THE action of debt is founded upon a privity of contract either a B. N. P. 167. Id. Com. Dig. Debt, A. B. 1. Records. privity (independently of any security) between the parties, and the debtor undertakes not for another's debt but for his own, not to a stranger but to the creditor, and he enters into a contract to pay that debt, specifying therein that he enters into it for that debt, an action of debt lies. Debt, therefore, is sustainable on a bill of exchange, where there is a privity of contract between the parties. It will lie at the suit of the drawer against the acceptor, if there be some expression of consideration, "as value received," on the face of the instrument. At the suit of the payee against the drawer of a bill or maker of a note c. By first indorser against the drawer of a bill payable to his order; but not by the payee or any other but the drawer against the acceptor; nor will it lie on a promissory note payable by instalments, until the last day of payment be passed f; for the different instalments are considered to constitute but one debt, and for one debt the plaintiff can bring but one action of debts. Debt is sustainable for any duty created by the common law or custom h. It lies on contracts for the sale of goods or for the payment of money. It lies on Irish and on foreign judgments, and upon the decree of a colonial court m. Debt lies on records as upon the judgment of a superior or inferior court of record"; so upon a sheriff's return of a fi. fa., for it is parcel of the record°; and on a statute merchant though not on a statute staple, because the seal of the party is not affixed to the latter P. But debt does not lie on the decree of a court of equity founded on equitable considerations only 9. Debt also lies on statutes. Where a statute gives part of a Statutes. penalty to a common informer, and enables him to sue by an express provision, debt lies a. In some cases it is given to the party aggrieved by the express words of the statute, as for an escape out of execution; though not for an escape out of custody under an attachment for non-payment of costs under a decree in equity c. If the statute prohibits the doing of an act under a penalty or forfeiture to be paid to a party grieved, and does not prescribe any mode of recovery, it may be recovered in this form of action d. Debt lies against a returning officer at an election for 500l. penalty, under stat. 7 & 8 Wm. III. c. 25, 6. for not delivering a copy of the poll to a candidate, on being required so to do*. So it lies to recover the costs and expenses of a returning officer, in defending himself before a committee of the House of Commons from charges of corruption and bribery, in a petition against the return of a member of parliament, if he has obtained the speaker's order and certificate pursuant to stat. 28 Geo. III. c. 52 f. Where a statute incorporating a gas company provided that the expenses of obtaining the act should be first paid out of the subscriptions, it was held that the attornies who obtained the act might recover their costs in an action of debt founded upon the statute 8. But if a statute prescribes a particular remedy, no other than the remedy prescribed can be adopted. Therefore an action of debt will not lie for a poor's rate h, and surveyors of highways cannot bring debt for composition money duly assessed in lieu of statute duty; the statutes having prescribed a remedy by distress in both cases. When debt does not lie. Executors and administrators. Less than the sum demanded may be recovered. Debt does not lie unless the demand be for a sum certain, or for a pecuniary demand which can readily be reduced to a certainty a. It does not lie for the arrears of an annuity or yearly rent devised payable out of lands to A. during the life of B., (to whom the lands are devised for life,) B. paying the same thereout so long as the estate of freehold continues b. Debt is not sustainable on a collateral contract as on a promise to pay the debt of another in consideration of forbearance". Formerly debt could not be maintained against an executor on a simple contract made with the testator, except in those cases where the testator, if living, could not have waged his law d. But by the 3 & 4 W. IV. c. 42. s. 13. wager of law has been abolished, and sec. 14 enacts, that an action of debt on simple contract shall be maintainable in any court of common law, against any executor or administrator. It was formerly considered that in an action of debt, the plaintiff could not recover less than the sum declared upon, and if he could not prove himself entitled to recover that sum he should be nonsuited e. But it is now settled that he may recover less than the sum demanded. For the difference is, that where debt is brought upon a covenant to pay a sum certain, a variance in the statement of the sum mentioned in the deed will vitiate, but where the deed relates to the matter of fact, there, though the plaintiff demand more than is due, he may enter a remittitur §. It is immaterial that the aggregate of the sums claimed in several counts exceeds the amount claimed in the queritur h. SECTION II. THE DECLARATION. THE declaration in debt on simple contract must state the consideration, and also the inducement necessary to explain the contract or consideration as in assumpsit; but it must be alleged that the defendant agreed, not that he promised, to pay the debt. A count that the defendant, in consideration that the plaintiff had sold and delivered divers goods, undertook to pay quantum valebant upon demand, with an averment that the said goods were worth 201., whereby an action hath accrued to the plaintiff, is not a good count in debt, and cannot be joined in a declaration with counts in debt. In declarations on specialties or records no consideration need be shewn, for it is implied; unless where the performance of such consideration constitutes a condition precedent, then the performance must be averred; and where the action is founded on a deed it must be declared upon, except in the instance of debt for rent; and the omission to set out the deed can be taken advantage of by special demurrer only. In debt on a byelaw for not paying 2s. per annum quarterly, the breach need not assign the days of quarterly payment. Where in articles of agreement under a penalty, there are mutual covenants between A. and B. to do certain acts, and also a covenant which goes to the whole consideration on each side; to an action of debt for the penalty brought by A. against B. on account of the non-performance of his part, B. may plead in bar a breach by A. of the covenant which goes to the whole consideration. Where the debt sued for is one entire demand, and the plaintiff proceeds for a part only, he must aver that the rest has been satisfied. But in debt on a mortgage deed for payment of principal with interest, a declaration for the principal Bishop r. Young, 2 B. & P. 78. Dalton v. Smith, 2 Smith, 618. J Saund. 276. d Tilson v. Warwick Gas Company, 4 B. & C. 962; see ante, 710. e Innholder's case, 1 Wils. 281. f St. Alban's (Duke) v. Shore, 1 H. Black. 270, ante, 682. |