It was still necessary that the secta should be tendered in every
action of debt for which no writing was produced. For this, as
well as for the other reasons which have been mentioned, the
sphere of such actions was not materially enlarged beyond those
cases which had formerly been established by the witness-oath.
As suretyship was no [265] longer one of these, they became
strictly limited to cases in which the debt arose from the
receipt of a quid pro quo. Moreover there was no other action of
contract which could be maintained without a writing. New species
of contracts were now enforced by an action of covenant, but
there a deed was always necessary. At the same time the secta had
shrunk to a form, although it was still argued that its function
was more important in contract than elsewhere. It could no longer
be examined before the court. /1/ It was a mere survival, and the
transaction witness had ceased to be an institution. Hence, the
necessity of tendering the witness oath did not fix the limit of
debt upon simple contract except by tradition, and it is not
surprising to find that the action was slightly extended by
analogy from its scope in Glanvill's time.
But debt remained substantially at the point which I have
indicated, and no new action available for simple contracts was
introduced for a century. In the mean time the inversion which I
have explained took place, and what was an accident of procedure
had become a doctrine of substantive law. The change was easy
when the debts which could be enforced without deed all sprung
from a benefit to the debtor.
The influence of the Roman law, no doubt, aided in bringing about
this result. It will be remembered that in the reign of Henry II.
most simple contracts and debts for which there was not the
evidence of deed or witness were left to be enforced by the
ecclesiastical courts, so far as their jurisdiction extended. /2/
Perhaps it was this circumstance [266] which led Glanvill and his
successors to apply the terminology of the civilians to
common-law debts. But whether he borrowed it from the
ecclesiastical courts, or went directly to the fountain-head,
certain it is that Glanvill makes use of the classification and
technical language of the Corpus Juris throughout his tenth book.
Public-domain text, read in full here on John Shaqi.
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