
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1809.
    Hale v. Hall.
    In debt on a bond for a sum certain, “ with interest and costs,” the declaration contained averments, explanatory of what those words meant, viz., a sum certain by way of interest, and another certain sum, as costs, then due on a note. On demurrer, it was held, that the uncertainty of the whole debt du.e, as claimed by the. plaintiff, was not. of such a nature as to be capable of being made certain by the help of proper averments and that the requisite certainly of the debt, in such a case, cannot be established by averments dependent on evidence dehors, the specialty on which the action is founded. The specialty must furnish data.
    
    In an action of debt on a specially, the quantum ot debt ought to appear with certainty ; or be so expressed in the specialty, as to be capable of ascertainment by some certain data, furnished by tbe specialty ; and the plaintiff cannot recover more nor less than the debt so certainly ex-, pressed.
    But in actions of debt on simple contract, tho rule is not so strict, and loss than the sum sued for may be recovered.
    Qn a special demurrer, matters of substance may be taken advantage of¡> as well as the matters of form specially assigned, as causes of demurrer..
    Motion from Richland district, to reverse a judgment on demur, rer, awarded by Wilds, J. The action was debt on a bond. The writ claimed $'<¡115. The declaration stated, that the bond, was given for $170, with interest and costs of suit; and averred, that by “ interest,” was meant such interest as had accrued on a certain promissory note, given by one Seltlinglon Haddon, to M. Harrison, and indorsed to the plaintiff; on which note an action had been brought against the said Haddon, who was holden to, bail; and that the bond in question was given by him and the de-fendai-t H dl, upon condition, tiv.il ¡1 tbe said Haddon should appear al the Court oi (humtw.i Plea-, to be holden at Columbia, on tbe fifteenth day of April next, alter the dale of the said bond, to answer to the plaintiff líale, indorsee of M. Harrison, for severa} promises, then the obligation to be void. [Tbe bond had sucb a condition underwritten.] And the averment further stated, that by interest was also meant such additional interest as should accrue on the same note to the time of' obtaining judgment on the same action, and that the whole interest so meant, amounted to $32 70. And also averred, that by the words, “ costs of suit,” in said bond, was meant such costs as should be taxed in the said suit, and that the said costs taxed in the said suit, amounted to $32 56. And that the said sums of 0170 and $32 70, and $32 56, amount to the debt demanded by the writ. The de-duration also contained an averment, that -the fifteenth day of April, in the bond mentioned, was meant for, and was, in fact, the same day as the third Monday after the fourth Monday in March, which was the appearance day next after the taking of the said bond for the Court of Common Pleas for the district of Richland.
    To this declaration the defendant demurred specially, and assigned the following causes. 1. That by the condition of the bond, as slated in the declaration, it does not appear that Haddon was to appear to answer on the day of the return of the writ, or any day in term. 2. Because the expression of the sum in the obligatory part of the bond is vague, uncertain, and obscure.
    The judgment of the District Court was for the defendant upon the latter exception.
    Hooker, in support of the motion.
    There is a difference be. twebn an apparent uncertainty on the face of the instruments, and a latent ambiguity resulting from external evidence. A secret un. certainty of words, not apparent on the face of the instrument, is cured by averment. An ambiguity apparent on the face of the instrument, cannot be helped by an averment. This doctrine is ac-bnowledged to be law ; but here the uncertainty does not arise from any ambiguity patens, or latens, within the meaning of the rule ; it is an uncertainty which may be rendered certain by a recurrence to facts and circumstances not slated in the instrument, but evidently alluded to. The rule of law is not very inflexible in its application, an exposition ought to be made of the whole instrument, and where certainty can be educed from evidence which .cannot be questioned, such evidence ought to be admitted, even if it should be parol evidence. If the uncertainty indicates what it is, which is to clear up the doubt, and points to parol evidence, such evidence ought to be admitted. Id cerium esl. Roberts on Fr. 96. Consider the object of the bond. It is a bail bond, with a condition to appear and pnswer. The obligation is to pay the debt, interest, and costs. The debt is ascertained ; the interest .and costs are not ascertained. The interest and costs could not be ascertained at the time the bond was given, because some part thereof was to accrue thereafter; but the whole was capable of precise ascertainment from unquestionable evidence. It is now certainly known, and is certainly averred in the declaration. The facts are stated in the declaration, which makes that certain which was not so before. These facts are admitted by the demurrer, for whatever is well pleaded is admitted by demurring ; a demurrer being an issue in law, which admits tho matters of fact properly pleaded.
    Nott, on the contrary.
    If the demurrer can be maintained as a general demurrer, it can as a special demurrer. Debt cannot be maintained on a specially for more than is expressed in the specialty ; because debt must be for a sum certain ; for a specific sutn, covenant might, perhaps, be maintained, for a sum beyond the specific sum mentioned, but not debt. 3 Bl. Com. 153. The written evidence of debt should not depend on other evidence to make if certain. Debt will lie on a verbal contract, in which action the plaintiff may recover less than he claims ; but the debt must be certain, and due, at the time of action brought. In this case the uncertainty cannot be made certain by any certain rule, or measure, which can be depended on. The certainty must depend on evidence which is uncertain ; on collateral facts to be established by parol evidence. The facts are not admitted by the demurrer, for the averments are improperly introduced, and ought to be rejected as irrelevant. 1 Esp. Dig. 190.
    Hooker, in reply.
    Plow. Com. The facts pleaded must betaken as conceded ; and the only question must be as to their sufficiency in point of law. The defendant must be confined to the causes by him specially assigned, and cannot travel out of the declaration ; and the declaration maintains the writ, and shews the nature and certainty of the debt. But, surely, the plaintiff must have judgment for $170, although less than the sum demanded, since it must clearly appear that the defendant owes that sum at least. The plaintiff may, in debt, recover less than he demands, although he cannot recover more. 1 Saund. 285.
   May 6th. The opinion of the court was declared by

Brevard, J.,

after stating the matter set forth in the declaration, and the averments. To this declaration there is a special demurrer for the insufficiency of the declaration ; and the question was referred to the judgment of the District Court. The decision of that court was for the defendant, in support of the demurrer, and the plaintiff has appealed to this court. He has been fully heard by his counsel ; and the arguments, urged in his behalf, have been duly considered. It is a clear rule of law, that in all cases where pleadings are demurred to for matter of form, and for the causes specified in the acts 4 and 5 Ann, a special demurrer is requisite, but not for matter of substance. A general demurrer, in regard to matters of substance,'is always sufficient. In doubtful cases, however, it is recommended as best, to assign the special causes of demurrer; because, on a special demurrer, advantage cannot only be taken of the matters of form specially set forth, but also of any matter of substance not expressly alleged ; but on a general demurrer, no matter of form can be taken advantage of. 1 Sellon, 335. It is also a rule, that if the declaration is founded on a bond, or other specialty, the defendant may demand oyer, and if it shows no cause of action he may demur; for the deed on oyer is part of the declaration. Com. Dig. 484. And where the plaintiff claims, by a deed, in the pleadings, he must make a profert of it ito the court; and the deed itself must be shewn. Bull. 249. In this case, the defendant has not demanded oyer of the bond, and condition. The condition must, therefore, be laid out of view, unless it can be considered as relevant matter, and properly brought into notice by the aver-ments in the declaration. The question is as to the sufficiency of the declaration, both as to form and substance. An action of debt is founded on a contract, either express or implied, in which the certainty of the sum or duty appears ; and the plaintiff is to recover the sum in numero, and not to be repaired in damages, as in actions which sound only in damages. Bull. 107. 2 Bac. Abr. 13, 20. 4 Co. 50. But when the damages can be reduced by averment to a certainty, the action of debt lies, ás on a covenant to pay so much per load. 3 Lev. 420. 2 Salk. 658. 2 Raym. 815.

The plaintiff in this action demands $235, and declares on a specialty containing an obligation to pay $170, with interest, and costs of suit. The declaration is not excepted to, on the ground of a variance between the writ and declaration ; because the plaintiff has gone-on in his declaration to explain what was meant, and intended, by the words “interest and costs,” in the bond, and to aver that such and such facts existed, and that such was the intent of the parties in tfoe contract; and that the sums meant by the words interest and costs, when added to the principal sum expressed in the bond, amount together to the exact sum demanded"by the writ It has been said that, although the general rule is that the acticn of debt must be for a sum certain, yet it will lie for a sum which is not certainly expressed, or not ascertained at the time of the contract, but which is capable of neing ascertained, and made certain at the tiraeof the action brought. Doug. 6. Bl. Rep. 1221. 1 H. Bl. Rep-249. But this doctrine cannot be applied to actions of debt founded on specialty, but to simple contracts only. The specialty which will support an action of debt, must express a sum certain. The quart* turn of the debt should be clearly and certainly fixed by'the instfri-merit on which the debt is founded ; or the instrument should itself* furnish such data as would infallibly lead to a certain ascertainment of the debt. The rule by which the uncertainty apparent, on the face of the instrument, on which the debt is founded, is to be re* dueed to certainty, must be furnished by the instrument itself, and that rule must, itself, be certain ; such a one as will lead to a certain result, and not be liable to vary according to extrinsic circumstances, or depend oil parol evidence, dehors, the specialty. The specialty in the present ease does not furnish such a rule ; and the uncertainty is not cured by the aver-monís, libas been argued, that the facts set forth in the aver* meats must be taken as true, because they are admitted by the demurrer ; and if the facts be admitted, the amount of the debt is admitted, which corresponds with the writ. But this argument is founded on a pelitio principii. The fact is assumed, that the aver-ments are well pleaded, and then the rule is applied, that whatever is well pleaded must be considered as admitted. But it has not been shewn that the averments are well pleaded ; and we are all of opinion they are not so.

Note. In debt, where the sum demanded depends Upon a deed, or other iis-strument, and on nothing extrinsic, as in debt, or covenant, to pay £¿0, the plaintiff cannot recover more than is due, and remit the overplus, for the variance which is made is inconsistent with the deed, or other instrument, upon which the duty demanded depends. In debt, for rent, more may be demanded than is due, and the surplus remitted In such case ihe variance is not inconsistent with the deed; and as the plaintiff is to recover on the trial what appears on evidence to be due, so in demurrer, he is to have judgment for no more than Ae ought to recover. See 1 Saund. 285, 3d ed. by Wms. in the notes. 2 Salk-659. 2 Hay. 814.

The declaration is faulty, and the judgment of the District Court must be affirmed. The plaintiff cannot recover less than he has demanded in this action, as he might do if the action had been founded on simple contract. He may, however, in some other' form of action recover the interests and costs in question, together with the specific sum mentioned’in the obligation.

Motion overruled.  