#1674 - The Action Of Debt - History of English Law

The Action of Debt

‘Writ of debt’: D ordered to render or yield up a sum of money, or a quantity of fungibles, which he owed to and unjustly withheld from the claimant. This writ was at least as old as covenant.

Applicability: Writ of debt provided a wholly serviceable remedy for the very common situation where the outstanding obligation from a transaction was to pay money.

Proof: Royal cts did not here insist on deed as the only mode of proof (Stisted v. Bishop of Ely (1284); D in debt on a retainer unsuccessfully argued that he need not answer a bare assertion). Certainly a deed was acceptable as a superior way of proving a debt, and it was necessary in the case of a mere grant to pay; but if the debt arose from an informal transaction the central cts continued to allow an action based on suit, against which D could usually wage his law.

Justification: Difference in approach between a covenant and a deed to some extent clarifies the evidential rule itself. A covenant or grant consisted in fleeting words, and no action was allowed in the royal courts for mere breath. On the other hand, a sale or loan or hiring were al visible conduct ‘of which knowledge may be had’; the act generated a duty to pay, which therefore did not depend merely on words (Loveday v. Ormesby). The deed likewise was an act (factum), in that the speciality was sealed and delivered before witnesses as an ‘act and deed’.

Overlap with covenant?

• No theoretical overlap with covenant because medieval lawyers saw a debt as more like property than breach of promise. Difference – if a debt claim was based simply on a party’s word of grant or promise, a deed was needed; if it was based on something done to earn money (quid pro quo), it was not.

• Franssey’s Case;

Facts: F (executors) demanded by writ of debt against M 200 marks and 10. This was based on the fact that G (when alive) had covenanted with M that G would give M 200 marks and 10 for the marriage of one of his son’s to M’s daughter. If they should marry the 10 would be deducted. Later M would not consent to the marriage so G demanded the money back.

Issue: Disputed whether this should be a writ of covenant or debt.

Decision: Either.

Explanation: Where the plaintiff has paid money to the D, on the understanding that D will do something for the plaintiff, if the plaintiff fails to do anything, then the plaintiff has the choice whether to demand the money by writ of debt, or to demand by writ of covenant that D should keep his promise. Here there is an overlap between service and money and the C has performed his bit (quid pro quo) so he is entitled to either.

• Debt was scarcely indistinguishable from detinue, which lay for personal property. The difference between detinue and debt resulted from distinguishing specific chattels, which were owned, from money or fungibles, which were owed. E.g. If D owed C a quarter of barley or 10, this was debt because C could not assert property in any identified barley or 10 (undistinguishable property). But if D detained a specific sack of barley, which belonged to C, then C’s remedy was detinue (identifiable property). Again, if C lent D 10, this was debt because the actual coins became D’s property and his duty was to render the sum of 10 in whatever lawful coin he chose. But if C delivered to D a bag of coins to the value of 10 to look after for him, the property of the coins remained in C and he could sue by writ of detinue. Covenant would only lie in such cases if D promised to pay C 10. Where there was a promise the two actions overlapped. For detinue no deed was needed because bailment could be proved by sealed evidence or suit.

Two Forms of Debt

1. Debt on a contract: If he had no deed, the creditor had to show in his count some transaction or ‘contract’ which was the reason for owing (causa debendi).

• A claimant could maintain an action of debt if he had conferred some valuable recompense upon D in return for the duty: the furnishing of this quid pro quo executed the contract on his side and created the relationship of creditor and debtor (Anon 1338; service in return for hire agreement – knowledge could be had that the service was done and that constituted quid pro quo).

• Performance of a covenant could also generate a duty to pay. E.g. If a carpenter were retained to build a house for 100, there was a covenant which bound him to perform; but not until he built the house was there quid pro quo which entitled him to bring debt for his 100.

• D’s position: In both cases the rendering of quid pro quo justified proof of the debt by suit rather than by deed. But D had the option of waging his law that he did not owe the money. The effect was that no enquiry was made into the facts; the oath-taking was a formality not subject to cross examination. In practice many Ds, as late as 1500, chose jury trial rather than wager of law; maybe wanted more time or were unable to pay oath-helpers.

• C’s view: The mere availability of procedure was a deterrent. Became unwise to give substantial credit without formal security.

Form: Most actions of debt were in common form, since most debts fell within a few well-known categories. Object was debt collection rather than dispute resolution. If parties pleaded to issue it was invariably the general issue: ‘He owes nothing’ (nil debet).

Issue: Prevalence of the general issue in debt prevented the development of a law of contract in the medieval; period because there was no way in which detailed questions could arise, unless a D enquired informally whether he could safely wage law on the facts which he disclosed:

• Elys v. Hoberd (1458); The action for money promised by a bride’s father to the groom. The objection that such a causa was ‘spiritual’ was raised inconclusively by demurrer.

However, even in such cases D acted as his own judge and the decision was off the record. Doctrinal discussion could only occur if a new form of count was tried out.

= Debt on contract went out of use.

Disadvantages of debt:

• Its foundation on near-proprietary ideas of entitlement meant that the action could be brought only if the claim was for a sum certain. However, it was acceptable for the sum to be fixed by some regulation extrinsic to the contract, i.e. where labourers’ wages had been laid down by the guild. Nor was there a problem if it could be determined by custom, i.e. ‘common right’. More difficult was where the price had been left to be settled later, or where an agreement was made to do a job of work for a reasonable sum – in theory the action of debt should not have been available, but in practice it was accepted.

• Procedural problem – in most cases of actions based on contracts Ds were permitted to wage their law. In practice though the wager of law was little used. It is possible that the risk of Ds waging their law discouraged claimants from bringing suits in the first place.

• The prevalence of the general issue in debt prevented the development of a law of contract in the medieval period because there was no way in which detailed questions could arise.

2. Debt on an obligation: An action of debt, founded on a document under seal, was a very common action until the 19^th c. Its popularity derived from the widespread use of the conditioned bond.

‘Bond’: A bond (or ‘obligation’) was a deed containing an acknowledgement that a sum of money was owed by the ‘obligor’ to the ‘obligee’.

Form: ‘Know all men etc. that I, AB, am firmly bound to CD for n to be paid at Michaelmas next following’.

‘Conditional bond’: A common practice was for one or both of the parties to make a bond to pay a sum of money to the other unless a certain condition was performed. If the condition was broken, the bond was forfeited and the penalty became due. The condition either set out the terms of the agreement or (if they were complex) referred to the terms in a separate indenture.

Form: ‘The condition of this obligation is that if AB shall build a house according to the following specifications… [or perform covenants in an indenture] then this obligation shall become void, or else it shall stand in its full strength’.

Defences: The relationship between the parties was not ruled by contractual principles but by the law of deeds and conditions. The true circumstances of the parties’ relationship were of subsidiary importance to the document under seal. A deed was of such a ‘high nature’ for evidential purposes that few parol (word as opposed to deed) defences were allowed against it.

Defences aimed at destroying the deed:

• Non est factum suum - D could show that the proffered document was for some reason invalid as a deed. Non est factum suum enabled D to show that it was not a deed at all, it was forged, or he had been tricked into executing it because he was illiterate and the contents were misread to him (Northat v. Basset (1304)).

• Duress, incapacity or suspicion – It appeared to have been tampered with after execution.

• Plead performance or discharge of the condition – Possible in the case of conditional bonds. Here parol evidence was admitted of the condition and its discharge, because the condition was not part of the deed itself but went in defeasance of it.

No defences were available where D admitted the validity of the deed. Hence an obligor might be forced to pay twice on the same bond. A valid deed could not be contradicted by oral evidence (Glaston v. Abbot of Crowland (1330)).

• Waberley v. Cockerel (1330); Under the harsh logic of the common law it was ‘better to suffer a mischief to one man that cause inconvenience to many,...