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the instrument afford on the face of it no reason to suspect them, or even though it state facts which, if true, would negative their existence (y).
As a deed is a security of a higher nature, it operates as a merger or extinguishment of a simple contract in respect whereof it was entered into (2), upon the same principle that a judgment upon a specialty merges it (a); and a liability upon a deed cannot be varied, released, or discharged, so as to defeat an action thereon, except by an instrument of equal force and importance (6).
And in regard to the remedy presented by law upon the nonperformance of a specialty obligation, we may trace the partiality and favour shown to deeds.
In the case of a simple contract, the only remedy at law upon the death of the promiser is against his personal representatives, that is, his executors or administrators (c); with this exception, that his real estate is liable in equity to the payment of his simple contract debts, after his creditors by specialty have been paid in full (d).
But a specialty affects the realty of the covenantor or obligor even at law; and upon the death of such party, his heir, (if the obligation expressly bound the party "and his heirs,” and if the heir have assets by descent,) and his devisee, are jointly liable to an action thereon (e).
So a specialty debt is entitled to a preference or priority over a simple contract claim in the payment of the debts of a testator
(y) Collins y. Blanter, 2 Wils. 341; Ellenborough, Drake v. Mitchell, 3 Hayne v. Maltby, 3 T. R. 438; Paxton East, 258, 259. This rule will be v. Popham, 9 East, 408; Hill v. The considered hereafter. Manchester and S. Waterworks Com- (a) See id.; 3 Chit. Com. L. 11. pany, 2 B & Ad. 544. A party con- (b) Co. Lit. 222 b, note 2; Littler veying land by deed not estopped from v. Holland, 3 Term R. 590; per Cur. showing the conveyance is void in law, Braddick v. Thompson, 8 East, 346. Doe d. Precce v. Howels, 2 B. & Ad. 744; Doe v. Ford, 3 Ad. & E. 649. In (c) 9 Co. 39 a; 3 Bla. C. 302; 1 the latter case it was doubted whether Chit. Pl. 6th ed. 50; Wms. Exors. a covenant would operate by way of 519 ; post. estoppel. Where à party, on exe- (d) u G. 4 & 1 W. 4, c. 47, s. 9. cuting a warrant of attorney, produces By 3 & 4 W. 4, c. 104, real property a person as his attoney, he is estopped is in equity subject to the payment of from showing that such person was simple contract debts, although the not an attorney; Cor v. Cannon, 3 debtor were not a trader. Bing. N. C. 453. As to the rule that (e) See the statute 11 G. 4 & 1 W. a party cannot take advantage of his 4, c. 47, and Bac. Ab. Heir; 2 Saund. own wrong, see Malins v. Freeman, 4 7, n. 4, 3 d: 136, 137, n. 4, 5th ed. ; New Cases, 398.
2 Bla. C. 243; Platt on Cov, 41,449. (2) Bac. Abr. Debt, G.; per Lord
or intestate (f); but not in the liquidation of the claims on a bankrupt's estate under a commission; the bankrupt laws being founded on a principle of equality.
The legislature in the reign of James I. (21 Jac. 1, c. 16), prescribed certain periods within which actions upon simple contracts should be brought; but until the statutes 3 & 4 W. 4, c. 42, s. 3, and 3 & 4 W. 4, c. 27, s. 40, there was no direct limitation of time in regard to the prosecution of a specialty claim, or a demand founded on a record (g). It is, however, a common law rule of some standing, that after twenty years it shall be presumed that even such a debt has been satisfied, in the absence of facts rebutting the inference arising from the non-claim and delay (h).
And even in respect to pleading there are distinctions between actions upon deeds and actions upon agreements not under seal. It is necessary to declare specially upon a deed, as such ; and to make a profert in curiam thereof, or to allege upon the record an excuse for the omission to make such profert (i). And when a profert is necessary, the defendant is entitled to oyer of the deed(k). But in declaring upon a simple contract it is in general unnecessary to show it specially; no profert is requisite ; nor can oyer be successfully claimed, although in particular instances the Court will, in the exercise of its discretion, compel either party to permit an inspection of a written agreement, and will enforce the delivery of a copy to the opponent.
(f) 2 Bla. C. 465; 3 & 4 W. 4, equity, or any legacy, but within c. 104.
twenty years next after a present right (g) The Common Law Commis- to receive the same shall have accrued sioners, in their Third Report, recom- to some person capable of giving a mended a positive limitation of twenty discharge for or release of the same, years, as to specialties and records, unless in the meantime some part of with the usual exceptions as to persons the principal money, or some interest under disabilities; and in the case of thereon, shall have been paid, or some part payments, or written acknow
acknowledgment of the right thereto ledgments, within twenty years before shall have been given in writing, signed the commencement of the suit. The
by the person by whom the same shall statute 3 & 4 W.4, gives effect to this be payable, or his agent, to the person recommendation. It does not, how- entitled thereto, or his agent; and in ever, apply to debts on judgments, such case no such action or suit or which are provided for by 3 & 4 W.4, proceeding shall be brought but withc. 27, s. 40, which enacts that after in twenty years after such payment or 31st December, 1833,“ no action, suit, acknowledgment, or the last of such or other proceedings, shall be brought payments or acknowledgments, if more to recover any sum of money secured than one was given.". by any mortgage, judgment, or lien, or (h) See the cases, Tidd, 9th ed. 18. otherwise charged upon or payable (i) 1 Chit. Pl. 6th ed. 397. out of any land or rent, at law or in
A contract or agreement not under seal may be defined, or described to be the mutual assent of two or more persons, competent to contract, founded on a sufficient and legal motive, inducement, or consideration, to perform some legal act, or omit to do any thing, the performance whereof is not enjoined by law (!). From which definition it appears that to constitute a sufficient agreement, there must be : 1st. The reciprocal or mutual assent of two or more persons competent to contract ;-2ndly. A good and valid consideration ;-3rdly. A thing to be done which is not forbidden, or a matter to be omitted, the performance of which is not enjoined by law (m).
The statutable requisites of a contract in regard to its being deduced into writing, &c. in certain cases, and also in respect to the necessity of stamping written agreements; and the law respecting the competency of particular parties to contract, and the subject matter of the agreement, will be considered in a subsequent part of the work. The requisites of mutual assent and of consideration now demand our attention.
1. Of the Assent of the Parties. In order to constitute a binding contract, there must be a definitive promise by the party charged, accepted by the person claiming the benefit of such promise. There must be a request on one side and an assent on the other (n). No contract is raised by a mere ex parte affirmation in discourse; a mere overture or offer to enter into an agreement not expressly and absolutely assented to by both parties. Thus:-“ If there be a communication between the father of A.
(1) Com. Dig. Agreement, 1 (A); tain qui forme la matière de l'engagePlowd. C. 17 a, 5 a, 6a; Wain v. ment; une cause licite dans l'obliguWarlters, 5 East, 16, per Lord Ellen- tion.” Code Napoleon, or French Civil borough. See 3 Chit. Com. L. 2, &c.; Code, · Des Contrats,' book 3, title 3, 3 Bla. C. 442.
ch. 1, 2, art. 1101, 1108. Rognon, in (m) It is of the essence of obliga- his edition (1831) of the Code, thus tions that there should be, 1st, A cause comments on the words “ sont essenfrom which the obligation proceeds; tielles,"—viz. “ ainsi l'absence d'une 2ndly, Persons between whom it is seule de ces quatre conditions empéche contracted; and, 3rdly, Something que le contrat n'eciste;" and on the which is the object of it.” 1 Pothier words “de la partie qui s'oblige," he on Obl. part 1, ch. 1. “ Le contrat remarks, “ Readaction incomplete. Il est un convention par laquelle une ou faut ajouter, et de la partie envers laplusieurs personnes s'obligent envers quelle on s'oblige. Car il n'y a pas une ou plusieurs autres, à donner, à contrat même unilateral, sans le confaire, ou à ne pas faire, quelque chose.” sentement des
ur parties.” " Quatre conditions sont essentielles (n) See per Tindal, C. J., and Bopour la validité d'une convention ; le sanquet, J. in Jackson v. Galloway, 5 consentement de la partie qui s'oblige; Bing. N. C. 75, 76. la capacité de contracter ; un objet cer
and B., respecting a marriage between A. and the daughter of B., and B. then affirms and declares to the father of A., that he will give to him who marries his daughter with his consent, 1001., and afterwards A. marries the daughter of B., with his consent, yet this declaration of B. does not raise a promise upon which assumpsit lies, because these words do not include a promise." This is laid down in Rol. Ab. (o); and the case in which the decision took place is also to be found in Yelverton (p), and it is thus reported :-" In assumpsit the plaintiff alleges, that whereas there was a communication of marriage between the plaintiff and the daughter of the defendant; that the defendant upon speech between the father of the plaintiff and the defendant for free liberty to the plaintiff to come to the house of the defendant to woo his daughter, the defendant then and there affirmed and published that he would give 1001. to him that should marry his daughter with his consent, &c. By the Court:— The action doth not lie, for asseruit et publicavit do not make words that include a promise. It is not averred nor declared to whom the words were spoken, and it is not reason that the defendant should be bound by such general words spoken to excite suitors.” It is plain that the Court proceeded upon the principle that there was not a final and accepted promise by the defendant to pay the money to the plaintiff, considered by both parties at the time to be binding on the defendant (2).
(o) Trinity Term, 3 Jac. B. R. as circumstances will allow, and the Week v. Tibold, per Cur. Rol. Ab. Ac- promise is intended by the party to tion sur Case (M), pl. 1. In Com. Dig. operate as a binding contract with the Action upon the case upon Assumpsit, person who acts upon it; see Williams (T) 2, this case is thus cited_“ As- v. Curwardine, 5 C. & P. 566; 4 B. & sumpsit does not lie upon a speech in AJ. 621, S. C.; 3 Went. 30. It was discourse; as if a man in discourse there held that a public advertisement say that he will give so much money by A. that whoever would give inwith his daughter in marriage; for the formation w! would lead to the disagreement must be complete upon covery of the murder of B., should on which an assumpsit lies." . And Noy, conviction receive a reward of 201., R. 11; Dan. 26, are referred to. amounted to a contract with any per.
(p) Yelv. R. 11. It is is reported son who gave the information; and under the names of Weeks v. Tybold. that C., who gave it, was entitled to Since the Statute of Frauds, 29 Car. 2, the money, although she was led to c. 3, promises to pay money, in con- inform not by the proffered reward, sideration of marriage, must be in but by other motives. The first party writing.
giving the information is entitled to (9) A promise to pay a reward to the reward, and this though the inany person who may apprehend an formation be not given to the person offender, &c., will support an action. offering the reward, if it be given to a In that case, however, there is an en- person authorized to receive it, and to gagement which is as certain and final act on it by apprehending the offender;
Where defendant wrote to the plaintiff as follows: "F, informs me that you are about publishing an arithmetic for him. I have no objection to being answerable as far as 501. For my reference apply to B.;" and signed it, and B. added, “ witness 'J.B,'” and forwarded it to the plaintiffs; it was held, in an action brought on such memorandum against the defendant, that the plaintiffs, not proving any notice of acceptance to the defendant, were not entitled to recover (r).
The defendant's brother being indebted to the plaintiff, the defendant wrote a letter to the plaintiff stating that “ He wished to know if the plaintiff would give the brother a full discharge if the defendant would pay a moiety of the debt; that the defendant had specified what he would pay, and no more; and that if the plaintiff would accept that, he was to call upon the defendant the next morning.” And Lord Ellenborough was of opinion that the defendant's letter was a mere proposition to pay a moiety, reserving a power to do any thing or nothing as he pleased the next day; and that, at all events, it would be necessary to shew that the plaintiff had acceded to the proposal in writing (s). And where the defendant wrote a paper containing assurances to the plaintiff that a third person was worthy to be trusted to a certain amount, and adding that he, the defendant, had no objection to guarantee the plaintiff against any loss from giving the third person credit, upon an order he had sent to the plaintiff; it was held that the paper did not amount to a guarantee, the plaintiff having given no notice that he accepted it as such, and the defendant not having consented that it should be a conclusive guarantee (t).
So, where in assumpsit for a mare sold and delivered, to which the defendant pleaded non-assumpsit, it appeared that the defendant having seen and ridden the mare, wrote to the plaintiff, “I will take the mare at twenty guineas, of course warranted; and as she lays out, turn her out my mare;” and the plaintiff
Lancaster v. Walsh, 4 M. & W. 16. It per Lord Tenterden, C. J., Polhill v. seems that a representation having re- Walter, 3 B. & Ad. 22, 23. ference to a bill of exchange, and im- (r) Mozley v. Tinkler, 1 C. M. & plied by law from certain acts of the R. 692; 5 Tyr. 416; 1 Gale, 11, S.C. party, (as that a party accepting a bill (s) Gaunt v. Hill, 1 Stark. R. 10. for the drawee, had his authority to do (t) M'Iver v. Richardson, 1 M. & so,) cannot be viewed by a person who Selw. 557; Mozley v. Tinkler, 1 C. subsequently becomes an indorsee, as a M. & R. 692; 5 Tyr. 416; 1 Gale, promise or guarantee to himself, so as 11, S. C.; supra. to enable him to bring assumpsit; see