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DIGEST OF THE LAWS
BY WILLIAM CHARLES WHITE,
Counsellor at Law.
66 MISERA SERVITUS EST, UBI JUS EST VAGUM, AUT INCOGNITUM."
VOL. II....PART I.
PRINTED BY THOMAS B. WAIT & Co.
DISTRICT OF MASSACHUSETTS, TO WIT:
BE it remembered, That on the twenty-sixth day of January in the thirty-fourth year of the Independence of the United States of America, WILLIAM CHARLES WHITE, of the said district, has deposited in this office the title of a book, the right whereof he claims as author, in the words following, to wit:
"A COMPENDIUM and DIGEST of the LAWS OF MASSACHUSETTS, By WILLIAM CHARLES WHITE, Counsellor at law. "Misera servitus est, ubi jus est vagum, aut incognitum." Vol. II....Part. I.
In conformity to the act of the Congress of the United States, intitled, "An Act for the Encouragement of Learning, by securing the Copies of Maps, Charts, and Books, to the Authors and Proprietors of such copies, during the times therein mentioned;" and also to an act intitled, "An act supplementary to an act, intitled, an act for the encouragement of learning, by securing the copies of Maps, Charts, and Books, to the authors and proprietors of such copies during the times therein mentioned; and extending the benefits thereof to the Arts of Designing, Engraving, and Etching Historical, and other Prints."
WILLIAM S. SHAW,
Clerk of the District of Massachusetts.
THE legal acceptation of debt, is a sum of money due by certain and express agreement: as by a bond for a determinate sum; a bill or note; a special bargain; or a rent reserved on a lease, where the quantity is fixed and specific, and does not depend upon any subsequent valuation to settle it. The non-payment of these is an injury, for which the proper remedy is by action of debt, to compel the performance of the contract, and recover the specific sum due.
1. Of debt on simple contract.
2. On what bonds this action may be brought.
3. Of bonds, obtained by duress.
4. Of bonds, whose consideration is malum prohibitum, 5. Of bonds, whose consideration is malum in se.
6. Of bonds, in restraint of marriage; in restraint of trade; in restraint of office; in restraint of evidence. 7. Of bonds void by matter subsequent to their creation.
3 Bl. Com. 154.
Speake v. Richards.
Bishop v. Young,
2 Lev. 4.
M'Quillin v. Cox, 1 H. Bl. 249.
12. Of the pleadings on the part of the plaintiff, considered with reference to the contract.
13. Of the pleadings on the part of the plaintiff, with reference to the person.
14. Pleas by the defendant, in debt on bond.
15. Pleas by the defendant, in debt for rent.
16. Pleas by the defendant, in debt on matters of record.
I. Of debt on simple contract.
Debt lies upon a simple contract, either express or implied, to pay a sum certain. Debt lies by the payee, against the maker of a promissory note, expressing a consideration on the face of it; as where it is expressed to be for value received: but debt will not lie upon a bill of exchange against the acceptor; for, though the asceptance binds, by the custom of merchants, yet it does not create a duty, any more than a promise made by a stranger, to pay, &c. if the creditor will forbear his debt. The drawer of the bill is the debtor, and continues to be the debtor, notwithstanding the acceptance; for that is a collateral engagement only.
Formerly it was considered as necessary that the Fulme v. Saunders, amount of the sums, claimed to be due in the several counts of the declaration, should correspond exactly with the sum demanded in the recital of the writ, and neither exceed nor fall short of it. But this is not now considered as requisite; and in a late case, where debt was brought on simple contract, it was holden, on special demurrer to the declaration, that the declaration was good, although the sums claimed to be due in the several counts, did not amount to the sum demanded in the recital of the writ; and although the breach was assigned for non-payment of the sum demanded; the court observing, that in debt on simple contract the plaintiff
might prove and recover a less sum than he demanded in the writ.
II. On what bonds this action may be brought.
Bonds good in law are such as are entered into volun
tarily by parties able to contract, and for a consideration 1 Esp. Dig. 184. which is according to law.
Therefore bonds made by infants under twenty-one Litt. s. 259. years, are void.
And such is likewise the case of femes covert.
So every deed which any man non compos makes, is void.
In all these cases of infants, femes covert, or persons insane from the weakness, want or imbecility of judg ment, or want of power, their contracts are deemed void in law.
III. Of bonds, obtained by duress.
1 Esp. Dig. 184.
It is essential to a bond that it be entered into voluntarily; for if obtained by duress the bond is voidable by the 5 Coke, 119. obligor but as the bond on the face of it appears to be good, obligor must avoid the bond by pleading to it duress; for the court must decide by the verdict of a jury, whether it was obtained by duress or not.
And these cases have been deemed duress sufficient to avoid a bond.
Wooden v. Collins,
Bull. N. P. 172.
If given by defendant, when under an arrest made without any cause of action; or if the arrest was for a just debt, Mic. 9. G.2. but made without good authority; or if the arrest was made by a warrant from a justice of the peace, on a charge of felony, when no felony was in fact committed; or if a felony was committed, yet if the arrest was unlawfully made, it is duress and bonds entered into by persons in custody under those circumstances, are avoidable in law.
Duress shall only avoid the bond as to the obligor him1 Esp. Dig. 186. self.