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counter oath the part of the defendant； with the same or double the number of fellow…swearers produced by the plaintiff。 But a writing proved to be the defendant's could not be contradicted。 ＇262＇ /1/ For if a man said he was bound； he was bound。 There was no question of consideration； because there was as yet no such doctrine。 He was equally bound if he acknowledged all obligation in any place having a record； such as the superior courts； by which his acknowledgment could be proved。 Indeed； to this day some securities are taken simply by an oral admission before the clerk of a court noted by him in his papers。 The advantage of the writing was not only that it furnished better proof in the old cases； but also that it made it possible to enforce obligations for which there would otherwise have been no proof at all。
What has been said sufficiently explains the preference of proof by writing to proof by the old…fashioned witness oath。 But there were other equally good reasons why the latter should not be extended beyond its ancient limits。 The transaction witnesses were losing their statutory and official character。 Already in Glanvill's time the usual modes of proving a debt were by the duel or by writing。 /2/ A hundred years later Bracton shows that the secta had degenerated to the retainers and household of the party； and he says that their oath raises but a slight presumption。 /3/
Moreover； a new mode of trial was growing up； which； although it was not made use of in these cases /4/ for a good while； must have tended to diminish the estimate set on the witness oath by contrast。 This was the beginning of our trial by jury。 It was at first an inquest of the neighbors ＇263＇ most likely to know about a disputed matter of fact。 They spoke from their own knowledge； but they were selected by an officer of the court instead of by the interested party； and were intended to be impartial。 /1/ Soon witnesses were summoned before them； not； as of old； to the case by their oath； but to aid the inquest to find a verdict by their testimony。 With the advent of this enlightened procedure； the secta soon ceased to decide the case； and it may well be asked why it did not disappear and leave no traces。
Taking into account the conservatism of the English law； and the fact that； before deeds came in； the only debts for which there had been a remedy were debts proved by the transaction witnesses； it would not have been a surprise to find the tender of suit persisting in those cases。 But there was another reason still more imperative。 The defence in debt where there was no deed was by wager of law。 /2/ A section of Magna Charta was interpreted to prohibit a man's being put to his law on the plaintiff's own statement without good witness。 /3/ Hence； the statute required witnessthat is； the sectain every case of debt where the plaintiff did not rely upon a writing。 Thus it happened that suit continued to be tendered in those cases where it had been of old； /4/ and as the defendant； if he did not admit the debt in such cases； always waged his law； it was long before the inquest got much foothold。
To establish a debt which arose merely by way of promise or acknowledgment； and for which there had formerly ＇264＇ been no mode of trial provided； you must have a writing； the new form of proof which introduced it into the law。 The rule was laid down； 〃by parol the party is not obliged。〃 /1/ But the old debts were not conceived of as raised by a promise。 /2/ They were a 〃duty〃 springing from the plaintiff's receipt of property； a fact which could be seen and sworn to。 In these cases the old law maintained and even extended itself a little by strict analogy。
But the undertaking of a surety； in whatever form it was clothed； did not really arise out of any such fact。 It had become of the same nature as other promises； and it was soon doubted whether it should not be proved by the same evidence。 /3/ By the reign of Edward III。； it was settled that a deed was necessary； /4/ except where the customs of particular cities had kept the old law in force。 /5/
This reign may be taken as representing the time when the divisions and rules of procedure were established which have lasted until the present day。 It is therefore worth while to repeat and sum up the condition of the law at that time。
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。
There were certain special contracts in the Roman system called real； which bound the contractor either to return a certain thing put into his hands by the contractee； as in a case of lease or loan； or to deliver other articles of the same kind； as when grain； oil； or money was lent。 This class did not correspond； except in the most superficial way； with the common…law debts。 But Glanvill adopted the nomenclature； and later writers began to draw conclusions from it。 The author of Fleta； a writer by no means always intelligent in following and adopting his predecessors' use of the Roman law； /1/ says that to raise a debt there must be not only a certain thing promised； but a certain thing promised in return。 /2/
If Fleta had confined his statement to debts by simple contract； it might well have been suggested by the existing state of the law。 But as he also required a writing and a seal； in addition to the matter given or promised in return； the doctrine laid down by him can hardly have prevailed at any time。 It was probably nothing more than a slight vagary of reasoning based upon the Roman elements which he borrowed from Bracton。
＇267＇ It only remains to trace the gradual appearance of consideration in the decisions。 A case of the reign of Edward III。 /1/ seems to distinguish between a parol obligation founded on voluntary payments by the obligee and one founded on a payment at the obligor's request。 It also speaks of the debt or 〃duty〃 in that case as arising by cause of payments。 Somewhat similar language is used in the next reign。 /2/ So； in the twelfth year of Henry IV。； /3/ there is an approach to the thought： 〃If money is promised to a man for making a release； and he makes the release； he will have a good action of debt in the matter。〃 In the next reign /4/ it was decided that； in such a case； the plaintiff could not recover without having executed the release； which is explained by the editor on the ground that ex nudo pacto non oritur actio。 But the most important fact is； that from Edward I。 to Henry VI。 we find no case where a debt was recovered； unless a consideration had in fact been received。
Another fact to be noticed is； that since Edward III。 debts arising from a transaction without writing are said to arise from contract； as distinguished from debts arising from an obligation。 /5/ Hence； when consideration was required as such； it was required in contracts not under seal； whether debts or not。 Under Henry VI。 quid pro quo became a necessity in all such contracts。 In the third year of that reign /6/ it was objected to au action upon an ＇268＇ assumpsit for not building a mill； that it was not shown what th