Remedies on Contracts in

tury.

Debt on

vatas 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.

The sum of the matter seems to have been thus. As to formal contracts: A contract under seal could be enforced by action of 13th cen debt (placitum de debito). It was a good defence that the party's seal had been lost and affixed by a stranger covenant. without his knowledge, at least if the owner had given public notice of the loss (b); but not if it had been misapplied by a person in whose custody it was; for 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 (c). 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 18 b, 19a; Fleta 1. 2. c. 60 § 23) (7). 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 (e).

Debt on simple contract, detinue,

&c.

(a) Lib. 10, c. 18. "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 Archdeacon Hale's Series of Precedents and Proceedings, where several instances will be found. It is worth noting 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.

(b) Glanville (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.

(c) For the precise difference in the developed forms of pleading see per Maule J. 15 C. B. 303.

(d) In Bracton fo. 19a, lines 14, 15, si (the second) and possunt are obvious misprints for sed and possum, also we must read with Güterbock "ut repetere non possim."

(e) Y. B. Mich. 37 H. 6 [A.D. 1459] 8, pl. 18, by Prisot, C. J.

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 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 (Stat. Account 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 1). 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 has become all but obsolete (b).

(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 Ptnp. 1. 66, note r, 2. 909, note c,

Where no remedy

at common

law.

Later in

of assump

sit.

On informal executory agreements there was in general no remedy in the King's Courts. The Ecclesiastical Courts however took notice of them (see note p. 122 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 Mr. Justice Blackburn has found to be one of the obscurest passages in the history of 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 was troduction at last found indispensable it was introduced in the form of an action nominally ex delicto-to wit the variety of trespass on the case which ultimately became the familiar action of assumpsit and the ordinary way of enforcing simple contracts. The final prevalence of assumpsit over debt 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 (c), 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 idem [the defendant] ad quasdam domos ipsius Laurentii [the plaintiff] bene et fideliter infra certum tempus de novo construend' apud Grimesby assumpsisset, praedictus tamen T. domos ipsius L. infra tempus praedictum, &c., construere non curavit ad dampnum ipsius Laurentii decem libr', &c." The report proceeds to this effect:

(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) Hist. Eng. Law (Ed. Finla son), 2.508, 1 C. P. Cooper, Appx. 549, where subsequent cases are also collected and translated.

'Tirwit.-Sir, you see well that his count is on a covenant, and he shows no such thing: judgment.

Gascoigne. Seeing that you answer nothing, we ask judg ment and pray for our damages.

Tirit. This is covenant or nothing (ceo est merement un covenant).

Brenchesley, J.-It is so perhaps it would have been otherwise had it been averred that the work was begun and then by negligence left unfinished.

(Hankford, J. observed that an action on the Statute of Labourers might meet the case.)

Rickhill, J.-For that you have counted on a covenant and show none, take nothing by your writ but be in mercy" (a).

This was followed by at least one similar decision (b), but early in the reign of Henry VI. a like action was brought against one Watkins for failure to build a mill within the time for which he had promised it, and two out of three judges (Babington, C.J. and Cockaine, J.) were decidedly in favour of the action being maintainable and called on the defendant's counsel to plead over to the merits (c). Martin, J. dissented, insisting that an action of trespass would not lie for a mere non-feasance: a difficulty by no means frivolous in itself. "If this action is to be maintained on this matter," he said, "one shall have an action of trespass on every agreement that is broken in the world"-which was the very thing sought, and so it came to pass in the two following reigns, when the general application of the action of assumpsit was well established (see Reeves, 3. 182, 403). It is only since the Common Law Procedure Act that there has been in form as well as in substance a consistent and appropriate procedure for enforcing executory simple contracts.

deeds can't

We need not stop to consider the requisites of a deed, but it Rule that may be noticed that when the books (e.g. Shepp. Touchst. 54) gets cau say a deed must be written on parchment or paper, not on on wood, wood, &c., this is not due, as a modern reader might at first suggested orisight think, to mere exuberance of fancy or abundance of cau- gin thereof. tion. The key is to be found, we believe, in the common use of

&c.:

(a) Mich. 2 H. 4, 3b, pl. 9.
(b) Mich. 11 H. 4. 33, pl. 60.

(c) Hil. 3 H. 6, 36, pl. 33.

Requirements of

form now

wooden tallies as records of contracts in the middle ages, and in the fuller statement of Fitzherbert (F. N. B. 122 I) that if such a tally is sealed and delivered by the party it will not be a deed. The Year Books there referred to (so far as we can verify the references: some are wrong and we have not been able to set them right) show that attempts were in fact made to rely on sealed tallies as equivalent to deeds. These tallies were no doubt written upon as well as notched, so that nothing could be laid hold of to refuse them the description of deeds but the fact of their being wooden: the writing is expressly mentioned in one case (a), and the Exchequer tallies used till within recent times were likewise written upon (b).

The foregoing sketch has shown how in the ancient view no informal contract is good unless it falls within some exceptionally treated as favoured class: the modern view to which the law of England the excep- has now long come round is the reverse, namely that no con

tion.

Contracts of Record.

tract need be in any particular form unless it belongs to some class in which a particular form is specially required.

Before we say anything of these classes it must be mentioned. that contracts under seal are not the only formal contracts known to English law. There are certain "contracts of record" which are of a yet higher nature than contracts by deed. The judgment of a Court of Record is treated for some purposes as a contract : and a recognizance, i.e. " a writing obligatory acknowledged before a judge or other officer having authority for that purpose and enrolled in a Court of Record" is strictly and properly a contract entered into with the Crown in its judicial capacity. The statutory forms of security known as statutes merchant, statutes staple, and recognizances in the nature of a statute staple, were likewise of record, but they have long since fallen out of use (c).

(a) Trin. 12 H. 4. 23, pl. 3. The other cases we have been able to find are Pasch. 25 E. 3. 83 (wrongly referred to as 40 in the last case and in the margin of Fitzh.) pl. 9, where the reporter notes it is said to be [by custom] otherwise ir. London; and Trin. 44 Ed. 3. 21, pl. 23.

(b) See account of them in Penny Cyclopædia, s. v. Tally. The use of