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