ん

THE

LAW OF CONTRACTS.

LECTURE I.

ON THE NATURE AND CLASSIFICATION OF CONTRACTS,

AND ON CONTRACTS BY DEED.

THE whole practice of our English Courts of Common Law
Common Law, if we except their criminal juris-

diction and their administration of the law of real

property, to which may be added those cases which

fall within the fiscal jurisdiction of the Court of
Exchequer, may be distributed into two classes,
Contracts and Torts. Of this you can easily satisfy
yourselves by putting to your own minds any con-
ceivable case of legal inquiry. If it do not involve
a question of criminal law, or of the title to land, or
of Exchequer jurisdiction, you will find that it re-
solves itself into a contract or a tort. Thus, suppose
it to be the non-performance of a covenant, the non-
payment of a bond, the dishonour of a bill of
exchange, the non-payment of rent, the default of a
surety,- these are all subjects of inquiry arising
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jurisdiction.

Three classes of contracts.

from contracts. So, again, if it involve an assault on the person, an injury to the reputation by libel or slander, a nuisance to the dwelling, a conversion of property, these are only so many descriptions of torts. And as the subjects of legal inquiry divide themselves, so do the forms in which the inquiry is carried on; for all actions, as you are aware, are of TORT or of CONTRACT, a division which, as you see, is rendered necessary by the very nature of things, and does not result from any arbitrary principle of arrangement.

Now, therefore, the whole subject-matter of the inquiries about which our Courts of Law are conversant (excepting the cases I have excepted) being distributable into these two heads, Contract and Tort, I am about to take the former of them, that of contract, and to state those principles of every day recurrence which govern the law of England relative to contracts, and which it is absolutely necessary that every lawyer should bear constantly in mind, and have (to use the ordinary expression) at his fingers' ends, if he will avoid falling into egregious mistakes in the course of his daily practice.

All contracts are divided by the Common Law of England into three classes :

1. CONTRACTS BY MATTER OF RECORD.

2. CONTRACTS UNDER SEAL.

3. CONTRACTS NOT UNDER SEAL, OR SIMPLE CON

TRACTS.

record.

With regard to contracts by matter of record, Contracts of they are so little used in the ordinary affairs of private individuals, that I may dismiss them in a very few words. A Record is a memorial or remembrance on rolls of parchment (a); and such memorial is not a record until enrolled in the proper office (b). At an early period of our law, statutes merchant and statutes staple, which are both contracts of record for the payment of debts, were commonly in use. Subsequently, recognizances in the nature of a statute staple were established (c). These contracts are, however, now almost unheard of. The only contract of record with which we now occasionally meet is a recognizance, and that oftener in matters in which the Crown is concerned than between subject and subject. Thus an ordinary mode of compelling a witness to attend and prosecute or give evidence in a criminal case is by recognizance, in which he binds himself to the Queen in a certain sum conditioned for the performance of the duty imposed on him; and in case of his making default, that sum accordingly becomes forfeited, and payable to Her Majesty. The commonest case of a recognizance between subject and subject was that of bail; which has, however, become much less frequent

(a) Co. Litt. 260 a.

(b) Q. v. Hughes and others, 36 L. J. Privy Coun. 23; Com. Dig. Record.

(c) 13 Ed. 1, stat. 3, c. 1; 27 Ed. 3, c. 9; 23 Hen. 8, c. 6; 8 Geo. 1, c. 25.

Incidents of contracts of record.

since the Act restraining the right to arrest on mesne process (d). It may be added that statutes and recognizances obtained or entered into in the name or upon account of Her Majesty, do not affect lands as to purchasers, unless registered under stat. 2 & 3 Vict. c. 11.

The peculiar incidents of contracts of record are, first, that like all records, they prove themselves; that is, their bare production, without any further proof, is sufficient evidence of their existence, should it be controverted.

Secondly, that, if it become necessary to enforce them, that may be done, if it be thought proper, by writ of scire facias,—a writ which lies on a record only, and cannot be made use of for the purpose of enforcing any other description of contract (e).

Thirdly, an obligation by record may be discharged by a release, an instrument which is always under seal (f).

However, as I said, the other two classes of contracts are those which are of most practical importance, and to them, therefore, my observations will be addressed. These, as I have said, are—

1. CONTRACTS BY DEED.

2. CONTRACTS WITHOUT DEED, OR SIMPLE CON

TRACTS.

(d) 1 & 2 Vict. c. 110.

(e) Now regulated by 15 & 16 Vict. c. 76, s. 32.

(f) Barker v. St. Quintin, 12 M. & W. 441; Shepp. Touch. 322.