PRIVILEGE; LIEN; PRIORITY; DISTBIRTJIION.
Specialty. A debt by specialty or special contract is one whereby a sum of money be comes, or is acknowledged to be, due by deed or instrument under seal; 2 Bla. Coin. 465; Probate Court for Dist. of Orleans v. Child, 51 Vt. 86.
A debt may be evidenced by matter of record, by a contract under seal, or by a sim ple contract. The distinguishing and neces sary feature is that a fixed and specific amount is owing and no future valuation is required to settle it; 3 Bla. Com. 154; Mat ter of Denny, 2 Hill (N. Y.) 220.
See ACCORD AND SATISFACTION; BANKRUPT CY; COMPENSATION; CONFUSION; DEFEAS ANCE; DELEGATION; DISCHARGE OF A CON TRACT; 'EXTINCTION; EXTINGUISHMENT; FOR MER RECOVERY; LAPSE OF TIME; NOVATION; PAYMENT; RELEASE; RESCISSION; SET-OFF.
In Practice. A form of action which lies to recover a sum certain. 2 Green'. Ev. 279 ; Andr. Steph. Pl. 77, n.
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 ; Crock ett v. Moore, 3 Sneed (Tenn.) 145; Lee v. Gardiner, 26 Miaa. 521; Home v. Semple, 3 McLean, 150, Fed. Cas. No. 6,658; Bullard v. Bell, 1 Mas. 243, Fed. Cas. No. 2,121; U. S. v. Clailin, 97 U. S. 546, 24 Ed. 1082; Baum V. Tonkin, 110 Pa. 569, 1 Ati. 535. It is thus distinguished from assurdpsit, which lies as 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 detinet (when it is stated merely that he de tains). Debt in the definer for goods differs from detinue, because it is not,essential in this action, as to detinue, 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 sumer° ; though damages, which are In mast instances merely nominal, are usually award ed far the detention ; 1 H. Bla. 550 ; Cowp. 588.
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; Eby v. Burkholder, 17 S. & R. (Pa.) 9 ; Allen v. Lyman, 27 Vt. 20; Austin v. Townes, 10' Tex. 24; although a foreign court ; Moore v. Adie's Adm'r, 18 Ohio 430; McIntire v. Catuth, 3 Brev. (S. C.) 395; Jordan v. Ro in son, 15 Me. 167; Cole v. Driskell, 1 BlyIokf. (Ind.) 16; Williams v. Preston, 3 J. Jy Mar.
(Ky.) NO, 20 'Ain. Dec. 179; McKim v.1 Odom, 12 Me. 94; on statutes at the suit of iihe par ty -aggrieved; Vaughan v. ThompsoA, 15 Ill. 39; Morrison v. Bedell, 22 N. H. /234; Gar man v. Gamble, 10 Watts (Pa.) ,182; Israel v. President, etc., of Town of Jacksonville, 1 Scam, (III.) 290; Falconer Campbell, 2 McLean, 195, Fed. Cas. No. 9,620; Reed v. Davis, 8 Pick. (Mass.) 514; Chaffee v. U. S., 18 Wall. (U. 5.) 516, 21 L. Ed, 908; or a com mon informer; Lewis v. Stein, 16 Ala. 214, 50 Am. Dec. 177; Sims v. Alderson, 8 Leigh (Va.) 479; including awards by a statutory commission; Knowles v. Inaabitants of East ham, 11 Cush. (Mass.) 429; on specialties; 1 Term 40; Little v. Mercer 9 Mo. 218; Salter v. Richardson, 37 B. Moir. (Ky.) 204; Allen V. R. Co., 32 N. H. 446 Nash v. Nash, 16 ill. 79; including a recignizance; Dowlin v. Standifer, 1 Hempst. 290, Fed. Cas. No.
4,041 a ; Bentley v. Lyman, 21 COnn. 81; State v. Folsom, 26 Me. 209; see Pate v. People, 15 Ill. 221; Gale v. Boyle, 6 Cush. (Mass.) 138; Nesbitt v. Ware, 30 Ala. 68; on a promissory note; Bentley v. Dickson, 1 Ark. 165 ; Loose v. Loose, 36 Pa. 538; on a bill of exchange; Hollingsworth v. Milton, 8 Leigh (Va.) 50; on simple contracts, whether express; Lee v. Gardiner, 26 Miss. 521; Bar clay v. Moore, 17 Ala. 634; Gift v. Hall, 1 Humphr. (Tenn.) 480 ; although the contract might have been discharged on or before the day of payment in articles of merchan dise; Young v. Hawkins, 4 Yerg. (Tenn.) 171; or implied; Bull. N. P. 167 ; Van Deusen v. Blum, 18 Pick. (Mass.) 229, 29 Am. Dec. 582; Thompson v. French, 10 Yerg. (Tenn.) 452; Houghton v. Stowell, 28 Me. 215; Dil lingham v. Skein, 1 Hempst. 181, Fed. Cas. No. 3,912 a ; Gray v. Johnson, 14 N. H. 414; to recover a specific reward offered ; Dis borough v, Outcalt, 1 N. J. Eq. 310. An ac tion of debt is the proper remedy of a land lord againgt his tenant in possession to re cover a statutory penalty for willfully cut ting, trees without the owner's consent ; Rog ers v. Brooks, 99 Ala. 31, 11 South. 753; and also in favor of the beneficiaries in a certificate of membership in a mutual benefit association; Abe Lincoln Mut. Life & Acci dent Society v. Miller, 23 Ill. App. 341; but it does not lie on a decree of foreclosure, which orders the money secured by the mortgage to be paid, or in default thereof the mortgaged premises to be sold and the prbceeds paid into court; Burges v. Souther, 15 R. I. 202, 2 Atl. 441.