Where debt lies on Deeds. deed, the performance may be enforced by an action 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 c. 27., is held to have superseded some inconsistent provisions contained in that statute.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.; Paget v. Foley, 2 Bingh. N. C. 679. (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 recognisances, Gilb. Debt, 395. Having thus touched on the general division of Contracts into those of Record, by Deed, and by Simple Contract, and explained the nature of a deed, and the formalities attending its execution, -having pointed out the distinction between the absolute delivery 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. 23 24 Simple Contracts. LECTURE II. 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. tracts by deed which you heard described in the Their inferiority to Con 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 the 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 ex plain in a future lecture, there is one case, even among Simple Contracts, in which the consideration need not be shewn, 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, and written which it is necessary to explain at some length to you. Difference be tween verbal Contracts. ten Contracts. The first concerns the mode in which they are Proof of writto 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 enquiry as this single rule of the law of Evidence. The present Vice Chancellor, Sir JAMES WIGRAM, has, Sir James in one of the ablest treatises existing in our law Treatise. libraries, discussed its application to the single head of Devises. In applying this rule, therefore, you must take care not to be misled as to its meaning, for, as I Wigram's Examples of rule that written con tracts cannot be varied by parol evidence at the time have just said, its consideration involves very subtle 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 of what passed admissible for the purpose of contradicting or they were made, 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 shew 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 (a) These rules of course apply exclusively to written and not to 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 had signed an agreement which referred to or formed part of the 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. |