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1.
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“Old personal actions”
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a.
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Debt—action for a specific sum of money owed by defendant to plaintiff, the
loan transaction is typical, also the sale transaction where the seller has
delivered the goods but the buyer hasn’t paid, the imbalance in accounts,
wager of law—this is contract in medieval parlance
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b.
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Covenant—action for enforcement of promises, the successful plaintiff
gets the performance or its value, jury, early in the 14th century the
central royal courts for reasons that are still quite obscure decided that
one must have a sealed instrument
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2.
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“Not doing is no trespass”—but see Innkeeper’s
Case, Mats., p. VII–21
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3.
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Trespass cases with contractual elements:
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a.
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The Humber Ferry Case (Mats p. VII–19). This, of course,
antedates the developments we were talking about last time and may be
responsible for having precipitated them.
“John de Bukton complains by bill that Nicholas atte Tounesende on a
certain day and year at B. upon Humber had undertaken to carry his
mare in his boat across the river Humber safe and sound., and yet the said
Nicholas overloaded his boat with other horses, as a result of which
overlaoding his mare perished, wrongfully and to his damage.”
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b.
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Waldon v. Marshall (Mats, p. VII–23). Again, the
argument is that this lies in covenant.
Kirton. “Because he has counted
that he had undertaken to cure his horse of his malady, for which he should
have had an action of covenant, judgment of the writ.”
Belknap. “That we cannot have
without a deed; and this action is brought because you did your cure so negligently that the horse
died, wherefore it is right to maintain this special writ according to the
case; for we can have no other writ.”
Kirton. “You could have a writ
of trespass, that he killed your horse generally.”
Belknap.“A general writ we
could not have had, because the horse was not killed by force, but died by
default of his cure.” ...
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c.
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Surgeon’s Case (Mats, p. VII–24). An attempt at
wager of law, but ultimately the writ is rejected because it fails to name
the place where the undertaking took place. Then, curiously, though the
court seems willing to accept his wager, the defendant drops his wager, but
ultimately wins because the writ does not allege where the undertaking took
place.
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4.
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Not doing is no trespass, but there are many cases on the plea rolls. Watton (CB, 1400) and Anon. (1409) (called, curiously enough,
a writ of covenant in the mss and covenant on the case in the marginalia) (Mats., pp VII-27 to VII-28) show us
the conceptual difficulty: not doing is no trepass or covenant is the writ
that ought to bring if you are complaining that someone promised to do
something that he didn’t do. (Both cases suggest that an action under the
S/Labourers might lie.) In Watkins
(1425, Mats, p VII-28) a long
discussion suggests, perhaps, that the problem basically one of causation. The
movement away from this idea comes in the Year Books in cases where there
are:
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a.
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Damages, e.g., Anon. (1436) (Mats, p. VII–31): not doing is no
trespass but not if the plaintiff has special damages.
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b.
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Deceit, e.g., Somerton (1433,
p. VII–30). The notion that direct deceit was a wrong that grounded a writ
of tespass is considerably older than this case. Here the deceit is a bit
less direct, and perhaps this is why it took three sittings to resolve the
case.
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c.
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Disablement, e.g., Doige’s Case
(1442, p. VII–32). This is a complicated case that eventually went to the
Exchequer Chamber, an informal gathering of all the justices and and
chancellor to resolve particularly difficult cases.
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d.
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Advance payment, e.g., Orwell v. Mortoft (1505, p. VII–45).
See below no. 6.
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5.
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Fyneux (Mats.,
p. VII-35)
“In Gray’s Inn. Note, if a man makes a
covenant to build me a house by a certain date, and does nothing about it,
I shall have an action on my case for this nonfeasance as well as if he had
built badly, because I am damaged by it: per Fyneux. And he
said that it had been so adjudged, and he held it to be law. It is likewise
if a man bargains with me that I shall have his land unto me and my heirs
for £20, and that he will make an estate to me if I pay him the £20, and he
does not make an estate to me according to the covenant, I shall have an
action on my case and need not sue out a subpoena.”
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6.
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That’s the end of the objection—CB under Frowyk goes along; see pp. VII–45:
“If I covenant, in return for money, to make a house by a certain day, and
do not do it, an action on the case lies for the misfeasance,” but
prepayment sends them off in the consideration direction.
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7.
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The movement away in the case of debt.
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a.
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The ecclesiastical courts: York BI CP.F. 321 (1511) Mats., p. VII–44. During the
late 14th and the 15th centuries, there are a large number of cases in the
ecclesiastical courts enforcing ordinary promises to pay money under the
rubric of breach of faith.
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b.
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Assumpsit and K.B. In the early 16th c. C.P. took a strict view
of this issue. Once more Orwell v.
Mortoft (1505) (p. VII–45).
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c.
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K.B. allowed the new action so long as you were willing to allege a
subsequent promise. Pykering v.
Thurgoode (1532) (p. VII–45). The problem of consideration for the
subsequent promise and the relation of this consideration to the quid pro quo of debt.
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d.
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1585 Exchequer Chamber statute. C.P. and Exchequer (no K.B.) sit over
the K.B. judges, brought the issue to a head.
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8.
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Slade’s Case (1602)—scandal. 1597 nisi prius decision. Case then taken
to K.B. (p. VII–47). The justices met in the old Exchequer Chamber.
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a.
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Every contract executory imports in itself an assumpsit
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b.
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You can bring assumpsit even if debt is available
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c.
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General declarations not involved
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d.
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No discussion of indebitatus assumpsit
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e.
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Problem of consideration—the best way of saying it is to say that it was
finessed.
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f.
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Doesn’t say anything about quasi-contract
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g.
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In 1611 all the justices decided that this assumpsit would be available against executors
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9.
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Problems
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a.
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Wager of law wasn’t all that bad
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b.
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The problem of the general pleading in assumpsit
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