Moreover, before consideration was ever heard of, debt was the
time-honored remedy on every obligation to pay money enforced by
law, except the liability to damages for a wrong. /6/ It has been
shown already that a surety could be sued in debt until the time
of Edward III. without a writing, yet a surety receives no
benefit from the dealing with his principal. For instance, if a
man sells corn to A, [270] and B says, "I will pay if A does
not," the sale does B no good so far as appears by the terms of
the bargain. For this reason, debt cannot now be maintained
against a surety in such a case.
It was not always so. It is not so to this day if there is an
obligation under seal. In that case, it does not matter how the
obligation arose, or whether there was any consideration for it
or not. But a writing was a more general way of establishing a
debt in Glanvill's time than witness, and it is absurd to
determine the scope of the action by considering only a single
class of debts enforced by it. Moreover, a writing for a long
time was only another, although more conclusive, mode of proof.
The foundation of the action was the same, however it was proved.
This was a duty or "duity" /1/ to the plaintiff, in other words,
that money was due him, no matter how, as any one may see by
reading the earlier Year Books. Hence it was, that debt lay
equally upon a judgment, /2/ which established such a duty by
matter of record, or upon the defendant's admission recorded in
like manner. /3/
To sum up, the action of debt has passed through three stages. At
first, it was the only remedy to recover money due, except when
the liability was simply to pay damages for a wrongful act. It
was closely akin to--indeed it was but a branch of--the action
for any form of personal property which the defendant was bound
by contract or otherwise to hand over to the plaintiff. /4/ If
there was a contract to pay money, the only question was how you
[271] could prove it. Any such contract, which could be proved by
any of the means known to early law, constituted a debt. There
was no theory of consideration, and therefore, of course, no
limit to either the action or the contract based upon the nature
of the consideration received.
The second stage was when the doctrine of consideration was
introduced in its earlier form of a benefit to the promisor. This
applied to all contracts not under seal while it prevailed, but
it was established while debt was the only action for money
payable by such contracts. The precedents are, for the most part,
precedents in debt.
Public-domain text, read in full here on John Shaqi.
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