Part 644

"The first case that recognized the rule that the subsequent birth of a child was a revocation of a will of personal property, was decided by the court of delegates, upon appeal, in the reign of Charles II.; and it was grounded upon the law of the civilians [Overbury v. Overbury, 2 Show Rep., 253]. … The rule was applied in chancery to a devise of real estate, in Brown v. Thompson [I Ld. Raym. 441]; but it was received with doubt by Lord Hardwicke and Lord Northington. The distinction between a will of real and personal estate could not well be supported; and Lord Mansfield declared, that he saw no ground for a distinction. The great point was finally and solemnly settled, in 1771, by the court of exchequer, in Christopher v. Christopher [Dicken's Rep. 445], that marriage and a child, were a revocation of a will of land."

_J. Kent, Commentaries, part 6, lecture 68._

{1971}

COMMON LAW: A. D. 1688. Dividing Line between Old and New Law.

The dividing line between the ancient and the modern English reports may, for the sake of convenient arrangement, be placed at the revolution in the year 1688. "The distinction between the old and new law seems then to be more distinctly marked. The cumbersome and oppressive appendages of the feudal tenures were abolished in the reign of Charles II., and the spirit of modern improvement, … began then to be more sensibly felt, and more actively diffused. The appointment of that great and honest lawyer, Lord Holt, to the station of chief justice of the King's Bench, gave a new tone and impulse to the vigour of the common law."

_J. Kent, Commentaries, part 3, lecture 21._

COMMON LAW: A. D. 1689. First instance of an Action sustained for Damages for a Breach of Promise to Account.

"It is worthy of observation that while the obligation to account is created by law, yet the privity without which such an obligation cannot exist is, as a rule, created by the parties to the obligation. … Such then being the facts from which the law will raise an obligation to account, the next question is, How can such an obligation be enforced, or, what is the remedy upon such an obligation? It is obvious that the only adequate remedy is specific performance, or at least specific reparation. An action on the case to recover damages for a breach of the obligation, even if such an action would lie, would be clearly inadequate, as it would involve the necessity of investigating all the items of the account for the purpose of ascertaining the amount of the damages, and that a jury is not competent to do. In truth, however, such an action will not lie. If, indeed, there be an actual promise to account, either an express or implied in fact, an action will lie for the breach of that promise; but as such a promise is entirely collateral to the obligation to account, and as therefore a recovery on the promise would be no bar to an action on the obligation, it would seem that nominal damages only could be recovered in an action on the promise, or at the most only such special damages as the plaintiff had suffered by the breach of the promise. Besides the first instance in which an action on such a promise was sustained was as late as the time of Lord Holt [Wilkyns v. Wilkyns, Carth. 89], while the obligation to account has existed and been recognized from early times."

_C. C. Langdell, A Brief Survey of Equity Jurisdiction (Harvard Law Review, volume 2, pages 250-251)._

COMMON LAW: A. D. 1689-1710. Lord Holt and the Law of Bailments.

"The most celebrated case which he decided in this department was that of Coggs v. Bernard, in which the question arose, 'whether, if a person promises without reward to take care of goods, he is answerable if they are lost or damaged by his negligence?' In a short compass he expounded with admirable clearness and accuracy the whole law of bailment, or the liability of the person to whom goods are delivered for different purposes on behalf of the owner; availing himself of his knowledge of the Roman civil Jaw, of which most English lawyers were as ignorant as of the Institutes of Menu. … He then elaborately goes over the six sorts of bailment, showing the exact degree of care required on the part of the bailee in each, with the corresponding degree of negligence, which will give a right of action to the bailor. In the last he shows that, in consideration of the trust, there is an implied promise to take ordinary care; so that, although there be no reward, for a loss arising from gross negligence the bailee is liable to the bailor for the value of the goods. Sir William Jones is contented that his own masterly 'Essay on the Law of Bailment' shall be considered merely as a commentary upon this judgment; and Professor Story, in his 'Commentaries on the Law of Bailments,' represents it as 'a prodigious effort to arrange the principles by which the subject is regulated in a scientific order.'"

_Lord Campbell, Lives of the Chief Justices, volume 2, pages 113-114._

COMMON LAW: A. D. 1703. Implied Promises recognized.

"The value of the discovery of the implied promise in fact was exemplified … in the case of a parol submission to an award. If the arbitrators awarded the payment of a sum of money, the money was recoverable in debt, since an award, after the analogy of a judgment, created a debt. But if the award was for the performance of a collateral act, … there was, originally, no mode of compelling compliance with the award, unless the parties expressly promised to abide by the decision of the arbitrators. Tilford v. French (1663) is a case in point. So, also, seven years later, 'it was said by Twisden, J., [Anon., 1 Vent. 69], that if two submit to an award, this contains not a reciprocal promise to perform; but there must be an express promise to ground an action upon it.' This doctrine was abandoned by the time of Lord Holt, who, … said: 'But the contrary has been held since; for if two men submit to the award of a third person, they do also thereby promise expressly to abide by his determination, for agreeing to refer is a promise in itself.'"

_J. B. Ames, History of Assumpsit (Harvard Law Review, volume 2, page 62)._

COMMON LAW: A. D. 1706. Dilatory Pleas.

"Pleas to the jurisdiction, to the disability, or in abatement, were formerly very often used as mere dilatory pleas, without any foundation of truth, and calculated only for delay; but now by statute 4 and 5 Ann., c. 16, no dilatory plea is to be admitted, without affidavit made of the truth thereof, or some probable matter shown to the court to induce them to believe it true."

_W. Blackstone, Commentaries, book 3, page 302._

COMMON LAW: A. D. 1710. Joint Stock Companies: Bubble Act.

"The most complicated, as well as the most modern, branch of the law of artificial persons relates to those which are formed for purposes of trade. They are a natural accompaniment of the extension of commerce. An ordinary partnership lacks the coherence which is required for great undertakings. Its partners may withdraw from it, taking their capital with them, and the 'firm' having as such no legal recognition, a contract made with it could be sued upon, according to the common law of England, only in an action in which the whole list of partners were made plaintiffs or defendants. In order to remedy the first of these inconveniences, partnerships were formed upon the principle of a joint-stock, the capital invested in which must remain at a fixed amount, although the shares into which it is divided may pass from hand to hand. This device did not however obviate the difficulty in suing, nor did it relieve the partners, past and present, from liability for debts in excess of their past or present, shares in the concern. {1972} In the interest not only of the share-partners, but also of the public with which they had dealings, it was desirable to discourage the formation of such associations; and the formation of joint-stock partnerships, except such as were incorporated by royal charter, was accordingly, for a time, prohibited in England by the 'Bubble Act,' 6 Geo. I, c. 18. An incorporated trading company, in accordance with the ordinary principles regulating artificial persons, consists of a definite amount of capital to which alone creditors of the company can look for the satisfaction of their demands, divided into shares held by a number of individuals who, though they participate in the profits of the concern, in proportion to the number of shares held by each, incur no personal liability in respect of its losses. An artificial person of this sort is now recognized under most systems of law. It can be formed, as a rule, only with the consent of the sovereign power, and is described as a 'societe,' or 'compagnie,' 'anonyme,' an 'Actiengesellschaft,' or 'joint-stock company limited.' A less pure form of such a corporation is a company the shareholders in which incur an unlimited personal liability. There is also a form resembling a partnership 'en commandite,' in which the liability of some of the shareholders is limited by their shares, while that of others is unlimited. Subject to some exceptions, any seven partners in a trading concern may, and partners whose number exceeds twenty must, according to English law, become incorporated by registration under the Companies Acts, with either limited or unlimited liability as they may determine at the time of incorporation."

_Thomas Erskine Holland, Elements of Jurisprudence, 5th edition, page 298._

COMMON LAW: A. D. 1711. Voluntary Restraint of Trade.

"The judicial construction of Magna Charta is illustrated in the great case of Mitchell v. Reynolds (1 P. W., 181), still the leading authority upon the doctrine of voluntary restraint of trade, though decided in 1711, when modern mercantile law was in its infancy. The Court (Chief Justice Parker), distinguishing between voluntary and involuntary restraints of trade, says as to involuntary restraints: 'The first reason why such of these, as are created by grant and charter from the crown and by-laws generally are void, is drawn from the encouragement which the law gives to trade and honest industry, and that they are contrary to the liberty of the subject. Second, another reason is drawn from Magna Charta, which is infringed by these acts of power. That statute says: Nullus liber homo, etc., disseizetur de libero tenemento, vel libertatibus vel liberis consuetudinibus suis, etc.; and these words have been always taken to extend to freedom of trade.'"

_Frederick N. Judson, 14 American Bar Association Report, page 236._

COMMON LAW: A. D. 1730. Special Juries.

"The first statutory recognition of their existence occurs so late as in the Act 3 Geo. II., ch. 25. But the principle seems to have been admitted in early times. We find in the year 1450 (29 Hen. VI.) a petition for a special jury. … The statute of George II. speaks of special juries as already well known, and it declares and enacts that the courts at Westminster shall, upon motion made by any plaintiff, prosecutor, or defendant, order and appoint a jury to be struck before the proper officer of the court where the cause is depending, 'in such manner as special juries have been and are usually struck in such courts respectively upon trials at bar had in the said courts.'"

_W. Forsyth, Trial by Jury, pages 143-144._

COMMON LAW: A. D. 1730. Written Pleadings to be in English.

"There was one great improvement in law proceedings which, while he [Lord King] held the Great Seal, he at last accomplished. From very ancient times the written pleadings, both in criminal and civil suits, were, or rather professed to be, in the Latin tongue, and while the jargon employed would have been very perplexing to a Roman of the Augustan Age, it was wholly unintelligible to the persons whose life, property, and fame were at stake. This absurdity had been corrected in the time of the Commonwealth, but along with many others so corrected, had been reintroduced at the Restoration, and had prevailed during five succeeding reigns. The attention of the public was now attracted to it by a petition from the magistracy of the North Riding of the county of York, representing the evils of the old law language being retained in legal process and proceedings, and praying for the substitution of the native tongue. The bill, by the Chancellor's direction, was introduced in the House of Commons, and it passed there without much difficulty. In the Lords it was fully explained and ably supported by the Lord Chancellor, but it experienced considerable opposition. … Amidst heavy forebodings of future mischief the bill passed, and mankind are now astonished that so obvious a reform should have been so long deferred."

_Lord Campbell, Lives of the Chancellors, volume 4, page 504._

COMMON LAW: A. D. 1739-1744. Oath according to one's Religion.

"Lord Hardwick established the rule that persons, though not Christians, if they believe in a divinity, may be sworn according to the ceremonies of their religion, and that the evidence given by them so sworn is admissible in courts of justice, as if, being Christians, they had been sworn upon the Evangelists. This subject first came before him in Ramkissenseat v. Barker, where, in a suit for an account against the representatives of an East India Governor, the plea being overruled that the plaintiff was an alien infidel, a cross bill was filed, and an objection being made that he could only be sworn in the usual form, a motion was made that the words in the commission, 'on the holy Evangelists,' should be omitted, and that the commissioners should be directed to administer an oath to him in the manner most binding on his conscience. … The point was afterwards finally settled in the great case of Omychund v. Barker, where a similar commission to examine witnesses having issued, the Commissioners certified 'That they had sworn the witnesses examined under it in the presence of Brahmin or priest of the Gentoo religion, and that each witness touched the hand of the Brahmin,—this being the most solemn form in which oaths are administered to witnesses professing the Gentoo religion.' Objection was made that the deposition so taken could not be read in evidence; and on account of the magnitude of the question, the Lord Chancellor called in the assistance of the three chiefs of the common law Courts.—After a very long, learned, and ingenious argument, which may be perused with pleasure, they concurred in the opinion that the depositions were admissible."

_Lord Campbell, Lives of the Chancellors, volume 5, pages 69-70._

{1973}

COMMON LAW: A. D. 1750. Dale v. Hall, I Wits., 281, understood to be the first reported case of an action of special assumpsit sustained against a common carrier, on his implied contract.

"Assumpsit, … was allowed, in the time of Charles I., in competition with Detinue and Case against a bailee for custody. At a later period Lord Holt suggested that one might 'turn an action against a common carrier into a special assumpsit (which the law implies) in respect of his hire.' Dale v. Hall (1750) is understood to have been the first reported case in which that suggestion was followed."

_J. B. Ames, History of Assumpsit (Harvard Law Review, volume 2, page 63)._

COMMON LAW: A. D. 1750-1800. Demurrer to Evidence.

"Near the end of the last century demurrers upon evidence were rendered useless in England, by the decision in the case of Gibson v. Hunter (carrying down with it another great case, that of Lickbarrow v. Mason, which, like the former, had come up to the Lords upon this sort of demurrer), that the party demurring must specify upon the record the facts which he admits. That the rule was a new one is fairly plain from the case of Cocksedge v. Fanshawe, ten years earlier. It was not always followed in this country, but the fact that it was really a novelty was sometimes not understood."

_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 149._

COMMON LAW: A. D. 1756-1788. Lord Mansfield and Commercial Law.

"In the reign of Geo. II., England had grown into the greatest manufacturing and commercial country in the world, while her jurisprudence had by no means been expanded or developed in the same proportion. … Hence, when questions necessarily arose respecting the buying and selling of goods,—respecting the affreightment of ships,—respecting marine insurances,—and respecting bills of exchange and promissory notes, no one knew how they were to be determined. … Mercantile questions were so ignorantly treated when they came into Westminster Hall, that they were usually settled by private arbitration among the merchants themselves. If an action turning upon a mercantile question was brought in a court of law, the judge submitted it to the jury, who determined it according to their own notions of what was fair, and no general rule was laid down which could afterwards be referred to for the purpose of settling similar disputes. … When he [Lord Mansfield] had ceased to preside in the Court of King's Bench, and had retired to enjoy the retrospect of his labors, he read the following just eulogy bestowed upon them by Mr. Justice Buller, in giving judgment in the important case of Lickbarrow v. Mason, respecting the effect of the indorsement of a bill of lading:—'Within these thirty years the commercial law of this country has taken a very different turn from what it did before. Lord Hardwicke himself was proceeding with great caution; not establishing any general principle, but decreeing on all the circumstances put together. Before that period we find that, in courts of law, all the evidence in mercantile cases was thrown together; they were left generally to a jury; and they produced no general principle. From that time, we all know, the great study has been to find some certain general principle, which shall be known to all mankind, not only to rule the particular case then under consideration, but to serve as a guide for the future. Most of us have heard these principles stated, reasoned upon, enlarged, and explained, till we have been lost in admiration at the strength and stretch of the understanding. And I should be very sorry to find myself under a necessity of differing from any case upon this subject which has been decided by Lord Mansfield, who may be truly said to be the founder of the commercial law of this country.' … With regard to bills of exchange and promissory notes, Lord Mansfield first promulgated many rules that now appear to us to be as certain as those which guide the planets in their orbits. For example, it was till then uncertain whether the second indorser of a bill of exchange could sue his immediate indorser without having previously demanded payment from the drawer. … He goes on to explain [in Heylyn v. Adamson, 2 Burr., 669], … that the maker of a promissory note is in the same situation as the acceptor of a bill of exchange, and that in suing the indorser of the note it is necessary to allege and to prove a demand on the maker. … Lord Mansfield had likewise to determine that the indorser of a bill of exchange is discharged if he receives no notice of there having been a refusal to accept by the drawee (Blesard v. Herst, 6 Burr., 2670); and that reasonable time for giving notice of the dishonor of a bill or note is to be determined by the Court as matter of law, and is not to be left to the jury as matter of fact, they being governed by the circumstances of each particular case. (Tindal v. Brown, 1 Term. Rep., 167.) It seems strange to us how the world could go on when such questions of hourly occurrence, were unsettled. … There is another contract of infinite importance to a maritime people. … I mean that between ship-owners and merchants for the hiring of ships and carriage of goods. … Till his time, the rights and liabilities of these parties had remained undecided upon the contingency, not unlikely to arise, of the ship being wrecked during the voyage, and the goods being saved and delivered to the consignee at an intermediate port. Lord Mansfield settled that freight is due pro rata itineris—in proportion to the part of the voyage performed. … Lord Mansfield's familiarity with the general principles of ethics, … availed him on all occasions when he had to determine on the proper construction and just fulfilment of contracts. The question having arisen, for the first time, whether the seller of goods by auction, with the declared condition that they shall be sold to 'the highest bidder,' may employ a 'puffer,'—an agent to raise the price by bidding,—he thus expressed himself: [Bexwell v. Christie, Cowp., 395] '… The basis of all dealings ought to be good faith; so more especially in these transactions, where the public are brought together upon a confidence that the articles set up to sale will be disposed of to the highest real bidder. That can never be the case if the owner may secretly enhance the price by a person employed for that purpose. … I cannot listen to the argument that it is a common practice, … the owner violates his contract with the public if, by himself or his agent, he bids upon his goods, and no subsequent bidder is bound to take the goods at the price at which they are knocked down to him.'"

_Lord Campbell, Lives of the Chief Justices, volume 2, pages 308-314._

{1974}

COMMON LAW: A. D. 1760. Judicial Independence.