blaekf. (md.) 134 (1832). It seems, however, that Debt lies if the debtor merely had the option to pay In goods, or do some other act, and has not done so. Illinois: Pox River Mfg. Co. v. Reeves, 68 Iii. 403 (1873); Ohio: Nelson v. Ford, 5 Ohio 473 (1832); Tennessee: Bloomfield v. Hancock, 1 Yerg. (Term.) 101 (1826); Young v. Hawking, 4 Yerg. (Term.) 171 (1833), Directory: lawschool lawschool -> Handong International Law School Admissions Essays I. Instructions lawschool -> Law School Materials for Success Barbara Glesner Fines Download 9.19 Mb. Share with your friends:
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