&c. seems to have happened in Scotland, where no consideration is needed to make a contract binding: this is qualified however by the rule that a gratuitous promise cannot be proved by oral evidence but only by writing (a). In French jurisprudence on the other hand the Roman causa has persisted (though in a pretty liberal interpretation) as a needful ingredient of every binding contract. Instead of pacta becoming legitimae conventiones, the legitimae conventiones have simply vanished. We shall see more of this in the next chapter. Corres- But our English authors did find something to put in ponding English the place of the Stipulation: namely the solemnities of a doctrine in deed. Bracton after setting forth almost in the very words Bracton, of the Institutes how "Verbis contrahitur obligatio per stipulationem" (b), &c. adds: "Et quod per scripturam fieri possit stipulatio et obligatio videtur, quia si scriptum fuerit in instrumento aliquem promisisse, perinde habetur ac si interrogatione praecedente responsum sit.” (c). There is no doubt that he means only a writing under seal, though it is not so expressed: Fleta does say in so many words that a writing unsealed will not do (d). The equivalent for the Roman Stipulation being thus fixed, the classes of Real and Consensual contracts are recognized, in the terms of Roman law so far as the recognition goes: but the Consensual contracts are so meagrely handled that it looks as if they were introduced only for form's sake (e). We (a) Erskine, Pr. of Law of Sc. Bk. 3, Tit. 2, § 1; Bk. 4, Tit. 2, § 11. (b) One may doubt whether an English court ever in fact enforced or would have enforced a Stipulation proper, as well as whether it ever entertained an "actio legis Aquiliae de hominibus per feloniam occisis," fo. 1036. As to Bracton's use of Roman names for forms of action compare Bigelow, Leading Cases on the Law of Torts, p. 585. The following wild marginal note occurs in an early 14th century MS. of Bracton in the Cambridge University Library (Dd. 7. 6): Differt pactum a conventione quia pactum solum consistit in sermonibus, ut in stipu lationibus, conventio tam in sermone quam in opere, ut cum in scriptis redigitur. (c) 99b, 100a. See, however, O. W. Holmes, jun., "The Common Law," Boston, 1881, p. 272, and Introduction above. (d) Lib. 2, c. 60, § 25. Non solum sufficiet scriptura nisi sigilli munimine stipulantis roboretur cum testimonio fide dignorum praesentium. The wrong use of stipulans for the covenantor deserves remark. (e) Güterbock (p. 113) justly remarks that what Bracton says of the Contract of Sale in another place (fo. 616) shows that it was not a true consensual contract in his view. hear of nothing corresponding to the later Roman extensions of the validity of informal agreements. Such agreements in general give no right of action: in Glanville it is expressly said: "Privatas conventiones non solet curia domini regis tueri" (a), in a context suggesting that in his time even the regular consensual contracts of the civil law fell within the proposition. In Bracton too, notwithstanding his elaborate copying of Roman sources, we read: "Iudicialis autem esse poterit stipulatio, vel convertionalis: iudicialis, quae iussu iudicis fit vel praetoris. Conventionalis, quae ex conventione utriusque partis concipitur, nec iussu iudicis vel praetoris, et quarum totidem sunt genera quot paene (b) rerum contrahendarum, de quibus omnibus omnino curia regis se non intromittit nisi aliquando de gratia" (fo. 100a). on contracts in tury. The sum of the matter seems to have been thus. As to Remedies formal contracts: A contract under seal could be enforced by action of debt (placitum de debito). It was a good 13th cendefence that the party's seal had been lost and affixed by Debt on a stranger without his knowledge, at least if the owner covenant. had given public notice of the loss (c): but not if it had been misapplied by a person in whose custody it was; for The passage is curious, inasmuch as it contradicts the modern law of England in nearly all points, and the civil law in most. (a) Lib. 10, c. 18, and more fully ib. c. 8. "Curia domini regis is significant, for the ecclesiastical courts did take cognizance of breaches of informal agreements as being against good conscience, ib. c. 12, and see Blackstone's Comm. 1. 52, and authorities there cited, and Archdeacon Hale's Series of Precedents and Proceedings, where several instances will be found. It is worth nothing that they seem to cease after the end of the 15th century, i.e. when the action of assumpsit in the temporal courts had become well established, and therefore the spiritual courts would have been prohibited from entertaining such matters, as they had already been prohibited from (b) This is evidently the true (c) Glanvill (L. 10, c. 12) has not even this Britton, 1, 164, 166, as in the text. "Pur ceo qe il ad conu le fet estre soen en partie, soit agardé pur le pleyntif et se purveye autre foiz le defendaunt de meillour gardeyn." Cp. Fleta, 1. 6, c. 33, § 2; c. 34, § 4. That the practice of publishing formal notice in case of loss really existed is shown by the example given in Blount's Law Dictionary, s.v. Sigillum, dated 18 Ric. 2. then, it was said, it was his own fault for not having it in better keeping. This detail shows how much more archaic English law still was than the developed Roman system from which it borrowed much of its language and also that delivery was not then known as one of the essential requisites of a deed. As to informal contracts: An action of debt might be brought for money lent, or the price of goods sold and delivered, and an action of detinue (which was but a species of debt) for chattels bailed (a). And probably an action of debt might be maintained for work done or on other consideration completely executed. At least the contractus innominati (do ut des, &c.) are distinctly recognized by the text-writers, though in Bracton strangely out of their natural place, under the head of conditional grants (Bracton 18b, 19a; Fleta 1. 2, c. 60, § 23) (b). About two centuries later we find it quite clear that an action of debt will lie on any consideration executed, though the term is not used, and also which marks a decided advance since Bracton's time-that on a contract for the sale of either goods or land an action may be maintained for the price before the goods are delivered or seisin given of the land (c). Obligations quasi ex contractu might in some cases at least be enforced by action of debt. Such an action brought to recover money paid on a failure of consideration was held good in form (though there was in fact a covenant), Y. B. 21 & 22 Ed. 1, p. 600 (Rolls ed.), A.D. 1294, where it is also said that money paid as the price of land might of a deed. "The Common Law," Boston, 1881, pp. 256, 8qq. more in Introduction above. (a) For the precise difference in the developed forms of pleading see per Maule, J. 15 C. B. 303. The decision of the C. A. in Bryant v. Herbert, 3 C. P. D. 389, that an action for wrongful detention is "founded on tort" within the meaning of the County Court Acts is, and professes to be, beside the historical question. Mr. O. W. Holmes, jun., has most ingeniously connected the historical limits of the action of debt with the method of proof required of the plaintiff in the absence See be recovered back in an action of debt if the seller would not enfeoff the buyer. This action was probably a direct imitation of the Roman Condictions, and must not be confused with the modern action of assumpsit on the common counts.” The action of account was also in use, see 52 Hen. 3 Account. (Stat. Marlb.) c. 17, 13 Ed. 1 (Stat. Westm. 2) c. 23. It seems to have been for a long time a remedy of wide application (sometimes exclusively, sometimes concurrently with debt) to enforce claims of the kind which in modern times have been the subject of actions of assumpsit for money had and received or the like. It covered apparently all sorts of cases where money had been paid on condition or to be dealt with in some way prescribed by the person paying it (see cases in 1 Rol. Abr. 116). One must not be misled by the statement that no man shall be charged in account but as guardian in socage, bailiff or receiver" (11 Co. Rep. 89, Co. Lit. 172 a): for it is also said "a man shall have a writ of account against one as bailiff or receiver where he was not his bailiff or receiver: for if a man receive money for my use I shall have an account against him as receiver; or if a man deliver money unto another to deliver over unto me, I shall have an account against him as my receiver" (F. N. B. 116 Q). This action might be brought by one partner against another (ib. 117 D). At common law it could not be brought by executors, except, it seems, in the case of merchants, nor against them unless at the suit of the Crown (Co. Lit. 90 b, and see Earl of Devonshire's ca. 11 Rep. 89): but it was made applicable both for and against executors by various statutes to which it is needless to refer particularly (a). In modern times this action was obsolete except as between tenants in common (b). On informal executory agreements there was in general no remedy in the King's Courts. The Ecclesiastical Courts (a) The action is given against executors by 4 & 5 Ann. c. 3 (Rev. Stat.; 4 Ann. c. 16 in Ruffhead) 8. 27. (b) See Lindley on Partnership, 2. 1022, note k. Where no remedy at common law. Later in of assump however took notice of them (see note p. 151, supra): and it may well be that executory mercantile contracts were also recognized in the special courts which administered the law merchant. But we cannot here attempt to throw any light on that which Lord Blackburn has found to be one of the obscurest passages in the history of the English law (a). Also there are traces of exceptions by local custom. We read in F. N. B. 146 A. that "in London a man shall have a writ of covenant without a deed for the covenant broken," but the authorities referred to do not bear this out (b). It is not without significance that when a general remedy troduction was at last found indispensable it was introduced in the sit. form of an action nominally ex delicto. It was a new variety of trespass on the case that ultimately became the familiar action of assumpsit and the ordinary way of enforcing simple contracts. The final prevalence of assumpsit over debt, like that of trover over detinue (c), was no doubt much aided by the defendant not being able to wage his law and by certain other advantages: but the reason of its original introduction was to supply a remedy where debt would not lie at all. This was not effected without some failures. The first recorded case is abridged by Reeves, and translated by Mr. C. P. Cooper (d), but is curious enough to bear repeating. The action was against a carpenter for having failed to build certain houses as he had contracted to do. The writ ran thus: "Quare cum (a) Blackburn on the Contract of Sale, 207-8. In addition to the quotation there from the Year Book of Ed. 4, see now Y. B. 21 & 22 Ed. 1. p. 458. (b) The Year Book 27 H. 6. 10, pl. 6, shows only that by the custom of London a covenant to repair by the lessor was implied in leases: the case in 1 Leo. 2 shows a custom at Bristol "that conventio ore tenus facta shall bind the covenantor as strongly as if it were made by writing," which being taken strictly was held not to bind executors. (c) See per Martin, B., Burroughes v. Bayne, 5 H. & N. at p. 301. (d) Hist. Eng. Law (ed. Finlason), 2. 508, 1 C. P. Cooper, Appx. 549, where subsequent cases are also collected and translated. Actions of trespass on the case had previously been allowed for malfeasance by the negligent performance of contracts (for which it is still held that there is an alternative remedy in contract and in tort), but an action for mere non-feasance was a novelty. See Bigelow, L. C. on Law of Torts, 586. |