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.
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