Gardner v. . Clark , 5 N.C. 283 ( 1809 )

In Hardress, 485, it was held that an action of debt will not lie against the acceptor of a bill of exchange; 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 that case that the acceptance does not create a duty any more (286) than a promise made by a stranger to pay the debt of a third person, if the creditor will forbear his debt; and he that drew the bill continues debtor, notwithstanding the acceptance makes 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 the elementary writers. 3 Bl. Com., 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. Comyn says debt lies upon every express contract to pay a sum of money. Dig., tit. Debt. And in 3 Woodeson, 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., 1221; Doug., 6; 2 Term, 129; 1 H. Bl., 149; and it is not now 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; andassumpsit 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 authority in favor of it in precisely such a case as that before the Court. 2 H. Bl., 78. Judgment for the plaintiff.

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