The whole practice of our English Courts of Common Law (a), if we except their criminal jurisdiction 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 conceivable 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 resolves 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 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 tilings, and does not result from any arbitrary principle of arrangement.
(a) The Superior Courts of Common Law are now merged in the Sapreme Court. See 36 & 37 Vict. c. 66 (Supreme Court of Judicature Act, 1873), s. 3.
Now, therefore, the whole subject-matter of the in quiries 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 contracts.1
With regard to contracts by matter of record, 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 (b); and such memorial is not a record until enrolled in the proper office (c). 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 (d). 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 (e).1 Thus an ordinary mode of compelling a witness to attend and prosecute or give evidence
1 A useful division of this third class is adopted by Mr. Leake (Digest of the Law of Contracts, pp. 21, 22, and Chap. I., Sec. 2). Following Austin, he distinguishes between simple contracts formed by agreement, and contracts implied in law. To the first class he assigns, however, not merely express agreements, but such contracts as are proved by circumstantial evidence manifesting the intention of agreement by the parties: Thorn v. City of London, L. R. 10 Ex. 123; while he uses the term "implied in law" to denote the class of simple contracts raised by law from facts and circumstances independent of agreement and in which an agreement or promise, if implied at all, is an implication of law only, and has no existence in fact. This class of contracts is discussed below, pages *197 et, seq., but their character would perhaps be more easily understood if the distinctive classification and treatment of Mr. Leake had been adopted.
(b) Co. Litt. 260 a.
(c) Q. v. Hughes and others, 36 L. J. Privy Coun. 23; Com. Pig. Record.
(d) 13 Ed. I., stat. 3, c. 1 (The Statute of Merchants); 27 Ed. III., c. 9; 23 Hen. VIII., c. 6; 8 Geo. I., c. 25. See also 2 Bl. Comm., p. 160, ed. by Coleridge.
(e) It seems that the recognizance of a receiver under the Court makes moneys due from him and unaccounted for, a debt of record as long as the recognizance exists. Seagram v. Tuck, 18 Ch. Div. 296; 50 L. J. (Ch.) 572.
1 A statute provision requiring a deed or contract to be recorded for safe keeping, and notice to purchasers, does not thereby make it a record, in the technical sense of that term. And it has been so held even in cases in which the legislature have directed the process upon such deed or contract to be by scire facias, a writ which at common law lies on a record only. Thus, in Pennsylvania, it has been decided that nul tiel record is no plea to a scire facias on a mortgage: Frear v. Drinker, 8 Pa. St. 520; see also that the registry of a mechanic's lien is no record, and to a scire facias upon it, the plea of nul tiel record is a nullity, Davis v. Church, 1 W. & S. 240. A recognizance is a debt of record, entered into before some court, judge, or magistrate, having authority to take the same: Com. v. Emery, 2 Binn. 431; Pace v. Mississippi, 25 Miss. 54. If the recognizance does not show that the court or judge had jurisdiction of the subject-matter, it is void: Bridge ». Ford, 4 Mass. 641, 7 Mass. 209; Com. v. Bolton, 1 S. & R. 328. It need not be under the seal of the party: State v. Root, 2 Rep Const. Ct. 123; Hall v. State, 9 Ala. 827 ; nor signed. A certificate that it was acknowledged on the day of its date is sufficient: Madison v. Com., 2 A. K. Marsh. 131; Com. v. Mason, 3 lb. 456. It cannot be aided by parol averments. If made returnable at a time when no term of court is holden, and there is nothing in the record from which the court can infer that such time was intended to describe the time of the next session of the court, the recognizance is void: Treasurer v. Merrill, 14 Vt. 64; The State v. Crippen, 1 Ohio St. 399. See Com. v. Bolton, 1 S. & R. 328. A paper purporting to be a recognizance, but taken by one not that may be done, if it be thought proper, by writ of scire facias (h),- a writ which lies on a record only, and cannot be made use of for the purpose of enforcing any other description of contract.1