Indebtment

“ An order of discharge releases the debtor from all his obligations except debts due to the crown, and other obligations of a public character which can only be discharged with the consent of the Treasury, debts incurred by fraud, and judgment debts in an action for seduction or as a co-respondent in a matrimonial suit or under an affiliation order, which are only released to such extent and subject to such conditions as the court may expressly order. ”

“ The main examples of the former class are revocation by burning, tearing, &c., by a later will, or by marriage of the testator (except as below) , incapacity of the testator from insanity, infancy or legal disability (such as being a convict) , undue influence and fraud, any one of which is ground for the court to refuse or revoke probate of a will. A will being ambulatory is always revocable, unless in one or two exceptional instances. Undue influence is a ground upon which frequent attempts are made to set aside wills. ”

“ In this he has to set out a specific agreement, and the breach of it; both of which he must prove. This was clearly not done in this case.
2. Indebitatus assumpsit. It is in its nature an action of debt; and is substituted for it; because the defendant is not permitted in it, as he may in an action of debt, to wage his law. 4 Co. 91; 3 Wooddison 168. Its precise character is important; especially as one of the counsel for the defendants has thrown himself on this point, and suggested that it had been disregarded in the opening argument. It is, however, without difficulty. ”

“ Whether, in any case, an indemnitor is discharged by the mere failure of his obligee to sue the principal debtor until suit is barred by the statute of limitations, remains an open question in this court. ”

“ That years before he may have contemplated the possibility that thereafter a judgment might be obtained against him; that long before he may have given a warrant of attorney to confess a judgment, or by a written confession, as in this case, have put it in the power of his creditor to cause a judgment to be entered without his knowledge or subsequent assent, is wholly impertinent to the inquiry whether he had in view or intended an unlawful preference at a later time, at the time when the creditor sees fit to cause the judgment to be entered. ”

“ And be it further enacted, That if any person shall falsely take any oath or affirmation, authorized by this act, such person shall be deemed guilty of perjury, and upon conviction thereof, shall suffer the pains and penalties in that case provided. And in case any false oath or affirmation be so taken by the debtor, the court, upon the motion of the creditor, shall recommit the debtor to the prison from whence he was liberated, there to be detained for the said debt, in the same manner as if such oath or affirmation had not been taken. ”

“ Should the finding be for the plaintiff, the judgment would, as to the defendant, be upon one issue, that of respondeas ouster, and upon the other, that he pay the debt, as to the justice of which he was commanded to answer over. Should the finding be for the defendant, the judgment upon one issue must be that the debt was not due, and upon the other, that the court called upon so to pronounce, had no authority over the case. ”

“ Indebitatus assumpsit is founded upon what the law terms an implied promise on the part of the defendant to pay what in good concience he is bound to pay to the plaintiff. Where the case shows that it is the duty of the defendant to pay, the law imputes a promise to fulfil that obligation, but the law never implies a promise to pay unless some duty creates such an obligation, and more especially it never implies a promise to do an act contrary to duty or contrary to law. ”

“ The court said: 'In this case there was no other consideration for the transfer of the note to the defendant than the security of the pre-existing indebtedness of the defendant's indorsee. The fact that the defendant may have been led to grant indulgence, or forbear to enforce his remedies for the collection of the debts, does not prove that such indulgence or forbearance was an element of the contract, or the consideration upon which it was made. ”

“ Each plea stands or falls by its merits. The reason which was the basis of the ruling, if it were true, would be no sufficient reason. But it is not true. How is nil debet inconsistent with non est factum? The defendant 'owes nothing'-the bonds 'are not its deed.' It owes nothing, because the bonds are not its deed-because they are a forgery, a fraud, were made without authority. ”

“ What can the simple and honest ordinary man think when the judge, before whom he appears with a document showing that his opponent acknowledges an indebtedness to him of a hundred dollars, holds the signer not to be bound because the document is a cautio indiscreta, or when a document which expressly mentions a loan as the basis of an indebtedness is held to have no force as evidence except after the expiration of two years? ”

“ This prevents a defendant from doing what plaintiff in error has attempted to do in the present case; that is, to secure, if possible, the benefit of a binding adjudication in its favor upon the merits, through the exercise of the court's jurisdiction, while depriving its adversary of any possibility of success by reserving an objection to the jurisdiction of the court to render any judgment against it. ”

“ By the second section of this law it is declared, that a creditor, wishing to sue his debtor by attachment, shall file in the clerk's office of the Circuit Court a petition or other lawful statement, with an affidavit of his cause of action, and a bond, with a condition to the latter to prosecute his action with effect, and without delay, and to refund all sums of money that may be adjudged to the defendant, and to pay all damages that may accrue to any defendant or garnishee, by reason of the attachment, or any process or judgment thereon. ”

“ When an action at law is brought upon a contract, the defendant denying its obligation, either from fraud, payment, or release, or any other matter affecting its original validity or subsequent discharge, must present his defence for consideration. A recovery is an answer to all future assertions of the invalidity of the contract by reason of any admissible matter which might have been offered to defeat the action. ”

“ But how could such indebtedness be shown to exist, and how could the attorneys be said to have been damaged, within the meaning of the law, when prior to any suit against defendant for violation of his agreement, the attorneys voluntarily submitted to a compromise, by which, in consideration of a named sum, they released the state from all further liability to them? Their suit proceeds upon the distinct ground that defendant's failure to keep his promise deprived them of the opportunity to obtain such amount as the state owed them for their services. ”

“ Where interest, instead of accompanying the judgment or decree as damages for the detention of a specific amount adjudged or decreed, is part of the claim litigated, and the judgment or decree is so framed as to provide for it to run from a period antecedent to the rendition of such judgment or decree, or, in actions ex contractu, according to the terms of the contract upon which the action is based, jurisdiction may attach. ”

“ A debtor, to avoid the payment of his debts, may conceal his property or his money; but this court may compel him to disclose and give up the same to satisfy an execution; and it may prevent persons indebted to him from making payment to him. A person refusing to fulfill a contract may, in courts of common law, only be sued for damage; but this court may in certain cases compel him to fulfill the contract itself. ”

“ To this replication there was a general demurrer and joinder in demurrer, on which the Court below gave judgment for the United States: and we are of opinion that the judgment was right. It is clear, at the common law, that an alteration or addition in a deed, as by adding a new obligor, or an erasure in a deed, as by striking out an old obligor, if done with the consent and concurrence of all the parties to the deed, does not avoid it. ”

“ Indulgence is no longer granted in the payment of a debt, the rendering of a service, or the keeping of a contract. The helpful disposition dies out and one is held down rigorously to the rights secured by the law. ”

“ The principle that requires litigation to be treated as terminated by final judgment, properly rendered, is as applicable to a judgment proceeded on in such an action as to any other, and forbids the allowance to the judgment debtor of a retrial of the original cause of action, as of right, in disregard of the obligation to pay arising on the judgment, and of the rights acquired by the judgment creditor thereby. ”

“ To this declaration, the defendant pleaded that he does not owe the sum of money demanded by the plaintiffs in the declaration, or any part thereof, in manner and form as the said plaintiffs have complained against him. And the issue thereupon joined came on to be tried by a jury; who, upon their oaths say, that the defendant doth owe the debt in the declaration mentioned, in manner and form as therein alleged, and assess the damages for the detention thereof, at $1016.96. ”

“ For these reasons, the court is of opinion that the taking of goods, upon a writ of attachment, into the custody of the marshal, as the officer of the court that issues the writ, is, whether the goods are the property of the defendant in the writ or of any other person, an official act, and therefore, if wrongful, a breach of the bond given by the marshal for the faithful performance of the duties of his office. ”

“ If his own affidavit cannot be received, the loss of a written contract, the contents of which are well known to others, or a copy of which can be proved, would amount to a complete loss of his rights, at least in a Court of Law. The objection to receiving the affidavit of the party is, that no man can be a witness in his own cause. ”

“ Likewise an attorney, notary-public, or any other person, who shall presume to draw up, negotiate, of even to witness a bill of sale, or other instrument for such commitment, &c. offends equally against the law, because "All, or any person or persons, that shall frame, contrive, write, seal, or countersign any warrant or writing for such commitment, detainer, imprisonment, or transportation; or shall be advising, aiding, or assisting in the same, or any of them," are liable to all the penalties of the act. ”

“ The one complains of the violation of his rights, either growing out of contract or torts committed; the other, defending himself against the injury complained of, either denies the contract or tort, or shows that the one has been satisfied, or the other justified. ”

“ The objection now made, that suits commenced by substituted service, as by publication, and judgments obtained without actual notice to the debtor, are in violation of that constitutional provision that no man shall be deprived of his property 'without due process of law,' has often been presented. ”

“ When, therefore, we allege a decree which does not per se give us the money, or establish our right to it, and aver that, in virtue of it, we became, under the covenant, well entitled to a specific sum, the averment is clearly mixed with matter of fact, and is traversable, and must be proved at the trial, unless admitted by the pleadings. ”

“ Where an individual has been guilty of offences against many persons, or owes debts to different creditors, he who first establishes his claim either in writing, or by oral testimony, or by the acknowledgment of the party himself, and has thereby shown that he is liable to him for damages, or is indebted to him for money loaned, shall have the preference; and said person shall be required to satisfy the claim, regardless of its priority in time; or shall be sentenced by the judge for the offence he has committed against the law. ”

“ Such actions, even where sounding in contract, are really founded upon the defendant’s tort. Independently of the express obligation, a defendant’s negligence, resulting in injury to the plaintiff, who has not contributed thereto, is actionable. ”

“ If the bankrupts could not themselves, under any circumstances, properly sue it out after their discharge (and upon the question we express no opinion) , all difficulty, in that respect, has been removed by the application of the assignee for an order here substituting him as a plaintiff in error. ”

“ This plea, by setting out the warrant at large, adopts and asserts all the facts therein set forth, and must be taken as alleging, that a statement of facts had been made by the proper officer, and transmitted to the Secretary of the Treasury, and is, therefore, an averment of that fact. It is not, to be sure, a formal, but is a substantial, averment; which is nothing more than a positive statement of facts, in opposition to argument or inference. ”

“ On looking at the record we find no allowance of a writ of error, either by a justice of this court or by a judge of the state court. We have repeatedly decided that such an allowance was necessary, upon a writ of error addressed to the highest court of the state, by which the judgment or decree could be rendered. ”

“ If any person makes an agreement for the withdrawal of a petition in consideration of a money payment, or of the promise that the seat shall be vacated or another petition withdrawn, or omits to state in his affidavit that he has made an agreement, lawful or unlawful, for the withdrawal, he is guilty of an indictable misdemeanour. ”