Lindo v. Gardner.

account, in such a case." And in the case of Meredith v. Chute, 2 Ld. Raym. 760, it was said by the whole court, that a note was good evidence of a debt due from the maker to the payee. In Godbolt 49, the action is said to be "debt upon a concessit solvere, according to the law-merchant." This seems to have been some kind of an acknowledgment of a debt, in the nature of a promissory note. In Domingo Franca's Case, 11 Mod. 345, it was held, that debt or indebitatus assumpsit might be brought upon a bill of exchange by the payee against the drawer, "because it is in the nature of a security."

The action of debt was the ordinary remedy upon a tally, which seems to have been no better evidence of a debt than a promissory note. *A tally is thus defined *464] by Spelman, in his Glossary, p. 532 (edit. 1637). Tallium, alias Tulea, est clavola vel ligni portiuncula, utrinque complanata, cui summa debiti inciditur; fissaque inde in duas partes, una debitori, altera creditori traditur, in rationls memoriam." These tallies seem to have been a kind of common security for money, and to have been negotiable like bank-bills, passing from hand to hand by delivery only. 12 Mod. 241. Actions of debt upon them are mentioned in Fitz. Abr. tit. Debt, 4; 4 Edw. II.; Fitz. Abr.; Ley 68, 70; F. N. B. 122, I.; Dyer 23; Hardr. 333; and 2 Keb. 713. Sometimes, they were sealed, but in general, they were without a seal, and were only evidence of a simple contract. Against a common tally, the defendant might wage his law; and in Dyer 23, it appears, that "there is one book which says that a man may wage his law against a sealed tally, if the tally have only notches or scotches in dented, each scotche for twelve pence, according to the common usage; but if the sum be inscribed upon the sealed tally, he shall be ousted of his law."

The case of Rumball v. Ball, 10 Mod. 38, was debt upon a promissory note; and although an objection was taken to the want of a demand, yet none was made to the form of the action. In Rudder v. Price, 1 H. Bl. 547, the action was debt upon a promissory note, payable by instalments; and although the case was warmly contested, and although Mr. Justice LAWRENCE, who was then at the bar, was for the defendant, yet no objection was suggested to the form of the action; but it was contended, and so held by the court, that an action of debt would not lie upon such a note, until all the instalments had become due.

Morgan, in his Precedents, p. 584, has given the form of a declaration in debt on a promissory note, and Kyd, in his Treatise on Bills and Notes, p. 114 (Dublin edit. 1791), after noticing some of the authorities on this subject, says, "the conclusion resulting from the whole seems to be this, that where a privity exists between the parties, there an action of debt or indebitatus assumpsit may be maintained." Comyns (Dig. tit. Debt, A, 8) lays down the proposition generally, "that debt lies upon every express contract to pay a sum certain," and cites 1 Leon. 208. And Blackstone (3 Com. 154) says, “the legal acceptation of debt is, a sum of money due by certain and express agreement; as by a bond for a determinate sum, a bill or note,” &c. "The non-payment of these is an injury, for which the proper remedy is by action of debt."

*465] *But the question is now settled in England, in the case of Bishop v. Young, 2 Bos. & Pul. 78, where it was held, that "an action of debt lies by the payee against the maker of a promissory note, expressed to be for value received. The declaration in that case was, "for that the defendant, on at, made his certain note in writing, commonly called a promissory note, with his own proper hand thereto subscribed, bearing date the same day and year aforesaid, and then and there delivered the said note to the plaintiff, by which note, the said defendant, one month after date, promised to pay to the plaintiff, or order, 87., value received in goods by the defendant, by reason whereof, and by force of the statute in that case made and provided, the defendant became liable to pay to the plaintiff the said sum of money in the said note mentioned, whereby an action hath accrued," &c. To this declaration, there was a general demurrer, in support of which the counsel relied chiefly on the case of Welch v. Craig, 8 Mod. 373; 1 Str. 680.

Lord Chief Justice ELDON, in delivering the opinion of the court, examined the cases cited, and the principles on which the action of debt is founded. He held, that the

Lindo v. Gardner.

statute of Anne had put promissory notes on the same footing, and given upon them the same remedy, as was before had upon inland bills of exchange. That an action of debt would lie upon an inland bill of exchange, by the payee against the drawer, whom he considered as the original debtor, and therefore, debt would lie by the payee of a promissory note against the maker, who is the original debtor. He relied also on the words value received; and cited Hardr. 485; Pearson v. Garrett, Skin. 398; Com. Dig. Debt, B, Debt, A, 8 and 9; Hard's Case, 1 Salk. 23; Hodges v. Steward, Skin. 346; Rumball v. Ball, 10 Mod. 32.

The obection that the statute of limitations was not permitted to be given in evidence upon the plea of nil debet, is supported only by a dictum of Chief Justice HOLT, in 1 Salk. 278, Anon., at nisi prius (Anno 1690), and in the case of Draper v. Glassop, 1 Ld. Raym. 153 (8 & 9 W. III.). The reason which he gives in the first case is, “For the statute has made it no debt, at the time of the plea pleaded; the words of which are in the present tense. But in case, on non assumpsit, the statute of limitations cannot be given in evidence, for it speaks of a time past, and relates to the time of making the promise." The reason given in the case of Draper v. Glassop is, because non assumpsit goes to the præter tense; but upon nil debet pleaded, the statute is good evidence, because the issue is joined per verba de præsenti, and *without doubt, nil [*466 debet by virtue of the statute; and it is no debt at this time, though it was a debt." In 1 Morgan's Vade Mecum 220, this case is cited with a sed quære,” and he advises that the statute should be pleaded.

66

The expression of the statute of Jac. I., c. 16, which is the same as that of the act of assembly of Maryland, 1715, c. 23, is, that the action shall be brought within such a time, and not after. It does not extinguish the debt, but only bars the remedy at law. The lapse of time is not, of itself, evidence that the defendant does not owe the money. The statute only creates a disqualification of the plaintiff to recover, like that of outlawry, alien enemy, feme corert, &c., or it may be considered as a special protection of the defendant, like a certificate of bankruptcy, infancy, or a discharge under an insolv

ent act.

That the debt is not extinguished by the statute, is clear, from the cases which have been decided since the time of Lord HOLT. In the case of Quantock v. England, 4 Burr. 2628, it was held, that a debt barred by the statute is a good debt to support a commission of bankruptcy. The same was expressly decided by Lord MANSFIELD, at nisi prius, in the case of Fowler v. Brown, cited in Esp. N. P. 563. And in Trueman v. Fenton, Cowp. 548, his lordship said, "all the debts of a bankrupt are due in conscience, notwithstanding he has obtained his certificate. Though all legal remedy may be gone, the debts are clearly not extinguished in conscience. Where a man devises his estate for payment of his debts, a court of equity says (and a court of law, in a case properly before them, would say the same), all debts barred by the statute of limitations shall come in, and share the benefit of the devise." Hence it appears, that the reason which Lord HOLT gives for the distinction between non assumpsit and nil debet, is not supported. And if the reason fails, the law fails with it.

The objections respecting the letters of administration, and the omission of the debet and detinet, were supposed to come too late, after verdict.

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INDEX

TO THE

PRINCIPAL MATTERS CONTAINED IN THIS VOLUME.

The References in this Index are to the STAR *pages.