(n) See ante, p. *4.
If the record create a debt, that is, render a sum certain payable by the one party to the other, an action in the ordinary form will lie to enforce payment, if the plaintiff prefer that form of proceeding to a scire facias.
Formerly, at Common Law, there were distinct forms of action applicable to the breach of distinct species of contract; and although the forms of action have been Practically abolished (o), yet some explanation of them seems desirable, in order to understand their meaning in the Statutes of Limitation to the consideration of which we are coming.
The action of debt lay in every case where there was a liquidated pecuniary duty from one person to another. *If the contract were by deed, the remedy was by action of covenant, which lay to enforce a contract by deed, for which it was the only remedy at Common Law, unless the contract were for payment of a liquidated sum, in which case, as I have already said, the plaintiff might, if he preferred it, maintain an action of debt. If the contract were neither by record nor by deed-if, in other words, it was a simple contract, either reduced to writing, or by mere words without writing,-the remedy, unless it were for payment of a fixed sum of money, in which case debt also would lie, was by an action of assumpsit. This was originally a sort of action of trespass upon the case, and was called assumpsit from the words "undertook and promised," which always appeared in the declaration. When the Uniformity of Process Act (p) was passed, the schedule contained a form of writ in which it was described as an action on promises; in consequence of which it was most commonly denominated
(o) See rules of the Supreme Court, 1883, O. I., r. 1, which re-enacts 38 & 39 Vict., c. 77 (Judicature Act, 1875), sched. I., order I., rule 1. (p) 2 & 3 Will. 4, c. 39. 503 an action on promises. It was the great remedy upon the breach of simple contracts.
There was, besides, a sort of action called an action of account, which had become almost completely obsolete and disused.
Now, these being the remedies by which contracts are enforced in courts of law, the next question is, as to the time within which those remedies are to be pursued : and those times depend upon *the provisions of the Acts of Parliament which we call Statutes of Limitation.
The policy of the Legislature in enacting such statutes, and thereby constituting a time after the lapse of which, engagements shall be no longer capable of being enforced, has always been considered unexceptionable.
When you find a debt or an engagement existing after the lapse of a long period of time, it is possible, indeed, that strict justice may require its enforcement, but it is also possible that great injustice may be done by enforcing it. Suppose, for instance, an executor finds a bond forty years old in his testator's repository, it may be that the principal and interest are due and unpaid, but it may also be that they have been paid; or that great part has been paid, and that the vouchers have been lost; or it may be that the bond was deposited with the testator as a collateral security, and that no liability ever in reality accrued upon it, but that the obligee forgot to reclaim it or died pending the suretyship, leaving his representatives in ignorance of the transaction. It may be quite impossible, after the lapse of forty years, to prove this. Indeed, it may be in the knowledge of no person living. Now, there would be the greatest hardship in calling upon a man, after the lapse of an indefinite space of time, to defend himself against such a demand; but there is no great hardship imposed on the obligee by requiring him *to enforce his claim within a reasonable time, if he intend to enforce it at all.
This, then, is the policy of the Statutes of Limitation-to prevent obsolete claims from being raked up. And now as to the time which the Legislature has appointed for the purpose of pursuing the several remedies of which I have spoken.
With regard to scire facias, there was, for a long while, no limitation imposed by statute to the commencement of that proceeding; but now, by 3 & 4 Will. IV., c. 42, s. 3, a scire facias on a recognizance must be sued out within twenty years.
An action of debt founded upon a contract made by deed was not formerly subject to any limitation in respect of the time within which it might be commenced : not that you are to suppose that there was practically no security against an obsolete claim founded on a deed, for the Courts had introduced a presumption that such claims were satisfied after the lapse of twenty years: and if no evidence of any acknowledgment of the existence of the claim appeared to have taken place within that time, they recommended the jury to presume payment or a release, as the nature of the case happened to require; but there was no statute which could be pleaded in bar of such action until the 3 & 4 Will. IV., c. 42, the 3rd section of which establishes the limitation of twenty years, and is as follows :"That all actions of debt for rent upon an indenture of demise, all actions of covenant or debt upon *any bond or other specialty, and all actions of debt or scire facias upon any recognizance, and also all actions of debt upon any award where the submission is not by specialty, or for any fine clue in respect of any copyhold estates, or for any escape, or for money levied on any fieri facias, and all actions for any penalties, damages, or sums of money given to the party grieved, by any statute now or hereafter to be in force, that shall be sued or brought at any time after the end of the present session of Parliament, shall be commenced and sued within the time and limitation hereinafter expressed, and not after; that is to say, the said actions of debt for rent upon any indenture of demise or covenant, or debt upon any bond or other specialty, actions of debt or scire facias upon recognizance, within ten years after the end of this present session [a. d. 1833], or within twenty years after the cause of such actions or suits, but not after."