SATISFACTION; BANKRUPTCY; COMPENSATION; CONFUSION; DEFEASANCEj DELEGATION; DIS CHARGE OF A CONTRACT; EXTINCTION ' • EXTIN GUISHMENT ; FORMER RECOVERY; LAPSE OF TIME j NOVATION ; PAYMENT ; RELEASE ; RE SCISSION ; SET-OFF.
In Practice. A form of action which lies to recover a sum certain. 2 Greenleaf, Ev. 279.
It lies wherever the sum due is certain or ascer tained in such a manner as to he readily reduced to a certainty, without regard to the manner in which the obligation was incurred or is evidenced. 3 Sneed, Tenn. 145; 1 Dutch: N. J. 506; 26 Miss. 521; 3 McLean, C. C. 150; 2 A. K. Marsh. Ky. 264; 1 Mss. C. C. 243.
It is thus distinguished from aertmpeit, which lies as well where the sum due is uncertain as where it is certain, and from covenant, which lies only upon contracts evidenced in a certain manner.
It is said to lie in the debet and detinet (when it is stated that the defendant owes and detains) or in the (when it is stated merely that he detains).
Debt in the detinet for goods differs from detinue, because it is not essential in this action, as in cte tinue, that the specific property in the goods should have been vested in the plaintiff at the time the action is brought. Dy. 24 b.
It is used for the recovery of a debt eo nomine and in numero ; though damages, which are in most instances merely nominal, are usually awarded for the detention. 1 H. Blaekst. 550; Cowp. 588.
3. The action lies in the debet and detinet to recover money due, on a record or a judg ment of a court of record, Salk. 109 ; 17 Serg. & R. Penn. 1; 2,7 Vt. 20 ; 10 Tex. 24; 21 Vt. 569 ; 1 Dev. No. C. 378 ; 1 Conn. 402, although a foreign court, 18 Ohio, 430 ; 3 Brev. So. C. 395 ; 15 Me. 167 ; 2 Ala. 85 ; 1.Blackf. Ind. 16 : 3 J. J. Marsh. Ky. .600 ; 12 Me. 94 ; see 6 How. 44, or statutes at the suit of the party aggrieved, 15 Ill. 39 ; 22 N. H. 234. 11 Ala. N. S. 346 ; 15 id. 452 ; 11 Ohio. 130 ; 14 id. 486 ; 10 Watts. 382 ; 1 Scamm. Ill. 290; 2 McLean, C. C. 195 ; 8 Pick. Mass. 514, a common informer, 2 Cal. 243 ; 16 Ala. N. s. 214; 8 Leigh, Va. 479, including awards by a statutory commission, 11 Cush. Mass. 429: on specialties, 1 Term, 40; 9 Mo. 218 ; 7 Ala. 772 ; 14 id. 395 ; 3 Dl. 14 ; 3 T. B. Monr. Ky. 204; 5 Gill. Md. 103 ; 3 Gratt. Va. 350 ; 12 id. 520 ; 32 N. H. 446 ; 16 Ill. 79 ; 10 Humphr. Tenn.367, includinga recognizance, 1 llempst. C. C. 290 ; 21 Conn. 81; 8 Blackf. Ind. 527 ; 26 Me. 209; see .15 I11. 221 ; 6 Cush. Mass. 138; 30 Ala. N. s. 68 : on simple contracts,
whether express, 26 Miss. 521; 17 Ala. N. s. 634; 1 Humphr. Tenn. 480, although the con tract might have been discharged on or before the day of payment in articles of merchan dise, 4 Yerg. Tenn. 171, or implied, Buller, Nisi P. 167 ; 18 Pick. Mass. 229 ; 10 Yerg. Tenn. 452; 28 Me. 215 ; 31 id. 314; 1 Hempst. C. C. 181; 14 N. H. 414, to recover a specific reward offered. 1 N. J. 310.
4. It lies in the detinet for goods, Dy. 24 b; 1 Hempst. C. C. 290; 3 Mo. 21; Hard. Ky. 508; and by an executor for money due the testator, 1 Wms. Sound. 1; 4 Maule & S. 120; see 10 B. Monr. Ky. 247; 7 Leigh, Va. 604; or against him on the testator's contracts. 8 Wheat. 642. The declaration, when the action is founded on a record, need not aver con sideration. When it is founded on a spe cialty, it must contain the specialty, 11 Serg. & R. Penn. 238, but need not aver considera tion, 16 Ill. 79; but when the action is for rent, the deed need not be declared on. 14 N. H. 414. When it is founded on a simple contract, the consideration must be averred ; and a liability or agreement, though not necessarily an express promise to pay, must be stated. 2 Term, 28, 30.
5. The plea of nil debet is the general issue when the action is on a simple contract, on statutes, or where a specialty is matter of in ducement merely. 2 Mass. 521; 5 id. 266 ; 11 Johns. N. Y. 474; 13 Ill. 619; 6 Ark. 250 ; 18 Vt. 241; 3 McLean, C. C. 163; 15 Ohio, 372; 8 N. H. 22; 33 Me. 268; 1 Ind, 146 ; 23 Miss. 233. Non est factum is the common plea when on specialty, denying the execu tion of the instrument, 2 Ld. Raym. 1500; 2 Iowa, 320 ; 4 Strobh. So. C. 38; 5 Barb. N. Y. 449; 8 Penn. St. 467 ; 7 Blackf. lnd. 514; 3 Mo. 79; and nail tiel record when on a record, denying the existence of the record. 16 Johns. N. Y. 55 ; 23 Wend. N. Y. 293. As to the rule when the judgment is one of another state, see 33 Me. 268; 3 J. J. Marsh. Ky, 600; 7 Cranch, 481; 4 Vt. 58; 1 Penn. 499 ; 2 South. So. C. 778; 2 Ill. 2; 2 Leigh, Va. 172; as well as the titles FOREIGN Juno NENT, CONFLICT OF LAWS. Other matters must, in general, be pleaded specially. 1 Ind. 174.
The judgment is, generally, that the plain tiff receive his debt and costs when for the plaintiff, and that the defendant receive his costs when for the defendant. 20 Ill. 120 ; 1 Iowa, 99; 4 How. Miss. 40; 3 Penn. St. 437. See 8 Serg. & R. Penn. 263; 9 id. 156. See JUDGMENT.