#### Harwood and Wilcox vs. Crowell and M'Culloch.

'T'HIS was an action of debt brought upon an instrument in -*■ the form of a bond, with a penalty and with a condition to be void on payment of a less sum, but it had not a seal. It was objected by Mr. Daniel that debt would not lie on such an instrument, but that an action on the case was the proper one.

Me. Fxtz, e contra.

It was lately decided in England in the case of Bishop vs. Young, 2 Bos. Bull. 78. that debt would lie on a promisory note against the drawer, and that a promi-sory note being rendered negociable by statute afforded sufficient evidence of consideration. He cited also the case of Walker and others vs. Witter. 1 Doug. 1. where debt was held to lie on a foreign judgment, although a foreign judgment is considered in the light of a simple contract' debt.

Taylor, Judge.

The action of debt lies in England upon a simple contract, by the rules of the Common Law. And although I do not remember an instance of such an action in our court, I am not aware that the disuse ol such action, has been owing to any apprehension, that it could not be maintained if attempted. My opinion at present is, that it will lie. I am willing, however, that it shall undergo the consideration of all the Judges in the supreme court. Of instruments not under seal, which are exhibited as evidences of the debt, a consideration for them must be proved, if they are not rendered negotiable : if they are so, they then assume the same nature as mercantile instruments, which are themselves evidences of a good consider*, ation.

Verdict for the Plaintiff,