Debt: Probing All The Angles

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DEBT

http://legal-dictionary.thefreedictionary.com/debt

A sum of money that is owed or due to be paid because of an express agreement; a specified sum of money that one person is obligated to pay and that another has the legal right to collect or receive.

A fixed and certain obligation to pay money or some other valuable thing or things, either in the present or in the future. In a still more general sense, that which is due from one person to another, whether money, goods, or services. In a broad sense, any duty to respond to another in money, labor, or service; it may even mean a moral or honorary obligation, unenforceable by legal action. Also, sometimes an aggregate of separate debts, or the total sum of the existing claims against a person or company. Thus we speak of the "national debt," the "bonded debt" of a corporation, and so on.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

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debt n. 1) a sum of money due to another. 2) obligation to deliver particular goods or perform certain acts according to an agreement, such as returning a favor. 3) a cause of action in a lawsuit for a particular amount owed. (See: common counts)

Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.

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DEBT, contracts. A sum of money due by certain and express agreement. 3 Bl. Com. 154. In a less technical sense, as in the "act to regulate arbitrations and proceedings in courts of justice" of Pennsylvania, passed the 21st of March, 1806, s. 5, it means an claim for money. In a still more enlarged sense, it denotes any kind of a just demand; as, the debts of a bankrupt. 4 S. & R. 506.

     2. Debts arise or are proved by matter of record, as judgment debts; by bonds or specialties; and by simple contracts, where the quantity is fixed and specific, and does not depend upon any future valuation to settle it. 3 Bl. Com. 154; 2 Hill. R. 220.

     3. According to the civilians, debts are divided into active and passive. By the former is meant what is due to us, by the latter, what we owe.

By liquid debt, they understand one, the payment of which may be immediately enforced, and not one which is due at a future time, or is subject to a condition; by hypothecary debt is meant, one which is a lien over an estate and a doubtful debt, is one the payment of which is uncertain. Clef des Lois Rom. h.t.

     4. Debts are discharged in various ways, but principally by payment.

See Accord and Satisfaction;

Bankruptcy;

Confusion Compensation;

Delegation;

Defeasance;

Discharge of a contract;

Extinction;

Extinguishment;

Former recovery;

Lapse of time;

Novation;

Payment;

Release;

Rescission;

Set off.

     5. In payment of debts, some are to be paid before others, in cases of insolvent estates first, in consequence of the character of the creditor, as debts due to the United States are generally to be first paid; and secondly, in consequence of the nature of the debt, as funeral expenses and servants' wages, which are generally paid in preference to other debts. See Preference; Privilege; Priority.

DEBT, remedies. The name of an action used for the recovery of a debt eo nomine and in numero though damages are generally awarded for the detention of the debt; these are, however, in most instances, merely nominal. 1 H. Bl. 550; Bull. N. P. 167 Cowp. 588.

     2. The subject will be considered with reference, 1. To the kind of claim or obligation on which this action may be maintained. 2. The form of the declaration. 3. The plea. 4. The judgment.

     3.-1. Debt is a more extensive remedy for the recovery of money than assumpsit or covenant, for it lies to recover money due upon legal liabilities, as, for money lent, paid, had and received, due on an account stated; Com. Dig. Dett, A; for work and labor, or for the price of goods, and a quantum valebant thereon; Com. Dig. Dett, B Holt, 206; or upon simple contracts, express or implied, whether verbal or written, or upon contracts under seal, or of record, or by a common informer, whenever the demand for a sum is certain, or is capable of being reduced to certainty. Bull. N. P. 167. It also lies to recover money due on, any specialty or contract under seal to pay money. Str. 1089; Com. Dig. Dett, A 4; 1 T. R. 40. This action lies on a record, or upon a judgment of a court of record; Gilb. Debt, 891; Salk. 109; 17 S. & R. 1; or upon a foreign judgment. 3 Shepl. 167; 3 Brev. 395. Debt is a frequent remedy on statutes, either at the suit of the party grieved, or of a common informer. Com. Dig. Action on Statute, E; Bac. Ab. Debt, A. See, generally, Bouv. Inst. Index, h.t.; Com. Dig. h.t.; Dane's Ab. h.t.. Vin. Ab. h.t.; Chit. Pl. 100 to 109; Selw. N. P. 553 to 682; Leigh's N. P. Index, h.t. Debt also lies, in the detinet, for goods; which action differs from detinue, because it is not essential in this action, as in detinue, that the property in any specific goods should be vested in the plaintiff, at the time the action is brought; Dy. 24 b; and debt in the debet and detinet may be maintained on an instrument by which the defendant is bound to pay a sum of money lent, which might have been discharged, on or before the day of payment, in articles of merchandise. 4 Yerg. R. 171; see, Com. Dig. Dett, A 5; Bac. Ab. Debt, F; 3 Wood. 103, 4; 1 Dall. R. 458.

     4.-2. When the action is on a simple contract, the declaration must show the consideration of the contract, precisely as in assumpsit; and it should state either a legal liability or an express agreement, though not a promise to pay the debt. 2 T. R. 28, 30. When the action is founded on a specialty or record, no consideration need be shown, unless the performance of the consideration constitutes a condition precedent, when performance of such consideration must be averred. When the action is founded on a deed, it must be declared upon, except in the case of debt for rent. 1 New R. 104.

     5.-3. The plea to an action of debt is either general or special. 1. The plea of general issue to debt on simple contracts, or on statutes, or when the deed is only matter of inducement, is nil debet. See Nil debet. In general, when the action is on a specialty, the plea denying the existence of the contract is non est factum; 2 Ld. Raym. 1500; to debt on record, nul tiel record. 16 John. 55. Other matters must, in general, be pleaded specially.

     6.-4. For the form of the judgment, see Judgment in debt. Vide Remedy.

A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.

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http://legal-dictionary.thefreedictionary.com/common%20counts

common counts n. claims for debt alleged in a lawsuit (included in the complaint) which are general and alleged together so that the defendant cannot squirm out of liability on some technicality on one of the counts.

Common counts may include claims of debt for goods sold and delivered, for work performed, for money loaned or advanced, for money paid and repayment is due, for money received on behalf of the plaintiff, or for money due on an account stated or on an open book account. (See: complaint, count)

Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.

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COMMON COUNTS. Certain general counts, not founded on any special contract, which are introduced in a declaration, for the purpose of preventing a defeat of a just right by the accidental variance of the evidence.

 These are in an action of assumpsit; counts founded on express or implied promises to pay money in consideration of a precedent debt, and are of four descriptions:

1. The indebitatus assumpsit;

2. The quantum meruit;

3. The quantum valebant; and,

4. The account stated.

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Assumpsit



Assumpsit ("he has undertaken," from Latin, assumere) is an action for the recovery of damages by reason of the breach or non-performance of a simple contract, either express or implied, and whether made orally or in writing.

Assumpsit was the word always used in pleadings by the plaintiff to set forth the defendant's undertaking or promise, hence the name of the action.

Claims in actions of assumpsit were ordinarily divided into

(a) common or indebitatus assumpsit, brought usually on an implied promise, and

(b) special assumpsit, founded on an express promise.

The Common Law Procedure Act 1852 abolished the common law forms of action in England and Wales.

Assumpsit as a form of action became obsolete in the United Kingdom after the passing of the Judicature Acts of 1873 and 1875.

In the United States, assumpsit, like the other forms of action, became obsolete in the federal courts after the adoption of the Federal Rules of Civil Procedure in 1938.

Most if not all states have moved to similar rules, which replace the various forms of action with the civil action.

However, many states continue to recognize assumpsit as a common law or statutory cause of action.

References
This article incorporates text from the Encyclopædia Britannica Eleventh Edition, a publication now in the public domain.

Retrieved from "http://en.wikipedia.org/wiki/Assumpsit"
Categories: Legal history | Civil procedure

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http://www.lectlaw.com/def/a217.htm

ASSUMPSIT - An undertaking either express or implied, to perform a parol agreement.

An express assumpsit is where one undertakes verbally or in writing, not under seal, or by matter of record, to perform an act, or to pa a sum of money to another.

An implied assumpsit is where one has not made any formal promise to do an act or to pay a sum of money to another, but who is presumed from his conduct to have assumed to do what is in point of law just and right; for, 1st, it is to be presumed that no one desires to enrich himself at the expense of another; 2d, it is a rule that he who desires the antecedent, must abide by the consequent; as, if I receive a loaf of bread or a newspaper daily sent to my house without orders, and I use it without objection, I am presumed to have accepted the terms upon which the person sending it had in contemplation, that I should pay a fair price for it; 3d, it is also a rule that every one is presumed to assent to what is useful to him. See Assent

Remedies, Practice. A form of action which may be defined to be an action for the recovery of damages for the non-performance of, a parol or simple contract; or, in other words, a contract not under seal, nor of record; circumstances which distinguish this remedy from others.

This action differs from the action of debt; for, in legal consideration, that is for the recovery of a debt eo nomine, and in numero, and may be upon a deed as well as upon any other contract.

If differs from covenant, which, though brought for the recovery of damages, can only be supported upon a contract under seal.

It will be proper to consider this subject with reference,

1, to the contract upon which this action may be sustained;

2, the declaration

3, the plea;

4, the judgment.

Assumpsit lies to recover damages for the breach of all parol or simple contracts, whether written or not written express or implied; for the payment of money, or for the performance or omission of any other act.

For example, to recover, money lent, paid, or had and received, to the use of the plaintiff; and in some cases, where money has been received by the defendant, in consequence of some tortious act to the plaintiff's property, the plaintiff may waive the tort, and sue the defendant in assumpsit. It is the proper remedy for work and labor done, and services rendered but such work, labor, or services, must be rendered at the request, express or implied, of the defendant for goods sold and delivered; for a breach of promise of marriage.

Assumpsit lies to recover the purchase money for land sold; and it lies, specially, upon wagers; upon foreign judgments; But it will not lie on a judgment obtained in a sister state.

Assumpsit is the proper remedy upon an account stated.

It will lie for a corporation. In England it does not lie against a corporation, unless by express authority of some legislative act but in this country it lies against a corporation aggregate, on an express or implied promise, in the same manner as against an individual.

The declaration must invariably disclose the consideration of the contract, the contract itself, and the breach of it; but in a declaration on a negotiable instrument under the statute of Anne, it is not requisite to, allege any consideration; and on a note expressed to have been given for value received, it is not necessary to aver a special consideration. The gist of this action is the promise, and it must be averred. Damages should be laid in a sufficient amount to cover the real amount of the claim.

The usual plea is non-assumpsit under which the defendant may give in evidence most matters of defence.

When there are several defendants they cannot plead the general issue severally; nor the same plea in bar, severally. The plea of not guilty, in an action of assumpsit, is cured by verdict.