The Action Of Debt Notes
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The Action of Debt
'Writ of debt': D ordered to render or yield up a sum of money, or a quantity of fungibles, which he owed to and unjustly withheld from the claimant. This writ was at least as old as covenant.
Applicability: Writ of debt provided a wholly serviceable remedy for the very common situation where the outstanding obligation from a transaction was to pay money.
Proof: Royal cts did not here insist on deed as the only mode of proof (Stisted v. Bishop of Ely (1284); D in debt on a retainer unsuccessfully argued that he need not answer a bare assertion). Certainly a deed was acceptable as a superior way of proving a debt, and it was necessary in the case of a mere grant to pay; but if the debt arose from an informal transaction the central cts continued to allow an action based on suit, against which D could usually wage his law.
Justification: Difference in approach between a covenant and a deed to some extent clarifies the evidential rule itself. A covenant or grant consisted in fleeting words, and no action was allowed in the royal courts for mere breath. On the other hand, a sale or loan or hiring were al visible conduct 'of which knowledge may be had'; the act generated a duty to pay, which therefore did not depend merely on words (Loveday v. Ormesby). The deed likewise was an act (factum), in that the speciality was sealed and delivered before witnesses as an 'act and deed'.
Overlap with covenant?
• No theoretical overlap with covenant because medieval lawyers saw a debt as more like property than breach of promise. Difference - if a debt claim was based simply on a party's word of grant or promise, a deed was needed; if it was based on something done to earn money (quid pro quo), it was not.
- Franssey's Case; Facts: F (executors) demanded by writ of debt against M 200 marks and £10. This was based on the fact that G (when alive) had covenanted with M that G would give M 200 marks and £10 for the marriage of one of his son's to M's daughter. If they should marry the £10 would be deducted. Later M would not consent to the marriage so G demanded the money back. Issue: Disputed whether this should be a writ of covenant or debt. Decision: Either. Explanation: Where the plaintiff has paid money to the D, on the understanding that D will do something for the plaintiff, if the plaintiff fails to do anything, then the plaintiff has the choice whether to demand the money by writ of debt, or to demand by writ of covenant that D should keep his promise. Here there is an overlap between service and money and the C has performed his bit (quid pro quo) so he is entitled to either.
• Debt was scarcely indistinguishable from detinue, which lay for personal property. The difference between detinue and debt resulted from distinguishing specific chattels, which were owned, from money or fungibles, which were owed. E.g. If D owed C a quarter of barley or £10, this was debt because C could not assert property in any identified barley or £10
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