seal only, and which is not a deed because it is not delivered as a deed, (c) is a creditor by special contract, and the money so secured is therefore a specialty debt.(d) Several instances occur in which a creditor, whose debt was secured by deed, or an instrument under hand and seal, has been held to be a specialty creditor. (e) A covenant is a species of contract. But a contract entered into by a person cannot be a covenant, on which an action of covenant will lie against him, unless he contracts by deed executed by him; (f) except in particular [ 3 ] *cases.(g) It seems, however, that, in some instances, by means of a deed, and the agreement of a person to it, an action of debt will lie against this person, although he never executed the deed.(h) And where such deed and agreement will support an action of debt, the creditor appears to be a creditor by specialty.(i) The word covenant, when unexplained, commonly signifies a contract entered into by deed. (k) A creditor, whose debt is secured by a covenant, is a creditor by specialty.(7) "If a covenant is broken, though the damages are unliquidated, the covenantee is a specialty creditor."(m) A covenant to settle particular land, of which the covenantor is seised, creates in equity a specific lien on it.(n) Also a covenant generally to settle land may in equity create a specific lien on land, of which the covenantor is then seised;(0) or, if he is not then seised of any land, on land which he may afterwards purchase. (p) A covenant generally to settle land, and which

and a deed recorded, are distinguishable, Co. Litt. 251 b.; see also 283 a. The enrolment of Recognizances is governed by the statute law; 23 H. VIII. c. 6; 29 C. II. c. 3, sec. 18; and 8 Geo. I. c. 25. But the enrolment of deeds is, it is observable, of great antiquity in this country, and was probably not introduced by the legislature. It is recommended by Britton, p. 101, ed. 1640, and Fleta, lib. 3, c. 14, p. 200, ed. 1685, as a means to preserve evidence of the contents of the deed. On the subject of admitting a copy of an enrolled deed to be evidence, see Smartle v. Williams, 3 Lev. 387; Holcroft v. Smith, 2 Freem. 259, 260; and 1 Phil. on Evid. 6th ed. 442.

(c) Co. Litt. 35 b.; Brown v. Vawser, 4 East, 584; Clement v. Gunhouse, 5 Espin. Rep. 83; Shep. Touch. 57, 60, where it is said, "Note, that albeit a writing, that is not sealed and delivered, may not be used nor pleaded as a deed, yet it may serve and be used as an evidence and proof of the agreement contained therein. And whatsoever may be done by word, without any writing, may much more and better be done by writing [though] unsealed; or sealed, though it be not delivered." When it is said that a deed is "executed," the ordinary meaning of the expression is, that it is sealed and delivered. Cecil v. Butcher, 2 J. & W. 571. See on the delivery of a deed, Doe v. Knight, 5 B. & C. 671; and on sealing and delivering, Ex parte Hodgkinson, 19 Ves. 296.

(d) 2 Bl. Com. 465; Plumer v. Marchant, 3 Burr. 1380; Gifford v. Manley, Cas. T. Talb. 109.

(e) Marriott v. Thompson, Willes, 186, 189; Primrose v. Bromley, 1 Atk. 89; Musson v. May, 3 Ves, & B. 194; Tanner v. Byne, 1 Sim. 160; Mavor v. Davenport, 2 Sim. 227.

(f) Fitzh. N. B. 145, 146, and ed. 1730, 340, 341, 343; Metcalfe v. Rycroft, 6 M. & S. 75; Burnett v. Lynch, 5 B. & C. 589, 602, 609.

(g) Fitzh. N. B. 146, and ed. 1730, 343; Wade v. Bemboe, 1 Leon. 2; Lord Ewre v. Strickland, Cro. Jac. 240; Brett v. Cumberland, Cro. Jac. 399, 521, 1 Rol. Abr. 517; Wooton v. Hele, 1 Mod. 291, 292.

(h) 38 Edw. III. 8; Co. Litt. 231 a; Bro. Abr. tit. Dette, 80; Fitzh. Abr. tit. Dette, 117.

(i) See 2 Bl. Com. 465; 3 Bl. Com.

155.

(k) Fitzh. N. B. 145; 1 Rol. Abr. 517; 3 Swanst 647, 648; 2 Bl. Com. 304; 3 Bl. Com. 156, 158.

(1) Benson v. Benson, 1 P. W. 131; Earl of Bath v. Earl of Bradford, 2 Ves. 589; Plumer v. Marchant, 3 Burr. 1380.

(m) Musson v. May, 3 Ves. & B. 194, 197.

(n) Freemoult v. Dedire, 1 P. W. 429; Finch v. Earl of Winchilsea, ib. 277. See Bayly v. Ekins, 2 Dick. 632.

(0) Roundell v. Breary, 2 Vern. 482, cited 3 Atk. 327.

(1) Tooke v. Hastings, 2 Vern. 97, cited 3 Atk. 329; Wilcocks v. Wilcocks, 2 Vern. 558; Deacon v. Smith, 3 Atk. 323; Sowden v. Sowden, 1 Bro. C. C. 582, 1 Cox,

165.

does not bind any land specifically, makes the covenantee a specialty creditor.(9) And a contract, which, by the word covenant or agreement, is by deed made to lay out a sum of money in land to be settled, creates also a specialty debt.(r) A creditor, whose debt was secured by covenant, has been held to be a specialty creditor, where the covenant was by a lessor, for the lessee's quiet enjoyment during the term;(s) by the grantor of an annuity, that he was seised in fee of the premises charged with it;(t) and by the grantor in a marriage [ *4 ] settlement, that the premises settled were free from incumbrances.(u) He who contracts a debt by a special contract thereby binds not only himself, but his executors also, although the latter are for such purpose not named in it. But, unless so named, his heir is not bound by it.(v) It appears that a specialty debt may be created by an instrument under hand and seal, although it is not a deed. (w) And if in such instrument neither the heir nor the executor of the debtor is named, the executor will, and the heir will not, be bound by it.(x)

3. A creditor whose debt is secured by a promise made verbally only, and expressed or implied, or by either of the negotiable instruments, a bill of exchange or promissory note, or by writing unsealed, is a creditor by simple contract.(y)

A court of law has, amongst other instances,(z) held to be a debt by simple contract, a debt recovered by judgment of the Supreme Court of Jamaica. (a)

Amongst debts held by a Court of Equity to be by simple contract, (b) that court has determined to be a debt of this nature, the balance of an open and mutual account, whereof all the particulars were on simple contract:(c) also money that was recovered by a judgment or sentence in France.(d) And the same court has [*5 ] held, that where a legacy was bequeathed, and the executor committed a devastavit, such devastavit made the legatee a simple contract creditor of the executor:(e) that where in a marriage settlement a sum of money was made subject to the disposition of the wife, and the husband thereby

(q) Freemoult v. Dedire, 1 P. W. 429; Deacon v. Smith, 3 Atk. 323, 327; Cheveley v. Stone, 2 Dick, 782.

(r) Benson v. Benson, 1 P. W. 129. See likewise 3 Atk. 327, 3 Swanst. 647, 648, and 19 Ves. 638.

(8) Earl of Bath v. Earl of Bradford, 2 Ves, 587.

(1) Giles v. Roe, 2 Dick. 570.

to treat it either as the one or the other. Edis v. Bury, 9 Dowl. & Ryl. 492.

(z) Want v. Swayne, Willes, 185.

(a) Walker v. Witter, Dougl. 1, 5; Atkinson v. Lord Braybrooke, 4 Campb. 380, 1 Stark, 219.

(b) Hooper v. Eyles, 2 Vern. 3rd ed. 480, and n. (2;) Anon. 11 Vin. Abr. 271, pl. 11; Lord Townsend v. Windham, 2 Ves. 1, 4, 7;

(*) Parker v. Harvey, 11 Vin. Abr. 292; Goodman v. Purcell, 2 Anstr. 548; Stewart 2 Eq. Cas. Abr. 460.

(v) Co. Litt. 209 a., 209 b.; 1 P. W. 721; Crosseing v. Honor, 1 Vern. 180; Lloyd v. Thursby, 9 Mod. 463.

(w) Gifford v. Manley, Cas. T. Talb. 109; Brown v. Vawser, 4 East. 584.

(x) Gifford v. Manley, Cas. T. Talb. 109. (y) 2 Bl. Com. 465, 466, 511: Williams v. Lucas, 2 Cox, 160, 1 P. W. 5th ed. 430, n. It may here be mentioned, that if a person frame an instrument in a way, so that it may be taken to be either a promissory note or a bill of exchange, the holder is at liberty

v. Noble, 1 Vern. & Scriv. 536; Alexander v. Holland, 2 Kenyon, pt. ii. 4.

(c) Borret v. Goodere, 1 Dick. 428; where Lord Camden said, "Indeed, if the account had consisted of particulars, some whereof had been specialty, and some simple contract, yet the balance found due would be a simple contract debt." See also on a balance debt, Ex parte Hooper, 1 Mer. 7, 9.

(d) Dupleix v. De Roven, 2 Vern. 540. (e) Charlton v. Low, 3 P. W. 328; Pollexfen v. Moore, 3 Atk. 272. See also Bathurst's case, 2 Ventr. 40.

covenanted that he would not obstruct such disposition, and after the marriage the money was given up by the trustee, and came into the hands of the husband, who died, the wife was not, by means of the covenant, or otherwise, a specialty creditor of the husband:(ƒ) and that where, to secure a sum of money, principal and surety jointly enter into a bond, and there is no mortgage to the creditor, or counter bond to the surety, or other assurance which can make the surety a specialty creditor of the principal, and the money on the bond is due in the life time of the principal, the surety is, after the death of the principal, a creditor by simple contract only against his assets, if after the money was due he paid off the bond in the life time of the principal, or after his death;(g) and that in a case where the plaintiff had joined as surety with the testator in a joint and several bond, and, after the death of the testator, had paid the amount of the bond to the obligee, taking an assignment of the bond; the plaintiff was not a specialty creditor of the testator.(h)

SECTION II.

DEBT SECURED BY MORTGAGE.

WHEN money is secured by a mortgage of land, as freehold, copyhold, or leasehold, the premises mortgaged are a pledge for a debt;(i) and a debt exists, although there is no other security, as a bond or [ *6 ] covenant, for payment of the money.(j) If, besides the mortgage, the mortgagor enters into a contract under seal, as a bond or covenant to pay the money, the debt is one by special contract or specialty.(k) If there is no such farther security, the debt is by simple contract only.(l)

The debt appears to be of the latter kind, when money is secured by an equitable mortgage, made by a written but unsealed agreement to mortgage; (m) or by a deposit of title deeds, accompanied or not accompanied by such an agreement.(n)

That an unwritten agreement to mortgage, accompanied by a deposit

(f) Lench v. Lench, 10 Ves. 511, 515,

521.

(g) Copis v. Middleton, 1 Turn. & R. 224, cited 4 Russ. 278.

(h) Jones v. Davids, 4 Russ. 277. (i) 2 P. W. 438: 1 Atk. 487; 2 Atk. 435, 437, 445; 3 Ves. 131; 7 Ves. 336, 340; Dan. Rep. 336.

(j) 2 Salk. 449; 1 P. W. 294, 295; 2 P. W. 455; 3 P. W. 360; Prec. Ch. 61; Jacob Rep. 239; Lloyd v. Thursby, 9 Mod. 463.

(k) Galton v. Hancock, 2 Atk. 424, 435, 436; Duke of Ancaster v. Mayer, 1 Bro. C. C. 465; Aldrich v. Cooper, 8 Ves. 394, Gifford v. Manley, Cas. T. Talb. 109.

(1) Thomas v. Terrey, 1 Eq. Cas. Abr. 139; Gilb. Eq. Rep. 110; Lloyd v. Thursby,

9 Mod. 463, and stated from M. S. 2 Cruise Dig. 2nd ed. 163; Waring v. Ward, 7 Ves. 332, 336.-1 Bro. C. C. 464; 8 Ves. 394; Jacob Rep. 239.

(m) That this agreement is a mortgage in equity, see Shepherd v. Kent, Prec. Ch. 190, Sir Simeon Stuart's case, or Stuart v. Tichborne, cited 3 Ves. 576, 582, 2 Sch. & Lef. 383; Ex parte Wills, 2 Cox, 233; and Ex parte Hodgson, 1 Glyn & J. 12.

(n) On an unsealed written agreement to mortgage, accompanied by a deposit of title deeds, see Ex parte Wetherell, 11 Ves. 398; Ex p. Coombe, 11 Ves. 369; Ex p. Kensington, 2 Ves. & B. 79; Ex p. Coombe in re Beavan, 4 Madd. 249; and Ex p. Alexander, 1 Glyn & J. 409.

of title deeds with the creditor or his agent, may in equity constitute a mortgage, was, after the Statute of Frauds, first decided in Russell v. Russell, where Lord Thurlow affirmed a decision by the Lords Commissioners, Lord Loughborough and Mr. Justice Ashhurst. (o) The deposit lets in parol(p) evidence of the intent *with which the depo୮ *7 sit was made.(9) And if this evidence proves an agreement to create by the deposit a present lien on the land, and to execute hereafter a legal mortgage, a Court of Equity will fulfil this intention, and holds that the agreement and deposit do in equity bind, or are a lien on, the land now, and constitute a present equitable mortgage.(r) This doctrine plainly thwarts the object of the third section of the Statute of Frauds; by which section it is enacted, "That no leases, estates, or interests, either of freehold or terms of years, or any uncertain interest, not being copyhold or customary interest, of, in, to, or out of, any messuages, manors, lands, tenements, or hereditaments, shall at any time after the four and twentieth day of June, 1677, be

(o) Russell v. Russell, 1 Bro. C. C. 269; cited 9 Ves. 117, 19 Ves. 479, and 2 Sch. & Lef. 383. See Brander v. Boles or Robs, Prec. Ch. 375; Gilb. Eq. Rep. 35. See likewise Fitzjames v. Fitzjames, Cas. T. Finch, 10, where, before the Statute of Frauds, a deed was deposited for securing a debt, and the creditor was allowed to retain it until payment. And see farther Brizick v. Manners, 9 Mod. 284, cited 12 Ves. 199.

(p) It may here be remarked, that although the word "parol," popularly or generally speaking, means verbal or unwritten, yet it is sometimes used in the sense of writ

ten.

"All contracts are, by the laws of England, distinguished into agreements by specialty, and agreements by parol; nor is there any such third class as contracts in writing. If they be merely written, and not specialties, they are parol." (Ram v. Hughes, 7 Durn. & E. 350, n.) A lease for years written, but not under seal, is a parol lease (Ibid.) A lease unwritten, and made verbally only, is a parol lease (Statute of Frauds, 29 C. II. c. 3, s. 1,2; 2 Bl. Com. 297.) Unwritten or verbal evidence, delivered in words spoken by a witness, is called parol evidence (3 Bl. Com. 369; 12 Ves. 197.) To protect certain assurances of land from the fraud and perjury to which they are exposed, when they are made without writing, and they let in verbal or parol evidence to explain them, was the object of the third section of the Statute of Frauds (12 Ves. 197; 19 Ves. 211; 1 Rose, 300.) Verbal evidence offered in explanation of a will is parol evidence (Lord Falkland v. Bertie, 2 Vern. 337, 339; Ülrich v. Litchfield, 2 Atk. 373.) But written evidence offered for the same purpose, and consisting of documents, sealed or unsealed, as deeds, letters, entries, rentals, or papers of any kind, although it may be "in a sense parol" (Druce v. Denison, 6 Ves. 397,) and be

[ *8 ]

sometimes so called (4 M. & S. 556,) seems to be most properly denominated, not parol, but extrinsic or collateral evidence (Doe v. Brown, 11 East, 441; Doe v. Lyford, 4 M. & S. 550.) As evidence, which is parol, in the sense of verbal, and is offered to explain an instrument, is certainly extrinsic evidence, so this latter comprehensive expression is sometimes used to denote it (Colpoys v. Colpoys, Jacob, 451.) "Pleadings," says Sir W. Blackstone, "are the mutual altercations between the plaintiff and defendant; which at present are set down and delivered into the proper office in writing, though formerly they were usually put in by their counsel, ore tenus, or viva voce, in court, and then minuted down by the chief clerks, or prothonotaries; whence in our old law French, the pleadings are frequently denominated the parol" (3 BI. Com. 293; 3 Reeves' Hist. 95, 427. See also the statute 36 Edw. III. c. 15, which changed the language of pleading from French to English.) At this day pleadings, although now in writing, retain, in one instance at least, the name of the parol. For when in an action or suit the plaintiff or defendant is an infant, in many cases" either party may suggest the nonage of the infant, and pray that the proceedings may be deferred till his full age; or (in the legal phrase) that the infant may have his age, and that the parol may demur, that is, that the pleadings may be staid; and then they shall not proceed till his full age, unless it be apparent that he cannot be prejudiced thereby," (3 Bl. Com. 300; 2 Inst. 257, 291; Finch L. 79, 80, ed. 1759, 245, 246; Markal's case, 6 Co. 3; Plasket v. Beeby, 4 East, 485, 1 Smith, 264; Lechmere v. Brasier, 2 J. & W. 287.) (q) 1 Cox, 212; 12 Ves. 197; 2 Sch. & Lef. 383.

(r) 1 Cox, 212; 19 Ves. 211; 1 Buck,

526,

assigned, granted, or surrendered, unless it be by deed or note in writing, signed by the party so assigning, granting, or surrendering the same, or their agents thereunto lawfully authorized by writing, or by act and operation of law."(s) Lord Thurlow's decision in Russell v. Russell was confirmed by himself, by the like determination in other cases;(1) and these authorities have been followed, although with much reluctance, by other judges, in a great number of instances; (u) many of them in bankruptcy, (v) on the mortgagee's petition for payment out of the estate so pledged to him by the bankrupt,(w) and where the deposit was of a lease, which contained a clause against assignment without license.(x) And the doctrine of Russell v. Russell, although in effect it repeals the Statute of Frauds, is now too firmly established to be shaken by the Courts. (y) It has even been followed in a Court of Law. In Richards v. Borrett, Lord Kenyon observed:-It had been held in Equity, that depositing all, or even part of, the deeds respecting real property, implied an intention of charging the real estates, and gave the party a lien upon them; and that as this was an equitable action, he would hold the same doctrine. (z) *In Doe v. Hawke, where a lease for [ *9 ] years was devised by a conditional limitation, the estate of the devisee was held to be determined by certain acts done by him, and one of these acts was a deposit of the lease, by way of security for money borrowed. (a)

The mere deposit of title deeds, at the time when a debt is contracted or money advanced, is itself evidence of an agreement to pledge the land for security of the money; and, unless rebutted by other evidence,(b) is alone sufficient to establish a present equitable mortgage. (c) And with greater reason a present mortgage is effected, if the evidence offered to explain the deposit proves an express agreement to mortgage. (d) It is, perhaps, not decided that a mere deposit of deeds, unaided by parol evidence, will constitute a mortgage to secure a debt antecedently due.(e) But it is clear that parol evidence of the agreement, entered into when

(8) Stat. 29 C. II. c. 3. s. 3; 1 Cox, 221; 9 Ves. 117; 11 Ves. 403; 12 Ves. 197; 14 Ves. 607; 19 Ves. 211; 1 Rose, 300. See also the fourth section of the same statute.

(t) Featherstone v. Fenwick, and Hurford v. Carpenter, 1 Bro. C. C. 270, n.

(u) Plumb v. Fluitt, 2 Anstr. 438; Birch v. Ellames, ibid. 427; Lucas v. Commerford, 3 Bro. C. C. 166, 1 Ves. jun. 235, cited 6 Price. 460, 461; Hiern v. Mill, 13 Ves. 114; Hawkins v. Ramsbottom, 1 Price, 138; Casberd v. Att. Gen. 6 Price, 411, Dan. 238; Wiseman v. Westland, 1 Y. & J. 117. See also Hankey v. Vernon, 2 Cox, 12, and Williams v. Medlicott, 6 Price, 495.

(v) Ex parte Haigh, 11 Ves. 403; Ex p. Price, Buck, 221, 3 Madd. 132; Ex p. Wise, 1 Mont. & M. 65. See Doe v. Roe, 5 Espin. 105.

(w) Ex parte Mountfort, 14 Ves. 606; Ex p. Whitbread, 19 Ves. 209, 1 Rose, 299; Ex p. Coombe, 4 Madd. 249; Ex p. Meux, 1 Glyn & J. 116.

(x) Ex parte Baglehole, 1' Rose, 432; Ex

Ex p. Abdy, 2
See also Doe v.

p. Sherman, 1 Buck, 462;
Christ. B. L. 2nd ed. 120.
Bevan, 3 M. & S. 353. In Doe v. Hogg, 1
Carr. & P. 160, a deposit of a lease, as secu-
rity for money borrowed, was held not to
create a forfeiture, under the terms of the pro-
viso for re-entry contained in the lease.

(y) 1 Cox, 212; 9 Ves. 117; 12 Ves. 198; 19 Ves. 212, 479; 1 Mer. 9; 2 Ves. & B. 83.

(2) 3 Espin. Rep. 102. See also Wood v. Grimwood, 10 B. & C. 679, and Sumpter v. Cooper, 2 Barn. & Adolph. 223.

(a) 2 East, 481.

(b) 11 Ves. 401, 14 Ves. 607; Lucas v. Dorrien, 7 Taunt. 278, 1 J. B. Moore, 29.

(c) 11 Ves. 401, 403; 12 Ves. 198; 17 Ves. 230, 231; 19 Ves. 258; 2 Ves. & B. 83; 1 Turn. & R. 279; 1 Glyn & J. 242; 3 Y. & J. 161; Featherstone v. Fenwick, and Hurford v. Carpenter, 1 Bro. C. C. 270, n., cited 14 Ves. 607; Ex parte Bruce, 1 Rose, 374.

(d) Ex parte Bruce, 1 Rose, 374.
(e) See 12 Ves. 198; 14 Ves. 607.