of covenant; and, if a liquidated debt be secured by it, by an action of debt. (a) These remedies must be pursued within twenty years, except in cases of disability by reason of infancy, coverture, lunacy, or absence beyond seas, such being the period fixed by 3 & 4 W. 4, c. 42, s. 3,' which, being later in date though passed in the same session with 3 & 4 W. 4, c. 27, is held to have superseded some inconsistent provisions contained in that statute. See Strachan v. Thomas, 12 Ad. & Ell. 535; 40 E. C. L. R.; Paget v. Foley, 2 Bingh. N. C. 679; 29 E. C. L. R.

[*23]

*Having thus touched on the general division of Contracts into those of Record, by Deed, and

(a) Debt thus lies for rent on any lease or demise by deed for life or lives, as well as upon leases for years; (8 Ann. c. 14, s. 4;) but not for arrears of an annuity or rent charge for life charged on lands of a freehold nature, so long as the estate of freehold continues, for the law will not suffer a real injury to be remedied by a personal action. Webb v. Jiggs, 4 M. & S. 113. Collateral covenants to pay such annuities fall within the same rule: there must be a direct duty on the part of the defendant to pay the plaintiff a liquidated sum to enable him to sue in debt. Randall v. Rigby, 4 M. & W. 130; 1 Wms. Saund. 282 y. Neither will it lie against a lessee after the assignment of a lease and acceptance of rent from the assignee, the privity of contract being destroyed by the assent to the assignment, otherwise it would lie even against an executor of a lessee, though he had assigned. See the notes to Thursby v. Plant, 1 Wms. Saund. 237. Debt lies also on bonds, whether to pay money or perform awards, on covenants in an indenture, on policies of insurance, charter parties, and mortgage deeds. See 3 & 4 W. 4, c. 42; 2 Wms. Saund. 62 b, n. f, g, & 402 a, and generally on recognizances, Gilb. Debt, 395.

1

By these statutes a positive bar is interposed to a recovery upon specialties after twenty years. Before their passage, there was only the common law presumption of payment or performance, which was liable to be rebutted by testimony, and in this country it is believed that statutes similar to that of Will. 4, have not been generally enacted.

by Simple Contract, and explained the nature of a deed, and the formalities attending its execution,-having pointed out the distinction between the absolute deli

very

of a deed and the conditional one of an escrow, the distinction between a deed poll and indenture, the peculiar privileges of a contract by deed, whether in respect of the consideration, the estoppel it creates, the means by which its obligation is determined, or the rights which it confers upon a creditor against his debtor's assets, having pointed out the remedy by which its non-performance is complained of in a court of law, and the time of limitation within which that remedy is to be pursued, it remains to point out in a similar manner the peculiarities attending Simple Contracts. This will be done in the next lecture.

LECTURE II.

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THE NATURE OF SIMPLE CONTRACTS-OF WRITTEN CONTRACTS

THE STATUTE OF FRAUDS.

In the last lecture, I compressed the observations I had to make on the general nature of Contracts under Seal. I now arrive at the class denominated Simple Contracts, which comprises all of a degree inferior to deeds, whether they be verbal or written. For though,

as I shall presently explain to you, there is in practice, a very wide distinction between written and verbal contracts, yet, in theory, the law of England acknowledges no difference between them at all, but denominates them all by the same term, Simple Contracts. And, indeed, they are so far alike that they all, whether verbal or written, are subject to those marks of inferiority

to contracts by deed which you heard described in the last lecture.

Thus, they do not create an estoppel: they are capable of being put an end to without the solemnity of a deed. They form no ground of action against an heir or devisee, even though he be expressly named in them, and they require a consideration to support and give them validity, though as I shall have occasion to explain in a future lecture, there is one case, even [*25] among Simple Contracts, in which the consideration need not be shown, but is presumed to exist unless its existence can be disproved. In these respects, all simple contracts are like one another. But there are two great practical differences between written and verbal contracts, which it is necessary to explain at some length to you.

The first concerns the mode in which they are to be proved. And it results from an inflexible rule of the law of evidence, that when a contract is reduced into writing it shall be proved by the writing, and by that only; and that no contemporaneous verbal expressions shall be engrafted upon it for the purpose of altering, adding to, or taking away from its import. You will find this principle laid down and enlarged upon in all the treatises on Evidence; see, for instance, Phillipps, part ii. cap. 5,' where you will find the application of this rule very largely discussed. Indeed, there is hardly any one branch of the law which has given rise to so much subtle and anxious discussion and inquiry as this single rule of the law of Evidence. The present Vice Chancellor, Sir James Wigram, has, in one of the ablest treatises existing in our law libraries, discussed its application to the single head of Devises.

' And the notes of Messrs. Cowen and Hill to the American edi

In applying this rule, therefore, you must take care not to be misled as to its meaning, for, as I have just said, its consideration involves very subtle [26] and nice distinctions. It would be impossible to do complete justice to these in the course of a lecture: still, however, I think that I can point out their nature, so far as to give you a notion of the sort of questions which are likely to arise, sufficient to prevent you from being taken by surprise by such questions, should they occur to you in practice.

Now, the rule itself, as I have said, is, that no parol, that is verbal evidence of what took place at the time of making a written contract (a) is admissible for the purpose of contradicting or altering it; for instance, if A. contract in writing with B. to deliver him 100 quarters of wheat within three months, at so much per quarter, no evidence would be admissible to show that the wheat was agreed, at the time, to be delivered only in case of the arrival of a ship which the vendor expected from Odessa with wheat on board; [*27] for that would be, by verbal evidence, to turn

an absolute written contract into a conditional one. So, if a promissory note (which, not being under seal, is, you must be aware, a simple contract) were made payable on one day, verbal evidence could not be ad

(a) These rules of course apply exclusively to written and not parol contracts. An illustration of this occurred in the case of an auctioneer, who, at the time of a sale, verbally declared a variation from the printed catalogue; namely, that goods stated therein to be silver were only plated, and so sold them; the actual contract being a parol one, evidence of the parol statement was held admissible to explain it (Eden v. Blake, 13 M. & W. 614); but if the auctioneer an agreement which referred to or formed part of the

had signed unaltered catalogue, then his parol declaration of the alteration could not be given in evidence, as it would vary a written contract. Shelton v. Livius, 2 Cr. & J. 411.

mitted to show that it was meant to be payable upon another. See Free v. Hawkins, 8 Taunt. 92, 4 E. C. L. R.; and see examples of the application of this principle in Hoare v. Graham, 3 Camp. 57; Hogg v. Smith, 1 Taunt. 347.1

A vast number of authorities upon this much-discussed rule of evidence will be found in the digests and elementary treatises, among which may be particularly noticed the notes of Messrs. Cowen and Hill, to the American edition of Phillipps on Evidence, and the fifteenth chapter of Professor Greenleaf's treatise on that subject. A few only of the instances of the application or non-application of the rule can be noticed here. It has been enforced in the exclusion of evidence to show that a signature in one's own name was intended to be merely as agent, Stackpole v. Arnold, 11 Mass. 27; Hancock v. Fairfield, 30 Maine, 299; that a written agreement to deliver wheat to A. was modified by a parol direction to deliver it to B., Wolfe v. Myers, 3 Sandford's S. C. 7; Babcock v. May, 4 Hammond, 334; that a written agreement for the purchase of land, whereby the purchaser was not to cut timber, was varied by a parol license to cut it, Pierepont v. Barnard, 5 Barbour's S. C. R., 364; that a check purporting to be for so much money was designed to be payable in the notes of a certain bank, Pack v. Thomas, 13 Smedes and Marsh. 11; or on a contingency, Mosely v. Hanford, 10 Barn. and Cress. 729; Cunning, ham v. Wardwell, 3 Fairfield, 466; Erwin v. Sanders, 1 Cowen, 249, that a particular ship was verbally excepted from a policy of insurance. on the fleet to which she belonged, Weston v. Emes, 1 Taunton, 115, that goods to be stowed under deck were verbally allowed to be stowed on deck, Creery v. Holly, 14 Wendell, 26 (it would have been different had the evidence been to prove a custom of storage in that manner, Baxter v. Leland, 1 Blatchford, 526, see infra, note to page 30). The rule, however, does not exclude the testimony of experts to aid in the reading of the instrument, or to explain a local or technical meaning, Wigram on Wills, 48; Sheldon v. Benham, 4 Hill, 129; Smith v. Wilson, 3 Barn. & Adolph. 728, 23 E. C. L. R.; Clayton v. Gregson, 5 Ad. & El. 302, 31 E. C. L. R.; The King v. Washiter, 6 Id. 153, 33 E. C. L. R.; Piesch v. Dixon, 1 Mason, 11; unless, indeed, the words have a known legal meaning, Firth v. Barker, 2 Johns. 335. Nor does it exclude the admission of the cotemporaneous writings relating to the subject-matter, Bowenbank v. Monteiro, 4 Taunton, 846; Hunt v. Livermore, 5 Pick. 395;