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 e. Price, 1 H. Bl. 547, the action was debt upon a promissory note payable by installments; 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 installments had become due.

issory note against the maker, who is the original debtor. He relied also on the words value received; and cited Hard. 485, Skin. 398, Pearson v. Garrett. Com. Dig. Debt, B. Debt, A. 8 and 9. Salk. 23, Hard's Case. Skin. 346, Hodges v. Stewart. 10 Mod. 32, Rumball r. Ball.

The objection 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 Lord Ray. 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 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 and Glassop is, because non assumpsit goes to the præter tense; but upon nil debet pleaded the statute is good evidence, because the issue is

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 acception 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. & Pull. 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."

at

The declaration in that case was, "for that the defendant, on 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 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 and 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 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 prom

out doubt nil 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 quare," and he advises that the statute should be pleaded.

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 covert, &c., or it may be considered as a special protection of the defendant, like a certificate of bankruptcy, infancy, or a discharge under an insolvent 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, Coup. 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.

ABSENT DEBTOR.

2. To support a demand for salvage, the recapture
must be lawful, and a meritorious service must be
rendered. Id.

28
3. Probable cause is sufficient to render the re-
31
capture lawful. Id.

4. Where the amount of salvage is not regulated
by positive law, it must be determined by principles
of general law. ld.

44

5. Marine ordinances of foreign countries, pro-
mulgated by the executive by order of the legis-
lature of the United States, may be read in the
courts of the United States, without further au-
thentication or proof. Quære, whether they may
not be read without such promulgation? Id. 38
6. Municipal laws of foreign countries are gen-
erally to be proved as facts. ld.
Ib.
7. To entitle to salvage, in cases of recapture, it
is not necessary that the means used should be
with that sole view. Id.
36, 41
8. The rule that salvage is not due for the recap-
ture of a neutral, is founded on the fact that no
benefit has been conferred. Id.

37

2. If a promissory note of a third person be in-
dorsed, by the purchaser of goods, to the vendor,
as a conditional payment for the goods, quære,
whether the vendor is, in any case, obliged to sue
the maker of the note before he can resort to the
purchaser of the goods on the original contract of
sale. Id.
193

3. A suit against the defendant as indorser of the
note, and a suit against him for the goods sold, are
upon distinct and different causes of action; and
the first cannot be pleaded in bar of the second.
Id.

193
4. It is not necessary for the plaintiff to offer to
return the note, to entitle him to an action for the
goods sold. Clarke v. Young,

194

5. In Virginia, an action will not lie by the holder
against a remote indorser of a promissory note.
Mandeville v. Riddle,

290
6. Quatre, whether the holder of a promissory
note in Virginia cannot maintain an action for
money had and received, against a remote indors-
er? Dunlop v. Silver,
367

7. Can he for whose benefit a promise is made to
a third person, maintain an action against the prom-
isor? Id.

429
8. Letters of administration from the orphans'
court in the District of Columbia, are necessary to
enable an administrator to maintain an action in
the courts of the district.

Fenwick v. Sears,

ADMINISTRATOR.

of partial war in the year 1799. ld.

lb.

12. The Supreme Court of the United States, in
to the statement of facts made in the court below.
cases of appeal, and on writs of error, are limited

Id.

38

An administrator, having had letters of adminis-
tration in Maryland, before the separation of the
District of Columbia from the original states, can-
not, after that separation, maintain an action in
that part of the district ceded by Maryland, by
virtue of those letters of administration, but must
take out new letters within the district.

APPOINTMENT TO OFFICE.
See Mandamus, 5, 6, 7, 9, 11, 12, 13, 14.

ASSIGNMENT.

See Chose in Action.
ASSUMPSIT.

318

2. Quæære?

Dunlop v. Silver,

367 3. Assumpsit will not lie upon a policy of insurance, under the corporate seal, unless a new consideration be averred,

Insurance Co. of Alexandria v. Young, 332 4. Quere, whether an aggregate corporation can make an express assumpsit, unless specially authorized by statute. Ib. 5. After verdict, every assumpsit laid in the declaration is to be taken as an express assumpsit. id.

341 6. Quare, whether he for whose benefit a promise is made, may maintain an action against the promissor? Appendix,

429

7. Is privity necessary to support indebitatus assumpsit for money had and received?

xvi

Ib. Ib.

Shall not practice as counselors. Id. Counselors may be admitted to practice as attorneys. Id.

xvii

2. If a promissory note of a third person be indorsed by the purchaser of goods to the vendor, as a conditional payment for the goods, quære, whether the vendor is, in any case, obliged to sue the maker of the note before he can resort to the purchaser of the goods on the original contract of sale. Id.

Ib.

3. A suit against the defendant as indorser of the note, and a suit against the defendant for the goods sold, are upon distinct and different causes of action; and the first cannot be pleaded in bar of the second. lb. 4. It is not necessary for the plaintiff to offer to return the note, to entitle him to bring suit for the goods sold.

Ib. 5. A declaration in debt, upon a foreign protested bill of exchange, for the principal, interest, damages and costs of protest, under the act of assembly of Virginia, must aver the amount of those costs of protest. Wilson v. Lenox,

195

6. Quare, whether the indorser is discharged, if, after the notice to such indorser of non-payment by the drawee, the holder charge the bill in account current against the drawer, and upon the whole of that account, the balance due is less than the amount of the bill. Ib.

7. Whether the indorser, after due notice, is discharged by the holder's receipt of part of the Ib. money from the drawer? 8. Whether it is necessary to aver a protest for non-acceptance, in an action on protest for nonpayment,

9. Whether the drawer is a competent witness for the indorser, in an action against the latter.* Ib. 10. Whether protest for non-payment of a foreign bill of exchange must be made on the last day of grace. Fenwick v. Sears, 260 11. Whether the reasonableness of notice be matter of fact, or matter of law. Id. lb.

12. Whether, on the count for money had and received, notice of non-acceptance, and of non-payment, be necessary to charge an indorser who knew, at the time of indorsing, that the drawer had no right to draw. Id. lb. 13. In Virginia, an indorsee of a promissory note cannot maintain an action against a remote indorser, for want of privity.

Mandeville v. Riddle,

290

reside in different states.

Abercrombie v. Dupuis,
CLERK.

343

DEBT.

See Bills of Exchange, 5.

1. An action of debt for 8601. 12s. 1d. founded on a decree in chancery, is not supported by a decree for 8601. 128. 1d. with interest from a certain day to the day of rendering the decree. But the variance 282 is fatal. Thompson v. Jameson,

2. Quare, whether nil debet is a good plea to an action of debt founded on judgment of a court of one of the co-states? Id. 285, 286 3. The declaration must be for the whole debt. Or if you declare for part you must show that the Ib. residue is satisfied. Id.

4. Debt will not lie upon a promissory note in Maryland. Lindo v. Gardner.

343

464

5. Will debt lie upon a promissory note? Appendix,

DEBTOR.

See Absent Debtor. Insolvent Debtor. Fraud. A debtor may prefer one creditor to another, and convey goods to him in discharge of his debt. 244 Wood v. Owings,

DECLARATION.

4. Congress may constitutionally impose upon the judges of the Supreme Court of the United States, the burden of holding circuit courts.

Id.

CONSTITUTION.

lb.

A writ of error lies upon a caveat from the district court of Kentucky district to the Supreme 45 Wilson v. Mason, Court of the United States. 2. It is not error to reject, as incompetent, admissible testimony, tending to prove a fact not relevant to the case before the court. 117, 132

Turner v. Fendall.

United States v. Hooe,

COVENANT.

See Assumpsit, 8.

COUNSELORS.

3. Quære, whether, in a case where there is no jury, a judgment ought to be reversed for the rejection of testimony which was admissible in law. Or whether the cause, in the appellate court, should be considered as if the testimony had been received? 132 Id. 4. Writ of error, how to be returned by the clerk xvii 5. If the writ of error issues within 30 days before the meeting of the court, the defendant in error may enter his appearance, and proceed to trial, otherwise the cause must be continued. Id. xviii 6. Where the writ of error appears to be brought for delay only, the judgment shall carry interest at 10 per cent. per annum, by way of damages. In other cases 6 per cent. Id.