most usual: First, on promises to pay money in consideration assumpsit. of a legal liability to pay it; as upon a bill of exchange, banker's draft, promissory note, or foreign judgment: Secondly, on mutual promises, which are either to pay money, as on wagers, or to do some other act, as to marry, or to perform special agreements, charter parties, policies of assurance, or awards: Thirdly, on promises to pay money, or do some other act, founded on some consideration executed or executory; as in consideration of marriage, the sale, assignment or use of lands, the sale, exchange or hire of cattle, or goods, necessaries furnished, forbearance of suit, work and services, or indemnity: Fourthly, on promises to sell, assign or exchange lands, or to take, let, hold, repair, cultivate or quit them: Fifthly, on promises, upon a sale or exchange of cattle or goods, to accept, deliver, take back, or return them; or on a warranty as to their title, quality or value: Sixthly, on promises made upon a bailment of cattle or goods, to be kept either generally or by way of pledge; or concerning cattle or goods lent or let to hire; or by carriers, wharfingers, farriers, &c.: Seventhly, on promises to provide necessaries for the plaintiff or for third persons: Eighthly, on promises to forbear to sue or to give time for the payment of a debt: Ninthly, to perform works, under which may be classed promises made by professional persons, as attornies, surgeons, &c., and upon a retainer to serve or employ: Tenthly, respecting real or personal securities; to account for the profits of lands, or for money, goods, &c.; and promises of indemnity. When gene sit lies on a Although special assumpsit must be brought on a special agreement where it remains open, still subsisting, and in force 23 ral assump yet if the terms of it have been performed, it raises a duty, for special awhich general assumpsit will lie. In cases of this kind, if the 22 East's Rep. 147. Doug. Rep. 23. 1 Bos. & Pul. Rep. 351. 1 Mass. Rep. 287. 12 John. Rep. 274. 13 John. Rep. 94. 57. 14 greement. ASSUMPSIT. Assumpsit against corpo rations. Where there is a contract by deed. Merger of contracts. party has declared on the special agreement in the special form, but fails in proving the agreement as laid, he may recover on a general count, if the case be such, that supposing there had been no special contract, he might still have recovered;24 and it is immaterial whether he has attempted to prove the special agreement or not.25 It was formerly held that assumpsit would not lie against a corporation, for the reason that they could do no act except under seal; but they are now liable like natural persons for the acts of their agents within the scope of their authority; and contracts made by them are regarded as the express contracts of the corporation, and all duties imposed on them by law, and benefits conferred on them by their request, raise implied promises, on which assumpsit will lie.26 Assumpsit, although it will not lie on an agreement by deed, yet will lie on a promise to pay the balance of money due on a covenant under seal;27 or if a new consideration, as forbearance, have intervened, and the defendant promise to pay the debt, assumpsit will lie 28 and where a contract under seal has been put an end to, without the default of the plaintiff, he may recover back money paid in pursuance of it, in an action of assumpsit for money had and received.29 Where a valid security of a higher nature, as a bond or judgment, is accepted in satisfaction of a simple contract debt, the latter is said to be merged in or extinguished by the former, 24 Bull. N. P. 139. 7 John. Rep. 132. 12 East's Rep. 3. 18 John. Rep. 451. Bull. N. P. 139. Str. Rep. 638. 1 Bos. & Pul. Rep. 354. 1 Wils. Rep. 117. 25 10 John. Rep. 36. 5 Mass. Rep. 391. Bull. N. P. 139. 140. 267 Cranch. Rep. 299. 14 John. Rep. 118. 3 Serg. & Rawl. Rep. 117. See 3 Dall. Rep. 496. 27 12 John. Rep. 227. 402. n. a. 2 Term. Rep. 479. 28 1 Cranch. Rep. 332. 1 Chitty, Pl. 95. 29 3 John. Rep. 509. 1 Caines Rep. 47. and it can never be made the foundation of an action;30 but ASSUMPSIT. where the higher security is collateral merely to the original debt, and not intended as a satisfaction or discharge of it, the plaintiff may maintain an action of assumpsit, even though he has obtained judgment upon the collateral security.31 judgments. Assumpsit lies on a foreign judgment, because it is but a Foreign simple contract or parol agreement ;-but it will not lie on the State judgrecords of our own courts, or those of sister states, not the proper remedy on contracts by record. 32 as it is ments. given by sta tute. Assumpsit is sometimes given by statute where it would not Assumpsit otherwise lie, as by the following provision: "When a pecuniary penalty or forfeiture is specially granted by law to any person injured or aggrieved by any act or omission of another, the same may be sued for and recovered in an action of debt, or in an action of assumpsit; and if it be a forfeiture of any property, it may be sued for and recovered in an action of trover, or other appropriate action."53 DEBT. DEBT. The action of debt lies upon contracts, either express or implied, to recover a sum certain, being brought, as its name When it lies. imports upon an ascertained indebtness, and not for damages, which, although given for the detention of the debt, are merely nominal. The sum, however, is sufficiently certain, if it can be readily reduced to a certainty.34 Debt lies, first-upon statutes to recover penalties and on statutes. forfeitures on the implied contract that wherever a debt or DEBT. For penal duty is imposed by law, even although in the shape of a penalties and for ty, or forfeiture for misfeasance, the party will discharge it. feitures. The statute imposing a penalty often gives an action for its recovery expressly. But where this is not done it may be recovered by the party entitled in an action of debt.36 The penalty is sometimes given to the party grieved and sometimes On by-laws to a common informer.57 Debt also lies for forfeitures imposed by the bye-laws and ordinances of a corporation. of corporations. For escapes. Ou records. 38 Another species of debt created by statute for misfeasance, is that incurred by a sheriff for the escape of a prisoner in his custody upon execution. It is provided that "if any prisoner committed to any jail, in execution in a civil action, or upon an attachment for the non-payment of costs, shall go or be at large without the boundaries of the liberties of such jail, without the assent of the party at whose suit such prisoner was committed; the same shall be deemed an escape of such prisoner, and the sheriff having charge of such jail, shall be answerable therefor to such party, for the debt, damages, or sum of money for which such prisoner was committed, to be recovered by an action of debt."59 Debt does not lie unless the prisoner was in execution on a capias ad satisfaciendum ;40 it is not sufficient that he has been merely surrendered by his bail. of Secondly-Debt lies upon record, or to recover any sum money which appears to be due by the evidence of a court of record; the highest evidence known to the law. Such records are either judgments or recognizances in the courts of of our own record of this state, but not of foreign courts, which do not courts, but eign records. not on for here create a debt by record, but only by simple contract the lowest species of evidence. 36 Ib. 1 Selw. N. P. 402. 1 Roll. Abr. 598. pl. 18. 19. 1 Ld. Raym. Rep. 682. 375 East's Rep. 316. 2 East's Rep. 569. Com. Dig. Debt A. Action on Statute E. 38 Com. Dig. Debt A. 9. 3 Caines' Rep. 30. 302 R. St. 437. P. 3. Ch. 7. T. 6. s. 63. 40 6 John. Rep. 270. See 1 Wend. Rep. 115. 398. DEBT. sister states records by al provision, The courts of sister states, however, are not considered in this sense as foreign courts, their records when authenticated Records of in the form prescribed by law, furnishing evidence of the same not foreign degree, as the records of our own courts. This principle of constitutionlaw is introduced by the constitution of the United States, which declares that "full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state," and authorizes Congress, by general laws, to "prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof."41 Congress, in execution of this power, after prescribing the and act of mode in which such records shall be authenticated, has de- Congress. clared that "the said records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them, in every court within the United States, as they have by law or usage in the courts of the state from whence the said records are, or shall be taken." It is now settled in our courts, that, by the effect of these provisions, debt on re- Their effect. cord is the proper and only remedy on records of the courts of sister states.43 territories, reign or not. The constitution of the United States does not appear to Records of include the records of the courts of the territories of the United whether foStates within its provisions, but Congress has passed a law placing them on the same footing in this respect, with the records of the states. This law was in question in Mills v. Duryee,45 but not upon the point of its constitutionality. 41 Art. 4. s. 1. 42 Act of 26 May, 1790. 43 7 Cranch. Rep. 481. 3 Wheaton. Rep. 234. 2 Dallas' Rep. 302. 19 John. Rep. 162. 15 John. Rep. 121. See also contra 5 John. Rep. 132. 8 John. Rep. 177. 1 Caines' Rep. 460. 11 John. Rep. 168. See also, that, although nul tiel record is the proper plea, and not ni debet, yet that any |