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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.
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4.
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Not doing is no trespass, but there are many cases on the plea rolls.
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)
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b.
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Deceit, e.g., Somerton (1433, p.
VII–30)
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c.
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Disablement, e.g., Doige’s Case
(1442, p. VII–32)
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d.
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Advance payment, e.g., Orwell v. Mortoft (1505, p. VII–45)
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ng 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
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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. 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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