
    Caleb S. Layton v. Richard France and Stephen Broadbent.
    On a single bill for the sum of twenty thousand dollars to be paid in the manner and form following, the sum of one thousand dollars on the first day of January ensuing and the balance thereof in nineteen annual instalments of one thousand dollars each on the first day of January in each and every year thereafter, an action of debt will not lie for a single instalment, nor until after the whole sum has become due and payable under it.
    This was an action of debt at the suit of Caleb S. Lay-ton against Richard France and Stephen Broadbent on a single bill sealed with their seals and dated the 5th day of February, 1859, by which for value received they promised to pay to him, his heirs and assigns, the sum of twenty thousand dollars in manner and form following, the sum of one thousand dollars to be paid on the first day of January, eighteen hundred and sixty, and the balance thereof to be paid in nineteen annual instalments of one thousand dollars each on the first day of January in each and every year thereafter, until the whole sum should be paid. France had been served with process in the action, but the summons was returned non est as to Broadbent, and the declaration filed against the former, noting the return as to the latter, was in debt for the instalment of one thousand dollars which was due and payable under it on the 1st day of January, 1861, and contained a common count in indebitatus assumpsit for work and labor performed by the plaintiff as the attorney of and for the defendants, arid also a count for interest for money due and unpaid to him. To the declaration the defendant entered a general demurrer.
    
      Wootten, for the defendant:
    The action in the case was on a single bill for twenty thousand dollars, payable in annual instalments of one thousand dollars each and in ioto in a little less than twenty years from its date, and it was for the second instalment of one thousand dollars payable under it on the first day of January, 1862, the first instalment of the same amount due the preceding year, having he presumed been paid; and to that declaration the defendant had demurred generally on the ground that" no action will lie for an instalment of a single bill, as this was, until the whole debt promised to be paid in it became due, although the rule and the law was otherwise when the debt is secured to be paid by a penalty, but which was hot the case in the present instance. Rudder v. Price, 1 H. Black. 547. 1 Saund. Pl. and Ev. 320. Farnham v. Hay, 3 Blackf. Rep. 167. Fontaine v. Aresta, 2 McLean’s Rep. 127.
    
      C. S. Layton, for the plaintiff:
    All the eases which had just been cited on the other side, referred to and depended on the case first cited of Rudder v. Price. The older cases, however, he would admit, were to the same effect. Co. Lit. 47. F. N. B. 131. 4 Rep. 94, Slade’s Case. 2 Saund. 303, 304, note 6. 2 Selw. N. P. 471. 2 Bac. Abr. 280, were to the same point, and the reason assigned for the ruling as was thus stated by them was, that the action of debt is for a sum certain, which was the whole amount, and therefore it would not lie until the whole amount was due and payable, and could not in the meantime be maintained for an instalment merely. All the cases, however, since that of Rudder v. Price, referred to it and relied upon it, as he had before remarked. But it he should succeed in showing, as he thought he could, that the decision in that case did not apply in the one then before the court, they must all go with it, so far at least, as the present case was concerned. In that case the action was in debt on a promissory note, a part of which was payable at one time and the balance on a subsequent day, and the reasoning and argument of Loughborough, O. J. in delivering the opinion of the court in it, was strongly against the justice, soundness and propriety of the rule in question. But he should confidently contend such was not now the rule. In that case the action was in debt on a promissory note, not upon a single bill as the present case was. The action of debt was the only legal remedy on such an instrument as this was, or upon a bond, and although formerly no action of debt would lie upon such an instrument until the whole amount of it was due, yet the law now was and had been otherwise since the enactment of the statute of 8th and 9th William the 3d. 1 Archb. N. P. 207. 6 East 550. But in the present case the action was for a sum certain, for the specific sum of one thousand dollars payable on a day certain appointed in the single bill, and the action of debt lies where there is a legal liability and a consequent promise implied by law to pay a sum certain whether due by specialty, record, or simple contract. Smith on Actions at Law. 60. Law Libr. 27, 81 Ibd. 85.
    
      Wootten, in reply : The bill in question was a single bill and without any penalty, for the payment of a gross sum at the expiration of twenty years from the date of it; in the meanwhile however, it was to be partially and progressively discharged in annual instalments. All the cases which he had cited and which had been cited on the other side in.reference to the principle relied on by the plaintiff, had been decided on the sole ground that an action of debt will not lie for a gross sum payable by instalments without a penalty, until the whole sum is payable, nor for an instalment of it in the meanwhile, whether it was by an instrument under seal, or by a promissory note merely. But in all the cases cited on the other side in which it had been decided that the action would lie for an instalment, it would be found that the payment of the instalments, as well as of the whole sum in the aggregate was secured by a penalty.
   The Court

sustained the demurrer and gave judgment upon it for the defendant.  