NOTE (B.)

THIS cafe was much debated in the court below. It appeared from the books that the only reported cafe in which it had been decided that an action of debt would not lie upon a promiffory note, was that of Welsh v. Creagh, 11 Geo. 1, 8 Mod. 373, 1 Str. 680, which is fo inaccurately reported that it is impoffible to fay between what parties to the note the action was. In 8 Mod. " it was faid that "it would not lie against the indorfer, but that it would lie against the "drawer." But we collect from the report, that the reason of the decifion was, that before the ftatute of Anne, no action at all would lie upon the note, as a note; (for which the cafe of Clerk v. Martin, I Salk. 129, was cited). That the ftatute gave only the fame kind of action as upon inland bills, and that an action of debt was never known to be brought upon a bill of exchange. And probably the court in that cafe relied on Hard. 485, to fupport this position.

Another reafon given is, that the ftatute declares " that the affignee "or indorfee may maintain an action against the drawer or indorfer, " and recover damages, &c. which fhews that an action of debt will "not lie, because damages are never recovered in debt.”

The firft pofition, viz. that no action, before the statute, would lay upon a note, as a note, feems not to be correct, although fupported by the cafe of Clerk and Martin, for that cafe was directly contrary to the whole current of authorities prior to that time, particularly to the cafe of Williams v. Williams, 5 W. and M. Carth. 269; and the ftatute of Anne feems to have been made, not to alter the law, but to over-rule this cafe of Clerk v. Martin, and to place promiffory notes on the fame footing on which they stood prior to that decifion. (See the preceding note.)

It is true that in Milton's cafe, Hard. 485, it was decided that an action of debt would not lie againft the acceptor of a bill of exchange; but the reafon given shows that it would lie against the maker of a promiffory note. For it was faid that the undertaking of the acceptor was only collateral, to pay the debt of another, and that the drawer continued debtor, notwithstanding the acceptance. So that the reafon feems to be that the acceptor was not the original debtor. But the maker of a promiffory note is the original debtor, and therefore an action of debt would lie against him, by the fame rule that it would not lie against the acceptor of a bill.

In Baker v. Hill, 3 Keb. 627, the action was debt on an inland bill, but it is not stated between what parties. There was a demurrer to the plea, and judgment for the plaintiff. This was eight years after the cafe in Hardres. And in the cafe of Brown v. London, 2 Keb. 695, 713, 758, 822. 1 Vent 152. 1 Lev. 298, and 1 Mod. 285, it feems to be admitted that an action of indebitatus affumpfit for money had and received would lie, if the acceptor had the money in his hands to pay.

In early times "all matters of personal contract were considered as "binding only in the light of debts; and the only means of recovery "was by this action of debt." 1 Reeve, 159. It was not without repeated struggles that the action on the cafe was permitted to be brought for breach of a perfonal contract. Even as late as the reign of Queen Elizabeth it was confidered as a matter of great doubt whether af fumpfit would lie in any cafe where an action of debt might be brought. The court of King's bench held that it would; and the commonpleas held that it would not; but it was finally determined after great debate before all the judges of England in the exchequer chamber, in Slades cafe, 4 Co. 93, that affumpfit would lie for the price of corn fold.

The cafe of Core v. Woddye, 28 H. 8, Dyer 20, is a strong cafe to fhow that where the defendant has received money to which the plaintiff is entitled, he may have an action of debt for it.

A promiffory note has always been held to be good evidence of money received by the maker of the note to the ufe of the payee. In that cafe the court, in giving their opinion, faid, "Admit that there "was not any bill teftifying the receipt, yet by the common opinion of "the books, it is in the election of the bailor to have an action of "debt," or account, in fuch a cafe." And in the cafe of Meredith v. Chute, 2 Ld. Raym. 760, it was faid 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 faid to be "debt upon a conceffit folvere, "according to the law merchant." This feems to have been fome kind of an acknowledgment of a debt, in the nature of a promiflory note.

In Domingo Franca's cafe, 11 Mod. 345, it was held that debt or indebitatus affumpfit might be brought upon a bill of exchange by the payee against the drawer, "because it is in the nature of a fecurity.

The action of debt was the ordinary remedy upon a Tally, which feems to have been no better evidence of a debt than a promiflory note.

A Tally is thus defined by Spelman in his Gloffary p. 532, Edit. 1637"Tallium, alias Talea, eft clavola vel ligni portiuncula, utrinque complanata, cui fumma debiti inciditur; fiffaque inde in duas partes, una debitori, altera creditori traditur, in rationis memoriam.”

These tallies feem to have been a kind of common security for money, and to have been negotiable like bank bills, paffing from hand to hand by delivery_only. 12 Mod. 241. Actions of debt upon them are mentioned in Fitz. ab. Tit. Dett. 4. 4. E. 2. Fitz. ab. Ley. 68, 70, F. N. B. 122, I. Dyer 23, Hard. 333, and 2 Keb. 713. Sometimes they were fealed, but in general they were without a feal and were only evidence of a fimple contract. Against a common tally, the defendant might wage his law; and in Dyer 23, it appears, that "there is one book which fays that a man may wage his law against « a fealed tally, if the tally have only notches or fcotches indented, each "fcotche for twelve pence, according to the common ufage; but if "the fum be infcribed upon the sealed tally, he shall be ousted of his "law."

The cafe of Rumball v. Ball, 10 Mod. 38, was debt upon a promiffory 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 promiffory note, payable by inftalments; and although the cafe was warmly contested, and although Mr. juftice Lawrence who was then at the bar, was for the defendant, yet no objection was fuggefted to the form of the action; but it was contended, and fo held by the court, that an action of debt would not lie upon fuch a note until all the inftalments had become due.

Morgan in his precedents, p. 584, has given the form of a declaration in debt on a promiffory note, and Kyd in his treatife on bills and notes p. 114, (Dublin Edit. 1791) after noticing fome of the authorities on this fubject, fays, " the conclufion refulting from the whole "feems to be this, that where a privity exifts between the parties, ❝ there an action of debt or indebitatus affumpfit may be maintained."

Comyns,(Dig. Tit. Debt. (A. 8.) lays down the propofition generally, "that debt lies upon every express contract to pay a fum certain,” and cites I Leo. 208. And Blackfione, (3 Com. 154) fays, "the legal "acceptation of debt is, a fum of money due by certain and exprefs "agreement; as by a bond for a determinate fum, a bill or note," &c. "The non-payment of thefe is an injury, for which the proper remedy "is by action of debt."

But the question is now fettled in England, in the cafe of Bishop v. Young, 2 Bos. and Pul. 78, where it was held that "an action of "debt lies by the payee against the maker of a promiffory note ex"preffed to be for value received."

The declaration in that cafe was, "for that the defendant, on

at made his certain note in writing commonly called a "pro"miffory note, with his own proper hand thereto fubfcribed bearing "date the fame day and year aforefaid, and then and there delivered "the faid note to the plaintiff, by which note the faid defendant, one "month after date promised to pay to the plaintiff or order £. 8. value "received in goods by the defendant, by reafon whereof and by force "of the ftatute in that cafe made and provided, the defendant be"came liable to pay to the plaintiff the faid fum of money in the faid "note mentioned, whereby an action hath accrued," &c. To this declaration there was a general demurrer, in fupport of which the counfel relied chiefly on the cafe of Welsh and Craig, 8 Mod. 373. i Str. 680.

Lord Chief Juftice Eldon, in delivering the opinion of the court, examined the cafes cited and the principles on which the action of debt is founded. He held that the ftatute of Anne had put promiffory & notes on the fame footing, and given upon them the fame 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 confidered as the original debtor, and therefore debt would lie by the payee of a promiffory note against the maker who is the original debtor. He relied alfo on the words value received; and cited Hard. 485.-Skin. 398, Pearfon v. Garrett. Com. Dig. Debt. B. Debt. A. 8. and 9. Salk. 23. Hard's cafe. Skin. 346. Hodges v. Steward. 10 Mod. 32. Rumball v. Ball.

The objection that the statute of limitations was not permitted to be given in evidence upon the plea of nil debet, is fupported only by a dictum of chief juftice Holt, in 1 Salk. 278. Anon. at nifi prius, Anno 1690, and in the cafe of Draper v. Glaffop, 1 Lord Ray. 153, 8 and 9 W. 3. The reafon which he gives in the firft cafe, is, "For the fta"tute has made it no debt at the time of the plea pleaded; the words of "which are in the present tenfe. But in cafe on non affumpfit the fta"tute of limitations cannot be given in evidence, for it fpeaks of a "time past, and relates to the time of making the promise." The rea fon given in the cafe of Draper and Glaffop, is, "because non assump"fit goes to the præter tenfe; but upon nil debet pleaded the ftatute is good evidence, because the iffue is joined per verba de prefenti, and

without doubt nil debet by virtue of the statute; and it is no debt at this time, though it was a debt."

In I Morgan's V. Mecum, 220, this cafe is cited with a " fed quere” and he advifes that the ftatute should be pleaded.

The expreffion of the ftatute of Jac. 1. c. 16, which is the fame as that of the act of affembly 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 lapfe of time is not of itself evidence that the defendant does not owe the money. The statute only creates a difqualification of the plaintiff to recover, like that of out-lawry, alien enemy, feme covert, &c. or it may be confidered 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 ftatute is clear from the cafes which have been decided fince the time of lord Holt.

In the cafe of Quantock v. England, 4 Bur. 2628, it was held that a debt barred by the ftatute is a good debt to fupport a commission of bankruptcy. The fame was exprefsly decided by lord Mansfield at mifi prius in the cafe of Fowler v. Brown, cited in Esp. N. P. 563. And in Trueman v. Fenton, Cowp. 548, his lordship faid, "all the "debts of a bankrupt are due in confcience, notwithstanding he "has obtained his certificate. Though all legal remedy may be gone, "the debts are clearly not extinguifbed in confcience. Where a man de"vises his estate for payment of his debts, a court of equity fays, "(and a court of law, in a cafe properly before them, would fay the "fame) all debts barred by the ftatute of limitations fhall come in, "and share the benefit of the devife."

Hence it appears that the reafon which lord Holt gives for the diftinction between non affumpfit, and nil debet, is not fupported. And if the reason fails the law fails with it.

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

THE END.