2021. Presumptions and burden of 2026. Debt on specialty — Breaches

proof.

2022. Nil debet-Evidence under. 2023. Debt on parol contract.

2024. Statutes of limitations and

frauds.

1

of covenant-Non est factum.

2027. Debt on judgment.

§ 2020. Generally.-The action of debt lies where a party claims the recovery of a debt, that is, a liquidated or certain sum of money alleged to be due him. "The cause of action," says Mr. Andrews, "which is made the basis of the form of action designated debt, is a sum of money due according to the terms of some obligation to pay money, which may be an oral, a written, an implied contract, or an express obligation imposed by a public law, be it custom, statute, or a city ordinance." Distinguishing features are: that it lies only for the recovery of money; that it lies as a rule at least, only to recover liquidated damages or those that are capable of being definitely ascertained or fixed by mere calculation; that, unlike assumpsit, it will lie

2 Stephen Pl. (Andrew's ed.), 122; United States v. Colt, Pet. (U. S.) 145, 25 Fed. Cas. 581; Stockwell v. United States, 13 Wall. (U. S.) 531, 543; see also, to the effect that it is the proper remedy to recover for a penalty under a statute, when no other remedy is therein provided, Western U. Tel. Co. v. Scircle, 103 Ind. 227, 2 N. E. 604; Rogers v. Brooks, 99 Ala. 31, 11 So. 753; Bigelow v. Cambridge &c. Corp., 7 Mass.

202; Tilson v. Warwick Gas Co., 4 B. & C. 962; see also, State v. Manchester &c. R. Co., 69 N. H. 35, 38 Atl. 736; Rockland v. Farnsworth, 87 Me. 473, 32 Atl. 1012; Russell v. Louisville &c. R. Co., 93 Va. 322, 25 S. E. 99.

'Cole v. Driskell, 1 Blackf. (Ind.) 16; Cassady v. Laughlin, 3 Blackf. (Ind.) 134; Larmon v. Carpenter, 70 Ill. 549.

Fox River Mfg. Co. v. Reeves, 68 Ill. 403; Knowles v. Eastham, 11 Cush. (Mass.) 429.

upon contracts of record or under seal, as well as upon simple contracts, and unlike covenant, it will also lie upon simple contracts; and that it is based upon the theory that there is a debt to be recovered rather than for the recovery of damages, although damages are sometimes awarded for the detention of the debt. As said by one of the courts, "A debt, technically so called, may be evidenced by record, by contract, under seal, or by simple contract only. Its distinguishing feature is that it is for a sum certain, or that may readily be reduced to a certainty; and the action of debt lies for the recovery thereof, eo nomine, without regard to the manner in which the obligation is incurred or is evidenced."5

§ 2021. Presumptions and burden of proof.-The burden of proof is generally upon the plaintiff, but this or the extent to which he must go, is determined largely by the issue in the particular case; and, in one sense, it may also be determined in some respects by presumptions. The subject of the burden of proof is specifically considered under the different pleas; and as the general subject of presumptions has been fully treated elsewhere it is unnecessary to treat it with particularity in this connection. It may be remarked, however, that possession of the evidence of indebtedness by the one party or the other may raise a presumption in his favor, which may be rebutted; that payment may sometimes be presumed from lapse of time, and that a receipt is prima facie evidence of payment of the specific debt named, or, if in full, of the payment of all such indebtedness. So, similar or various other rebuttable presumptions may rise from the general course of business."

§ 2022. Nil debet-Evidence under.-"When this action is brought upon a parol contract, or for an escape, or for a penalty given by statute," says Mr. Greenleaf, "the general issue is nil debet; under which, as it is a traverse of the plaintiff's right to recover, he must prove every material fact alleged in the declaration. And, on the other hand, as the defendant alleges that he does not owe, this plea enables him to give in evidence any matters tending to deny the existence of any debt, such as a release, satisfaction, arbitrament, non-delivery of goods, and the like. And, generally, when the action is upon a matter

* Baum v. Tonkins, 110 Pa. St. 569, 1 Atl. 534; see also, Minnick v. Williams, 77 Va. 758; 1 Chitty Pl. 121. Vol. 1, § 119.

"Vol. 1, § 108.

Roanoke &c. Co. v. Watkins, 41 W. Va. 787, 24 S. E. 612; Jewett v. Graham, 3 Baxt. (Tenn.) 16.

of fact, though the fact be proved by a specialty or by record, the plea of nil debet is good, and will open the whole declaration, as well as admit the defendant to make any defense showing that he is not indebted. But if the specialty is itself the foundation of the action, though extrinsic facts be mixed with it, the rule is otherwise. Thus, in debt for rent, due by indenture, the action is founded on the fact of occupation of the premises, and permanency of the profits by the defendant, the lease being alleged only by way of inducement; and, therefore, the plea of nil debet puts the plaintiff upon proof of the whole declaration; and, under it, the defendant may give in evidence a release; payment, or, that possession was withheld by the lessor, or, that he was subsequently ousted or evicted by the lessor, or by a stranger having a better title. So, in debt for an escape upon a devastavit, the judgment is but inducement, the action being founded on the fact of the escape or of the waste."

§ 2023. Debt on parol contract.-In debt on a parol contract, the general issue, as already shown, is nil debet, and the action being founded upon the facts of the transaction, whether the contract be express or implied, the plaintiff, must generally allege, and prove under such plea, all the material facts from which the obligation arises, the proof being generally the same as in similar cases in assumpsit, but the plea denies the inducement rather than the breach. And, as shown in the last section, the plea is adapted to any defense which goes to show that the debt never existed, so that the defendant may show that the plaintiff never had a cause of action, by evidence of infancy, mental incapacity, coverture, duress, want or illegality of consideration, release, breach, or payment before term of credit expired,1o or the like; and may also show many matters which go in discharge of his liability which once existed, such as payment, accord and satisfaction, release,

⚫ 2 Greenleaf Ev., § 280, citing Stephen Pl. 177; Chitty Pl. 423; Tyndal v. Hutchinson, 3 Lev. 170; Bullis v. Giddens, 8 Johns. (N. Y.) 83; Minton v. Woodworth, 11 Johns. (N. Y.) 474; Jansen v. Ostrander, 1 Cow. (N. Y.) 670; Stilson v. Tobey, 2 Mass. 521; see, as to apportionment, Windfall Landlord & Tenant, (5th ed.) 301; Vaughan v. Blanchard, 1 Yeates (Pa.) 175; Reg. v. Simpson, Gilb. Eq. 283, 284; Buller

N. P. 197; Bredon v. Harman, 1 Str. 701; see also, Matthews v. Redwine, 23 Miss. 233; King v. Ramsay, 13 Ill. 619, but it has been held that the defendant cannot prove accord and satisfaction under this plea in an action of debt on a note: McGuire v. Gadsby, 3 Call. (Va.) 234; McCreary v. McCreary, 5 Gill & J. (Md.) 147.

10 Bloomfield v. Smith, 1 M. & W. 542.

and, indeed, almost any defense he may have,11 except matters in confession and avoidance or denial of the breach.12

11

§ 2024. Statutes of limitations and frauds.-The statute of limitations cannot be given in evidence under the plea of nil debet; it must be specially pleaded,13 except in certain instances in debt upon statutory liabilities. Nor is evidence of a former recovery by another person admissible under this plea, when pleaded to an action of debt for a penalty given by statute; "for if it could be so shown, the plaintiff might be deprived of the opportunity of pleading nul tiel record, or of proving that the recovery was by fraud." But in debt upon a parol contract, under the plea of nil debet, it has been held that the defendant may take advantage of the statute of frauds, on the ground that the plaintiff, under that issue, is bound to prove his case by such evidence as the statute requires.15

14

§ 2025. Debt for statutory penalty.-In debt for a penalty given by statute, and in every other case, where a criminal omission of duty is charged, whether official or otherwise, it is held that necessary allegations, even though negative in character, must generally be proved by the plaintiff.16 But it is said by Mr. Greenleaf, that if the action is founded on the doing of an act without being duly licensed or qualified, the burden of proving the license or qualification lies on the defendant, because it is a matter lying peculiarly within his own knowledge.17

S.) 508, 29 Fed. Cas. No. 17409. See also, Buttemere v. Hayes, 5 M. & W. 456; Eastwood v. Kenyon, 11 Ad. & El. 438; Phoenix Ins. Co. v. Munday, 5 Coldw. (Tenn.) 547.

16 Whitecraft v. Vanderver, 12 Ill. 235; Little v. Thompson, 2 Me. 228; Commonwealth v. Samuel, 2 Pick. (Mass.) 103; Commonwealth V. Maxwell, 2 Pick. (Mass.) 139; Rex v. Rogers, 2 Campb. 654.

171 Greenleaf Ev., § 79; 2 Greenleaf Ev., § 283; Hornberger v. State, 47 Neb. 40, 66 N. W. 23; State v. Shelton, 16 Wash. 590, 48 Pac. 258; Commonwealth Mass. 206; Parker v. State, 61 N. J. L. 308, 39 Atl. 651. But if the license is to be given by the plaintiff

V. Curran, 119

The plaintiff in such action must also show that the action has been regularly commenced within the limited time, if the statute has made this essential to his right to recover; and in the right county, if any is designated by law.18 It has also been held that if the time of the commencement of the action does not appear on the record, it may be shown by the writ, or aliunde, by any other competent evidence ;1o and that if part of the penalty is given to the town or parish where the offense was committed, or to the poor thereof, it must be proved that the offense was committed in that town or parish.20 "The defendant, in a penal action," says Mr. Greenleaf,21 "may, under the general issue, avail himself of any statutory provision exempting him from the penalty, whether it be contained in the same statute on which the action is founded, or in any other.22 He may also, under this issue, take advantage of any variance between the allegation and the proof on the part of the plaintiff; for, as we have already seen, the plaintiff is held to the same strictness of proof in a penal action, or in an action founded in tort, where a contract is set forth, as in an action upon the contract itself."

9923

§ 2026. Debt on specialty-Breaches of covenant-Non est factum. The plaintiff should be prepared to prove the breaches assigned and the amount of damages. 24 It is also said that if the condition of the bond declared on, is for the performance of the covenants in some other deed, he must prove the execution of that deed also, as well as the breaches alleged.25 If the condition of the bond is not set out in the pleadings, but is only suggested on the record after a judg

himself he must prove that it was not given: Abney v. Austin, 6 Ill. App. 49; Farrow v. Nashville &c. R., 109 Ala. 448, 20 So. 303, and authorities in last note, supra.

18 Buller N. P. 194, 195. As to time, see Moore v. Smith, 5 Me. 490; Estill v. Fox, 7 T. B. Mon. (Ky.) 552, 18 Am. Dec. 213. And see as to the place where the offense was committed: Scott v. Brest, 2 Term R. 238; Butterfield v. Windle, 4 East 385; Pope v. Davies, 2 Campb. 266; Scurry v. Freeman, 2 B. & P. 381; Pearson v. McGowran, 3 B. & C. 700, and he must show that his action

is clearly within the statute in every way; Gilbert v. Bone, 79 Ill. 343.

19 Johnson v. Smith, 2 Burr. 950; Granger v. George, 5 B. & C. 149. 20 Evans v. Stevens, 4 Term R. 226; Frederick v. Lookup, 4 Burr. 2018.

21 2 Greenleaf Ev., § 285.

22 Rex v. St. George, 3 Campb. 222. 23 Parish v. Burwood, 5 Esp. 33; Everett v. Tindall, 5 Esp. 169; Partridge v. Coates, 1 Car. & P. 534; s. c. Ry. & M. 153.

24 Roberts v. Mariett, 2 Saund. 187a, n. (2); 2 Phillips Ev., 169. 252 Phillips Ev., 169.