Part 131

"Twenty-two years after the passing of this statute (Mich. Term 4 & 5 Ph. & M.) the judges by a decision practically rendered the Statute nugatory by holding that the Statute will not execute more than one use, and that if there be a second use declared the Statute will not operate upon it. The effect of this was to bring again into full operation the equitable doctrine as to uses in lands."

_A. H. Marsh, History of the Court of Chancery, pages 122-123._

COMMON LAW: A. D. 1580. Equal Distribution of Property.

"In Holland, all property, both real and personal, of persons dying intestate, except land held by feudal tenure, was equally divided among the children, under the provisions of an act passed by the States in 1580. This act also contained a further enlightened provision, copied from Rome, and since adopted in other Continental Countries, which prohibited parents from disinheriting their children except for certain specified offences. Under this legal system, it became customary for parents to divide their property by will equally among their children, just as the custom of leaving all the property to the eldest son grew up under the laws of England. The Puritans who settled New England adopted the idea of the equal distribution of property, in case there was no will—giving to the eldest son, however, in some of the colonies a double portion, according to the Old Testament injunction,—and thence it has spread over the whole United States."

_D. Campbell, The Puritan in Holland, England and America, volume 2, page 452._

COMMON LAW: A. D. 1589. Earliest notice of Contract of Insurance.

"The first notice of the contract of insurance that appears in the English reports, is a case cited in Coke's Reports [6 Coke's Rep., 47b], and decided in the 31st of Elizabeth; and the commercial spirit of that age gave birth to the statute of 43rd Elizabeth, passed to give facility to the contract, and which created the court of policies of assurance, and shows by its preamble that the business of marine insurance had been in immemorial use, and actively followed. But the law of insurance received very little study and cultivation for ages afterwards; and Mr. Park informs us that there were not forty cases upon matters of insurance prior to the year 1756, and even those cases were generally loose nisi prius notes, containing very little information or claim to authority."

_J. Kent, Commentaries, part 5, lecture 48._

COMMON LAW: A. D. 1592. A Highwayman as a Chief-Justice.

"In 1592, Elizabeth appointed to the office of Chief-Justice of England a lawyer, John Popham, who is said to have occasionally been a highwayman until the age of thirty. At first blush this seems incredible, but only because such false notions generally prevail regarding the character of the time. The fact is that neither piracy nor robbery was considered particularly discreditable at the court of Elizabeth. {1968} The queen knighted Francis Drake for his exploits as a pirate, and a law on the statute-books, passed in the middle of the century, gave benefit of clergy to peers of the realm when convicted of highway robbery. Men may doubt, if they choose, the stories about Popham, but the testimony of this statute cannot be disputed."

_D. Campbell, The Puritan in Holland, England and America, volume 1. page 366._

COMMON LAW: A. D. 1650-1700. Evidence. "Best Evidence Rule."

"This phrase is an old one. During the latter part of the seventeenth century and the whole of the eighteenth, while rules of evidence were forming, the judges and text writers were in the habit of laying down two principles; namely, (1) that one must bring the best evidence that he can, and (2) that if he does this, it is enough. These principles were the beginning, in the endeavor to give consistency to the system of evidence before juries. They were never literally enforced,—they were principles and not exact rules; but for a long time they afforded a valuable test. As rules of evidence and exceptions to the rules became more definite, the field for the application of the general principle of the 'Best Evidence' was narrower. But it was often resorted to as a definite rule and test in a manner which was very misleading. This is still occasionally done, as when we are told in McKinnon v. Bliss, 21 N. Y, p. 218, that 'it is a universal rule founded on necessity, that the best evidence of which the nature of the case admits is always receivable.' Greenleaf's treatment of this topic (followed by Taylor) is perplexing and antiquated. A juster conception of it is found in Best, Evid. s. 88. Always the chief example of the 'Best Evidence' principle was the rule about proving the contents of a writing. But the origin of this rule about writings was older than the 'Best Evidence' principle; and that principle may well have been a generalization from this rule, which appears to be traceable to the doctrine of profert. That doctrine required the actual production of the instrument which was set up in pleading. In like manner, it was said, in dealing with the jury, that a jury could not specifically find the contents of a deed unless it had been exhibited to them in evidence. And afterwards when the jury came to hear testimony from witnesses, it was said that witnesses could not undertake to speak to the contents of a deed without the production of the deed itself. … Our earliest records show the practice of exhibiting charters and other writings to the jury."

_J. B. Thayer, Select Cases on Evidence, page 726._

COMMON LAW: A. D. 1600. Mortgagee's Right to Possession.

"When this country was colonized, about A. D. 1600, the law of mortgage was perfectly well settled in England. It was established there that a mortgage, whether by deed upon condition, by trust deed, or by deed and defeasance, vested the fee, at law, in the mortgagee, and that the mortgagee, unless the deed reserved possession to the mortgagor, was entitled to immediate possession. Theoretically our ancestors brought this law to America with them. Things ran on until the Revolution. Mortgages were given in the English form, by deed on condition, by deed and defeasance, or by trust deed. It was not customary in Plymouth or Massachusetts Bay, and it is probable that it was not customary elsewhere, to insert a provision that the mortgagor, until default in payment, should retain possession. Theoretically, during the one hundred and fifty years from the first settlement to the Revolution, the English rules of law governed all these transactions, and, as matter of book law, every mortgagee of a house or a farm was the owner of it, and had the absolute right to take possession upon the delivery of the deed. But the curious thing about this is, that the people generally never dreamed that such was the law."

_H. W. Chaplin, The Story of Mortgage Law (Harvard Law Review, volume 4, page 12)._

COMMON LAW: A. D. 1601-1602. Malicious Prosecution.

"The modern action for malicious prosecution, represented formerly by the action for conspiracy, has brought down to our own time a doctrine which is probably traceable to the practice of spreading the case fully upon the record, namely, that what is a reasonable and probable cause for a prosecution is a question for the court. That it is a question of fact is confessed, and also that other like questions in similar cases are given to the jury. Reasons of policy led the old judges to permit the defendant to state his case fully upon the record, so as to secure to the court a greater control over the jury in handling the facts, and to keep what were accounted questions of law, i. e., questions which it was thought should be decided by the judges out of the jury's hands. Gawdy, J., in such a case, in 1601-2, 'doubted whether it were a plea, because it amounts to a non culpabilis. … But the other justices held that it was a good plea, per doubt del lay gents.' Now that the mode of pleading has changed, the old rule still holds; being maintained, perhaps, chiefly by the old reasons of policy."

_J. B. Thayer, Law and Fact in Jury Trials (Harvard Law Review, volume 4, page 147)._

ALSO IN: _J. B. Thayer, Select Cases on Evidence, page 150._

COMMON LAW: A. D. 1603. Earliest reported case of Bills of Exchange.

"The origin and history of Bills of Exchange and other negotiable instruments are traced by Lord Chief Justice Cockburn in his judgment in Goodwin v. Robarts [L. R. 10 Ex., pages 346-358]. It seems that bills were first brought into use by the Florentines in the twelfth century. From Italy the use of them spread to France, and eventually they were introduced into England. The first English reported case in which they are mentioned is Martin v. Boure (Cro. Jac. 3), decided in 1603. At first the use of Bills of Exchange seems to have been confined to foreign bills between English and foreign merchants. It was afterwards extended to domestic bills between traders, and finally to bills of all persons whether traders or not. The law throughout has been based on the custom of merchants respecting them; the old form of declaration on bill used always to state that it was drawn 'secundum usum et consuetudinem mercatorum.'"

_M. D. Chalmers, Bills of Exchange, page xliv., introduction._

See, also, MONEY AND BANKING, MEDIÆVAL.

{1969}

COMMON LAW: A. D. 1604. Death Inferred from Long Absence.

"It is not at all modern to infer death from a long absence; the recent thing is the fixing of a time of seven years, and putting this into a rule. The faint beginning of it, as a common-law rule, and one of general application in all questions of life and death, is found, so far as our recorded cases show, in Doe d. George v. Jesson (January, 1805). Long before this time, in 1604, the 'Bigamy Act' of James I. had exempted from the scope of its provisions, and so from the situation and punishment of a felon (1) those persons who had married a second time when the first spouse had been beyond the seas for seven years, and (2) those whose spouse had been absent for seven years, although not beyond the seas,—'the one of them not knowing the other to be living within that time.' This statute did not treat matters altogether as if the absent party were dead; it did not validate the second marriage in either case. It simply exempted a party from the statutory penalty."

_J. B. Thayer, Presumptions and the Law of Evidence (Harvard Law Review, volume 3, page 151)._

COMMON LAW: A. D. 1609. First Recognition of Right to Sue for Quantum Meruit.

"There seems to have been no recognition of the right to sue upon an implied 'quantum meruit' before 1609. The innkeeper was the first to profit by the innovation. Reciprocity demanded that, if the law imposed a duty upon the innkeeper to receive and keep safely, it should also imply a promise on the part of the guest to pay what was reasonable. The tailor was in the same case with the innkeeper, and his right to recover upon a quantum meruit was recognized in 1610.". [Six Carpenters' Case, 8 Rep., 147a.]

_J. B. Ames, History of Assumpsit (Harvard Law Review, volume 2, page 58)._

COMMON LAW: A. D. 1623. Liability of Gratuitous Bailee to be Charged in Assumpsit, established.

"The earliest attempt to charge bailees in assumpsit were made when the bailment was gratuitous. These attempts, just before and after 1600, were unsuccessful, because the plaintiffs could not make out any consideration. The gratuitous bailment was, of course, not a benefit, but a burden to the defendant; and, on the other hand, it was not regarded as a detriment, but an advantage to the plaintiff. But in 1623 it was finally decided, not without a great straining, it must be conceded, of the doctrine of consideration, that a bailee might be charged in assumpsit on a gratuitous bailment."

_J. B. Ames, History of Assumpsit (Harvard Law Review, volume 2, page 6, citing Wheatley v. Low, Palm., 281; Cro. Jac. 668)._

COMMON LAW: A. D. 1625 (circa). Experiment in Legislation. Limitation in time.

"The distinction between temporary and permanent Legislation is a very old one." It was a distinction expressed at Athens; but "we have no such variety of name. All are alike Acts of Parliament. Acts in the nature of new departures in the Law of an important kind are frequently limited in time, very often with a view of gaining experience as to the practical working of a new system before the Legislature commits itself to final legislation on the subject, sometimes, no doubt, by way of compromise with the Opposition, objecting to the passing of such a measure at all. Limitation in time often occurs in old Acts. Instances are the first Act of the first Parliament of Charles I. (1 Car. 1., c. 1), forbidding certain sports and pastimes on Sunday, and permitting others. The Book of Sports of James I. had prepared the mind of the people for that more liberal observance of Sunday which had been so offensive to the Puritans of Elizabeth's reign, but it had not been down to that time acknowledged by the Legislature. This was now done in 1625, the Act was passed for the then Parliament, continued from time to time, and finally (the experiment having apparently succeeded) made perpetual in 1641. Another instance is the Music Hall Act of 1752 passed it is said on the advice of Henry Fielding, in consequence of the disorderly state of the music halls of the period, and perhaps still more on account of the Jacobite songs sometimes sung at such places. It was passed for three years, and, having apparently put an end to local disaffection, was made perpetual in 1755. Modern instances are the Ballot Act, 1872, passed originally for eight years, and now annually continued, the Regulation of Railways Act, 1873, creating a new tribunal, the Railway Commission, passed originally for five years, and annually continued until made perpetual by the Railway and Canal Traffic Act, 1888; the Employers' Liability Act, 1880, a new departure in Social Legislation, expiring on the 31st December, 1887, and since annually continued; and the Shop Hours Regulation Act, 1886, a similar departure, expiring in 1888, and continued for the present Session. … (2) Place. —It is in this respect that the Experimental method of Parliament is most conspicuous. A law is enacted binding only locally, and is sometimes extended to the whole or a part of the realm, sometimes not. The old Statute of Circumspecte Agatis (13 Edw. I., stat. 4) passed in 1285 is one of the earliest examples. The point of importance in it is that it was addressed only to the Bishop of Norwich, but afterwards seems to have been tacitly admitted as law in the case of all dioceses, having probably been found to have worked well at Norwich. It was not unlike the Rescripts of the Roman emperors, which, primarily addressed to an individual, afterwards became precedents of general law."

_James William (Law Magazine & Review, London 1888-9), 4th ser., volume 14, page 306._

COMMON LAW: A. D. 1630-1641. Public Registry.

"When now we look to the United States, we find no difficulty in tracing the history of the institution on this side of the Atlantic. The first settlers of New York coming from Holland, brought it with them. In 1636, the Pilgrims of Plymouth, coming also from Holland, passed a law requiring that for the prevention of frauds, all conveyances, including mortgages and leases, should be recorded. Connecticut followed in 1639, the Puritans of Massachusetts in 1641; Penn, of course, introduced it into Pennsylvania. Subsequently every State of the Union established substantially the same system."

_D. Campbell, The Puritan in Holland, England and America, volume 2, page 463._

COMMON LAW: A. D. 1650 (circa). Law regarded as a Luxury.

"Of all the reforms needed in England, that of the law was perhaps the most urgent. In the general features of its administration the system had been little changed since the days of the first Edward. As to its details, a mass of abuses had grown up which made the name of justice nothing but a mockery. Twenty thousand cases, it was said, stood for judgment in the Court of Chancery, some of them ten, twenty, thirty years old. In all the courts the judges held their positions at the pleasure of the crown. They and their clerks, the marshals, and the sheriffs exacted exorbitant fees for every service, and on their cause-list gave the preference to the suitor with the longest purse. Legal documents were written in a barbarous jargon which none but the initiated could understand. {1970} The lawyers, for centuries, had exercised their ingenuity in perfecting a system of pleading, the main object of which seems to have been to augment their charges, while burying the merits of a cause under a tangle of technicalities which would secure them from disentombment. The result was that law had become a luxury for the rich alone."

_D. Campbell, The Puritan in Holland, England and America, volume 2, pages 383-384._

COMMON LAW: A. D. 1657. Perhaps the first Indebitatus Assumpsit for Money paid to Defendant by Mistake.

"One who received money from another to be applied in a particular way was bound to give an account of his stewardship. If he fulfilled his commission, a plea to that effect would be a valid discharge. If he failed for any reason to apply the money in the mode directed, the auditors would find that the amount received was due to the plaintiff, who would have a judgment for its recovery. If, for example, the money was to be applied in payment of a debt erroneously supposed to be due from the plaintiff to the defendant, … the intended application of the money being impossible, the plaintiff would recover the money in Account. Debt would also lie in such cases. … By means of a fiction of a promise implied in law 'Indebitatus Assumpsit' because concurrent with Debt, and thus was established the familiar action of Assumpsit for money had and received to recover money paid to the defendant by mistake. Bonnel v. Fowke (1657) is, perhaps, the first action of the kind."

_J. B. Ames, History of Assumpsit (Harvard Law Review, volume 2, page 66)._

COMMON LAW: A. D. 1670. Personal Knowledge of Jurors.

"The jury were still required to come from the neighborhood where the fact they had to try was supposed to have happened; and this explains the origin of the venue (vicintum), which appears in all indictments and declarations at the present day. It points out the place from which the jury must be summoned. … And it was said by the Court of Common Pleas in Bushell's case (A. D. 1670), that the jury being returned from the vicinage whence the cause of action arises, the law supposes them to have sufficient knowledge to try the matters in issue, 'and so they must, though no evidence were given on either side in court';—and the case is put of an action upon a bond to which the defendant pleads solvit ad diem, but offers no proof:—where, the court said 'the jury is directed to find for the plaintiff, unless they know payment was made of their own knowledge, according to the plea.' This is the meaning of the old legal doctrine, which is at first sight somewhat startling, that the evidence in court is not binding evidence to a jury. Therefore acting upon their own knowledge, they were at liberty to give a verdict in direct opposition to the evidence, if they so thought fit."

_W. Forsyth, Trial by Jury, pages 134-136._

COMMON LAW: A. D. 1678. The Statute of Frauds.

"During Lord Nottingham's period of office, and partly in consequence of his advice, the Statute of Frauds was passed. Its main provisions are directed against the enforcement of verbal contracts, the validity of verbal conveyances of interests in land, the creation of trusts of lands without writing, and the allowance of nuncupative wills. It also made equitable interests in lands subject to the owner's debts to the same extent as legal interests were. The statute carried into legislative effect principles which had, so far back as the time of Bacon's orders, been approved by the Court of Chancery, and by its operation in the common law courts it must often have obviated the necessity for equitable interference. In modern times it has not infrequently been decried, especially so far as it restricts the verbal proof of contracts, but in estimating its value and operation at the time it became a law it must be remembered that the evidence of the parties to an action at law could not then be received, and the Defendant might have been charged upon the uncorroborated statement of a single witness which he was not allowed to contradict, as Lord Eldon argued many years afterwards, when the action upon the case for fraud was introduced at law. It was therefore a most reasonable precaution, while this unreasonable rule continued, to lay down that the Defendant should be charged only upon writing signed by him."

_D. M. Kerly, History of Equity, page 170._

COMMON LAW: A. D. 1680. Habeas Corpus and Personal Liberty.

"The language of the great charter is, that no freeman shall be taken or imprisoned but by the lawful judgment of his equals, or by the law of the land. And many subsequent old statutes expressly direct, that no man shall be taken or imprisoned by suggestion or petition to the king or his council, unless it be by legal indictment, or the process of the common-law. By the petition of right, 3 Car. I., it is enacted, that no freeman shall be imprisoned or detained without cause shown. … By 16 Car. I., c. 10, if any person be restrained of his liberty … , he shall, upon demand of his counsel, have a writ of habeas corpus, to bring his body before the court of king's bench or common pleas, who shall determine whether the cause of his commitment be just. … And by 31 Car. II., c. 2, commonly called the habeas corpus act, the methods of obtaining this writ are so plainly pointed out and enforced, that, … no subject of England can be long detained in prison, except in those cases in which the law requires and justifies such detainer. And, … it is declared by 1 W. and M. St. 2, c. 2, that excessive bail ought not be required."

_W. Blackstone, Commentaries, I., 135._

_J. Kent, Commentaries, part 4, lecture 24._

For the text of the Habeas Corpus Act of 1679

See ENGLAND: A. D. 1679 (MAY).

A. D. 1683-1771. Subsequent Birth of a Child revokes a Will.