By R. G. H. T. 4 Will. IV., in actions of debt on simple contract, other than on bills of exchange and promissory notes, the defendant may plead, that "he never was indebted in manner and form as in the declaration alleged," and such plea shall have the same operation, as the plea of non assumpsit in indebitatus assumpsit; and all matters in confession and avoidance shall be pleaded specially, as above directed, in actions of assumpsit. See ante, p. 116. In other actions of debt in which the plea of nil debet has been hitherto allowed, including those on bills of exchange and promissory notes, the defendant shall deny specially some particular matter of fact alleged in the declaration, or plead specially in confession and avoidance.

In debt for goods sold and delivered, the defendant under the general issue may show that the goods were sold on a credit, which has not expired (a), for if the credit was not expired when the action was commenced, the plaintiff proves a different contract from that which he has stated in the declaration, viz. to pay on request. Under the general issue to an action for goods sold and delivered, or for work and labour done, the defendant may prove that the goods delivered were not such as were contracted for, or that the work was done in an unworkmanlike manner, although there was a special contract to pay for the goods or work at a certain price; and the plaintiff can then recover only on the quantum meruit (b). The form given," that the defendant never was indebted," must be strictly pursued (c), where the defendant denies the sale and delivery.

Where in debt on simple contract the defendant pleads payment of a certain sum, he must prove payment of that sum (even though it be laid under a videlicet), in order to entitle him to a verdict on that plea. But the plea may be taken distributively, and the issue found for the defendant as to the amount proved to be paid, and as to the residue for the plaintiff, &c. "Whilst it was considered to be law, that an action of debt on simple contract was founded on one entire single contract, and that the plaintiff could not recover less than the whole, a special plea of payment was also entire; and if the full amount was not proved to be paid, the plaintiff was entitled to a verdict; but since it has been established, that the demand in debt on simple contract is divisible, and the plaintiff may recover less, and since several contracts may be included in one sum in debt on simple contract, as well as indebitatus assumpsit, and since a plea of payment, whether pleaded to a declaration in one form or other, must have the same meaning, and does not, of neces

(a) Broomfield v. Smith, 1 M. & W. 542; 1 Tyrw. & Gr. 929, denying the authority of Edmunds v. Harris, 2 A. & E. 414. See also Taylor v. Hilary, 1 Cr. M. & R. 743, and Alexander v. Gardner, 1 Bingh. N. C. 671; Hayselden v. Staff,

5 A. & E. 159; 6 Nev. & M. 659.
(b) Cousins v. Paddon, 2 Cr. M. & R.
560; 5 Tyrw. 536.

(c) Smedley v. Joyce, 2 Cr. M. & R. 721; 1 Tyrw. & Gr. 84.

sity, import that one entire sum was paid at one time, there is not any satisfactory reason why it may not be considered as capable of being severed in one case as well as the other, whether pleaded to the whole declaration, or to part. The only difference between the two actions will therefore be, that in assumpsit the plea to the whole declaration admits no certain sum to have been originally due from the defendant to the plaintiff, whilst the plea to the whole declaration in debt admits the sum nominally claimed to have been originally due. In either, the verdict may be found for the whole, or for the part actually paid, according to the fact (d).

Where several pleas are pleaded, which altogether cover the whole cause of action, the verdict should be entered for the defendant (e); but when a defendant, under a plea of set-off (f) to the whole declaration, proves a sum of money owing to him from the plaintiff, less than the amount of the claim which the plaintiff has established, the defendant is not entitled to have a verdict entered for him or that issue for the amount which he has so proved, but the issue must be found for the plaintiff, unless where the defendant by all his pleas taken together covers the whole cause of action.

By R. G. T. T. 1 Vict. (ante, p. 129), payment shall not, in any case, be allowed to be given in evidence in reduction of damages or debt, but shall be pleaded in bar. In any case in which the plaintiff, in order to avoid the expense of a plea of payment, shall have given credit in the particulars of his demand for any sum of money therein admitted to have been paid to the plaintiff, it is not necessary for the defendant to plead the payment of such sum. But this rule does not apply to cases where the plaintiff, after stating the amount of his demand, states that he seeks to recover a certain balance without giving credit for any particular sum.

III. Debt on Bond, p. 534; Of the Pleadings, p. 535.

1. General Issue, non est factum, and Evidence thereonNew Rules, p. 535.

2. Accord and Satisfaction, p. 541.

3. Duress, p. 542.

4. Illegal Consideration, p. 543.

1. By the Common Law, p. 543; Immoral, p. 543; in Restraint of Trade, &c., p. 543.

(d) Per Parke, B., delivering judgment, Cousins v. Paddon, 2 Cr. M. & R. 560. (e) Per Alderson, B., in Kilner v. Bailey, 5 M. & W. 385.

(f) Tuck v. Tuck, 5 M. & W. 109. See Moore v. Butlin, 7 A. & E. 595; 2 Nev. & P. 436; post, III. "Debt on Bond," 8; "Set-off," p. 570.

2. By Statute, p. 548; Gaming, p. 548; Sale of Office, p. 548; Simony, p. 551; Usury, p. 558.

5. Infancy, p. 560.

6. Payment, p. 561; Solvit ad Diem, p. 562; Solvit post Diem, p. 562; and Evidence thereon, p. 563.

7. Release, p. 563.

8. Set-off, p. 566.

Debt on Bond.-If a bond be dated on a day certain, with a penalty conditioned for the payment of the lesser sum (g), and there be not any day fixed for the payment of the lesser sum, such sum is payable on the day of the date; and if an action be brought upon the bond, the court will refer it to the master to compute principal, interest, and costs, and on payment of the same, will stay the proceedings under the stat. 4 Ann. c. 16, s. 13. Interest will become due on such bond (h), although not expressly reserved, and is to be computed from the day on which the money secured by the bond becomes payable, viz. the day of the date. At law and in equity the penalty is the debt (i), and interest cannot be recovered beyond the penalty, except under special circumstances. In an action upon the bond, interest cannot be recovered beyond the penalty; but after judgment recovered, transit in rem judicatam; the nature of the demand is altered, and in an action on the judgment (j), it is competent to the jury to allow interest to the amount of what is due, although such amount exceed the penalty of the bond and costs of the judgment; and in this respect there is not any difference between a foreign judgment and a judgment in a court of record here.

If a person be bound to pay a certain sum of money at several days (k), the obligee cannot maintain an action of debt until the last day be past (2). But upon a bond with a penalty conditioned to pay several sums of money at different days (I), debt will lie immediately on default of payment at either of the days (3); for the

(g) Farquhar v. Morris, 7 T. R. 124. See also Nose v. Bacon, Cro. Eliz. 798; 1 Inst. 208, a.

(h) 7 T. R. 124.

(i) Per Sir W. Grant, Clarke v. Seton, 6 Ves. jun. 411.

(j) M'Clure v. Dunkin, 1 East, 436. (k) 1 Inst. 47, b, 292, b; F. N. B. 304. (1) Coates v. Hewit, 1 Wils. 80; Bull. N. P. 168, S. C.; Hallett v. Hodges, cited by the Reporter, 1 Wils. 80, and Say. R. 29, S. P.

(2) See the elaborate judgment of the court in Rudder v. Price, 1 H. Bl. 547, and the distinction there taken between debt and assumpsit in this respect.

(3) So on a covenant or promise to pay a sum of money by instalments, an action of covenant or assumpsit will lie immediately on the non-pay

condition is thereby broken, and consequently the bond becomes absolute. And this rule' holds, although the condition of the bond does not expressly provide, "that in default of payment at any of the said times, the bond shall be in force." If A. enter into a bond to pay money on two several contingencies, the obligee may maintain debt on the happening of either contingency (i). If an instalment of an annuity (k), secured by bond, be not paid on the day, the bond is forfeited, and the penalty is the debt in law, for which judgment may be entered, which shall stand as a security for the growing arrears of the annuity. Where a place of date is mentioned in the bond (1), it is incumbent on the plaintiff to set it forth in the declaration, so that the bond produced in evidence may agree with the bond declared on. Hence, if a bond be dated abroad, the declaration must state the place of such date, and then the venue must be added for a place of trial. But where a promissory note was dated at Paris, and the declaration merely stated that it was made at London, omitting the place of date, Lord Ellenborough held the omission to be immaterial (m). In debt (n) upon bond, the court would not permit money to be paid into court, but would refer it to the master to compute what was due for principal and interest. But see stat. 3 & 4 Will. IV. c. 42, s. 21, ante, p. 133.

Of the Pleadings.

1. General Issue, non est factum, and Evidence thereon-New Rules.

THE general issue to an action of debt on bond is non est factum, because the action is grounded upon the specialty. But by R. G. H. T. 4 Will. IV. in debt on specialty or covenant, the plea of non est factum shall operate as a denial of the execution of the deed in point of fact only, and all other defences shall be specially

(i) 1 Lev. 54.

(k) Judd v. Evans, 6 T. R. 399.

(1) Robert v. Harnage, Lord Raym. 1043; Salk. 659, S. C.; 1 Inst. 261, b.

See also Dutch W. I. Company v. Van
Moses, 1 Str. 612.

(m) Houriet v. Morris, 3 Campb. 303.
(n) Anon. E. 25 Geo. III. B. R. MSS.

ment of the first instalment. 1 Inst. 292, b; Milles v. Milles, Cro. Car. 241. So if money is awarded to be paid at different days, assumpsit will lie on the award for each sum as it becomes due, and the plaintiff shall recover damages accordingly; and when another sum of the money awarded shall become due, the plaintiff may commence a new action for that also, and so on toties quoties. Cooke v. Whorwood, 2 Saund. 337. The same rule holds in respect of duties which touch the realty. 1 Inst. 292, b.

pleaded, including matters which make the deed absolutely void, as well as those which make it voidable. Under the operation of this rule, many grounds of defence, of which the defendant might heretofore have availed himself, by evidence upon non est factum, must now be pleaded specially; as coverture or lunacy, at the time of the execution, or that the bond was delivered as an escrow, or that defendant was made to execute it when he was so drunk, that he did not know what he did. If the defendant crave oyer of the bond and condition, and does not set out them or either of them truly, and then pleads non est factum, the plaintiff ought to pray to have the bond and condition, or either, (as the case may be,) enrolled, and then demur (o), or sign judgment for want of a plea (p), or move to quash the plea (q), for if the plaintiff omits to take the foregoing steps, and joins issue on the non est factum, the defendant may take advantage of the variance (r). But see stat. 9 Geo. IV. c. 15, ante, p. 518. Upon the issue of non est factum, the plaintiff must prove the execution of the bond by the defendant. Proof that one, who called himself D., executed, is not sufficient, if the witness did not know it to be the defendant (s).

In debt on bond, the plaintiff, by his declaration, complained against "W. F. B., sued by the name of W. B." The defendant pleaded non est factum. At the trial, it appeared that the defendant did, in fact, execute a bond agreeing with that described in the declaration by the name of W. B., and that at the time of the execution he was known by that name; it was objected, that the issue was not maintained; but the court held (t), first, that the proof was sufficient to sustain the issue, and that it was no variance; secondly, that even if the objection were valid, it was not one, of which the defendant could avail himself under the plea of non est factum.

To prove the execution of a bond, the sealing and delivery must be proved. Proof of the sealing only is not sufficient. Hence, in a case (u) where the jury found that the defendant sealed the bond and cast it upon the table, and the plaintiff took it without any other delivery, or any other thing amounting to a delivery, the court were of opinion, that this was insufficient; observing, that it was not like the case which had then lately been adjudged (x), where the obligor had sealed the bond, and cast it upon the table, saying, "This will serve," which was holden a good delivery; because, from the expressions used by the obligor, it appeared to be his intention that it should be his deed. If the obligor says to the

(0) Com. Dig. Pleader, P. 1.; Ferguson

v. Mackreth, 4 T. R. 371, n.

(p) Per Cur., Wallace v. Duchess of Cumberland, 4 T. R. 371.

(q) Ib.

(r) Gunter v. Smith, Peake's Ad. Cases, edited by Peake, Junr. 1.

(s) Memot v. Bates, H. 4 Geo. II. Bull. N. P. 171.

(t) Williams v. Bryant, 5 M. & W. 447. (u) Chamberlain v. Stanton, Cro. Eliz. 122; 1 Leon, 140; Dyer in marg. 192, S. C.

(x) 1 Inst. 36, a.