
    Gardner v. Clark.
    From Chowan.
    Debt lies by the payee against the maker of a promissory note, expressed to be given for “ value received.”
    This was an action of debt, brought upon a promissory note in the words and figures following, to wit:
    “ Five days after date, I promise to pay to Henry Gardner, or order,' one hundred and seven dollars 75-100, value received. Edenton, July 31st, 1805. Ws. CLARK.”
    The case was referred to this Court, upon the question, “ Whether an action of debt can be maintained on this note i”
   Lowrie, Judge.

Debt is an action founded on an express contract for a sum certain. A writ of debt properly lieth where a man oweth another a certain sum of money by obligation, or by bargain for a thing sold, or by contract, or upon a loan made by the creditor to the debtor, Fitz. N. B. 273. If a tailor agree to have a certain price for making a suit of clothes, debt will lie, Woods Inst. 544. A man owes another a sum of money, who hath his note under hand without seal, debt will lie. This position is laid down by Morgan and Ruifhead, in their Law Dictionary, Title, Debt. Debt lies on a promise to a Physician, Surgeon, &c. if he make a cure, Com. Dig. 3 Vol. 365.—These authorities provethat debt will lie on a simple contract. It has been said and so adjudged, that before the statute of the 3d and 4th Anne, no action would lie upon a note, as a note, Salk. 129. And that indebitatus assumpsit, would not lie on a bill of exchange, Stra. Rep. 680. The same doctrine was held in the case of Hodges and Stuart, 1 Salk. 125. And it was there said by Holt, Chief Justice, that indebitatus assumpsit would not lie on a bill of exchange for want 0f a consideration : For it is but evidence of a promise †0 pay, which taken alone is a nudum pacium, and therefore the party must either bring a special action the custom of merchants, or else a general inde-bitatus assumpsit, against the drawer for money received to his use.

But Lord Mansfield declared, that all the cases upon this subject decided in King William’s time, went upon mistaken principles; and the truth of this observation will be admitted, if we take the trouble of examining the course of decisions upon the subject. In the year 1738, upon a writ of error from Ireland, in the case of Otway v. Ramsey, Strange, 1090, after two solemn arguments, and a third one ordered, the Court strongly inclined to the opinion that debt would not lie in Ireland, or a judgment in the King’s Bench, in England. The Plaintiff, however, declined a third argument, and the judgpient was affirmed, without the opinion of the Court being given. But forty years afterwards, in the case of Walker v. Witter, Doug. Rep. 1, 2, it was adjudged that debt would li^'on a foreign judgment. In the case of Hodges v. Stuart, Salk. 125, in the time of William 3d, it was held, that bills and notes, payable to bearer, or to A. B. and bearer, were not negotiable or assignable, so as to enable the indorsee to maintain an action against the drawer /but in the time of Geo. 3d, in the case of Grant v. Vaughan, Lord Mansfield said, “ There has since been no doubt but that actions may be brought by the bearer of such promissory note against the drawer.”— Lavelass on Bills, 108.

There is an anonymous case reported by Hardress, 485, that seems to unfold the principles upon which this case must be decided. The effect of that case is very accurately expressed in Com. Dig. Debt, B. Lord Chief Baron Comyn, after saying that debt lies on every express contract to pay a sum certain, (A. 8,) and also lies though there be only an implied contract, (A. 9,) thus states the principle of these cases: So debt lies not upon a bill of exchange against the acceptor; for the acceptance binds him by the custom of merchants, but does not raise a duty,” and cites Hardress, 485. The case in Hardress was debt against the acceptor of a bill of exchange, and the Court there said, “ The acceptance does not create a duty, no more than a promise made by a stranger to pay the debt of another if the creditor will forbear his debt.” In Hard’s case, 1 Salk. 23, it is also said, that indebitatus assumpsit will not lie against the acceptor of a bill of exchange $ for his acceptance is but a collateral engagement: but that it will lie against the drawer, for he is really a debtor by the receipt of the money. So in the case of Hodges v. Stuart, before quoted for another purpose, the Court said that debt would lie against the drawer of a bill of exchange for value received ; and the reason given is, that it is for the apparent .consideration.” As debt will lie where indebitatus as-simipsit will,, and as the statute, of Anne puts notes on the same footing with bills of exchange, it would seem clearly to follow, that an action of debt may be maintained by the payee of a promissory note against the drawer. '

H at.t., Judge.

The case of Bishop v. Young, 2 Bos. & Pul. 78, seems to decide the present case. The question there was, “ Whether debt would lie by the payee against the maker of a promissory note, expressed to be for value received ?” .It was decided in the affirmative; and for the reasons there given, I think the present action can be supported, and that judgment shahid be entered for the- Plaintiff.

Tatioe, Judge,

filed the following opinion. — In Hardress, 485, it was held that an action of debt will not lie against the acceptor of a bill of exchange j but the reasons given for that determination, tend strongly to demonstrate that an action of debt will lie by the payee against the maker of a promissory note. It was said in tbat case, that the acceptance does not create a duty any more than a promise made by a stranger to pay the debt of a third person, if the creditor will forbear his debt; aml he that drew the bill continues debtor, notwithstanding the acceptance makes the acceptor liable to pay it. But the making of a promissory note does manifestly Create a duty, if a consideration be expressed, and raises an original obligation in the maker, for which an action of debt is a proper remedy, according to the general description of that action to be. found in all'tbe elementary writers. Blackstone 3 vol. 155, says, an action of debt will lie whenever a sum of money is due by certain and express agreement, where the quantity is fixed and certain, and does not depend on any subsequent valuation to settle. Comyns says, debt lies upon every express contract to pay a sum of money — Dig. Tit. Debt. And in Woodeson 3 vol. 95, it is laid down, that the action of debt may be brought whenever a determinate sum is claimed as due, whether the contract on which it arises is special or simple.

The action of debt on simple contract has grown much into disuse, in consequence of the Defendant being permitted to wage his Law, and of the necessity imposed upon the Plaintiff of proving his whole debt, or being precluded from recovering any part. This latter rule has been much relaxed in modern times, as appears from 2 Bl. Rep. 1221—Doug. 6—2 Term Rep. 129 — 1 H. Bl. 149; and it is not how understood to be necessary that the Plaintiff should recover the exact sum demanded. From this disuse of the action, a belief seems to have prevailed, that it could not be sustained; and assumpsit has been the usual remedy on promissory notes. But no decision is recollected to have been made in this State against the action of debt in such cases, and there is a great modern author rity in favour of it in precisely such a case as that before the Court — 2 H. Bl. 78. Judgment for the Plaintiff.  