of pirates excepted. And it was therein mutually agreed between the said parties, that one A A should be master of said ship, during said voyage; and in case said ship should not be ready when loaded, that, in that case, the hire should cease until she should be ready; to the true performance of which covenants, the said parties therein. bound themselves, each unto the other in the penal sum of $-. Now the plaintiff avers, that he has well and truly done and performed all things, in the said charter-party, on his part covenanted to be performed, and that the said ship, with her appurtenances, was by the said T and E, taken into their service on &c., and on &c., was loaded, and was then ready and did proceed on said voyage, to &c., arrived safe there, on &c., and thence proceeded back to &c., and on &c. arrived at &c., to wit, at &c, and was there on the same day discharged from said voyage. And the plaintiff further avers, that the whole hire of said ship, with her appurtenances, during said voyage, amounted to the sum of $-, whereof the said T and E thereafterwards, on the same day had notice; yet the said T and E, or either of them, though the said ten days have expired, and though since requested, have never paid the said sum of $-, but the said T and E, their covenants aforesaid, in these particulars have not kept, but altogether broken; and the said T and E, and each of them still wholly refuse to perform the same. JONA. SEWALL.

On a note under seal.

For that the said T, on &c., at &c., by his deed of that date, in court to be produced, covenanted with the plaintiff, to pay him or his order, the sum of $100, on demand, with interest for the same until paid; yet the said T, though often requested, hath not paid the said sum of $-, nor the interest thereof, but wholly neglects and refuses so to do. And so the said T, his said covenant hath not kept, but hath broken the same. R. DANA.

For wages of servant by the master according to covenant. For that the plaintiff, on &c., at &c., let out to the said R, his, the plaintiff's servant-man, named John, to serve the said R, as an able fisherman, faithfully at sea and on shore, from &c. to &c., now past; in consideration whereof, the said P, at &c., on &c., by his deed of that date duly executed, and in court to be produced, covenanted with the plain

tiff to pay him for the said service, the sum of $-, at or before &c., which is long since past. Now the plaintiff avers, that his servant aforesaid, well and faithfully served the said R, as an able fisherman at sea and on shore during the term aforesaid; yet nevertheless the said R, not regarding his said covenant, hath not paid the plaintiff the said sum of $, though requested, and still refuses so to do. And so the said R, his covenant aforesaid, hath not kept, but hath broken the same. BOLLAN.

For price of lumber according to an indenture.

For that whereas, by certain deeds, interchangeably made between the said R and the plaintiff, on &c., at &c. bearing date the same day, one part whereof, under the hand and seal of the said R, is in court to be produced, the plaintiff covenanted with the said R to provide for him, and to deliver him or his order, one hundred tons of good white timber, fit for the European market, at a convenient landing-place on Kennebec river, on or before the first day of May, then next ensuing, but now past; in consideration whereof, the said R covenanted by the same deed with the plaintiff, to pay him after the rate of - per ton, for the same timber, delivered as aforesaid, amounting in the whole to $. Now the plaintiff says, that he, in pursuance of the agreement and covenants aforesaid, did procure for the said R, one hundred tons of good white timber, fit for the European market, at a convenient landing place in Kennebec river, and did deliver the same on the first day of May aforesaid, to the said R's order; and that he, the plaintiff, hath done and performed all things by him, according to the covenant aforesaid to be performed; yet the said R hath never paid the said sum of $-, or any part thereof, to the plaintiff, but wholly refuses and neglects so to do; and so hath not kept his covenant aforesaid, but hath broken the

same.

DEBT.

1. Where debt lies.

An action of Debt lies upon any express contract, written or unwritten, sealed or unsealed, to recover the debt due upon it. Thus it lies

upon recognizances, bonds and covenants to pay money, in leases, charter-parties, or other instruments. It may be maintained also for money lent, laid out and expended; for interest; for goods sold and delivered, or work done; and generally whenever Indebitatus Assumpsit will lie Debt may be maintained, and though Debt generally goes for a precise sum, it may be maintained on a quantum meruit, or quantum valebant. However, Debt is seldom brought on a simple contract. Debt lies for money awarded; for use and occupation by parol demise, &c.; for tolls; fees; the penalties of by-laws, &c. It is the proper remedy to recover penalties imposed by statutes, especially if no other remedy is pointed out.

Debt lies upon judgments, whether a year has expired or not. It lies upon foreign judgments, and though the defendant may show the grounds of such judgment, and impeach them, it is not necessary to set forth the grounds of the judgment in the declaration. Doug. 6.

Debt also lies in many cases of implied contracts; as if money is paid to A for the use of B, B may bring Debt for it. Yelv. 23. So for money levied by a sheriff. 1 Rol. 598.

Where a lessee has been evicted from part of the leased premises, by a stranger, Debt is the proper remedy for the lessor to recover an apportionment of the rent. 2 East, 578.

Debt is the proper remedy to recover against a devisee of land, for a breach of a covenant running with the land, made by the devisor. 7 East, 12.

Debt may be maintained by the payee of a promissory note against the maker, or by the payee of a bill of exchange, expressed to be for value received, against the drawer. 2 Bos. & Pul. 82. So by the

drawer against the acceptor. Chitty on Bills, 428, in notis.

In Lane v. Smith, 2 Pick. 281, it is made a quare by the reporter, whether in this commonwealth an action of Debt can be maintained on a bail-bond. The question is there left open by the court.

2. Where debt will not lie.

Debt generally will not lie where the amount of damages is so uncertain, that a jury is necessary for the assessment of them.

Debt cannot be maintained for a collateral undertaking, as to pay the debt of another, in consideration of forbearance, &c. 2 Bos. & Pul. 83; Salk. 23.

Neither can it be maintained against an indorser of a bill or note, by a remote indorsee; nor by the payee or an indorsee against an acceptor of a bill of exchange. 2 Bos. & Pul. 78; 1 Taunt. 540. Privity between the parties seems to be essential to this action.

After an assignment of a lease, and acceptance of rent from the assignee, Debt cannot be maintained against the lessee, though lessor may bring covenant against him. 1 Saund. 241, n. s.

Upon a mere bailment, as for money delivered in a bag, it seems Debt cannot be maintained. 1 Rol. 597, l. 20.

Where a promissory note is payable by instalments, Debt cannot be sustained until the whole is due. 1 Hen. Bl. 548.

1. Debt on simple contracts.

Though the action of Assumpsit has superseded the action of Debt on simple contracts, yet as it may frequently be convenient to adopt the

latter form of action, for the sake of joining in the same suit different causes of action, for some of which an action of assumpsit cannot be sustained, it may not be amiss to introduce here some of the most usual forms of declarations in Debt on simple contracts. From the few which here follow, it will be readily perceived that a very slight alteration is sufficient to turn the common counts in Assumpsit, on simple contracts, to corresponding ones in Debt, and the introduction of more of them would therefore be superfluous.

On an account annexed.

For that whereas the said S, on &c., at &c. was indebted to the plaintiff in the sum of $-, according to the account annexed, to be paid to the plaintiff by the said S on request, which sum remaining unpaid by the said S, an action hath accrued to the plaintiff to demand and recover of the said S, the said sum; yet though requested, &c., (as in Assumpsit.)

Indebitatus.Count generally for goods sold and delivered without a schedule.

And whereas also the said S, on &c., at &c., was indebted to the plaintiff in the sum of $-, for divers goods, wares, merchandise and chattels, before that time sold and delivered to the said S, at his request, and to be paid by the said S, to the plaintiff, when he, the said S, should be thereunto afterwards requested; whereby and by reason of the said sum of money remaining unpaid, an action hath accrued to the plaintiff to demand and have of the said S, the said sum of $ above demanded; yet the said S, though often requested, hath not paid the said sum of $-, but refuses so to do.

NOTE. The words in italic might be omitted, and the words, but unlawfully owes and detains the same, substituted, which seems to be the proper conclusion of a count in Debt. The former conclusion, however, seems preferable, as avoiding the niceties respecting the proper mode of bringing the action, i. e. whether in the debet and detinet, or only in the detinet. These distinctions, however, may be reduced to these plain principles: -1. If the defendant is indebted to the plaintiff, each in his own right, the action is in the Debet and Detinet. 2. If the defendant is not personally indebted, but is sued merely as an executor, &c., the action is in the Detinet. 3. Husband and wife, for the debt of the wife before marriage, are sued in the Debet and Detinet. 4. Where it is said, that for goods and chattels, guineas, or foreign coins, Debt lies in the Detinet, nothing more is meant than that, where specific articles are sued for, the action of Detinue must be brought; for detinue is of the same nature with the action of debt, and was anciently included in it, and may now be joined in the same writ with it. 5. Executors, &c. sue in the Detinet only. 6. Assignees of bankrupts, sue in the Debet and Detinet. The form of a quantum meruit in debt generally is unnecessary, as

the plaintiff may recover, what he is entitled to receive, on the indebitatus count in Debt. See 1 H. Bl. 249. If introduced after other counts, however, it may be as follows:

Quantum meruit in Debt,

And whereas also, on &c., at &c., in consideration that the plaintiff, at the like request of the said R, had before that time sold and delivered to the said R, divers goods, wares, merchandise, and chattels, the said R then and there agreed to pay to the plaintiff so much money as he reasonably deserved to have therefor, when the said R should be thereto requested by the plaintiff; and the plaintiff avers, that he reasonably deserved to have of the said R, for the said goods, wares, merchandise, and chattels, the further sum of $, whereby an action hath accrued to the plaintiff to demand and have of the said R the said last mentioned sum; yet the said R, though requested, hath not paid the said several sums of $- and $-, amounting in the whole to the sum of $-, but refuses so to do.

In like manner, the counts for labor done; for money lent, paid, had and received, &c., may be easily framed from those in Assumpsit.

Payee v. Maker of a promissory note.

For that the said R, on &c., at &c., by his promissory note of that date, by him subscribed, for value received, promised the plaintiff to pay him, or his order, on demand, the sum of $, by means whereof the said R, then and there became liable to pay the plaintiff the said sum, according to the tenor and effect of the said promissory note; yet, although the said sum of money hath been long since due and payable, and although requested, the said R hath never paid the said sum, but refuses so to do, whereby an action hath accrued to the plaintiff to demand and have of the said R, the said sum of $-, which the said R, owes and unjustly retains.

Payee v. Drawer of a bill of exchange.

For that the said D, on &c,, at &c., made his certain bill of exchange in writing, bearing date the day and year aforesaid, and then and there directed the said bill of exchange to one A B, by which bill of exchange the said D then and there requested the said A B, two months after the date thereof, to pay the said E F or order, the sum of $value received, and then and there delivered the said bill of exchange to the said E F, which said bill of exchange the