Chapter XIII: Book X

OF THE DEBTS OF THE LAITY ARISING FROM DIFFERENT KINDS OF
CONTRACTS, VIZ. FROM SALE, PURCHASE, GIFT, LOAN, BORROWING,
LETTING OUT, AND HIRING; AND OF PLEDGES AND GAGES, WHETHER
MOVEABLE OR IMMOVEABLE; AND OF CHARTERS CONTAINING DEBTS.

CHAP. I.

Pleas concerning the Debts of the Laity also belong to the King’s Crown and Dignity. When, therefore, any one complains to the Court, concerning a Debt that is due to him, and be desirous of drawing the suit to the King’s Court, he shall have the following Writ, for making the first Summons——

CHAP. II.

“The King to the Sheriff, Health. Command _N._, that justly and without delay, he render to _R._, one hundred Marks which he owes him, as he says, and of which he complains that he has unjustly deforced him. And, unless he does so, summon him, by good Summoners, that he be before me or my Justices at Westminster in fifteen days from the Pentecost, to shew wherefore he has not done it. And have there the Summoners and this Writ. Witness, &c.”

CHAP. III.

We have sufficiently explained the course of proceeding to be adopted, in case of the absence of either of the parties, or of default, before the suit is entered upon. We should, however, remark that, it is not usual for the King’s Court to compel any one by distraining his Chattels to appear in Court, on account of any suit. In such a Suit, therefore, any one may by the Judgment of the Court be distrained by his Fee, or by attaching his Pledges, as is usually done in other suits. Both parties being present in Court, the Plaintiff may found his demand on a variety of causes. His Debt may arise either upon a Lending,[372] or a Sale, or a Borrowing, or a Letting out, or a Deposit, or from some other just cause inducing a Debt.

[Footnote 372: The Terms _mutui_, _venditionis_, _commodato_, _locato_, _deposito_, are evidently borrowed from the Civil Law. But we are not from hence to conclude, as Bishop Nicholson hastily did, that Glanville _apes_, as he expresses it, the Roman Code. (Scotch Historical Library, 255.) This, of all faults, is the least imputable to the venerable Glanville.—On the term _mutuum_ see Note 1. p. 204. Infra.]

A Debt of the first description arises, when one person entrusts another with any such thing as consists in Number, or Weight, or Measure.[373] When one person so entrusts another, if he should receive back more than he lent, he commits Usury; and, if he die in such Crime, he shall, by the Law of the Land, be punished as a Usurer, of which, indeed, we have spoken more fully in the preceding pages.[374] But when any thing is entrusted to another, it is, generally, confided upon the giving of Pledges:[375] sometimes, indeed, upon the putting things in Pledge: sometimes, under a solemn promise; sometimes upon the Exposition of a Charter: and at other times upon the conjoined strength of many of these Securities. When, therefore, any Debt is secured upon the giving of Pledges alone, if the principal Debtor should be so much reduced as to be incapable of discharging it, then, recourse must be had to the Pledges; and they shall be summoned by the following Writ——

[Footnote 373: Vide Justin. Instit. L. 3. tit. 15.]

[Footnote 374: L. 7. c. 16.]

[Footnote 375: The Norman Code divides Pledges into, _simplices_, and _debiti retinentes_. An example of the former kind is the following—_Ego plegio A. quod reddat B. decem solidos_. The effect of such a pledge was, that it ceased with the life of the person entering into it, and descended not upon his Heirs. Neither was there any difference, in this respect, if the pledge was given for the appearance of another in any suit. With respect to the latter kind of pledge, the Term was employed, when the person entering into it made himself answerable for the Debt, and thus stood in the twofold capacity of Debtor and pledge. The effect of this seems to have been, to release the original Debtor, and to render the Representatives of the person entering into it liable to answer it. (Le Grand Custum. de Norm. c. 60. 89. 90.)]

CHAP. IV.

“The King to the Sheriff, Health. Command _N._, that justly and without delay, he acquit _R._ of the Hundred Marks against _N._, for which he became his surety, as he says, and of which he complains he has not acquitted him. And, unless he does so, summon him, by good Summoners, &c.”

CHAP. V.

When the Pledges appear in Court, they will either confess their Suretyship, or they will deny it. Should they adopt the former course, they are then bound[376] to satisfy the Creditor, at a convenient time appointed in Court for such purpose; or they are bound in a legal manner to prove, that they are discharged from such suretyship by payment, or by some other lawful means. But, if there are many Pledges, each of them is answerable for the whole Debt, unless it was otherwise stipulated when they became Sureties; and they are all to be distrained to satisfy the Debt.

[Footnote 376: The same Rule is laid down in the Norman Code: but the subject is there treated far more diffusely. It seems, by that Code, to have been an obligation imposed upon the Homager, by his tenure, to become pledge for his Lord’s Debts to the extent of a year’s Rent—to become pledge for his person, if in prison—for his prosecuting a suit, or appearing to it, &c. &c. (Grand Custum. c. 60.)]

Hence, if there were many Sureties, and one or more of them prove incapable of answering the engagement, the burthen of the Debt shall fall upon the others, either entirely, or to the extent of the Deficiency. But if, in becoming sureties for a person indebted, the Pledges assumed the responsibility of certain parts only, whatever may happen as to some of the Pledges, the others shall not be compelled to answer, except for their own proportion. From this it is evident that a dispute may sometimes arise between the Creditor and the Pledges—sometimes between the Pledges themselves, if any one of them should allege that he had become the surety of the principal Debtor for a less sum, whilst, on the other hand, it is asserted that he became so for a greater. For when the Pledges are individually bound for certain parts, it follows of necessity, that the Creditor himself must sue the one, who confesses to owe less upon his undertaking than he ought. But, should some of them become Pledges for the whole, some for certain parts, then, indeed, it will be requisite, that those who have become sureties for the whole should sue those who will only confess themselves indebted in a less sum than they really owe. How these different points are to be proved, will be seen in the sequel. The Sureties, having discharged the Debt, may have recourse to the principal Debtor, should he afterwards acquire sufficient to repay them; and this by an original Action of Debt, of which we shall presently speak. It should, however, be observed, that if a Man has become a Pledge for another’s appearance, and he should, in consequence of the default of his Principal, happen to be amerced, and in respect of it pay any sum, he cannot afterwards on this account recover any thing against him for whom he became Surety.[377] Whoever, indeed, has become a Pledge for another’s appearance in any suit that belongs to the King’s Crown, as, concerning the breaking of the King’s peace, or otherwise, if he do not produce his Principal, he shall, as a consequence of his suretyship, be amerced to the King, of the nature of which we spoke on a former occasion. But the effect of this will be to liberate him from his suretyship.

[Footnote 377: The Regiam Majestatem, on the contrary, lays it down, that he can recover, (L. 3. c. 1.)—a rule that is certainly more consistent with Justice. On the other hand, the Mirror coincides with the text. (c. 2. s. 24.)]

Should, however, the Pledges deny in Court their Suretyship, then, if there were many Pledges, either all of them will deny such suretyship, or some will admit, and some deny it. But, if some admit, and some deny it, then, there may be a Suit, as well between the Creditor himself and the Pledges, as between those Pledges who confess, and those who deny their engagement, according to what we have previously observed.

But, what shall be the proof required of those, between whom the suit is to be conducted, is a question? Whether, for example, it should be made by the Duel, or by any other mode; or whether the Pledges can, by the oaths of such a number of men as the Court may require, deny their undertaking? With respect to this point, some persons assert, that the Creditor himself, by his own oath and that of lawful Witnesses, can by Law prove it against the Pledges, unless the Pledges will prevent him from the oath; and this may now be done when the Demandant appears prepared to take the oath, though formerly it ought to have been done before the Law was waged.

Thus in such case the Duel may be resorted to.

CHAP. VI.

A Loan[378] is sometimes made, upon the Credit of a putting in Pledge. When a Loan of this description takes place, sometimes moveables, as Chattels, are put in pledge: sometimes immoveables, as Lands and Tenements, and Rents, whether consisting in Money, or in other things. When a Compact is made between a Creditor and Debtor, concerning the putting any thing in pledge, then, whatever be the mode of pledging, the Debtor upon his receiving the thing lent to him, either immediately delivers possession of the Pledge to the Creditor, or not. Sometimes also a thing is pledged for a certain period, sometimes indefinitely.

[Footnote 378: _Mutuum—quia, ita a me tibi datur, ut ex meo tuum fiat._ (Justin. Instit. L. 3. t. 15.) _Vinnius_ terms this _bella allusio, non vera vocis originatio_. Dr. Wood observes, as to the Term itself, it hath no one particular name in the English language.]

Again, sometimes, a thing is pledged as a Mortgage, sometimes not. A pledge is designated by the Term Mortgage,[379] when the fruits and Rents, which are received in the interval, in no measure tend to reduce the demand for which the pledge has been given.

[Footnote 379: With this explanation the Regiam Majestatem (L. 3. c. 2.) and the _Grand Norman Custumary_ (c. 113.) literally coincide—though it differs from that given by Littleton, and followed by Coke, Craig, and Blackstone. (Co. Litt. 205. a. 2 Comm. Bl. 157. Craig Jus Feud. L. 2. D. 6. s. 27.) What is the more remarkable, Lord Coke expressly contrasts the _mortuum vadium_ to the _vivum vadium_. _Vivum autem dicitur vadium quia nonquam moritur ex aliquâ parte quod ex suis proventibus acquiratur._ But assuredly, if the term mortgage is to be collected from its forcible contrast to these words, Glanville’s explanation is infinitely preferable to that given by Lord Coke.]

When, therefore, moveables are put in pledge, so that possession be delivered to the Creditor for a certain period, he is bound to keep the pledge safely, and neither to use it, nor in any other manner employ it, so as to render it of less Value. But should it, whilst in Custody and within the Term, suffer deterioration, by the fault of the creditor, a Computation shall be made to the extent of the detriment, and deducted from the Debt. But, if the thing be of such a description that it necessarily requires some expence and cost, for Example, that it might be fed or repaired, then the stipulation of the parties on that subject shall be abided by. In addition—when a thing is pledged for a definite period, it is either agreed between the Creditor and Debtor, that if, at the time appointed, the Debtor should not redeem his pledge, it should then belong to the Creditor so that he might dispose of it as his own; or no such agreement is entered into between them. In the former case, the Agreement must be adhered to; in the latter, the Term being unexpired[380] without the Debtor’s discharging the Debt, the Creditor may complain of him, and the Debtor shall be compelled to appear in Court, and answer by the following Writ.

[Footnote 380: _Existente termino._ This is a palpably false reading—it should be, _elapso termino_, the term being expired, an expression familiar to Glanville. This suggestion is sanctioned by the Reg. Maj. “_the day being bygone_,” (L. 3. c. 3.)—by the expression of the text _ad terminum_ in the sentence immediately preceding—by the words of the Writ in the next chapter, “_a term which is past_”-and, lastly, by a passage in the Eighth Chapter of this Book, where our Author expressly lays it down, that, before the time fixed for payment, the Creditor cannot claim the Debt. Yet is the reading _existente termino_ preserved in Mr. Houard’s Edition of Glanville, an Edition frequently, but not always, more correct than any of those printed in this Country.]

CHAP. VII.

“The King to the Sheriff, Health. Command _N._, that justly and without delay, he redeem such a thing which he has pledged to _R._, for a hundred Marks, for a Term which is past, as he says, and of which he complains that he has not redeemed it; and, unless he does so, &c.”

CHAP. VIII.[381]

[Footnote 381: Sir Edward Coke, having been led by his subject to treat of _conditions_, refers to the present Chapter of our Author. From such plain and simple materials did the complicated doctrine of conditions draw its primary principles!! (Co. Litt. 201. b.)]

In what manner the Debtor shall be distrained to appear in Court, whether by the Pledge itself, or by another mode, is doubtful. But that may be left to the discretion of the Court, as the matter can be sufficiently expedited whichever mode is resorted to. It is, however, sometimes requisite that he should be present in Court, before the thing in question be adjudged absolutely to the Creditor; since, were he present, he might alledge some reason, why the thing should not irrevocably belong to the Creditor. But when the Debtor appear in Court, he will either confess, that he pledged the thing in question for the Debt, or he will deny it. If he confess it, as he has in so doing confessed the Debt, he shall be commanded at a reasonable period to redeem his pledge; and, unless he should comply, liberty shall be given to the Creditor, from that time, to treat the pledge as his own property, and do whatever he chuses with it. Should the Debtor, however, deny it, he will then either acknowledge that the thing is his property, but that for some cause it happened to be out of his possession, and to have got into the hands of the other, as a Loan, or as being intrusted to him for Custody or from some other cause of this nature; or he will confess in Court, that the thing is not his property, which if he should do, liberty shall immediately be conceded to the Creditor, to dispose of the thing in question, as his own. But, if he alledge that the thing is his property, but denies as well the pledge as the Debt; then, the Creditor shall be obliged to prove against him, that he intrusted the other to the extent of the present demand, and that the Debtor in return pledged to him the specific object in dispute. The nature of this proof may be collected from what we formerly laid down, in treating of Pledges who deny their suretyship. But, previous to the period fixed for the payment, the Debt cannot be demanded; although, if a thing be pledged indefinitely, and without any period being fixed, the Creditor may, at any time he chuses, demand the Debt. The Debt being discharged by the person owing it, the Creditor is bound to restore to him the thing pledged, without its having suffered any deterioration; nor, if the thing should by any accident be lost or injured whilst in his Custody, is the Creditor from that circumstance liberated from the Debtor’s claim; because he is decidedly bound, either to restore the thing pledged or to make satisfaction for it, or to lose his Debt. When a Compact is entered into between a Debtor and Creditor, concerning the pledging of a particular thing, if the Debtor, after having received the Loan, should not deliver the pledge,[382] it may be asked, what step should the Creditor have recourse to in such a case, especially as the same thing may be pledged to many other Creditors, both previously and subsequently? Upon this subject, it should be remarked, that the King’s Court is not in the habit of giving protection to or warranting private Agreements of this description, concerning the giving or accepting things in pledge, or others of this kind, made out of Court, or even in any other Court than that of the King. If, therefore, such Compacts are not observed, the King’s Court does not interfere: and hence it is not bound to answer concerning the right of different Creditors, as prior or subsequent, or respecting their privileges. But, when an immoveable thing is put into pledge, and Seisin of it has been delivered to the Creditor for a definite term, it has either been agreed between the Creditor and Debtor, that the proceeds and rents shall in the mean time reduce the Debt, or that they shall in no measure be so applied. The former Agreement is just and binding: the other, unjust and dishonest, and is that called a Mortgage, but this is not prohibited by the King’s Court, although it considers such a pledge as a species of Usury.[383] Hence, if any one die having such pledge, and this be proved after his death, his property shall be disposed of no otherwise than as the Effects of a Usurer.

[Footnote 382: “In Glanville’s time,” says Sir Wm. Blackstone, “when the universal method of conveyance was by livery of seisin, or corporeal tradition of the Lands, no gage or pledge of Lands was good, unless possession was also delivered to the Creditor”—and, having referred to this part of our Author, he observes, “And the frauds which have arisen, since the exchange of these public and notorious conveyances for more private and secret bargains, have well evinced the wisdom of our ancient Law.” (2 Bl. Com. 159.)]

[Footnote 383: This may be accounted for by recollecting that Usury itself, though viewed in a criminal light, was not expressly prohibited. (Ante L. 7. c. 16.) Nor was it punished, if the party amended: but, if he died in the crime, the act had then reached the point of criminality—the offence was complete, and the punishment followed. But, until that moment arrived, Usury, in strictness, was an act rather approaching to a crime, than actually amounting to it. The reasoning was founded upon principles no less artificial than false—the death of the party being purely accidental, and the crime itself being complete, without any reference to such accident, the very instant the party received the usurious remuneration. The doctrine of the Regiam Majestatem, in unison with this reasoning, and contrary to the text of Glanville, expressly forbids a Mortgage, because it was a species of Usury. (c. 5. L. 3.)

The Reader will meet with some curious disquisitions in the Dial. de Scacc. (L. 2. s. 10.) where he will find the doctrine of the text illustrated in the true spirit of the times.]

In other respects, the same Rules should be observed, as in pledges of moveables, concerning which we have already spoken. But, it must be remarked, that if, after any one has paid his Debt, or has in a proper manner tendered it, the Creditor should maliciously detain the pledge, the Debtor upon complaining to the Court shall have the following Writ——

CHAP. IX.

“The King to the Sheriff, Health. Command _N._ that justly and without delay, he render to _R._ the whole Lands, or such Lands, in such a Vill, which he has pledged to him for a Hundred Marks for a term which is past, as he says, and has received his Money, or which he has redeemed, as he says; and, unless he does so Summon him by good &c.”

CHAP. X.

Upon the Creditor’s appearing in Court, being summoned for this purpose, he will either acknowledge the Land in question, as his pledge, or he will say, he holds such Land, as his Fee. In the former case, he ought either to return the pledge, or shew to the Court some reasonable cause, why he should not be compelled to do so. In the latter case, it shall, upon the prayer either of the Creditor or Debtor, be put upon a Recognition of the County, whether the Creditor holds the Land in question, as his Fee, or his Pledge; or whether his Father, or any other of his Ancestors, was seised of it, as in Fee or in Pledge, on the day of his death; and, so it may be objected to him who seeks the Land upon the seisin of his Father.

Thus the Recognition upon this subject may be infinitely varied, to correspond with the Claim and the Defence. But, if the Recognition be not prayed by either party, the Plea may proceed in Court upon the Right.

CHAP. XI.

If the Creditor lose his Seisin, either by means of the Debtor, or any other person, he cannot recover it through the assistance of the Court; not even by a Recognition of Novel Disseisin.

For if he was unjustly and without a judgment disseised of his pledge, by any other person than the Debtor himself, the Debtor may have an Assise of Novel Disseisin. If, however, the Creditor was disseised by the Debtor himself, the Court will not assist him against the Debtor, in recovering his pledge, or in giving him a Re-entry, unless through the Debtor himself; for the Creditor should resort to an original Plea of Debt, in order that the Debtor may be compelled to render him satisfaction for his Debt. In such case, the Debtor shall be summoned by the foregoing Writ of first summons.

CHAP. XII.

Upon the Debtor’s appearing on the day appointed in Court, if the Creditor has neither Pledge, nor Sureties, nor any other proof, unless the mere faith of the other, this will not be received as any proof in the King’s Court.[384] Yet, he may proceed for the breach or violation of faith in the Court Christian. But, though the Ecclesiastical Judge can hold cognizance of such crime, and either impose penance on the convicted party, or enjoin him to make satisfaction, yet, with respect to Pleas concerning the Debts of the Laity, or affecting Tenements, the Court Christian cannot by a Law of the Realm hold or decide them, under the pretence of the party having pledged his promise.[385] The Creditor ought, therefore, to adduce other proof, if the Debtor deny the Debt in question.

[Footnote 384: Vide LL. Gul. Norman. c. 28. (Al. MS.) The Law here alluded to, the Reader has already been put in possession of. See p. 170. note 1.]

[Footnote 385: Vide Constitutions of Clarendon. (Anglo-Sax. LL. Ed. Wilkins. 324.)]

For if he admit it, then, he is bound to discharge it, in manner similar to that we have already explained, in speaking of Pledges, confessing their suretyship.[386] Should he, however, deny it, the Creditor may prove his demand, either by a proper Witness, or by the Duel, or by a Charter. When, therefore, any one offer in Court, as proof of the Debt, the Charter of his Adversary, or his Ancestor, the Defendant will either admit such Charter, or deny it. In the latter case, he may deny or controvert it in two ways: thus, he may acknowledge in Court the seal to be his own, but deny that the Charter was made either by him, or with his consent, or that of his Ancestor; or he may absolutely deny, both the Seal and the Charter. In the first case, when he has publicly in court acknowledged the Seal to be his own, he is bound to warrant the terms of the Charter, and, in all respects, to observe the compact expressed in the Charter as contained in it, without question, and to impute it to his own indiscretion, if he incur any loss by negligently preserving his own Seal. But in the latter case, the Charter may be proved in Court by the Duel by any proper Witness, especially if his name be inserted in the Charter itself. There is another mode by which the Credit of a Charter is accustomed to be established in Court, namely, by some certain and unquestionable signs. As, for Example, by other Charters, impressed with the same Seal, and concerning which it is clear, that they are the Charters of the party, who denies the present Charter, because he has openly warranted them in Court. If in such case the impressions coincide in every respect with one another, so that there is no suspicion of any difference between the Seals, it is usual to consider the fact as proved; and, whether by this, or by any other legal mode, the party should be overcome, he shall lose his suit on the occasion, whether it be a Plea of Debt, or concerning Land, or any other thing whatever; and he shall, in addition, be amerced to the King. For, it is a general Rule, that whenever a person has said any thing in Court or in a Plea which he afterwards denies, or of which he has neither suit, nor Warrantor, nor sufficient proof,[387] or has been distrained to assert the contrary, or to deny it by sufficient proof, he shall be amerced to the King. But, if the person, against whom the Charter is produced to prove a certain Debt, acknowledge it from the first, then he shall be compelled to satisfy the Creditor, according to the tenor of the Charter. When any thing is lent on the joint strength of many of the proceeding securities, then, from the moment the Debtor makes default, he is liable to be distrained by all the securities being put in force against him at the same time. It is on this account, therefore, that many securities are taken, that in case of the inability of the Debtor, the Creditor may more readily be satisfied, than if there exist but one security only.

[Footnote 386: The Text is not free from difficulty which evidently arises from an omission. I have ventured to introduce the words, “_should he, however, deny it, the Creditor_.” The Context countenances this conjecture.]

[Footnote 387: A similar Law is to be found amongst those ascribed to the Conqueror. (LL. Gul. Conq. c. 28.)]

CHAP. XIII.

A debt sometimes arises when a thing is borrowed;[388] as if I lend a thing to you gratuitously, to be made use of in your service. The service being finished, you are bound to restore my property to me, without deterioration,[389] if it be in existence.

[Footnote 388: _Commodatum._ (Justin. Inst. 3. 15. 2.) A _Commodatum_ differed from a _mutuum_, because the same person continued to be the owner, and because the same thing was to be returned, and not another of the same quantity or quality, as in a _mutuum_. (Dig. 13. 6. 8. and 9.) “They have different names in Latin, though not in English,” says Dr. Wood. (Civil Law. Inst.) To avoid the inconvenience and confusion of employing the same term for each, the Translator has called the one a loan, the other a borrowing. The distinction between a gratuitous loan for use, and a simple loan, occurs in the Code Napoleon, which is drawn, as, indeed, may be observed of no small portion of that work, from the Civil Law.]

[Footnote 389: Skene refers to Exodus c. 22. v. 14. 15.]

But, if the thing itself be destroyed, or has by any means been lost, whilst in your Custody, you are absolutely bound to return me a reasonable price. But by what, or whose proof,[390] it is to be shewn—or if any one has lent his property to be used in a certain place, or for a certain Term, and he who thus received it has used it, either in another place, or at another time, the extent to which he ought to make a recompense, or upon what proof, or whose property it is to be adjudged, are points that may be questioned. The party, indeed, shall be absolutely excused from the imputation of Theft, by reason that his possession of the thing detained originated through the owner of the property.

[Footnote 390: “By him who gave the Loan, and by his Witness,” says the Regiam Majestatem. (L. 3. c. 9.)]

It may also be doubted, whether the Owner can recall his property so lent to another, within the time or place allotted, especially if he himself should have occasion to use it in the interval.[391]

[Footnote 391: “It is answered, he may not repeat it or seek it again, because any loan may not be repeated or called back again, until the use be perfected and fulfilled to the which it was lent.” (Reg. Maj. L. 3. c. 9.) But the modern French Code permits it to be recalled. (S. 1889.)]

CHAP. XIV.[392]

[Footnote 392: Vide Bracton fo. 61. b. and Fleta L. 2. c. 58.]

A debt also arises by reason of a Purchase and Sale. When any person sells a thing to another, the price is due to the Vendor, and the thing contracted for to the Purchaser.[393]

[Footnote 393: Vide Justin. Inst. 3. 24. §. Custum. de Norm. c. 22. and Bracton 61. b. The two chief obligations of the Vendor, as laid down in the present and following chapters, are comprised in a section of the modern French Code—that of delivering, and that of warranting the thing which he sells. (Code Napoleon 1603.)]

But a purchase and sale are effectually perfected from the moment the price is settled between the contracting parties; provided possession of the thing purchased and sold be delivered,[394] or that the price, either wholly, or in part, be paid, or, at least, that Earnest[395] be given and received.[396]

[Footnote 394: _Quia sine traditione non transferuntur rerum dominia._ (Bracton 61. b.)]

[Footnote 395: Arrhæ. In the Civil Law the _Arrha_ or Earnest was given, either simply as a symbol, or mark of the Contract, or, it was given, as Vinnius informs us, as a part of the price. In the former case the purchaser was not permitted to avoid the contract with the loss of his Earnest—in the latter, he was allowed to do so. The Vendor might recede with the loss of twice the value of it. (Dig. 18. 1. 35.—19. 1. 11. 6. Inst. 3. 24. pr.) With respect to the effect of _Earnest_, as our Law now stands, vide 2. Bl. Comm, 447.]

[Footnote 396: When there is neither writing, Earnest, nor delivery, the parties, says Bracton, may retract. (61. b.)]

But, in the two former cases, neither of the Contracting parties can by any means at his own option recede from the Agreement, unless for some just and reasonable cause; as, if the terms of the contract were, that either of the parties may with impunity retract within a certain period; then, indeed, either party may within the period prescribed avail himself of the terms of the Contract and recede, without being liable to any penalty: since it is, generally speaking, unquestionable that, _Conventio legem vincit_.[397] Besides, if the Vendor sold the thing to the Purchaser as being sound and without fault,[398] and the Purchaser can afterwards satisfactorily shew, that the thing at the time of the contract was not sound, but faulty, then, indeed, the Vendor shall be compelled to take back his property. But it is sufficient, if the thing was in a proper state, at the time of the Contract, whatever may afterwards happen to it. But I doubt, as to the period within which this should be proved, or complaint made concerning it, especially where there is no special Agreement. Where, however, Earnest only has been given, if the Purchaser would recede from the Contract, he may do so, with the loss of the Earnest. But if, in such case, the Vendor would retract, it is a question whether he can do so without incurring a penalty.[399] It does not seem that he can; because he would then be in a better situation than the Purchaser. But, if it cannot be done with impunity, what punishment shall such conduct incur?[400] The risk of the thing sold and purchased generally belongs to the person who has possession of it,[401] unless it has been differently arranged.

[Footnote 397: _Pactum enim legem vincit._ (LL. Hen. 1. c. 49.) “Contracts legally made have the force of Law between those who have made them.” (Code Napoleon s. 1134.)]

[Footnote 398: If, says a Law of Ina, a person has purchased any thing, and, within thirty days, discover it to be defective, he may restore the thing to the hands of the Vendor, unless the latter will swear, that he knew of no defect in it at the time he sold it. (LL. Inæ. c. 56.)]

[Footnote 399: In Bracton’s time the Vendor forfeited double the Earnest—a rule according with that of the Roman code. (Bracton 62. a.)]

[Footnote 400: “_Double the Earnest_” was to be forfeited by him according to the Reg. Maj. (L. 3. c. 10.)]

[Footnote 401: _Quia re vera qui rem emptori nondum tradidit adhuc ipse dominus erit._ Hence—_Si post emptionem ante traditionem fundo vendito aliquid per alluvionem vel alio modo accrevit quod commodum ad venditorem pertinebit._ (Bracton 62. a.)]

CHAP. XV.

The Vendor and his Heirs are bound to warrant the thing sold to the purchaser and his Heirs, if the thing be an immoveable; and hence, the Purchaser[402] and his Heirs may be sued in the manner we have formerly explained, in treating of Warranties.

[Footnote 402: _Emptor_, a palpably false reading, as the context proves: it should be _venditor_, the vendor. See Bracton 62. a.]

If any person sue the Purchaser with respect to a moveable, on the ground that the thing in question was first sold or given to him, or from any other just cause was acquired, unconnected with the imputation of Felony, the same rule may be laid down as that we have mentioned concerning immoveables. But if, under an imputation of Theft,[403] the Purchaser is sued for the thing, he is bound in the clearest manner to remove from himself every such an imputation, or to call a Warrantor.[404] If, therefore, he adopt the latter course, he will name either a certain Warrantor, or an uncertain one. If he call a certain Warrantor to Court, alleging that he desires to have him to Warrant at a reasonable period, then a day is to be given him in Court for that purpose.

[Footnote 403: Vide Bracton 150. b. et seq.]

[Footnote 404: Vide Mirror c. 3. s. 13. Bracton 151. b. Fleta 55. s. 8. We find that Warrantors were sometimes collusively vouched.

Thus, Champions of acknowledged prowess were named, who, being hired for the purpose, readily entered into the Warranty. When such an instance of collusion took place, the Champion was, according to _Bracton_ and _Fleta_, to lose a foot and a hand—but, in _Britton’s_ time, the Champion and the person citing him were both liable to death.]

And, if the person called to Warrant appear on that day, and warrant in Court, both the sale and the thing sold to the Purchaser, then, the latter shall be entirely discharged, and that so effectually, that he shall not afterwards sustain any loss. But, if he should fail in entering into the Warranty, then, the Plea shall proceed between the Purchaser and his Warrantor; and thus may it come to the Duel. But, it may be asked, can the Warrantor call another Warrantor into Court? If that be permitted, at what Warrantor must it stop?[405] It should be added, that when any one has so named a Warrantor of a thing which is sued for as stolen, the Warrantor is usually attached by virtue of the following Writ, directed to the Sheriff:—

[Footnote 405: The Bodleian and Harleian MSS. say the _fourth_, omitting the mark of interrogation at the end, and leaving the sentence an absolute assertion; which most probably is the true reading, as it corresponds with the Regiam Majestatem. (L. 3. c. 13.)]

CHAP. XVI.

“The King to the Sheriff, Health. I command you, that justly and without delay, you cause _N._ to be attached, by safe and secure Pledges, that he be before me, or my Justices, on a certain day, to warrant _R._ such a thing which _H._ claims against _R._ as stolen, and of which the aforesaid _R._ has drawn him to warrant in my Court; or to shew wherefore, he ought not to warrant to him. And have there the Summoners and this Writ, &c.”

CHAP. XVII.

But, if the Purchaser should call an uncertain Warrantor, in such case, if he have sufficient proof of its being a lawful purchase, that shall discharge him from the Felony.[406] Yet it shall not protect him from the loss, I mean, of the thing in question. But, if upon this point he has not a sufficient suit, he is in danger.

[Footnote 406: No Man, says a Law of the Confessor, shall purchase any thing without the City gate, but shall have the testimony of the Prefect of the City, or of some other respectable person, who can be confided in. (LL. Ed. Conf. 1.) A Law of his predecessor Æthelstan is nearly in the same words, except that it tacitly permits purchases without the City Gate, if they did not exceed twenty _denarios_. (LL. Æthelst. 12.) Some of the Laws of Edgar are admirably adapted to effect the same object, (LL. Sup. Eadg.) which appears to be constantly kept in view by the different Legislators, who preceded Henry the Second.]

Debts arising either from a purchase or a borrowing are usually substantiated by the general mode of proof in Court; in other words, either by a Writing, or by Duel.

CHAP. XVIII.

A debt sometimes arises from a Letting out and a Hiring:[407] as when any one lets out a thing to another for a certain period, in consideration of receiving a certain reward. In such case, the former is bound to concede the use of the thing, and the latter to pay the price. But, it should be observed, upon the expiration of the term stipulated, the former may lawfully and of his own authority resume possession of his property.[408] But, if the person engaging to hire the thing should not pay the price at the appointed time, it may be asked, whether the other party can in such case forcibly resume possession by his own authority?

[Footnote 407: _Ex locato_ and _ex conducto_. “_Locatio conductio_,” says Dr. Wood, “is one word.” _Locator_ is he that lets out to hire, _conductor_ he that hires. (Justin. Inst. 3. 25. pr.)]

[Footnote 408: _Si etiam vacuam invenerit et non obligatam._ (Bracton 62. b.)]

But we briefly pass over the foregoing Contracts, arising as they do from the consent of private individuals; because, as it has already been observed, the King’s Court does not usually take cognizance of them; nor, indeed, with such Contracts, as may be considered in the light of private Agreements, does the King’s Court intermeddle.