Bracton's Quotations.-Trial by Battle and Ordeal.

234

ADDITIONAL NOTE TO CHAPTER VIII.-NOTE 1.

Some of the passages in Bracton as to personal actions, which are taken from the Corpus Juris-Other points of similarity between the English and Roman forms of Procedurev. supra, p. 224, n. (c).

Personales vero actiones sunt quæ competunt contra aliquem ex contractu vel quasi, ex maleficio vel quasi, cum quis teneatur ad aliquid dandum vel faciendum; et locum habent adversus eum qui contraxit, et hæredem suum, nisi fuit pœnalis. Omnes fere personales actiones sunt ex contractu, sicut mutui, commodati, depositi, mandati, ex empto, vendito, locato et conductu. Personales vero actiones quæ nascuntur ex maleficio, aliæ persequuntur pœnam tantum, ut actio furti; aliæ vero persequuntur ipsam rem et pænam sicut vi bonorum raptorum, et v. rel. Bracton, lib. 3, c. 3, fol. 102 a. In cap. 4, fol. 104, Bracton enumerates the several kinds of actions which arise ex maleficio,-as actio furti sive condictio, actio vi bonorum raptorum, actio legis acquilia, actio injuriarum,—which action, he says, competit ei qui contumeliam vel injuriam passus est; et in quâ judex eum tanti condemnabit quanti actor dixerit se nolle [sic] injuriam sustinuisse, adhibita tamen per judicem taxatione-Actio metus causa, actío de dolo, actio sive interdictum unde vi, quæ duplex est scil. rei restitutoriæ et pænalis, datur contra eum qui vi dejecit-actio sive interdictum quod vi aut clam, actio sive interdictum de itinere actuque privato,-which, says Bracton, datur adversus eos qui injuste aliquem prohibent uti sua servitute; ait enim ptor, [Prætor] Qui itinere actuque publico agitur, &c. (following the perpetual edict), quo minus ita utatur, vim fieri veto. *fol. 104 a. It will be seen by reference to the texts cited in the preceding Chapter, that these passages are taken almost literally [*235] from the Digest and Institutes; many other extracts of a similar nature might be added. Looking to what has been said before, it appears to me that this can only be accounted for in one of two ways; namely, either that the Corpus Juris was so continually referred to by the king's justices,—as it was by the Lombards,-that Bracton took these passages from the Digest and Institutes, or at least Azo's Commentary, as being part of the lex non scripta or customary law of the land, which he professes to collector, that these doctrines had become, by constant previous reference, aided by tradition, the settled law of the King's Court; so that the common or customary law might be clothed in the language of the Digest and Institutes. These passages can hardly be said to have been introduced for illustration of the existing law; they are evidently quoted as the existing law.

Besides those which I have adverted to in the text, there are some minor features of similarity between the proceedings in the English Common Law Courts (at least till the late alterations) and those of Rome; as may be seen by reference to Sigonius, or Adam's Roman Antiquities; but they are not of sufficient importance to be enlarged upon. Such are Terms and Vacations, Imparlances (which are pointedly alluded to in St. Matthew's Gospel, c. v., v. 25); and the ancient Essoins (v. Dig. xlii. 1. 60, &c.). The once venerated Latitat appears to have derived its name from the Perpetual Edict, “Qui fraudationis causa latitaverit, &c." and see 2 Bla. Comm. 280, &c.

The investigation which I have thus imperfectly entered into, could not be rendered complete, without a diligent comparison of the works of Glanville and Bracton, with the Breviarium Aniani, and the Commentaries of Azo, which I have not been able to accomplish. I have never ceased to lament the not having the means of communicating with Mr. Savigny, and others of his countrymen, who have so eminently distinguished themselves in our day, in tracing the sources of modern jurisprudence in Europe.

ADDITIONAL NOTE TO CHAPTER VIII.-NOTE 2.

Trial by Battle and Ordeal.

I have omitted all notice of Trial by Battle, because, however curious, it does not appear that any principle of the Common Law, as it now exists, or any part of the modern course of procedure, can be traced to this singular native German institu

tion (1); for the same reason I have also passed over trial by Ordeal. I cannot, however, forbear transcribing, from a very learned and scholarlike treatise on Presumptive Evidence, in the first number of the new series of the Law Magazine, by J. G. P. (Phillimore, I presume, who on all occasions exhibits an intimate knowledge of the subjects on which he treats), a passage from the Law of the Burgundians (tit. 45), which plainly exhibits the principle on which Trial by Battle became almost universal:- "Multos in populo nostro, et pervicatione causantium, et cupiditatis instinctu, ita cognoscimus depravari, ut de rebus incertis sacramenta plerumque offere non dubitant, et de cognitis jugiter perjurare. Cujus sceleris consuetudinem submoventes, præsenti *lege decernimus, ut quotiens inter homines nostros causa [*236] surrexerit, et si qui pulsatus fuerit, non deberi a se quod requiretur, aut non factum quod objicitur, sacramentorum obligatione negaverit, hac ratione litigio eorum finem oportebit imponi; ut si pars ejus cui oblatum fuerit jusjurandum, voluerit sacramento suscipere, sed adversarium suum veritatis fiducia armis dixerit posse convinci, et pars diversa non cesserit, pugnandi licentia non denegetur; ita ut unus de eisdem testibus qui ad danda convenerunt sacramenta, Deo judicante confligat. Quoniam justum est, ut si quis veritatem rei incunctanter scire se dixerit, et obtulerit sacramentum, pugnare non dubitet." In the same work some very sensible remarks of Agobard, Archbishop of Lyons, are cited, in which that prelate denounces these absurd and "damnable" attempts to obtain the direct interposition of the Deity, as being contrary to Christian piety, and opposed to the doctrines of the Gospel.

(1) Trial by Battle, which had long been obsolete, was attempted to be revived in the

year 1819. It was abolished in that year by the stat. 59 Geo. III. c. 46.

[*237]

*CHAPTER IX.

ACTIONS ON THE CASE.

Subjects of this Chapter-Office of the Chancery, as the Officina of original Writs-Officers associated with the Chancellor for this purpose-Præceptores or Masters-who were Ecclesiastics or Doctors of Civil Law-Inferior Clerks-Six Clerks-Cursitors.

Authority given to the Clerks in the Chancery to issue Writs on the Case, by Stat. of Westminster 2-Actions of Trespass on the Case-made to extend to cases of Maljeazance generally-and Breach of Contract-Actual Trespass becomes no longer a necessary ingredient-afterwards extended to Nonfeazance-Action of Assumpsit.

Other Actions on the Case-Trover, &c.-Legal Fictions introduced.

Modern Action of Assumpsit-Extensive range of Cases it includes—Implied Agreements— Work and Labor-Goods Sold-Money had and received to the Use of another—Account stated.

Consideration necessary to Support Action of Assumpsit—Analogy to a Bill in Equity-to the Roman Actions Bona Fidei-Set-off.

Lex Mercatoria-its early History-The Modern Law Merchant-Bills of Exchange—and Promissory Notes-Insurance.

Difference between the General Issue in Trespass on the Case and Assumpsit.

Control exercised by Courts of Law over Actions brought against Good Faith, &c.

Modern Distinction between Actions on the Case or in Tort-and in Assumpsit or on Promises-Its great Difficulty and Importance.

Nisi Prius Record, its Nature-compared with Roman Formula.

Modern Amendments in the Rules of Pleading and Practice.

THE subject of this Chapter will be the important improvements which took place in the reign of Edward I. (a), the English Justinian, by the

(a) "The most sage king that ever was," (Lord Coke, 1 Inst. 392 b,) a title which he

acquired, perhaps, by his having had the good sense to search Europe for the best

The Chancery as the Officina brevium.

237

introduction of Actions on the Case, which form of action is that which is now in most general use. I propose, also, to introduce a history of the modern action of assumpsit; and to give a short account of the endeavors which have been made, in modern times, under the authority of the legislature, to correct the abuses which were found to have grown up in the system of pleading, and to obviate the evils experienced in England, from the adoption of artificial rules of pleading.

As a preliminary, however, to entering upon the subject of [*238] actions on the case, it is necessary to describe the Office of the Chancery, the workshop in which all original writs, by which alone actions could be prosecuted, were forged, and to give some account of the artificers (a), so far as relates to their common law functions.

After the system of proceeding by writs was established (all of which were issued under the great seal of the king), for the purpose of preserving due regularity in the form, and in the mode of issuing such writs, and for the ease of the Chancellor, who, besides having the care of the great seal (b), had other important duties to perform, there were associated with the Chancellor a certain number of clerks (clerici) called præceptores (afterwards Masters) (c), whom I shall have to notice more particularly on a future occasion. Their duties, as regards the issuing of writs, were, to hear and examine the complaints of those who sought redress in the King's Court, and to furnish them with the appropriate writs (d). The masters, in early times, were universally ecclesiastics and Doctors of the Civil Law (e), which, coupled with Fleta's statement, that an intimate knowledge of the laws of England on their parts, was a necessary qualification, and with the fact that the most distinguished of the judges were at this time dignitaries of the church, is remarkable as connected with some of the preceding and following observations (ƒ).

advice he could obtain in matters of Jurisprudence. Nero, however, must be considered as the first sovereign under whose auspices actions on the case were introduced, for such was very much the nature of the actions given to the beneficial owner of property under a fidei commissary devise; sup. p. 213. Lord Campbell gives the chief merit of Edward's Improvements to L. C. Burnel, i. p. 164.

(a) A similar office, as has before been observed, already existed in France, under the presidency of the High Chancellor; v. supra, p. 79; and in other continental states, see Palgrave's Rise, &c. p. 77.

(b) Fleta, ii. c. 29. It was sometimes entrusted to some other person, or to more than one as commissioners, but this was generally for some particular purpose; see Hardy's catalogue. Fleta, at this early period, mentions the Chancery as a Court, Curia, Fleta. ii. 2, § 3.

(c) They were persons of high consider ation in the Chancery and in the Parliament, they are designated by Fleta as "Col laterales et Socii Cancellarii," ii. 13. § 12; and see Hargrave's Law Tracts, p. 298. They obtained the name of Præceptores,

"eo quod brevia, causis examinatis, remedialia fieri præcipiunt." The clerks of the Chancery were the king's officers, they took an oath for the due performance of their duties, Fleta, ubi sup.

(d)" Et eis, super qualitatibus injuriarum ostensarum, debitum remedium exhibere per brevia Regis," Fleta, lib. ii. c. 13, p. 77, and see 8 Co. Rep. 49 a.

(e) Duck. p. xxix.; Fleta, ubi sup. and p. 76. So that doctors of civil law had to determine whether there was a remedy at common law in each particular case, and if so what was the proper remedy. But the common law judges afterwards deprived them of any discretion on this subject, as will be presently noticed.

(f) I have mentioned some of the clerical judges whose decisions are frequently quoted by Bracton, supra, p. 124, n. (c). Martin de Pateshull, who is most frequently quoted by him, generally in conjunction with the Abbot of Reading, was, I now learn, Dean of St. Paul's, as well as Chief Justice of the King's Bench; see Co. Litt. 304 b, where some others of those to whom Bracton frequently refers, are stated to have been ecclesiastics.

238

Stat. Westm. 2. (13 Edw. I.)

Besides the masters, or superior clerks, there were Six other clerks belonging to the Chancery, whose duty it was to engross writs not strictly of course; and junior clerks to write out from the register of the Chancery in which the forms of writs were enrolled, those writs *which were of course, de cursu (a). In the time of Henry III. [*239] there were, it seems, fifty-one of these writs de cursu, but their number was afterwards greatly increased (b). In the reign of Edw. III. the clerks who issued the writs de cursu had acquired the name of Cursitors (c), which they retained until the last reign, when they were abolished. The whole establishment of the Chancery (which was also an office of the Parliament) followed the king (d).

It has been thought by some, that even before the statute of the 13 Edw. I., called of Westminster the Second, about to be noticed, the clerks of the Chancery, though they could not alter the old writs in the register, or add new ones (e), had exercised the liberty of adapting the existing forms of writs to particular cases which were only new in the instance, not in principle (ƒ).

If the Chancellors like the Roman Prætors (that is, before the time of Hadrian), had been invested with the control of the pleadings, as well as the power of granting the writ, perhaps the forms of writs might have been insensibly increased so as not to make it necessary to resort to the legislature to provide for new cases; but under the English system, following as it did that of the Romans very closely in all its principles, that portion of the Prætorian functions which consisted in deciding upon the validity of the writ, and superintending the pleadings which followed upon it, devolved upon, or at least was assumed by, the judges of the courts of Common Law (g).

(a) Sir F. Palgrave on the Council, p. 16. (b) Ibid. p. 17, 18. Judicial writs, as before noticed, all of which were founded on some actual or supposed original writ, (Bract. fo. 413 b,) emanated from the courts themselves. The writ by which, prior to the abolition of arrest for debt, the defendant was arrested and held to bail, that is, was compelled to find substantial sureties for his appearance, was a judicial writ. (c) Stat. 18 Edw. III., and see 4th Inst. fo. 82.

(d) Palgrave, Council, p. 15, 115; Report of Lords' Committee, reprint, 1823, p. 272. (e) It was provided at the Council of Oxford, temp. Hen. III. A. D. 1258, that the Chancellor should not issue any writs, otherwise than by the direct command of the King or his Council. Introd. to Clo. Rolls, p. xxxiii.

(f) See Reeves, ii. p. 203. It is the province of the Parliament to devise writs new in principle, Pref. to 9 Co. Rep. p. xxviii., and Fleta, there cited. The same doctrine is stated by Ashhurst, J. in Pasley v. Freeman, 3 T. R. 63.

(g) I cannot but here observe, as indeed I have occasionally hinted in many other

places, that if we are to use the expressions, Forum Romanum and Lex Prætoria, the functions of the common law judges might, throughout, be much more appropri ately termed Prætorian than those of the Chancellor. As regards all the proceed. ings in jure, (v. sup. p. 217,) excepting the issuing of the original writ, they represent the Prætor. The common law judges so far represent the Judices or Recuperatures, that they give the judgment; the remainder of their functions, as will have been collected from what has been said before, being performed by our juries. As regards the Chancellor, as before observed, no Prætor, at least while the distinction between his ordinary and extraordinary jurisdiction subsisted, unless I am laboring under a great mistake, ever pronounced such decrees as are now made in suits in the Court of Chancery. The Restitutio in Integrum, and the grant of Bonorum possessio, exhibit the nearest resemblance to equitable decrees, still they are very dissimilar. After formula were abolished, and all cases were heard extra ordinem, such decrees may have been made, but then the Prætor was what we should call a common law judge also.

Actions on the Case, under Stat. West. 2.

*240

*From the rigor with which the common law judges required that the forms in the register should be adhered to, it was thought necessary that Parliament should interfere to relieve parties from being confined to the express forms of the writs in the register. Accordingly, by the 24th section of the Statute of Westminster the Second above referred to (which, however, Lord Coke considers as declaratory only), the following enactment was made: "Whensoever from henceforth it shall fortune in Chancery that in one case a writ is found, and in like case (consimili casu) falling under like law, and requiring like remedy, is found none, the clerks of the Chancery shall agree in making the writ, or the plaintiffs may adjourn it into the next Parliament: and let the cases be written in which they cannot agree, and let them refer themselves to the next Parliament, by consent of men learned in the law a writ shall be made, lest it might happen after that the court should long time fail to minister justice unto complainants" (a). This statute in terms gave an express authority to the clerks of the Chancery to issue what may be called utiles actiones, or actions in factum, at their discretion; but the judges do not appear ever to have considered themselves in any way bound by the decisions of the clerks of the Chancery in the exercise of the authority so given to them, in regard to issuing of writs on the case. The statute was silent as to the nature of the bars, and other pleadings to be used in such actions; that was left entirely to the judges: indeed, no register was kept of the forms of pleas of any kind.

The original writ used in the action of trespass, appears to have been that which was most commonly resorted to, on which to frame writs under this statute (b). Trespasses, it will be remembered, were the proper subject for the jurisdiction of the Court of King's Bench; consequently, that court would have jurisdiction over all actions of trespass on the case (c). If the action of covenant or of debt had been *taken, which would appear to have been the most natural course in cases of contract, such actions on the case must have gone [*241] exclusively to the Common Pleas (d)-a circumstance which it is material to attend to in tracing the somewhat extraordinary progress and extension of the action of trespass on the case.

This action (trespass on the case) was naturally resorted to in all cases

(a) 13 Edw. I. c. 24. Some new writs are given by this and other statutes; and the remedy by assize of novel disseisin was extended by 13 Edw. III. c. 25. From this time also assizes were to be taken only before the king's justices, who were to associate with them one or two knights of the shire, c. 30; still adhering, thus far, to the Anglo-Saxon system of judgment by the County; and see Reeves, ii. 204, and 9 Co. Rep. 55 a. Accursius, it is to be observed, was not in England when this statute was passed, whatever hand he may have had in its preparation.

(b) A trespass is an injury committed with violence, and this violence may be express, or implied, Stephen on Pleading, p. 16, 5th ed. Transgressio was the word from which it was derived, Fleta, cited Co. Litt.

57 a.

(c) The form of the declaration in trespass, down to Edw. III. was that the defendant came with force and arms, and did the wrong, (as that he had fished in the plaintiff's fishery, or cut down his trees, &c.,) a tort et a damages, &c., and against the King's peace, &c. (Reeves, iii. 84.) Originally, it would appear that vi et armis, and contra pacem were inserted in the action of trespass on the case, Reeves, iii. p. 91; Com. Dig. Act on Case (A.); though afterwards these words were omitted, Com. Dig. Act. on Case (C. 3 and 4), p. 174.

(d) See Tidd's Practice, i. 95, 4th ed. The stat. 19 Hen. VII. c. 9 Com. Dig. Act. on Case (C. 1) shows that the court of King's Bench and Common Pleas, then, equally had jurisdiction in actions on the case.