DECLARATIONS IN DEBT.

OBS. As to the action of debt in general, see Com. Dig. "Debt;" Bac. Abr. "Debt;"1 Chit. Pl. 7th ed. 121, &c.; Selw. N. P. tit. "Debt." Debt lies where the claim is for a sum certain, or a sum in the nature of a pecuniary demand, and not sounding in damages, and reducible to a certainty, either upon a simple contract or a contract under seal, or upon a record or statute giving a penalty, &c. It lies in all those cases in which the common indebitatus count in assumpsit is maintainable, whether the sum be claimed on a contract express or implied, be fixed by agreement, or be demanded upon a quantum meruit; see the various instances unte. It also lies on bills of exchange and promissory notes, and checks, as between the immediate parties; see post, "Bills," "Notes." But debt cannot be maintained on a collateral contract, Randal v. Rigby, 4 M. & W. 136, as a guarantee of the debt of a third person, or by a distant against an earlier party to a bill, &c.; or where only part of an entire claim payable by instalments is demanded, and some of the instalments have not accrued due, see 1 Chit. Plead. 7th ed. 127, though it lies on a covenant by the defendant to pay absolutely the debt of a third person, the payment not being made to depend upon the default of such third person, Evans v. Jones, 5 M. & W. 295; Harrison v. Matthews, 10 M. & W. 768; S. C. 2 D. N. S. 318. And it lies at the suit of A. on a bond made payable to A. or his attorney, White v. Hancock, C. P. April 22, 1846; and an indebitatus count for money lent will lie where there is a mortgage deed containing no covenant to pay the money; Yates v. Aston, 4 Q. B. 182. Debt lies to recover pecuniary demands by assignees of bankrupts and insolvents, and by and against executors and administrators; see Forms post. The preference given to the action of debt, where either assumpsit or debt may be maintained, is founded on the rule that in debt, (as the claim is nominal as regards damages), the judgment is final in the first instance, if the defendant omit to plead to the action; and thus the expense and delay of ascertaining the amount recoverable through the medium of a writ of inquiry, &c. are avoided; see Tidd, 9th ed. 573, 568, 931; Chit. Arch. 8th ed. Ind. in voc. In debt, the plaintiff having obtained judgment by default, may therefore in general at once issue execution for the amount really due to him, and which he claims in his particulars of demand, and which his declaration would enable him, in reference to such particulars, to recover; Hughes v. Steward, Exch. April 24, 1846. The defendant may apply to the court, if too much be taken under the execution, ibid.; credit should therefore be given for moneys actually paid; and the execution should not be issued for interest, unless there were an express contract to allow it. Where interest as damages is claimed by virtue of the statute 3 & 4 W. 4, c. 42, s. 28, (a written demand and claim to interest having been made), a writ of inquiry to obtain such damages should be executed; see Blackmore v. Flemyng, 7 T. R. 446; M'Clure v. Duncan, 1 East, 436. In some cases a writ of inquiry must be executed, as in debt for foreign money; Arden v. Connell, 5 B. & Ald. 885; Brill v. Neele, 3 B. & Ål. 208; Bale v. Hodgetts, 1 Bing. 182. In these instances, from the nature of the demand, the amount must of necessity be uncertain; but in these cases the defendant who relies on the excep tions must show clearly that the debt is of such a nature as to require a writ of inquiry to ascertain its precise amount, see Weald v. Brown, 2 C. & J. 672, which was an action on an apothecary's bill, and the court would not infer that there was any uncertainty as to the real amount.

Debt cannot be joined with any other form of action except detinue; but a declaration in debt may contain a count on a record or a deed, with a count on a simple contract.

Great care must be observed not to join assumpsit and debt, otherwise the whole declaration will be bad on general demurrer, &c. for a misjoinder; see ante, 32, Form 10, and note (m). A declaration in debt, stating that the defendant

promised, &c., is good, as amounting, in fact, to an agreement, Compton v. Taylor, 4 M. & W. 138; and see Esdaile v. Maclean, Exch. Feb. 1846; the cases of Nian v. Bland, 3 Smith, 114, where a declaration beginning in debt, and containing some counts stating that the defendant being indebted, undertook and promised to pay, whereby, &c. actio accrevit, and other counts framed in debt, stating that the defendant was indebted in a certain sum to be paid to the plaintiff, whereby, &c., was held bad for the misjoinder; Bull v. Neal, 1 Chit. 619; 3 B. & Al. 208; may be supported on the ground that there was no breach stated in those cases. A count on a bill stating that defendant promised, &c., with a debt conclusion, was held a good count in DEBT; Compton v. Taylor, 6 Dowl. 660; 4 M. & W. 138, S. C.; and see Cloves v. Williams, 3 B. N. C. 869; Smith v. Cor, 11 M. & W. 475. A count stating that the defendant undertook and promised to pay, is in assumpsit and not in debt, although it conclude "whereby an action hath accrued," &c.; the proper form in debt is that defendant agreed to pay; see id. A count that the defendant, in consideration that the plaintiff had sold and delivered divers goods, undertook to pay quantum valebant upon demand, with an averment that the said goods were worth £20, whereby an action hath accrued to the plaintiff, is not a good count in debt, and cannot be joined in a declaration with counts in debt; Dalton v. Smith, 2 Smith, 618.

The Common Indebitatus Count in Debt. (a)

"" A. D.

Commencement in debt, ante, 5.] For that whereas the defendant, on the day of [any day before date of declaration], was indebted to the plaintiff in £--, [the aggregate of all the sums in the declaration, (b)] for [here state any debt that may be claimed under an indeb. count, besides the claim for goods, &c., as for use and occupation, as the case may be; and proceed, using only such of the following statements of consideration, as goods, work. &c. as may apply to the case, adding the account stated at all events:]

and for goods then sold and delivered by the plaintiff to the defendant at his request;

and for goods then bargained and sold by the plaintiff to the defendant

at his request;

and for work then done and materials for the same provided by the plaintiff for the defendant at his request;

and for money then lent by the plaintiff to the defendant at his request;

and for money then paid by the plaintiff for the use of the defendant at his request;

and for money then received by the defendant for the use of the plaintiff;

and for interest upon and for the forbearance by the plaintiff to the defendant at his request of moneys due and owing from the defendant to the plaintiff;

(a) See the notes to this count in assumpsit, ante, 46, 47, which will for the most part be applicable here. As to when the common

count will lie, unte, 45. Particulars to be
delivered with these counts; ante, 49, 50.
(b) See ante, 5, note (*).

and for money then found to be due from the defendant to the plaintiff on an account then stated between them;

*which said [or "last mentioned," if there be a prior special (c) count], sum of money was to be paid by the defendant (d) to the plaintiff (d) on request; (e) and by reason of the nonpayment thereof an action hath accrued(ƒ) to the plaintiff to demand the same of the defendant, being the [or "parcel of the" or "residue of the "] sum above demanded; yet the defendant hath not (g) paid the sum above demanded or any part thereof, to the plaintiff's damage of £10; (h) and therefore he brings his suit, &c.

ANNUITY.

On an Annuity Deed for Arrears of the Annuity. (i) Commencement in debt, ante, 5.] For that whereas on [&c. date of deed], by a certain indenture then made (j) between the plaintiff of the one part and the defendant of the other part, [which said indenture, sealed with the seal of the defendant, (k) the plaintiff now brings here into court, ()] the date whereof is the day and year aforesaid, the defendant, for the consideration therein mentioned, did grant, &c. [here state in the past tense the grant of the annuity, and the defendant's covenant to pay it in the past tense, but it would suffice to state only the covenant], as by the said indenture fully appears; nevertheless the plaintiff in fact saith that after the making of the said indenture," and during the life of the said E. F.," [that is, if the cestui que vie mentioned in the annuity deed be any other person than the plaintiff,](m)

(c) See notes (t) and (u), ante, 48.

(d) If the plaintiff sue, or the defendant be sued, in a representative capacity, then this will run "by [or 'to'] the said E. F.." [the testator or bankrupt, as the case may be]; and generally, whenever in assumpsit a promise to pay on request would be laid as having been made by or to a testator, executor, bankrupt, assignee, wife, &c. The corresponding form in debt will be, that the debts "were to be paid" by or to those parties respectively "on request, whereby actio accrevit," &c.

(e) This is the contract implied by law; ante, 48, note (q). No express request is necessary; an undertaking or promise by defendant in debt is informal, but not demurrable, ante, obs.

(f) The actio accrevit is not necessary to be stated here; 1 Chit. Pl. 7th ed. 375.

(g) This breach is mere form in debt; it is enough to show a debt, and then the defendant must discharge himself from it; Ashbee v. Pidduck, 1 M. & W. 564.

(h) State enough to cover any interest due; see Watkins v. Morgan, 6 C. & P. 661; and see ante, 48, note (s).

(i) See Randall v. Rigby, 4 M. & W.

130; S. C. 6 Dowl. 650. Where there is an annuity bond it may be as well to proceed thereon in order to get a judgment for the penalty, and issue a scire facias for subsequent arrears as they from time to time accrue due; see post, " Bond." But where the plaintiff wishes to proceed expeditiously, debt on the deed is preferable, as the execu tion of a writ of inquiry is thus avoided.

(j) A declaration alleging that by indenture "purporting to be made between plaintiff and defendant, it was witnessed that" defendant covenanted, held, after plea, suthiciently certain; Baynon v, Batley, 8 Bing. 256. "It was witnessed," good in a decla ration; aliter in a plea; ante, 39, note (r). (k) 1 Saund. 291, note.

(1) This is called the profert, and must be made or a legal excuse for omitting it, when. ever the action is founded on a deed or bond under seal; see ante, 35, note (z); Hawley v. Peacock, 2 Campb. 557. If the plaintiff make a profert and cannot produce the deed, and it be not admitted, he will be nonsuited; see Smith v. Woodward, 4 East, 585.

(m) See Brooke v. Spong, 15 Law J. 94, Exch.

to wit, on [&c. day when last arrear became due], a large sum of money, to wit, the sum of £ of the said annuity for one year and the [half] of another year, [the period for which the annuity is in arrear], then last elapsed, became due from the defendant to the plaintiff, and still remains in arrear, contrary to the said indenture and of the said covenant of the defendant in that behalf, whereby an action hath accrued to the plaintiff to demand from the defendant the said sum of £, being parcel of the said sum above demanded. [Add counts for money had and received, &c. for the original consideration.

As to when the consideration is recoverable, see Chit. Contr. Index, "Annuity;" Churchill v. Bartrand, 3 Q. B. 568; Huggins v. Coates, 5 Q. B. 432. Add also a count on an account stated, and conclude as in the Form, ante, 414, from the asterisk.

ARREST.

1. Debt against a Sheriff for carrying Plaintiff to Prison within Twenty-four Hours after Arrest. See 32 G. 2, c. 28, ss. 1-12.

Silk v. Humfrey, 7 C. & P. 14; and see Dewhurst v. Pearson, 1 Dowl. 664; and Barsham v. Bullock, 10 A. & E. 23.

2. Against a Bailiff for Extortion, on 23 H. 6, c. 10.
Plevin v. Prince, 10 A. & E. 494.

3. Against a Sheriff for refusing to accept Bail.
Evans v. Moseley, 2 Crom. & Mees. 496.

ASSIGNEES OF A BANKRUPT OR INSOLVENT DEBTOR.

The forms in assumpsit, ante, 62 to 66, may readily be applied to the case of assignees suing in debt. State the debt as there directed, and instead of laying any promise, conclude as in the common count in debt, "TO BE PAID BY THE DEFENDANT TO THE SAID E. F." [or "THE PLAINTIFF AS ASSIGNEE," as the case may be,] see ante, 414, note (d), "WHEREBY AN ACTION HATH ACCRUED TO THE PLAINTIFF AS ASSIGNEE," &c.; showing a nonpayment to the bankrupt and the assignee," &c. as ante, Form 1, p. 63, and conclude as in the Form, ante, p. 414.

ATTORNEY'S BILL.

As ante, Form 1, p. 67; and Form, p. 413; attending to the directions in note (d), p. 414. Nondelivery of bill must be specially pleaded; Bowen v. Hodges, ante, 400.

AWARDS.

Debt lies in an indebitatus form upon an award for a sum awarded, but not on the submission; Sutcliffe v. Brooke, 15 L. J. 118, Exch. State the debt as ante, 75, Forin 6; add counts on the original consideration and on the account stated, and conclude as ante, 414. See a form on an award made under a rule of court, Gisborne v. Hart, 5 M. & W. 50; Hawkins v. Benton, Q. B. Hil. T. 1846. It is no objection that the claim determined in favour of the plaintiff by the award was only of an equitable nature; ibid. Where there is an arbitration bond, declare on the bond as on a common money bond, see post, 422; Ferrer v. Oven, 7 B. & C. 427, per Bayley, J.; and assign a breach in the replication, or suggest a breach upon the roll if judgment by default be obtained; see a form assigning a breach in the declaration, Ferrer v. Rollaston, 7 B. & C. 427; see special counts in assumpsit, ante, 73, 74.

In the

BAIL BOND.

1. By the Assignee of a Bail Bond against the Bail.(m)

(n)

Venue transitory.] To wit, A. B., assignee of R. S., Esq. sheriff [or "late sheriff"] of the county of, according to the form of the statute in such case made and provided, by the attorney of him the said A. B., [or "in person,"] complains of C. D., E. F., and G. H., (o) who have been summoned (p) to answer the plaintiff in an action of debt, and he demands of the defendants the sum of £, [the penalty of the bond,] which they owe to and unjustly detain from him, For that whereas, to wit, on [&c. date of bail bond,] the said C. D. [the principal] had been and was arrested (q) by and was then in the custody of the said R. S., as and then being sheriff of the said county of —, upon and by virtue of her majesty's writ of capias, theretofore, to wit, on [&c.], issued out of the said Court by virtue of a special order of Sir then one of the judges of the Court of [Q. B.], at West

(m) See the law and practice, Tidd, 9th ed. 317, 411; Arch. by Chit. 8th ed. The plaintiff suing as assignee must necessarily set out the condition, to show his title under the statute 4 & 5 Ann. c. 16, s. 20, which enables him to sue. Where the sheriff sues, he may declare as on a common money bond. In an action on a bail bond, the debt and costs need not be indorsed on the writ; Smart v. Lovick, 3 Dowl. 34.

(n) The assignee of a bail bond must sue in the Court in which the original action was brought; the sheriff in any Court he pleases; Arch. by Chit. Ind. " Bail." The plaintiff may continue the original action, though he has taken an assignment of the bail bond; Betts v. Smyth, 2 Q. B. 113; nor is it necessary to discontinue it in order to enable him to sue as assignee of the bond; Ede v. Colleyridge, 11

M. & W. 61; S. C. 2 D. N. S. 764.

() In general, though the principal and bail are liable jointly and severally, all or one only should be sued, and several actions should not be brought; for by rule Hil. 2 W.4, r. 30,"proceedings on the bail bond may be stayed on payment of costs in one action, un less sufficient reason be shown for proceeding in more;" see Johnson v. Macdonald, 2 Dowl. Where two of three parties to the bail bond were sued jointly, held to be no irregu larity, Knowles v. Johnson, 2 Dowl. 653; but the two might plead the nonjoinder in abatement, see Streatfield v. Halliday, 3 T. R. 782.

44.

(p) The parties cannot be arrested on the bond; Arch. by Chit. Index, "Bail, &c."

(9) Bail cannot traverse this allegation of arrest; Taylor v. Clow, 1 B. & Ad. 223.