A

TREATISE

ON

CONTRACTS.

CHAPTER I.

SECTION I-Of the Different Kinds of Contracts, and of the Nature and Common Law Requisites in general

of a Contract not under Seal.

SECTION II. Of the Form and Construction of a Contract not under Seal.

SECTION III.-Of Stamping Agreements.

SECTION I.

Of the Different Kinds of Contracts.

THE term Obligation is used by the Roman jurists, and by Pothier, in the preliminary article to his Treatise on Obligations, as denoting in its proper and confined sense every legal tie which imposes a necessity of doing or abstaining from doing any act; and as distinguished from imperfect obligations, such as charity and gratitude, which impose a general duty, but do not confer a particular right, and from natural obligations, which have a definite object, and are binding in conscience, but afford no legal remedy. English lawyers generally use the word obligation, in reference to agreements, in a more strict and technical sense,— namely, as importing only a particular species of Contracts, that is, Bonds (a); and they adopt the term "Contract" when they wish to convey a more extensive idea of a legal responsibility

(a) Co. Lit. 172, a. See Bro. Abr., Roll Abr., & Bac. Abr., tit. Obligation.

In Com. Dig., Bonds are treated of under the head Fait.

B

resulting from the voluntary engagement of an individual to another, and as distinguished from a liability originating in a tort or wrong unconnected with agreement. The term Contract, comprises, in its full and more liberal signification, every description of agreement, obligation, or legal tie, whereby one party binds himself, or becomes bound, expressly or impliedly, to another to pay a sum of money, or perform or omit to do a certain act; but, in its more familiar sense, it is most frequently applied to agreements not under seal (b). The term Agreement is rarely used in relation to specialties; for, if considered in its strict and more critical meaning, it clearly imports a reciprocity of obligation (c), and in that point of view would not include specialties, which require no consideration or mutuality of stipulation. The word promise is used to denote the engagement of a person, without regard to the consideration for it, or corresponding duty of the other party (d).

It is not, however, very material to consider what particular meaning is generally attached to these various terms. The essential distinctions between the different kinds of contracts constitute a much more important subject of inquiry. These distinctions are clearly designated, and assign to each class of contracts, attributes and consequences of the most marked character. They demand a cursory notice before we discuss in detail the only subject matter of this work, viz. Contracts not under Seal.

Contracts, or obligations ex contractu, are of three descriptions, and may thus be classed in their relative order or degree of superority:-1, Of Record; 2, Specialties; 3, Simple Contracts.

1. CONTRACTS OF RECORD.-Contracts or obligations of record, are judgments, recognizances, or statutes staple; and these are of superior force, because they have been promulgated by, or are founded upon, the authority, and have received the sanction, of a Court of Record. These obligations bind the land (e); their exist

(b) And perhaps this is its more correct meaning. See 3 Chit. Com. L. 2; per Perian, J., in Sidenham & Worlington's Case, 2 Leon. 225; Johns. Dic. tit. Contracts.

(e) Com. Dig. Agreement, (A1) cites Plowd. 5 a, 6 a. See per Lord Ellenborough, in Wain v. Warlters, 5 East, 16; by the Court, in Saunders v. Wakefield, 4 B. & Ald. 595; and Lawrence, J., in Egerton v. Matthews,

ence is in general triable only by an inspection of the record itself, not as a matter of fact (ƒ); and no consideration is necessary to render them binding, nor can they be impeached by the parties themselves, even for a defect apparent on the face of them, except by writ of error (g). When, however, they have been obtained by any irregularity in practice, the court in which the action is pending has, of course, the power to set them aside; but they cannot, whilst in force, be impugned by the parties by pleading. In general, the record precludes all inquiry into any illegality of consideration or fraud in the transaction which formed its foundation; except that third persons, affected by a fraudulent judgment, may impeach it in pleading, or treat it as void (h).

2. CONTRACTS UNDER SEAL.-Contracts or obligations under seal, or specialties, (as deeds, bonds, &c.,) are instruments not merely in writing, but sealed and delivered over as deeds, by the party bound, to or for the benefit of the person to whom the liability is incurred: such sealing and delivery being a particular form and ceremony, which alter the nature and operation of the agreement. Neither a date (i), nor at common law even the signature of the party (k), is essential to the validity of an instrument as a deed: but neither the sealing nor delivery can be dispensed with (1). There may, however, be a sufficient delivery by words only and where a party to an instrument sealed it, and declared in the presence of a witness that he delivered it as his deed, and yet he kept it in his own possession, but nothing further transpired to qualify the declaration, or to shew that the party did not intend it to operate immediately, it was held that the delivery was sufficient to create a deed; and it was also decided that a delivery to a third person, for the use of the covenantee, is sufficient, if the

(f) See 1 Chit. Pl. 521; 3 id. 994, 5th ed. The existence of an Irish judgment is, however, triable in this country by a jury; for it can only be proved here by an examined copy upon oath, the veracity of which is a question for the jury. Collins v. Lord Mathew, 5 East, 473. According to Harris v. Saunders, 4 B. & C. 411, an Irish judgment is not to be treated in this country as a record.

(g) See Moses v. Macferlan, 2 Burr. 1005; per Lawrence, J., in Hayward v. Ribbans, 4 East, 311; 3 Chit. Com. L. 10. As to the jurisdiction of the courts over judgments on fraudulent

warrants of attorney, see Tidd, 9th ed. 547; Harrod v. Benton, 8 B. & C. 217; Martin v. Martin, 3 B. & Ad. 934.

(h) 13 Eliz. c. 5; 27 Eliz. C. 4 ; Moore v. Bowmaker, 7 Taunt. 97; 2 Marsh. 392, S. C.

(i) Bac. Ab. Obligation, (C); Com. Dig. Fait, (B 3).

(k) Bac. Ab. Obligation, (C); 2 Bla. Com. 304; 17 Ves. 479; Aliter, it seems in those cases in which signature is required by the Statute of Frauds in respect of the subject matter of the

contract.

(1) See the different Abridgments, and Com. Dig. Fait; 2 Bla. Č. 340.