is true that, as yet, this mercantile jurisdiction was shared by the court of Chancery. The machinery of that court was much better fitted to deal with cases which involved the taking of accounts. For this reason it assumed jurisdiction in partnership cases,1 and in the administration of the law of bankruptcy; 2 and the later history of the law upon these topics must be looked for rather in the Chancery than in the common law reports. As we shall see, the court of Chancery heard cases which turned on bills of lading, contribution and average, bottomry," insurance, and charter parties. It was not till the time of Lord Mansfield that the limits of the common law and equitable jurisdiction in commercial cases was defined with any degree of fixity.

4

6

(ii) Some of the most important developments in the law of contract and tort are the direct consequence of this development of the mercantile jurisdiction of the common law courts.

In the law of contract it led directly to the growth of special rules dealing with particular contracts. Thus we get some definite rules as to the obligations of the parties to a contract of sale; and, as we have seen, the various species of the contract of bailment were defined.1 10 On the other hand, other developments of this branch of the law are not so directly due to this cause. Most of the cases on wagering contracts are due to Charles II.'s legislation; and § 4 of the statute of Frauds occasioned the need for a precise definition of the contracts to which it applied.

In the law of tort the most important developments are, firstly, changes in the principles of liability for tort, and, secondly, the growth of more detailed rules as to particular torts. The principal changes in the principles of liability for tort are the beginnings of the modern doctrine of the master's liability for the torts of his servant 11; and a growing tendency to develop the principles of liability for tort, by differentiating between cases in which a man is liable for an illegal act which damages another, and cases in which he is liable for such an act only if it is accompanied by wrongful intention or negligence.12 It is probable, as we shall see, that the first of these developments is technically related to the encroachments made by the common law courts

1 Below 650.

2 Pt. II. c. 4 I. § 6.

3 Wiseman v. Vandeput (1690) 2 Vern. 203-a case in which we can see the origins of the doctrine of stoppage in transitu; and see generally Pt. II. c. 4 II. and III.

7 Edwin v. East India Company (1690) 2 Vern. 210; S.C. 1 Eq. Cas. Abr. 374. 8 Vol. i 572-573; vol. v 147. 9 Vol. v 109-111; Pt. II. c. 3 § 2. 11 Pt. II. c. 5 § 6. 12 Ibid.

10 Above 520.

upon the maritime and commercial jurisdiction of the Admiralty;1 and it is quite clear that the expanding commerce and industry of the country made it a necessary protection to the general public. Probably also the second of these developments owed something to the same cause. But it also owed something to the growth of more detailed rules as to particular torts. Some of these torts begin to appear in their modern form. Thus we begin to see the growth of the distinction between the torts of libel and slander, and the growth of the distinction between the tort and the crime of libel; 2 malicious prosecution gets free from its early association with conspiracy, and emerges as an independent tort;3 and we get interesting discussions upon many other topics connected with particular torts-e.g. as to the limits of the right of a person assaulted to defend himself, as to the right of a person to sue in tort who is specially damaged by a public nuisance, as to the right of a bailee to bring trover," and as to liability for damage done by animals."

5

(iii) The growth of the law of contract and tort, and topics connected therewith, began to make the lawyers conscious of the difference between contract and tort, and even to perceive dimly the meaning of the phrase quasi-contract.

8

Bracton had talked of actions ex contractu vel quasi, and actions ex maleficio vel quasi." But, as Maitland had shown, this classification could not be imposed upon the mediæval forms of action. Neither Bracton, Britton, nor Fleta make any use of it. "Throughout the Middle Ages the theory that personal actions may be arranged under these headings seems to remain a sterile, alien theory. It does not determine the arrangement of the practical books, of the Register, the Old Natura Brevium, Fitzherbert's Natura Brevium, the Novæ Narrationes. Even Hale, when in his analysis he mapped out the field of English law, did not make it an important outline." 10 In fact, as we have seen," the English personal actions were often at once contractual, delictual, and proprietary in their nature. portant differences were those which existed between the forms of the different writs, between the mesne process upon them,

1 Pt. II. c. 5 § 6.

2 Ibid § 2; see vol. v 205-212 for its earlier development in the Star Chamber.

* Savile v. Roberts (1698) 1 Ld. Raym. 374; Pt. II. c. 5 § 3.

Leward v. Basely (1696) 1 Ld. Raym. 62.

5 Iveson v. Moore (1700) 1 Ld. Raym. 486.

Arnold v. Jefferson (1698) 1 Ld. Raym. 275; Pt. II. c. 2 § 1.

7 Jenkins v. Turner (1697) 1 Ld. Raym. 109; Mason v. Keeling (1701) ibid 606; Pt. II. c. 5 § 6.

8 On this topic see Maitland's historical note on the classification of the forms of personal action, printed in Pollock's Torts App. A.

At f. 99; vol. ii 277, 278.

11 Vol. ii 367-369; vol. iii 420, 425-426.

10 Maitland, op. cit. 536-537.

between the proper pleas to them, between the modes of proof, between the forms of the judgments and final process upon them.1

The growth and spread of the action of trespass and its offshoots, and statutory changes, made for the growth of uniformity. But uniformity was never attained completely; and it was still necessary, for certain purposes, to draw a line between different classes of personal action. Thus, firstly, the question arose, What forms of action could be joined? The answer turned largely upon the procedural differences between the actions. Thus it was said that the actions to be joined must be such as have the same mesne process and the same general issue, also that an action in which (apart from statutes) the defendant was liable to fine could not be joined with one in which he could only be amerced." 2 But we also see that, during this period, it was beginning to be said that causes of action in contract could not be joined with causes of action in tort. No doubt, as Maitland says, the rules on this topic could not be reduced to this simple principle. But, for all that, it is clear that this new distinction, based upon substantive law, was beginning to appear beside the old distinctions based upon adjective law. Secondly, it was laid down that, while all joint contractors must be sued because their liability was joint, a failure to join all joint tort feasors was not fatal, as their liability was joint and several. Here again, therefore the attention of the lawyers was turned to the distinction between tort and contract. Thirdly, its importance was beginning to be seen in connection with the maxim Actio personalis moritur cum persona. The distinction between actions which survived and those which did not, to some extent, though not entirely, corresponded with the distinction between contract and tort. Thus, although the differences between the forms of action continued to have more practical importance so long as the forms of action survived, it is clear that the distinction between contract and tort, based upon the subject matter of the law, is beginning to emerge. When the forms of action were abolished, and when this distinction was adopted as a basis of classification by the legislature,

2 Ibid 539.

1 Maitland, op. cit. 535. Denison v. Ralphson (1682) 1 Vent. at p. 368-" Causes upon contract which are in the right, and causes upon a tort, cannot be joined"; cp. Dalston v. Janson (1696) 1 Ld. Raym. 58—“ an action founded upon a contract cannot be joined with an action founded upon a tort, as a trover."

We see this in the reason given for the statement in Denison v. Ralphson-" for they (i.e. these causes of action) do not only require several pleas, but there is several process, the one summons attachment etc., the other attachment etc."; cp. Courtney v. Collet (1698) 1 Ld. Raym. 272-trespass and case cannot be joined because the judgments are different.

Boson v. Sandford (1689) 2 Salk. at p. 440; Rich v. Pilkington (1692) Carth. at p. 171; and see Cabell v. Vaughan (1669) i Wms. Saund. 291 and notes thereto. 6 Vol. iii 576-582, 584-585.

it became a leading distinction. But, for some time, owing to the development of the law of contract and tort, by means of actions which were neither completely contractual nor completely delictual, it will require some judicial interpretation before it can be quite completely fitted to the existing rules of the common law. But it is significant that at this period, when our modern common law is beginning to emerge clearly, this modern classification is beginning to attract some attention.

Similarly, we can see that the conceptions of an implied contract and a quasi-contract are beginning to emerge, by reason of further developments in the scope of the action of assumpsit." We have seen that, at the beginning of the seventeenth century, indebitatus assumpsit could be brought for a debt, even though there had been no express promise to pay subsequently made; and that this extension of the sphere of assumpsit helped to familiarize the law with the idea of an implied promise. We have seen that, in consequence, the idea was extended to cases where one person had performed services for another, without having made a definite bargain as to remuneration, or an express promise to pay; that in these cases the former could sue the latter in assumpsit on a quantum meruit; and that this idea of an implied promise was extended to a large number of different cases, in order that the plaintiff might get the convenient remedy of assumpsit. But so far all the cases were cases in which there was a true contract-there was consent, though only an implied consent. We shall see that the last extension of assumpsit was to cases where the action of debt lay for duties not arising from consent, e.g. for the breach of a statutory or customary duty." We shall see that Holt was averse to this extension, because he saw that it was, logically, an illegitmate extension." But, in spite of his opposition, assumpsit was extended to this new sphere; and the notion of promises implied in law, or quasi-contracts, became fixed in the law in its modern form.8 It was gradually developed as a remedy in a large number of cases in which one. person had unjustly enriched himself at the expense of another; and, as so developed, it in time rendered unnecessary much of that equitable interference with the common law which, at an earlier period, considerations of natural justice had necessitated.

Thus, as with the notion of contract and tort, so with the notion of contract and quasi-contract, English Law was gradually acquiring some definite notions of these fundamental distinctions in substantive law. Braction had tried to impose these notions

1 Maitland, op. cit. 541-542.

Vol. iii 441-448.

Ibid 450-451; Pt. II. c. 3 § 3.

2 Vol. iii 446-451; Pt. II. c. 3 § 3.
5 Ibid 447-448.
8 Ibid.

4 Ibid 447.

7 Ibid.

upon a body of law which was far too immature to receive them. But, when English Law, by a road of its own, had attained a mature body of rules upon these topics, these fundamental distinctions, which he had borrowed from Roman law, reappeared. They were brought to light and used to elucidate and develop English Law, just as his speculations on various aspects of the law of bailment were recalled by Holt, C.J., in the case of Coggs v. Bernard, and used to meet the demand for a more elaborate and a more definite body of rules upon this topic.

This summary shows us that the two most striking features in the development of those parts of the common law which regulate the relations of private persons are, firstly, the decay of the real actions and the decline in importance of the mediæval land law; and, secondly, the growth of mercantile law and of the two branches of law most closely related thereto-the law of contract and the law of tort. These two features show us that the development of the common law faithfully reflected the fact that mediæval had finally given place to modern conditions. Nor is it surprising that it should thus faithfully reflect this change. Although the common law has been tenacious of mediæval doctrines and medieval forms, its development by means of decided cases has always enabled it to keep in more or less close touch with the dominant needs and opinions of the day; and, at this period, its newly won supremacy in the state caused it to be peculiarly sensitive to these needs and opinions. And so, in a land law changed in its contents, and changed in its importance in relation to other parts of the legal system, and in the development of those branches of the law most needed by a commercial and industrial nation, we see the technical expression of the changes which were taking place on all sides of the national life.

But all the needs of this new age could not be satisfied by the common law. To satisfy them, these developments of the common law needed, as we shall now see, to be supplemented and seconded by the development of a system of equity.

Equity

It was during this period that some of the principles of equity, and the rules deducible from them, began to assume their modern form. Consequently equity made definite progress in that process of transformation which, when it is complete, will convert it into a system almost as fixed as that of the common law. Here I shall describe briefly the extent of the progress, which had

1 Vol. ii 289; above 521.