will lie-but if a married woman commits a fimilar fault, it is not actionable, for all acts of married women are void. I fhall mention fome decisions under this head, that have taken place in this state. A man of property gave his note to a known bankrupt, who by means of it purchased property and indorfed over the note in payment, and then gave a discharge on the note to the promiffor, by which the indorfee was defeated of the payment. For the fraudulent act of giving a note to a bankrupt, and then taking a discharge, their being prefumption of a collusion, which was exprefsly alledged in the declaration, the promiffor was fubjected in this action to the indorfee. Where a man of property combines with a bankrupt, and furnishes him with the means of making the figure of a man of property, and to make part payment for what he may purchase, with a view that he may go where he is unknown, and acquire property on credit, or for part payment and credit, so that they both may fhare in the profits of the trade; any person who shall be taken in and defrauded by fuch perfon fo fitted out for that purpose, may bring this action against the perfon who fitted him out, and on the ground of a fraudulent combination, may recover damages for the cheat. This feems to be going great lengths in favour of a perfon who is cheated by voluntarily trufting a ftranger and a bankrupt; but when it is confidered that the man of property who combines with the bankrupt is the indirect remote, but ultimate caufe of the cheat, by furnishing means, without which it could not have been accomplished, and that this is an immoral act, it must be acknowledged to be right to fubject him. For fraud ought to be difcouraged in every fhape it affumes. So where the defendant having obtained an illegal and void warrant to take the property of another, procured and perfuaded the plaintiff to aid and affift the officer in the execution of it by mifreprefentation, by falfely affirmining that the warrant, and the whole bufinefs was legal, and afterwards an action was brought against the plaintiff by the owner of the property for a trespass, and the warrant being found void, he was adjudged a trefpaffer, and fubjected to pay large damages. Upon this he brought his action action against the defendant, for the falfe declaration and mifreprefentation refpecting the legality of the warrant, and the action as fuftained. If a creditor, or his attorney fhould turn out to an officer on an attachment, or execution, eftate that did not belong to the debtor, and the owner fhould bring his action against the officer and recover; action would lie in favour of the officer against fuch person, for tendering to him, and directing him to levy on the eftate of a perfon, not named in the attachment or execution. This action of trespass on the cafe, will lie against a person for not procuring an infurance. For where a merchant gives inftructions to his correfpondent to effect an insurance on a ship of his ; and he neglects to do it, he is liable in this action, under the following circumstances. When the merchant abroad has effects in the hands of his corref pondent here, he is bound to enfure, if ordered fo to do-for the merchant abroad has a right to appropriate his money in the hands of another, in any manner he pleafes. Where there are no effects of the merchant abroad in the hands of the other, but the course of the dealing has been fuch that it has been ufual to fend orders for one to infure and the other to comply, in fuch cafe if the merchant here neglects to make fuch afurance, he fhall be liable, unless he has given notice to fuch perfon to difcontinue the dealing. Where a merchant abroad has fent bills of lading to his correfpondent here, he may engraft on them an order to infure, as the implied condition on which they are to be accepted, which the merchant here muft obey, if he accepts them. But if the merchant abroad limits the merchant here to too fmall a premium, fo that no insurance can be procured, he is not liable. So where the merchant here ufes due diligence to procure an infurance, which cannot be done, or makes an infurance which proves ineffectual without his fault, he is not liable; for if he acts faith. fully, and is not guilty of any negligence, he fhall not be liable. 2 Efpin. Dig. 419. 2 Term. Rep. 187. Cowp. 179. CHAPTER CHAPTER ELEVENTH. OF DEBT. DEBT is an action founded on contract, express or implied, in which the certainty of the fum, or duty appears, and in which the plaintiff is to recover the fum in numero, and not in damages. Debt will lie upon, 1. Simple Contract. 2. Bonds. 3. Leafes. 4. Judgment. And 5. Awards. • Debt lies upon all fimple 1. Debt on fimple contracts. contracts where there is a commutation of property for money. As for the price of goods fold, wherein the price has been aftertained between the parties. So it will on all fimple contrac which are determinate, and the fum due is certain, and dependent on no after calculation. But for fuch cases, this action has grown into difufe because by the common law, the wager of law is allowed, and because the plaintiff must recover the exact sum declared for, or he cannot have judgment, which being often uncertain, it has given way to the action of affumpfit; in which a perfon may recover fuch fun as he proves to be due. But ftill this action may be brought on fimple contracts, tho never practised; it is therefore neceffary to obferve that it will not lie against ban executor, or administrator, nor upon a promise to pay the debt of another, nor against the accepter of a bill of exchange. 2. Of Debt on Bonds. The general principles refpecting bonds have already been confidered in treating of contracts. It only remains to mention fome particular rules refpecting actions that are grounded upon them. If a man be bound by a bond to pay a fum of money at five feveral days, the obligee fhall not have an action of debt, till all the days are paft, for the contract is entire, fo that the breach of it is not complete till all the days are past. This is where the entire fum is due on a single bond; for if it be a bond in a penal fum, conditioned for the paymeut of money at different days, the condition is broken, and the bond becomes abfolute upon failure of payment at any of the days, and debt lies before the last day is paft. a1 Efpin. Dig. 182. 4 Co. 94. bg Co. 87. 23. Co. Lit. 292. b In 6 Cro. Car. 146. Salk. a In debt on a fimple contract, the plaintiff should set forth in his declaration, the promise or confideration, which is the ground of the action, but in declaring on a fpecialty, it must be on a certain writing obligatory, or deed fealed with his feal, and conclude with a profert, for the bond or obligation is of itself fufficient. Bonds are either fingle or conditional. Conditional bonds contain certain conditions, which if fulfilled, the penal part becomes void. In actions brought upon bonds containing conditions, the declaration may either fet forth the conditions at large, with an affign ment of the breach, or it may be founded only on the penal part; in which cafe, the defendant having prayed oyer the bond, may plead the conditions, with an averment of the performance, and then the plaintiff in his replication, may affign the breach. This general rule of the common law, extends to all cafes of bonds of an official nature, excepting in the cafe of fheriffs, who in actions on official bonds, must state the conditions in the declaration. This is a principle introduced by our courts. It is a general rule, that in actions on bonds, the plaintiff hould affign but a fingle breach, for fo only can the defendant know where to apply his defence. But where the tranfaction on which the breach is founded is entire, though it confifts of many parts, a general affignment of a breach will be fufficient. d Where a single breach is affigned, it should be fully, and parti colarly stated in what manner the breach accrued. The breach should be so affigned, that by no prefumption it shall be out of the condition of the bond; for fo judgment might be given without cause of action. ƒ But the affignment of the breach need not be in the words of the condition, if it appears to be within the mean. ing or intent of the agreement. Where the plaintiff brings debt on bond, for the performance of any thing, if the defendant pleads matter of excufe, the plaintiff nced not set out a particular breach, for the excufe admits the nonperformance, and juftifies it. As in debt upon a bottomry bond, the condition was, if the fhip returned in ten weeks, and gave an ar Efpin, Dig. 227 ex Strange, 227. account b 2 Burr. 773. . Idem. d Douglafs, 203. f Dougl. 367. Saik. 138. account of the profits of her voyage, the obligation was to be void. The defendant pleaded, that the fhip was loft, and the plaintiff replied that the fhip was not loft, to which the defendant demurred, because no breach was affigned; but it was adjudged that the defendant had made it unneceffary, by pleading matter of excufe; but in cafe of an award, if the defendant pleads matter of excufe for non-performance, the plaintiff muft fet out the award and breach, for the award may be void in whole or in part, and there. fore the award must be set forth, not only that the court may fee that there was an award, but also that the non-performance was of a good, and not of a void part of the award, for that need not be performed. Where a bond is in the disjunctive, a breach of either part by the act of the obligor, forfeits the bond, and is a fufficient affignment of the breach; for the law will fupply these words which fhall firft happen. As where the defendant's wife when fole, gave a bond to the plaintiff, which was in the penalty of twelve hundred pounds, if the married any other perfon than the plaintiff, or refused to marry him within one month after the death of her father. Having married the defendant in the life time of her father, the plaintiff brought debt on the bond, affiguing her marriage as the breach and it was held good, tho infifted that The might perform one part of the condition, by marrying the plaintiff after her father's death, as he might furvive her husband. . By the common law of England, it is a general rule that the fubfcribing witness to a bond, should in an action on it, be always produced to prove the execution of it, unlets some reason is fhewn why he cannot be procured; and then collateral evidence is admiffible. This may be confidered as law here, for it has been determined that where the fubfcribing witness to a note is living, or may be had, he must be produced, if the note is denied, and other evidence of an inferior nature, is not admiffible without it. If the bond be conditioned for the payment of money, the defendant under the plea of full payment, may produce oral teftimony, to establish the fact, contrary to a maxim of the English S Douglafs, 205. b Law vs. Atwater, Sup. C. 1794 common |