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


As some of the leading and most efficacious provisions of the statute of frauds and perjuries, have for their object the exclu»ion 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 vivo* of properly 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. Of the effect In the case of Pillans..apd Rose t,. Van Mierop and Hopvalktetinf kins (a) 11 seemed to be. the opinion of the bench, that where the

contracts in contract was in'writing, the necessity for any valuable considerathe civil ltiw . .

and in our Uon for its 'support was superseded, and it was asked by Lord own. Mansfield, whether any case could be found wherein the' under

.ta'lyngholden to be a nudum pactum was in writing. The deci. . stan of the judges however, in that case, was grounded on their . •' .'• \ '• ' common opinion, that the promise in question was in fact sup'•: ported 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 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

. Vhaxim 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 cx Contractu in the law of Rome, seemed, in no * [ 3 J case, to ow^e 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, per\ ....

haps, 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 Uteris aut consensu, yet the obligatio titerarum 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 scriplura non nascitnr Migatio et actio, sed probatio tqntum desumitur quod aliud negotium ex quo Migatio et actio nascitur inter actoremet reum intercesterit." Hcincccius 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 obUgatio then takes place when a person by a writing, delivered by him to another, in virtue of their mutual consent, confesses that he has borrowed and received from him to whom he so delivers it, a certain sum which m fact perhaps he has never received, and hath suffered two years (formerly five years, but reduced to two by Justinian) toelapse 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 solemnity. Any written instrument, accompanied by the circumstances above mentioned, was possessed of this binding efficacy. But then K must be founded on mutual consent, nam tine conventione nulla ex contractu 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 writings 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 acknowledgement 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 prctumptive 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 uncontroulable efficacy. If a confession of a debt arisiag 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 simple denial or the exceptio nan numerate pecunite, 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—qute exceptioprteter 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 (he 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 twp 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 obligatia literarum.

The other obligations qut e re nut 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 stpe adhibitur, ideo Jit, ut facitius probari possit, quod actum «f, non quod ad substantiam contractus obligationisve constitutioncm scriptura periineat. To have a clear and accurate com-, prehension, 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, sq that, with respect to them, the execptio non numerate pecuniae can not at any period be receivi ed, unless seconded by the most evident and cogent proofs.

Acquittances and discharges in writingl 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 majores, 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 tha 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- entofeach other, and that what is aimed at in the one system by stated words and forms df 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,(A) and which were alluded 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,. * [ 1.] 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 dis

And indeed, if the old books furnish no instances wherein a writ- tinctl°"'?

our early law

(A) P. 308--9.

parties, unless it was originally part of the agreement, that the contract should be promulged in writing. "Kiti inter contraher.tet comenerit ut emptio « venditio in tcripto celebretur." Then indeed it became necessary, that the contract should not be held perfect unless complete in every part. But the essence and.constitutiun of this contract was not changed; it still remained contraetut coniensnalit, though the consent, according to the stipulation of the parties, was required to be manifest, ed by a written memorial. ,

XL2) "The reason is, says the book above cited, because it is by •uorth which pass from men lightly and inconsiderately, but when the agreement is by deed, there is more time for deliberation. Thus when a nun passes a thing by deed, first there is the determination of the

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