the Liability of Devisee under the same Statute.

Judgment-Execution.

VII. Debt on Judgment.

VIII. Debt for Rent Arrear-Stat. 4 G. 2. c. 28. against Tenants holding over after Notice from Landlord-Stat. 11 G. 2. c. 19. against Tenants holding over after Notice given by themselves— Declaration-Debt for Use and Occupation— Pleadings-Evidence.

IX. Debt against Sheriff, &c. for Escape of Prisoner in Execution-Stat. 13 Ed. 1. c. 11. 1 R. 2. c. 12. What shall be deemed an Escape-By whom the Action for an Escape may be brought -Against whom-Declaration-PleadingsEvidence.

X. Of the Statutes, and general Rules, relative to Actions founded on penal Statutes.

XI. Debt on Stat. 2 G. 2. c. 24.—Bribery at Elec- · tions-Provisions of the Statute-Declaration. Evidence-Stat. 7 & 8 W. 3. c. 4. Treating

Act.

I. Of the Action of Debt, and in what Cases it may

maintained.

be

AN action of debt lies for the recovery of a sum certain upon simple contract, bond, other specialty, or record; for rent arrear; against a gaoler for the escape of a prisoner in execution; or upon statute by the party grieved or common informer.

If a statute prohibit the doing an act under a certain penalty, but does not prescribe any mode for recovering the

a Carth. 161, 2.

b 1 Rol. Abr. 598. pl. 18, 19.

penalty, the party entitled may recover the penalty by action of debt.

Debt also lies for the recovery of a sum of money due

under an award.

So debt lies for an amerciament in a court leet. In this case it ought to be alleged in the declaration, that the defendant was an inhabitant, as well at the time of the amerciament, as of the offence; but the omission of this averment will be cured by verdict.

The plaintiff declared in debt on a deed, whereby the defendant covenanted to pay the plaintiff so much per hundred for every hundred stacks of wood in such a place, and bound himself in a penalty for the performance; it was averred, that there were so many stacks, which amounted to a sum exceeding the penalty, for which sum the plaintiff brought his action. On demurrer it was objected, that, as there was a penalty for a certain sum, the plaintiff could not have an action for more than that sum: but the objection was overruled, Holt C. J. observing, that the plaintiff had an election either to sue for the penalty, or for the rate agreed on, although it exceeded the penalty; for the penalty was inserted only to enforce payment. It was then objected, that the proper form of action was covenant, and not debt: but per Cur. the plaintiff may have covenant or debt at his election; for the rate being certain, when the defendant has the wood, the agreement becomes certain, for which debt lies.

In the action of debt the plaintiff is to recover the sum in numero, and not a compensation in damages, as in those actions which sound in damages only; such as assumpsit, &c. The damages given in the action of debt, for the detention of the debt are merely nominal.

II. Debt on simple Contract.

DEBT lies upon a simple contract, either express or implied, to pay a sum certain.

Debt lies by the payee against the maker of a promissory note, expressing a consideration on the face of it; as where

it is expressed to be for value received". But debt will not lie upon a bill of exchange against the acceptor; for, though the acceptance binds by the custom of merchants, yet it does not create a duty any more than a promise made by a stranger to pay, &c. if the creditor will forbear his debt. The drawer of the bill is the debtor, and continues to be the debtor, notwithstanding the acceptance; for that is a collateral engagement only (1): nor will debt lie for a wager'.

Debt lies upon a foreign judgment: as upon a judgment of the supreme court in Jamaica; and, in an action of this kind it is not necessary for the plaintiff to state the grounds of the judgment, the judgment being of itself primá facie evidence of a simple contract debt: it is competent, however, to the defendant, to impeach the judgment by shewing it to have been irregularly or unduly obtained. To support an action on a foreign judgment', it is not sufficient to prove the judge's hand-writing subscribed to it; the seal affixed thereto must also be authenticated.

A declaration in debt for goods sold and delivered", stat ing that the defendant at W. in the county of M. was indebted to the plaintiff in a certain sum for goods sold and delivered, is sufficient; for the words "sold and delivered" imply a contract; as there cannot be a sale, unless two parties agree; and as the venue goes to the whole declaration, the venue laid must be taken to be the place where the contract was made for the sale of the goods.

Formerly it was considered as necessary, that the amount of the sums claimed to be due in the several counts of the declaration should correspond exactly with the sum demanded in the recital of the writ, and neither exceed" nor fall short of it. But this is not now considered as requisite; and in a late case?, where debt was brought on simple contract, it was holden, on special demurrer to the declaration, that the declaration was good, although the sums

h Bishop v. Young, 2 Bos. & Pul. 78. m Emery v. Fell, 2 T. R. 29. i Ld. Raym 69.

k Walker v. Witter, Doug. 1.
1 Henry v. Adey, 3 East, 221.

n Hulme v. Saunders, 2 Lev. 4.
o Smith v. Vowe, Moore, 298.
p M'Quillin v. Cox, 1 H. Bl. 249.

(1) "Indebitatus assumpsit will not lie in any case except where debt lies therefore it lies not against the acceptor of a bill of exchange; for the acceptance is merely a collateral engagement: but, indebitatus assumpsit lies against the drawer, who is really the debtor by the receipt of the money; and debt will lie against the drawer." Hard's case, Salk. 23.

claimed to be due in the several counts did not amount to the sum demanded in the recital of the writ; and although the breach was assigned for non-payment of the sum demanded; the court observing, that in debt on simple contract the plaintiff might prove and recover a less sum than he demanded in the writ. In like manner where an action of debt was brought in the Court of King's Bench, on a bond, and several simple contracts, and the amount of the sums claimed to be due in the several counts exceeded the sum demanded in the beginning of the declaration, it was holden, on special demurrer, that the declaration was good; for the words " of a plea that he render £" in the King's Bench, at least are superfluous words, and being rejected there will not be any repugnance on the face of the declaration. See also the opinion expressed by Lord Mansfield C. J. in Walker v. Witter, 1 Doug. 3d edit. 6. " it is not necessary that the plaintiff should recover in debt the exact sum demanded." See also Aylett v. Lowe, 2 Bl. R. 1221, where in debt on a mutuatus for 2001. and verdict for 1001., the court refused a new trial; although it was urged, that debt being an entire thing, it could not be recovered in part.

III. Debt on Bond-Of the Pleadings :

1. General Issue, non est factum, and Evidence thereon.

2. Accord and Satisfaction.

3. Duress.

4. Illegal Consideration,

1. By the Common Law, immoral-in Restraint of Trade, &c.

2. By Statute, Gaming-Sale of OfficeSimony-Usury.

5. Infancy.

6. Payment-Solvit ad Diem-Solvit post Diem,

and Evidence thereon.

7. Release.

8. Set-Off.

Debt on Bond.-If a bond be dated on a day certain, with

q Lord v. Houstoun, 11 East, 62.

a penalty conditioned for the payment of a lesser sum', and there be not any day fixed for the payment of the lesser sum, such sum is payable on the day of the date; and if an action be brought upon the bond, the court will refer it to the master to compute principal, interest, and costs, and on payment of the same, will stay the proceedings under the stat. 4 Ann. c. 16. s. 13. Interest will become due on such bond', although not expressly reserved, and is to be computed from the day on which the money secured by the bond becomes payable, viz. the day of the date.

If a person be bound to pay a certain sum of money at several days', the obligee cannot maintain an action of debt until the last day be past (2). But upon a bond with a penalty conditioned to pay several sums of money at different days", debt will lie immediately on default of payment at either of the days (3): for the condition is thereby broken, and consequently the bond becomes absolute. And this rule holds, although the condition of the bond does not expressly provide" that in default of payment at any of the said times, the bond shall be in force.'

If A. enter into a bond to pay money on two several contingencies, the obligee may maintain debt on the happening of either contingency'.

If an instalment of an annuity', secured by bond, be not

(2) Debt will not lie on a promissory note payable by instalments, until the last day of payment be past. Rudder v. Price, 1 H. Bl. 547. See the elaborate judgment of the court, and the distinction there taken between debt and assumpsit in this respect.

(3) So on a covenant or promise to pay a sum of money by instalments, an action of covenant or assumpsit will lie immediately on the non-payment of the first instalment. 1 Inst. 292. b. Milles v. Milles, Cro. Car. 241. So if money is awarded to be paid at different days, assumpsit will lie on the award for each sum as it becomes due, and the plaintiff shall recover damages accordingly; and when another sum of the money awarded shall become due, the plaintiff may commence a new action for that also, and so on toties quoties. Cooke v. Whorwood, 2 Saund. 337. The same rule holds in respect of duties, which touch the realty. 1 Inst. 292. b.