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books is al- ten promise has been held to be a nudum pactum, it is perhaps in
ways be- part ascribabte to the rarity of the talent of writing in early times, tween con- , ... „ , ... ...
tracts by deed nUt more to the silent allowance of umversal opimon, which oc
and byparol,- casioned the omission of any mention, in the decision or relation and no dif- , , . ... j
ference is of a case, whether the promise was in writing or not, where it
made be- nacj neJther the solemnity of a seal, or the support of a considertween verbal . and written ation to establish it.
unless^caf' The question, therefore, put by the Bench in the abovemert. ing and de- tioned case seems a little extraordinary, when we advert to the vene^ Super" great experience and knowledge of the Judge from whom it fell.
It is in the judicial practice of every day to inquire into the consideration of a promissory note, where the question is simply between the original or immediate parties; and I apprehend it to be well understood, that the statute of frauds has made no manner of alteration in this respect, but that the writing and signing required by that statute to evidence particular contracts, has left standing the Same necessity for a consideration to support and uphold them as existed before the statute. A case occurs in * [ 8 ] *the notes to the 7th volume of the Term Reports^c) which forcibly illustrates and confirms what has above been laid down.— The opinion of the Judges, as delivered to the House of Lords by Lord C. B. Skinner, is so pointed, explanatory, and concise, that, on this occasion, the writer has judged it most for the interests of his readers, to present them with a transcript of the 'judgment delivered.
« It is undoubtedly true," said the Chief Baron, "that every man is by the law of nature bound to fulfil his engagements. It is equally true, that the law of this country supplies no means, nor affords any remedy, to compel the performance of an agreement made without sufficient consideration; such agreement is nudum pactum ex quo nan oritur actio; and whatsoever may be the sense of this maxim in the civil law, it is in the last mention
(c) P. 350. Rann and another, executors of Mary Hughes e. Isabella Hughes, administratrix of John Hughes, in error. Dom. Proc.
mind to do it, and upon that he causes it to be written, which is one part (note the expression) of the deliberation, and afterwards he puts his teal to it, which is another part of the deliberation, and lastly, he deliven the writing as his deed, which is the consummation of his resolution." And see Countess of Rutland's case, 5 Rep. 26 a.
ed sense only that it is to be understood in our law. The declaration states, that the defendant being indebted as administratrix, promised to pay when requested, and the judgment is against the defendant generally. The being indebted is of itself a sufficient consideration to ground a promise, but the promise must be co-extensive whh the consideration, unless some particular consideration of fact can be found here to warrant the extension of it against the defendant in her own capacity. If a person, indebted in one right, in consideration of forbearance for a particular time, promised to pay in another right, this convenience will be a sufficient consideration to warrant an action against him or her in the latter right. But here no sufficient consideration occurs to support this demand against her in her personal capacity; for she derives no advantage or convenience from the promise here made. For if I promise generally to pay upon request what I was liable to pay upon request *in another right, I derive no ad- * [ 9 ] vantage or convenience from this promise, and therefore, there is not sufficient consideration for it. But it is said, that if this > promise is in writing, that takes away the necessity of a consideration, and obviates the objection of nudum pactum, for that cannot be where the promise is put into writing; and that after verdict, if it were necessary to support the promise that it should be in writing, it will be presumed that it was in writing; and this last observation is certainly true; but that there cannot be nudum pactum in writing, whatever may be the rule of the civil law, there is certainly none such in the law of England.
All contracts are by the laws of England distinguished into agreements by speciality, and agreements by parol; nor is there any such third class as some of the counsel have endeavoured to maintain, as contracts in writing. If they be merely written and jiot specialities, they are parol, and a consideration must be proved.
It is said, that the statute of frauds has taken away the necessity of any consideration in this case; but the statute of frauds was made for the relief of personal representatives and others, and did not intend to charge them further than by common law they were chargeable. The words of the statute are merely negative, and executors and administrators are not made liable out of their own estates, unless the agreement upon which the action was brought, or some memorandum thereof, was in writing andsign
ed by the party. But this does not prove that the agreement was not still liable to be tried and judged of as. all other agreements, merely in writing, are by the common law, and does not prove the converse of the proposition, that "when in writing, the party 'l must be at all events liable." Rule of the **ut t^oUSn tne ceremonies of writing and signing have in a common law multitude of cases been made necessary by the statute of frauds; to tne^inad* m^ thelaw' smcetne passing of that act, has 'entertained a greatmissibilityot er jealousy of any attempts to add to or alter the effect of a writ. Sence*to ten ulstrument by parol testimony, yet the common law, in laying alter the ef- so much stress upon the consideration of contracts, has pot overmenuin wri- l°°lced tne ProPriety and importance of guarding the chastity of ting.. written instruments. And it was always held, before the act of
Charles the Second superadded its positive restraint, that a writing, whether under seal or not, was not to be added to, controuled, or contradicted by unwritten words.(ct) Thus it was observed by Lord Dyer, that" men's deeds and wills, by which they settle their estates, are the laws which private men are allowed to make, and they are not to be altered even by the King in his court of *, law or conscience. We must take it as we find it." And it was
said since the statute by another great man^A) that" it is not only contrary to the statute but to common law, to add any thing to a written agreement by parol evidence."
Of the gene- The statute of the 29 Car. II. has enhanced the duty of caution 'ral criterion .... ... ,,
by which the ln admitting verbal testimony to add to or alter written instruments,
question in the cases fallinsr within its provisions :(3) And it should whether pa- .. ,
rol evidence seem- that, it at the common law, where writing was not neces
is to be ad- sarv to tne validity or proof of the contract, courts were so caumitted or . . .' .
not, is.inthe tious of permitting parol evidence to vary or controul its import, majority of
bleof being ^ See Brett v' pl°wd. Comm. 345. 3d point, where the ob.
decided. jection to the verbal evidence was grounded on the words of the stat.
of Wills, 32 H. 8. c. 1. & 34 H. 8. c. 5. * (A) By L. Hardwicke, 2 Atk. 384. 3d edition. See also 2 Blackst.
1249. 1 Vez. jun. 241. and Lord Cheyney's case, 5 Rep. 68.
(3) The authorities for this observation are innumerable. I shall set down only the following as sufficient for my own and the reader's purpose. 2 Blackst. 1249. Preston v. Merceau, 2 P. Wms. 420. Nicholls v. Osborn, 3 P. Wms. 51. Chester v. Chester. Hare v. Shearwood. X Vez. jun. 241.
>...»».-..«* f . -«
a more abundant reason for the same caution arises out of the statute of frauds, which has rendered certain contracts remediless at *law without writing. But as if has long been too late to say that no such evidence shall be admitted, the judges have been called upon for the exercise of their soundest discretion in establishing practical criteria for its rejection or admission. The rule of distinction commonly resorted to in these cases, turns upon the tendency of such evidence to contradict, vary, or add to, or only to explain and elucidate an instrument—a rule very good and intelligible in theory, and if not universally easy of application, yet fully adequate to the resolution of a great majority of the cases. Its application is well illustrated in the case of the King against the inhabitants of Laindon.(rf)
The question in which case was, Whether the written agreement should be considered as a contract of hiring and service, or a contract of apprenticeship, such agreement not having the word apprentice in it, but beginning with the following words : " I, J. M. do agree with J. C. to serve me three years to learn the business of a carpenter." The court permitted parol evidence to show, that the pauper paid a premium to be taught the trade, and was not to be employed in any other work than that of a carpenter. For this parol evidence was not offered to contradict the written agreement, but to ascertain an independent fact, the instrument being equivocal without that explanation.(4)
(>/) 8 T. R. 379.
(4) This appears certainly to be the safest and solidest criterion upon which to determine the question of the admissibility of parol evidence in the case of wills. Other distinctions have been sometimes adverted to, which tend rather to set the question afloat, being established on no principle of consistency or analogy. Thus, in the case of Gainsborough v. Gainsborough,* it was said by one of the Lords Commissioners, that much rather may parol proof be admitted as to personal estate than land; and in Beaumont v. Fell,-}' Sir Joseph Jckyll thus expressed himself: "It is true, if this had been a grant, nay, if it had been a devise of land, it had been void, but this being the bequest of a personal thing, it makes it a different case." It seems very difficult to account for this doctrine of a distinction between the subjects of a devise in this particular but by referring it (if we were not restrained by our reverence
*2Vern. 252. 12 P. Wxni. 141.
But the case of Hampshire v. Pierce^e) determined at the Rolls by Sir John Strange, sets' this distinction, perhaps, *in a clearer light than any others to be found in the books; the sub
(e) 2 Vez. 216.
of the name and authority of Sir Joseph Jekyll) to those irregular and momentary flashes, which in tire luminous path of a great intellect, will sometimes perplex it with a multiplicity of lights and delusive appearances. It was in compliment (as appears from the case) to the statute of frauds, that this distinction was adverted to in favour of land; the statute having shown a more peculiar regard to that species of property. But when we consider that the rule is much older than the statute, and that that act has required a will of personal property to be in writing, (except under particular circumstances) the reason of this distinction falls to the ground. A similar distinction was alluded to in the case of Whitton v. Russel and in Hampshire v. Pierce,f cited above» wherein Sir John Strange, in adverting to a case on a will where the mistake of the name of the devisee had been set right by parol evidence, observed, that he was not certain whether it was real estate or not; to which it was answered from the bar, that the rule was the same whether the estate was real or personal: And I humbly conceive, that the answer was right according to the best legal opinions of the present day.
If the principles of a writer sometimes oppose him to a great authority, he must nevertheless go whithersoever they lead him, or he will be opposed to hinuelf. Thus, I am forced also to question the propriety of a distinction taken in Preston v. Merceau.t by a most respectable judge. In that case parol evidence was offered to prove an additional rent payable beyond that which was reserved in the written agreement for the lease; and the words of Blackst. J. were upon that occasion as follows: "We can neither alter the rent nor the term, the two things expressed in this agreement. With respect to collateral matters it may be otherwise. It might be shown who is to put the house in repair, or the like, concerning which nothing is said. But we cannot, by parol evidence, shorten the term or alter the rent." To say what are the main objects and what are collateral matters in a deed, seems to be judging for the parties in a circumstance fit only for their own appreciation, and if the endeavour of the law, both in the rule and' the statute, was to exclude fraud and perjuries, why the protection of these barriers is to be withdrawn from the incidental and accessory parts of an agreement, which may nevertheless have been a vital constituent of the original motive and consideration, because they are not