THE LAW OF CONTRACTS,

&c.

PRELIMINARY OBSERVATIONS ON DEEDS AND SIMPLE

CONTRACTS.

THE law of England recognizes and enforces two great classes of contracts, whose legal incidents and peculiarities are widely different; that is to say, DEEDS or contracts by specialty, which are contracts in writing, signed, sealed, and delivered by the parties to them; and contracts by parol, or simple contracts, which are made either by word of mouth or are inferred from the silent language of men's conduct and actions, or are put into writing and signed by the parties to them, but are not sealed and delivered.

The execution of a deed or contract under seal is one of the most solemn and authentic acts in law that a man can perform. No cause, motive, or consideration, (except in the case of certain deeds framed to pass estates in land under the statute of uses, presently noticed (a),) beyond the mere will of the executing party, is necessary to give it validity, and no one can be permitted (except on the ground of fraud or deceit) to aver or to prove anything in contradiction to what he has solemnly and deliberately avowed by deed. "Where the contract is by deed, the cause or consideration is not inquirable, nor is it to be weighed, but the party ought only to answer to the deed, and if he confesses it to be his deed, he shall be bound." (b)

A simple contract is, on the other hand, of a much inferior nature to, and has much less force and efficacy than, a deed. It does not, like the lat ter, proprio vigore, constitute and create an immediate obligation, but

(a) Post. p. 14, 16.

(b) Plowd. arg. Sharington v. Strotton, Plowd.

309; Smith's leading cascs, vol. ii. p. 456.

B

presents merely a mode of evidence, and cannot be enforced unless it is founded upon some good or valuable consideration. (c)

An admission or acknowledgment of any matter of fact, authenticated only by the signature of the party making it, may be denied and controverted by extrinsic testimony; but if the written admission be sealed and delivered as a deed, the party is at once estopped from disputing it. Thus an acknowledgment of a debt, or of the receipt of money or goods, or the statement of the consideration for a simple contract, affirmed only by the signature of the party, is evidence only of the debt or of the act of payment, or of the existence of the alleged consideration, it may be contradicted by opposite evidence, and there is no legal objection to the party's showing, if he can, that the acknowledgment or statement is false; (d) but if such acknowledgment be sealed and delivered as a deed, he is at once (if no fraud or deceit has been practised to obtain the admission,) concluded by his own deed, and cannot be permitted at common law to dispute the debt or contradict the payment or statement. (e)

A gratuitous release of a debt made verbally or by writing, authenticated only with the signature of the party, has no intrinsic operation as a release of the debt; it is totally inoperative, unless something has been given or done as the consideration for it; (f) but if the release be made by deed, it at once destroys and annuls the pre-existing claim or obligation operating proprio vigore as a direct discharge, totally independent of extrinsic circumstances. (g)

In most countries, and under most systems of jurisprudence, certain forms and solemnities have been wisely established for the purpose of binding men finally and conclusively to the truth and good faith of their acts and representations, and for the due authentication and establishment of contracts.

By the Roman or civil law, all gratuitous promises and engagements, where no earnest was given to bind the bargain, or where the engagement was all on one side, nothing being contracted to be done or performed on the other, were required to be ratified or confirmed in a certain prescribed form, in the presence of a magistrate or public officer, in order that men might not be caught by rash expressions, and drawn unawares and without sufficient deliberation into serious engagements. (h) The gratuitous pro

(c) Post. ch. ii.

(d) Skaife v. Jackson, 3 B & C. 423; Lampon v. Cooke, 5 B. & Ald. 611; Graves v. Key, 3 B. & Ad. 318; Berkley v. Watling, 7 Ad. & E. 38; Farrar v. Hutchinson, 9 Ad. & E. 641; Cowper v. Garbett, 13 M. & W. 33.

(e) Pinnell's case, 5 Co. 117 a. 117 b; Lainson v. Tremere, 1 Ad. & E. 792; Hill v. Man

chester and Salford Company, 2 B. & Ad. 544; Harding v. Ambler, 3 M. & W. 279; Goodtitle v. Bailey, Cowp. 601, Co. Litt. 352; Carter v. James, 13 M. & W. 33; Baker v. Dewey, 1 B. & C. 707.

(f) Lodge v. Dicas, 3 B. & Ald. 611, 615. (g) Co. Litt. 212. b., post. chap. 3.

(h) Perezii, prælect. p. 71.

mise or undertaking not clothed with the prescribed formalities, (verbis præscriptis solemnibus vestita,) was called a nudum pactum, or naked engagement, and could not be enforced, for it was thought better, we are told, to let such contracts rest upon the mere integrity and good faith of the parties who contracted them, than to subject them to the compulsory authority of the law; (i) but whenever the contract or promise was properly authenticated under magisterial sanction, it became legally binding, and capable of sustaining an action, whatever might have been the original cause, motive, or inducement for the making of it. (k)

The highest and most authentic contract known to the civil law, was called a STIPULATION; it was entered into before the magistrate or public officer, through the medium of interrogatories and answers calculated to explain the nature and extent of the undertaking, to put the parties entering into it on their guard, and to show it to be their mature and deliberate act. (1) A solemn contract of this nature could not afterwards be impeached, except on the ground of fraud or deceit; and could not by the civil law be released or discharged, except by an equally solemn proceeding, conducted by question and answer before the magistrate or public functionary, called an ACCEPTILATION. (m)

The civil law did not consider the circumstance of the contract or undertaking being put into writing equivalent to the verba solemnia, or stipulation. The written promise, or acknowledgment or note, amounted only to evidence of the fact or transaction, and might be avoided and rendered nugatory by extrinsic testimony. Thus the obligatio literarum, or written acknowledgment of a debt, did not induce a complete nor even in some cases a presumptive obligation. It might be bad, because the circumstances giving rise to, or constituting the debt, or forming the consideration for the acknowledgment or undertaking, were not stated and set forth upon the face of the written document; (n) and these circumstances and the consideration when set forth, might in all cases be contested within a certain time. Thus in the case of a written acknowledgment of a loan,

(i) Vin. Comment. de Instit. lib. 3, tit. 14, p. 659, ed. 1755.

(k) Ib. lib. 3. de verborum obligationibus, tit. 16, p. 677. Cod. lib. 7, tit. 52, 6. ed. Gothofred.

() Nimirum leges Romanæ ex nudâ conventione neminem obligari voluerunt, ne qualecumque promissum, et sermo sæpe inconsultus, magis quam ex voluntate proficiscens necessitate juris promittentem illigaret, et litium quoque, ut opinor præcidendarum causâ ; sed excogitata est conventio certo modo et forma concipienda celebrandaque, quam deliberati animi certum signum esse voluerunt; et ex quâ certo jure actio compe

teret; quam conventionem STIPULATIONEM dixerunt. Vinnius ut sup. lib. 3, tit. 16, p. 677. STIPULATIONIS introducendæ ratio hæc una fuit, ut discerni posset, an promissio temere effusa, an vero consulto concepta esset. Perezii prælect. 2, p. 71.

(m) Vin. p. 677. Dig. lib. 45. tit. 1. Cod. lib. 8, tit. 38, 44. Dig. lib. 46, tit. 4. Instit. lib. 3, tit. 30. Pandect. lib. 50, tit. 17. art. 5, par Pothier, vol. 5, p. 254.

(n) Vinnius, tom. 2, lib. 3, tit. 22, p. 735,

736.

an exception de non numeratá pecuniâ, i. e. an exception of money not paid, might be brought within two years, which would put the lender upon proof of the fact of the loan; and after the expiration of two years, the fact might still be contested, but the whole burthen of the proof was then thrown upon the party striving to impeach the written acknowledgment, and show its falsehood. (o) If, however, the acknowledgment was made in the prescribed form before the public functionaries, it was at once conclusive, and no exception could afterwards be brought against it. (p) By the intervention of a stipulation, the written contract at once ceased, the lesser security being merged in the greater. (q)

The continental nations, acting by analogy to the civil law, recognise in general two classes of contracts of a superior and inferior nature, the one being public authentic acts, ratified and confirmed before witnesses, or in the presence of a magistrate or a notary public, or a registrar or judge; the others, private acts, which are entered into and arranged between the parties themselves, without witnesses, and without the ministry or authentication of any public officer. The publicly-authenticated contract carries with it full credit, ("fait par lui même plein foi,") but the private act may be questioned and contradicted, and requires some cause or consideration for its compulsory fulfilment. (r)

pre

The force and validity of contracts depend in our own law upon analogous rules and principles. A mere gratuitous promise cannot, as will sently be shown, be enforced, unless it is authenticated and established by writing under seal. "Such a promise or undertaking may be morally good, but it requires ascertainment, and our courts therefore will not enforce it; unless it is ascertained and established by the very highest evidence prescribed by the law, and that is by a solemn and formal contract, sealed and delivered in the presence of witnesses.

(o) Vinnius, p 738. Perez. prælect. lib. 4, tit. 30.

(p) Cod. lib. 14, tit. 30, § 14, ed. Gothofred, p. 238. Vinnius, p. 738.

(a) Ib.

(r) "L'obligation sans cause ne peut avoir aucune effet." Code Civile, Liv. 3, tit. 3, s. 4.

CHAPTER I.

ON DEEDS, THEIR REQUISITES AND ATTRIBUTES.

Nature of a Deed.-Formalities necessary to its creation.-Sealing and delivery.-Antiquity of the custom of authentication by seal.-What constitutes a sealing and delivery.—Delivery of a deed as an escrow.-Attestation by witnesses.-Deeds inter partes and deeds poll. Of the necessity of stamps on deeds.-Inrolment when necessary.-Registration. Of the effect of the alteration of a deed after its execution.-Deeds requiring a consideration in equity. - No consideration necessary to give effect to a deed at common law.

Nature of a DEED.-A deed is, by the law of England, analogous to the ancient stipulation of the civilians, and the publicly-authenticated contracts of continental jurists. It is a solemn act, by which the parties manifest their positive determination to enter into a binding and conclusive engagement, not afterwards to be impeached or questioned.

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Words," we are told, pass from man to man lightly and inconsiderately; but where the agreement is by deed, there is more time for deliberation for when a man passes a thing by deed, first there is the the determination of the mind to do it; and upon that he causes it to be written, which is one part of deliberation, and afterwards he puts his seal to it, which is another part of deliberation; and lastly, he delivers the writing as his deed, which is the consummation of his resolution; so that there is great deliberation used in the making of deeds, for which reason they are received as a lien final to the party, and are adjudged to bind the party, without examining upon what cause or consideration they were made. As if I, by deed, promise to give you 207.; here you shall have an action of debt upon this deed, and the consideration for my promise is not examinable, it is sufficient to say it was the will of the party who made the deed." (a) But the instrument must not, of course, be obtained by fraud or deceit, nor impugn any of the rules of law framed and

(a) Plowden arguendo Sharington v. Strotton. Plowd. 1, p. 308 a. 309; Morley v. Boothby, 3 Bing. 111, 112. 10 Moore, 404, s. c.; Fallowes v. Taylor, 7. T. R. 477. Mansfield, C. J.;

Shubrick v. Salmond, 3 Burr. 1639, 1640. Fonblanque on Equity, vol. 1. p. 344, n. a. 2 Finch, 108, 110.