Report No. 63
5.5. Action of "debt".-
At common law,1 if a creditor wished to invoke the coercive power of the State to recover goods wrongfully detained, he had to proceed through the action of debt or detinue.2 The remedy to recover money secured by deed was the action of "debt". It retained its essential form and character through the whole history of common law procedure, so long as the forms of action were preserved at all.
An action of debt might also be brought3, without proof by deed, for such things as money lent, or the price of goods sold and delivered, and an action of detinue (which was but a species of debt) for chattels bailed, the cause of action being still not any promise by the defendant, but his possession of the plaintiff's money (so it was conceived) or goods. Detinue proper lay only for specific chattels: a claim for delivery of goods not yet identified was "debt in the defenet".
1. See (a) T. Plucknett A Concise History of the Common Law, (1956), pp. 367-369;
(b) Holdsworth History of English Law, Vol. 3, pp. 284-285.
2. Plucknett A Concise History of Common Law, (1956), pp. 362 and 365.
3. Pollock & Maitland History of English Law, Vol. 2, p. 210.
5.6. But the writ for debt was a writ of right for chattels, an action not to enforce a promise, but to get something conceived as already belonging to the plaintiff; it was called an action of property as late as the Restoration. A promise, where it was operative at all, operated not by way of obligation but as a grant of the sum expressed.1 In Edgcomb v. Dee, 1670 Vaugh 101, it was pointed out that contracts of debt in this sense are "reciprocal grants."
1. 6 Harvard Law Review 399.
5.7. Later, an action of debt, could be on any consideration executed provided the sum be liquidated. On a contract for the sale of either goods or land also, an action may, be maintained for the price before the goods are delivered or seisin given of the land. Nevertheless, the position remained that on informal executory agreements there was, in general, no remedy in the King's Courts.1
1. Ames Parol Contracts prior to Assumpsit, 8 Harvard Law Review 252, reprinted in Essay in Anglo-American Legal History, Vol. 3, p. 304.
Back
