ON THE PROVISIONS OF THE STATUTE, WHEREBY WRITING
AND SIGNING ARE MADE NECESSARY TO THE VALIDITY
OF INSTRUMENTS.

CHAPTER I.

General Introductory Observations on the Admissibility of Parol and Extrinsic Evidence.

PART I.

As some of the leading and most efficacious provisions of the statute of frauds and perjuries, have for their object the exclusion of parol evidence on certain subjects, and as it is intended to treat of these branches of the statute in a consecutive order, for the sake of the connection and analogy between them, and to make them the subject of the first of the two books into which the whole work is divided, a preliminary discussion, such as the title of this chapter announces, seemed very proper to prepare the reader for understanding the effect of this part of the statute upon the science and practice of the law.

Before the statute of the 29 Car. II. was enacted, few contracts or dispositions relating to real or personal property, were required by our laws to be in writing. The alienation inter vivos of property lying in grant, as rights and future interests, and that species of real property *to which the name of incorporeal hereditament applies, was always authenticated by the legal solemnity of a deed. The 32 H. 8. c. 1. which gave to the owners of lands a partial power of disposing of their estates by will, directed such will to be declared in writing; but, until the great statute of which we are treating was passed, no contracts needed, except where some customary law interfered, a written testimony of their existence, and the transfer even of estates in land was complete by a symbolical delivery in the presence of the neighbours, without any written instrument of authentication, however usual and useful the precaution might be of recording the transaction, by what was termed the charter of feoffment.

A

*[ 2 ]

Of the effect of writing in validating contracts in the civil law and in our

own.

[3]

In the case of Pillans and Rose v. Van Mierop and Hopkins (a) it seemed to be the opinion of the bench, that where the contract was in writing, the necessity for any valuable consideration for its support was superseded, and it was asked by Lord Mansfield, whether any case could be found wherein the undertaking liolden to be a nudum pactum was in writing. The decision of the judges however, in that case, was grounded on their common opinion, that the promise in question was in fact supported by a valid consideration. But Mr. J. Wilmot went at large into some collateral reflexions upon the case, and declared an opinion (after stating that opinion to be the result of considerable inquiry), that the notion of nudum pactum came into our law from the civil law, for which he cited Vinnius in his third book, tit. de Oblig. 4to edit. 596. But with due respect to so high an opinion, we may be permitted to doubt whether, though the maxim of ex nudo pacto non oritur actio, may in phrase be an echo to the civil law, the nudum pactum was understood in that law as it is in our own.

The obligatio ex contractu in the law of Rome, seemed, in no case, to owe its validity to the consideration. The stipulatory forms indeed, necessary by that law to render the promise binding where the contract was in verbis, seem to have been invented to answer the same purpose, as the consideration in our contracts

to shew the engagement to have been entered into with deliberation and reflexion. This coincidence in the object has, perhaps, led to the inference of a similarity in the modes whereby it is endeavoured to be effectuated. How far and in what cases writing gave to an agreement the quality of an actionable contract in the civil law, is an inquiry not materially connected with the present subject; it may be observed, however, that although obligatory contracts are usually distributed by the Roman jurists under four denominations, viz. such as are contracted aut re aut verbis aut literis aut consensu, yet the obligatio literarum seems to have been only binding by virtue of the confirmation afforded by the writing as testimony of a valuable contract, and not as operating by its intrinsic force or instrumental solemnity. (1) So that

(a) 3 Burr. 1663.

(1) As far as I have found leisure to consult the commentators of the civil law, I have not been able to discover any clear ground for the ob servations on this head, made by Mr. J. Wilmot in the case cited in the

in deriving *the efficacy of a written instrument in our law from the example of the imperial institutions, we assume a fact in *respect to the civil law itself, not agreeable to the expositions of its

text. I find no authority for saying, that in any stage or period of the
Roman jurisprudence, a promise or contract, by being committed to
writing, derived its obligatory force, exclusively and purely, from that
circumstance. "Ex scriptura non nascitur obligatio et actio, sed proba-
tio tantum desumitur quod aliud negotium ex quo obligatio et actio nascitur
inter actorem et reum intercesserit!" Heineccius Elem. Jur. lib. 3. tit. 22.
de literarum obligationibus. And from the Commentaries of Vinnius,
lib. 3. tit. 22. we may collect by a careful perusal--that the literarum ob-
ligatio then takes place when a person by a writing, delivered by him
to another, in virtue of their mutual consent, confesses that he has bor-
rowed and received from him to whom he so delivers it, a certain sum
which in fact perhaps he has never received, and hath suffered two years
(formerly five years, but reduced to two by Justinian) to elapse without
retracting his confession. With these circumstances of corroboration,
a writing may become binding per se; nor is it necessary, that, to have
this force, it should be authenticated by any public act or notarial so.
lemnity. Any written instrument, accompanied by the circumstances
above mentioned, was possessed of this binding efficacy. But then it
must be founded on mutual consent, nam sine conventione nulla ex con-
tractu obligatio; and it must contain an express confession of a debt,
and that not of any debt, but of a debt arising from a loan, and the ground
of the debt should be set forth. And by the same author it appears,
that the true distinction, as to their force and operation, between wri-
tings containing this acknowledgement of a debt arising upon a simple
borrowing, and those which acknowledge debts arising out of other
transactions is this-that the instruments comprising an acknowledge-
ment of the latter species of debt, were always prima facie evidence,
so as to throw the inception of proof on the adversary, and indeed, to
render that proof more onerous by requiring an evidence of the same
kind to oppose the prima facie presumption it created; in which case
the written document was never conclusively binding, but stopped at a
high degree of presumptive evidence; whereas, where the ground of
the debt confessed by the instrument was money borrowed, the writing
did not simply operate as evidence, but if valid at all, was of uncontroul-
able efficacy. If a confession of a debt arising upon a loan, included in
the written instrument, remained for two years unretracted, it became
absolutely binding and conclusive, but within this space of two years,
the inference of law was easily turned against it. If, therefore, in such
a case the debtor, within the two years, defended the action by a sim-
ple denial or the exceptio non numeratæ pecuniæ, the burthen of proof

best commentators. Writing is certainly a *very rational evidence to establish the existence of the contract it expresses, but whether the contract, when proved, affords a legal ground for

was cast upon the prosecutor-quæ exceptio præter naturam aliarum omnium [literarum] onus probandi transfert in creditorem.

The presumption under such last mentioned circumstances was in favour of the defendant who had given the security, and was founded, as the book explains it, upon the frequency in practice of giving a security before the money is actually received, for indigence draws after it dependence, and where men are asking a loan, they find it expedient to conciliate the lender by manifesting a confidence in his probity, and are apt, therefore, by way of inducement to him to part with his money, to tender him a security before hand. Which presumption, says the commentator, does not arise in other transactions whereby debts are created, the indigence of the party not being the usual cause of the debt. But after a lapse of two years, without retractation or denial, by exception, renunciation, or protestation, the situation of the parties, where the debt arose by borrowing, was wholly altered, and it became a matter no longer questionable, whether the money was or was not actually lent, but the writing became of itself binding in law, and an example of what, in the language of the Civilians, is properly implied by obligatio literarum.

The other obligations quæ re aut verbis aut consensu contrahuntur, stood in no need of the scriptura to give them effect: their constitution was perfect without it: the writing might conduce to the manifestation and proof of them, but made no part of their obligation. To this effect is the text of the Institutes de obligationibus ex consensu, “non scriptura opus est ut substantiam capiat obligatio," on which the commentator observes, "quod vero in his etiam scriptura sæpe adhibitur, ideo fit, ut facilius probari possit, quod actum est, non quod ad substantiam contractus obligationisve constitutionem scriptura pertineat. To have a clear and accurate comprehension, therefore, of this obligatio literarum, we must consider it as confined to the case of loans, which must be stated in the instrument as the cause or ground of the debt. In other cases of debt, the writing operates as presumptive evidence, as well before as after the expiration of the two years from the date of the writing, so that, with respect to them, the exceptio non numeratæ pecuniæ can not at any period be receiv, ed, unless seconded by the most evident and cogent proofs.

Acquittances and discharges in writing, are not instances of the obligatio literarum in the civil law. These are held by that law as prevalent proof of payment, but to become plenary and omni exceptione ma jores, they must be unimpeached for 30 days. So again, where the emptio et venditio or bargain and sale is committed to writing, the contract is considered as receiving its perfection from the consent of the

compelling the performance, is a question, as it seems, to, be determined in the civil as well as our own law, by a species of evidence, which, according to their respective rules of judging, is demonstrative of the serious intention of the party to become bound by such promise.

It appears from these considerations, that the analogy on this subject between the two systems of jurisprudence has been taken up with some precipitation, and that in prosecuting the parallel with a proper regard to the genius and progress of their respective rules, we should perceive, that although in both institutions the same object is in view, the fixed criteria are essentially independ ent of each other, and that what is aimed at in the one system by stated words and forms of phraseology, or perhaps in some casesby declaration in writing, can be effected only in the other by the existence and evidence of a sufficient consideration, or by the solem nity of a deed or record. The observations occurring on this subject in the Commentaries of Plowden,(6) and which were al luded to by the Bench in the above cited case of Pillans and Rose v. Van Mierop and Hopkins, though in expression they lay much stress upon the legal *validation of a contract by a written [7] instrument, are not applicable to the mere question, whether in our law the circumstance of a contract's being committed to writing, dispenses with the necessity of a consideration for its support; since all the instances produced to warrant the observations in that, book, are cases of writing sealed and delivered.(2) That the disAnd indeed, if the old books furnish no instances wherein a writ- tinction in our early law

(b) P. 308---9.

parties, unless it was originally part of the agreement, that the contract should be promulged in writing. "Nisi inter contrahentes convenerit ut emptio et venditio in scripto celebretur." Then indeed it became necessary, that the contract should not be held perfect unless complete in every part. But the essence and constitution of this contract was not changed; it still remained contractus consensualis, though the consent, according to the stipulation of the parties, was required to be manifested by a written memorial.

(2) "The reason is, says the book above cited, because it is by words which pass from men lightly and inconsiderately, but when the agreement is by deed, there is more time for deliberation. Thus when a man passes a thing by deed, first there is the determination of the