As suretyship was no longer one of these, they became strictly limited to cases in which the debt arose from the receipt of a quid pro quo.Moreover there was no other action of contract which could be maintained without a writing.New species of contracts were now enforced by an action of covenant, but there a deed was always necessary.At the same time the secta had shrunk to a form, although it was still argued that its function was more important in contract than elsewhere.It could no longer be examined before the court. It was a mere survival, and the transaction witness had ceased to be an institution.Hence, the necessity of tendering the witness oath did not fix the limit of debt upon simple contract except by tradition, and it is not surprising to find that the action was slightly extended by analogy from its scope in Glanvill's time.
But debt remained substantially at the point which I have indicated, and no new action available for simple contracts was introduced for a century.In the mean time the inversion which Ihave explained took place, and what was an accident of procedure had become a doctrine of substantive law.The change was easy when the debts which could be enforced without deed all sprung from a benefit to the debtor.
The influence of the Roman law, no doubt, aided in bringing about this result.It will be remembered that in the reign of Henry II.
most simple contracts and debts for which there was not the evidence of deed or witness were left to be enforced by the ecclesiastical courts, so far as their jurisdiction extended. Perhaps it was this circumstance which led Glanvill and his successors to apply the terminology of the civilians to common-law debts.But whether he borrowed it from the ecclesiastical courts, or went directly to the fountain- head, certain it is that Glanvill makes use of the classification and technical language of the Corpus Juris throughout his tenth book.
There were certain special contracts in the Roman system called real, which bound the contractor either to return a certain thing put into his hands by the contractee, as in a case of lease or loan, or to deliver other articles of the same kind, as when grain, oil, or money was lent.This class did not correspond, except in the most superficial way, with the common-law debts.
But Glanvill adopted the nomenclature, and later writers began to draw conclusions from it.The author of Fleta, a writer by no means always intelligent in following and adopting his predecessors' use of the Roman law, says that to raise a debt there must be not only a certain thing promised, but a certain thing promised in return. If Fleta had confined his statement to debts by simple contract, it might well have been suggested by the existing state of the law.But as he also required a writing and a seal, in addition to the matter given or promised in return, the doctrine laid down by him can hardly have prevailed at any time.It was probably nothing more than a slight vagary of reasoning based upon the Roman elements which he borrowed from Bracton.
It only remains to trace the gradual appearance of consideration in the decisions.A case of the reign of Edward III. seems to distinguish between a parol obligation founded on voluntary payments by the obligee and one founded on a payment at the obligor's request.It also speaks of the debt or "duty" in that case as arising by cause of payments.Somewhat similar language is used in the next reign. So, in the twelfth year of Henry IV., there is an approach to the thought: "If money is promised to a man for making a release, and he makes the release, he will have a good action of debt in the matter." In the next reign it was decided that, in such a case, the plaintiff could not recover without having executed the release, which is explained by the editor on the ground that ex nudo pacto non oritur actio.But the most important fact is, that from Edward I.to Henry VI.we find no case where a debt was recovered, unless a consideration had in fact been received.
Another fact to be noticed is, that since Edward III.debts arising from a transaction without writing are said to arise from contract, as distinguished from debts arising from an obligation.
Hence, when consideration was required as such, it was required in contracts not under seal, whether debts or not.Under Henry VI.quid pro quo became a necessity in all such contracts.
In the third year of that reign it was objected to au action upon an assumpsit for not building a mill, that it was not shown what the defendant was to have for doing it.In the thirty-sixth year of the same reign (A.D.1459), the doctrine appears full grown, and is assumed to be familiar. The case turned upon a question which was debated for centuries before it was settled, whether debt would lie for a sum of money promised by the defendant to the plaintiff if he would marry the defendant's daughter.But whereas formerly the debate had been whether the promise was not so far incident to the marriage that it belonged exclusively to the jurisdiction of the spiritual courts, it now touched the purely mundane doubt whether the defendant had had quid pro quo.
