Part 646

"The statutes of 32 H. VIII., c. 2, and 21 Jac. I., c. 16 (so far as the latter applied to actions for the recovery of land) were superseded by 3 & 4 Wm. IV, c. 27. The latter statute abolished the ancient real actions, made ejectment (with few exceptions) the sole remedy for the recovery of land, and, for the first time, limited directly the period within which an ejectment might be brought. It also changed the meaning of 'right of entry,' making it signify simply the right of an owner to the possession of land of which another person has the actual possession, whether the owner's estate is devested or not. In a word, it made a right of entry and a right to maintain ejectment synonymous terms, and provided that whenever the one ceased the other should cease also; i. e., it provided that whenever the statute began to run against the one right, it should begin to run against the other also, and that, when it had run twenty years without interruption, both rights should cease; and it also provided that the statute should begin to run against each right the moment that the right began to exist, i. e., the moment that the actual possession and the right of possession became separated. The statute, therefore, not only ignored the fact that ejectment (notwithstanding its origin) is in substance purely in rem (the damages recovered being only nominal), and assumed that it was, on the contrary, in substance purely in personam, i. e., founded upon tort, but it also assumed that every actual possession of land, without a right of possession, is a tort."

_C. C. Langdell, Summary of Equity Pleading, pages 144-145._

COMMON LAW: A. D. 1836. Exemption Laws.

"Our State legislatures commenced years ago to pass laws exempting from execution necessary household goods and personal apparel, the horses and implements of the farmer, the tools and instruments of the artisan, etc. Gradually the beneficent policy of such laws has been extended. In 1828, Mr. Benton warmly advocated in the Senate of the United States the policy of a national homestead law. The Republic of Texas passed the first Homestead Act, in 1836. It was the great gift of the infant Republic of Texas to the world. In 1849, Vermont followed; and this policy has since been adopted in all but eight States of the Union. By these laws a homestead (under various restrictions as to value) for the shelter and protection of the family is now exempt from execution or judicial sale for debt, unless both the husband and the wife shall expressly join in mortgaging it or otherwise expressly subjecting it to the claims of creditors."

_J. F. Dillon, Laws and Jurisprudence of England and America, page 360._

COMMON LAW: A. D. 1837. Employer's liability.

"No legal principle, with a growth of less than half a century, has become more firmly fixed in the common law of to-day, than the rule that an employer, if himself without fault, is not liable to an employee injured through the negligence of a fellow-employee engaged in the same general employment. This exception to the well known doctrine of 'respondeat superior,' although sometimes considered an old one, was before the courts for the first time in 1837, in the celebrated case of Priestly v. Fowler, 3 M. & W. 1, which it is said, has changed the current of decisions more radically than any other reported case. … The American law, though in harmony with the English, seems to have had an origin of its own. In 1841 Murray v. The South Carolina Railroad Company, 1 Mc. & M. 385, decided that a railroad company was not liable to one servant injured through the negligence of another servant in the same employ. Although this decision came a few years after Priestly v. Fowler, the latter case was cited by neither counsel nor court. It is probable, therefore, that the American Court arrived at its conclusion entirely independent of the earlier English case,—a fact often lost sight of by those who in criticising the rule, assert that it all sprang from an ill-considered opinion by Lord Abinger in Priestly v. Fowler. The leading American case, however, is Farwell v. Boston and Worcester Railroad Company, 4 Met. 49, which, following the South Carolina case, settled the rule in the United States. It has been followed in nearly every jurisdiction, both State and Federal."

_Marland C. Hobbs, Statutory Changes in Employers Liability (Harvard Law Review, volume 2, pages 212-213)._

COMMON LAW: A. D. 1838. Arrests on Mesne Process for Debt abolished, and Debtor's Lands, for first time, taken in Satisfaction of Debt.

"The law of debtor and creditor, until a comparatively recent period, was a scandal to a civilized country. For the smallest claim, any man was liable to be arrested on mesne process, before legal proof of the debt. … Many of these arrests were wanton and vexatious; and writs were issued with a facility and looseness which paced the liberty of every man—suddenly and without notice—at the mercy of any one who claimed payment of a debt. A debtor, however honest and solvent, was liable to arrest. The demand might even be false and fraudulent: but the pretended creditor, on making oath of the debt, was armed with this terrible process of the law. The wretched defendant might lie in prison for several months before his cause was heard; when, even if the action was discontinued or the debt disproved, he could not obtain his discharge without further proceedings, often too costly for a poor debtor, already deprived of his livelihood by imprisonment. {1978} No longer even a debtor,—he could not shake off his bonds. … The total abolition of arrests on mesne process was frequently advocated, but it was not until 1888 that it was at length accomplished. Provision was made for securing absconding debtors; but the old process for the recovery of a debt in ordinary cases, which had wrought so many acts of oppression, was abolished. While this vindictive remedy was denied, the debtor's lands were, for the first time, allowed to be taken in satisfaction of a debt; and extended facilities were afterwards afforded for the recovery of small claims, by the establishment of county courts."

_T. E. May, Constitutional History of England (Widdleton's edition), volume 2, pages 267-268._

See, also, DEBT: LAWS CONCERNING.

COMMON LAW: A. D. 1839-1848. Emancipation of Women.

"According to the old English theory, a woman was a chattel, all of whose property belonged to her husband. He could beat her as he might a beast of burden, and, provided he was not guilty of what would be cruelty to animals, the law gave no redress. In the emancipation of women Mississippi led off, in 1839, New York following with its Married Women's Act of 1848, which has been since so enlarged and extended, and so generally adopted by the other states, that, for all purposes of business, ownership of property, and claim to her individual earnings, a married woman is to-day, in America, as independent as a man."

_D. Campbell, The Puritan in Holland, England and America, volume 1, page 71._

COMMON LAW: A. D. 1842. One who takes Commercial Paper as Collateral is a Holder for Value.

"Take the subject of the transfer of such paper as collateral security for, or even in the payment of, a pre-existing indebtedness. We find some of the courts holding that one who takes such paper as collateral security for such a debt is a holder for value; others, that he is not, unless he extends the time for the payment of the secured debt or surrenders something of value, gives some new consideration; while still others hold that one so receiving such paper cannot be a holder for value; and some few hold that even receiving the note in payment and extinguishment of a pre-existing debt does not constitute one a holder for value. The question, as is known to all lawyers, was first presented to the Supreme Court of the United States in Swift vs. Tyson (16 Peters, 1). There, however, the note had been taken in payment of the debt. It was argued in that case that the highest court in New York had decided that one so taking a note was not a holder for value, and it was insisted in argument that the contract, being made in New York, was to be governed by its law; but the court, through Justice Story—Justice Catron alone dissenting—distinctly and emphatically repudiated the doctrine that the Federal court was to be governed on such questions 'by the decisions of the courts of the State where the contract was made, and held the holder a holder for value."

_Henry C. Tompkins, 13 American Bar Association Report, page 255._

COMMON LAW: A. D. 1845. Interest of Disseisee transferable.

"It was not until 1845 that by statute the interest of the disseisee of land became transferable. Similar statutes have been enacted in many of our States. In a few jurisdictions the same results have been obtained by judicial legislation. But in Alabama, Connecticut, Dakota, Florida, Kentucky, Massachusetts, New York, North Carolina, Rhode Island and Tennessee, and presumably in Maryland and New Jersey, it is still the law that the grantee of a disseisee cannot maintain an action in his own name for the recovery of the land."

_J. B. Ames, The Disseisin of Chattels (Harvard Law Review, volume 3, page 25)._

COMMON LAW: A. D. 1846. Ultra vires.

"When railway companies were first created with Parliamentary powers of a kind never before entrusted to similar bodies, it soon became necessary to determine whether, when once called into existence, they were to be held capable of exercising, as nearly as possible, all the powers of a natural person, unless expressly prohibited from doing so, or whether their acts must be strictly limited to the furtherance of the purpose for which they had been incorporated. The question was first raised in 1846, with reference to the right of a railway company to subsidise a harbour company, and Lord Langdale, in deciding against such a right, laid down the law in the following terms:—'Companies of this kind, possessing most extensive powers, have so recently been introduced into this country that neither the legislature nor the courts of law have yet been able to understand all the different lights in which their transactions ought properly to be viewed. … To look upon a railway company in the light of a common partnership, and as subject to no greater vigilance than common partnerships are, would, I think, be greatly to mistake the functions which they perform and the powers which they exercise of interference not only with the public but with the private rights of all individuals in this realm. … I am clearly of opinion that the powers which are given by an Act of Parliament, like that now in question, extend no further than is expressly stated in the Act, or is necessarily and properly required for carrying into effect the undertaking and works which the Act has expressly sanctioned.' [Citing Coleman v. Eastern Counties Rw. Co., 10 Beav., 18.] This view, though it has sometimes been criticised, seems now to be settled law. In a recent case in the House of Lords, the permission which the Legislature gives to the promoters of a company was paraphrased as follows:—'You may meet together and form yourselves into a company, but in doing that you must tell all who may be disposed to deal with you the objects for which you have been associated. Those who are dealing with you will trust to that memorandum of association, and they will see that you have the power of carrying on business in such a manner as it specifies. You must state the objects for which you are associated, so that the persons dealing with you will know that they are dealing with persons who can only devote their means to a given class of objects.' [Citing Riche v. Ashbury Carriage Co., L R., 7 E. & I., App. 684.] An act of a corporation in excess of its powers with reference to third persons is technically said to be ultra vires [perhaps first in South Yorkshire Rw. Co. v. Great Northern R. Co., 9 exch. 84 (1853)]; and is void even if unanimously agreed to by all the corporators. The same term is also, but less properly, applied to a resolution of a majority of the members of a corporation which being beyond the powers of the corporation will not bind a dissentient minority of its members."

_Thomas Erskine Holland, Elements of Jurisprudence, 5th edition, page 301. (Compare Article by Seymour D. Thompson in American Law Review, May-June, 1894)._

{1979}

COMMON LAW: A. D. 1848-1883. The New York Codes and their Adoption in other Communities.

"The 'New York Mail' gives the following information as to the extent to which our New York Codes have been adopted in other communities. In most instances the codes have been adopted substantially in detail, and in others in principle: 'The first New York Code, the Code of Civil Procedure, went into effect on the 1st of July, 1848. It was adopted in Missouri in 1849; in California in 1851; in Kentucky in 1851; in Ohio in 1853; in the four provinces of India between 1853 and 1856; in Iowa in 1855; in Wisconsin in 1856; in Kansas in 1859; in Nevada in 1861; in Dakota in 1862; in Oregon in 1862; in Idaho in 1864; in Montana in 1864; in Minnesota in 1866; in Nebraska in 1866; in Arizona in 1866; in Arkansas in 1868; in North Carolina in 1868; in Wyoming in 1869; in Washington Territory in 1869; in South Carolina in 1870; in Utah in 1870; in Connecticut in 1879; in Indiana in 1881. In England and Ireland by the Judicature Act of 1873; this Judicature Act has been followed in many of the British Colonies; in the Consular Courts of Japan, in Shanghai, in Hong Kong and Singapore, between 1870 and 1874. The Code of Criminal Procedure, though not enacted in New York till 1881, was adopted in California in 1850; in India at the same time with the Code of Civil Procedure; in Kentucky in 1854; in Iowa in 1858; in Kansas in 1859; in Nevada in 1861; in Dakota in 1862; in Oregon in 1864; in Idaho in 1864; in Montana in 1864; in Washington Territory in 1869; in Wyoming in 1869; in Arkansas in 1874; in Utah in 1876; in Arizona in 1877; in Wisconsin in 1878; in Nebraska in 1881; in Indiana in 1881; in Minnesota in 1883. The Penal Code, though not enacted in New York until 1882, was adopted in Dakota in 1865 and in California in 1872. The Civil Code, not yet enacted in New York, though twice passed by the Legislature, was adopted in Dakota in 1866 and in California in 1872, and has been much used in the framing of substantive laws for India. The Political Code, reported for New York but not yet considered, was adopted in California in 1872. Thus it will be seen that the State of New York has given laws to the world to an extent and degree unknown since the Roman Codes followed Roman conquests.'"

_The Albany Law Journal, volume 39, page 261._

COMMON LAW: A. D. 1848. Simplification of Procedure.

"In civil matters, the greatest reform of modern times has been the simplification of procedure in the courts, and the virtual amalgamation of law and equity. Here again America took the lead, through the adoption by New York, in 1848, of a Code of Practice, which has been followed by most of the other states of the Union, and in its main features has lately been taken up by England."

_D. Campbell, The Puritan in Holland, England and America, volume 1, page 70._

COMMON LAW: A. D. 1848. Reform in the Law of Evidence.

"The earliest act of this kind in this country was passed by the Legislature of Connecticut in 1848. It is very broad and sweeping in its provisions. It is in these words: 'No person shall be disqualified as a witness in any suit or proceeding at law, or in equity, by reason of his interest in the event of the same, as a party or otherwise, or by reason of his conviction of a crime; but such interest or conviction may be shown for the purpose of affecting his credit.'

_(Revised Statutes of Connecticut, 1849, page 86, section 141. In the margin of the page the time of the passage of the law is given as 1848.)_

This act was drafted and its enactment secured by the Honorable Charles J. McCurdy, a distinguished lawyer and the Lieutenant-Governor of that State. A member of Judge McCurdy's family, having been present at the delivery of this lecture at New Haven in 1892, called my attention to the above fact, claiming, and justly, for this act the credit of leading in this country the way to such legislation. But he was mistaken in his claim that it preceded similar legislation in England, although its provisions are an improvement on the contemporary enactments of the like kind in that country."

_John F. Dillon, Laws and Jurisprudence of England and America, page 374, notes._

COMMON LAW: A. D. 1851. Bentham's Reforms in the Law of Evidence.

"In some respects his [Bentham's] 'Judicial Evidence,' … is the most important of all his censorial writings on English Law. In this work he exposed the absurdity and perniciousness of many of the established technical rules of evidence. … Among the rules combatted were those relating to the competency of witnesses and the exclusion of evidence on various grounds, including that of pecuniary interest. He insisted that these rules frequently caused the miscarriage of justice, and that in the interest of justice they ought to be swept away. His reasoning fairly embraces the doctrine that parties ought to be allowed and even required to testify. … But Bentham had set a few men thinking. He had scattered the seeds of truth. Though they fell on stony ground they did not all perish. But verily reform is a plant of slow growth in the sterile gardens of the practising and practical lawyer. Bentham lived till 1832, and these exclusionary rules still held sway. But in 1843, by Lord Denman's Act, interest in actions at common law ceased, as a rule, to disqualify; and in 1846 and 1851, by Lord Brougham's Acts, parties in civil actions were as a rule made competent and compellable to testify. I believe I speak the universal judgment of the profession when I say changes more beneficial in the administration of justice have rarely taken place in our law, and that it is a matter of profound amazement, as we look back upon it, that these exclusionary rules ever had a place therein, and especially that they were able to retain it until within the last fifty years."

_J. F. Dillon, Laws and Jurisprudence of England and America, pages 339-341._

COMMON LAW: A. D. 1852-1854. Reform in Procedure.

"A great procedure reform was effected by the Common Law Procedure Acts of 1852 and 1854 as the result of their labours." The main object of the Acts was to secure that the actual merits of every case should be brought before the judges unobscured by accidental and artificial questions arising upon the pleadings, but they also did something to secure that complete adaptability of the common law courts for finally determining every action brought within them, which the Chancery Commissioners of 1850 had indicated as one of the aims of the reformers. Power was given to the common law courts to allow parties to be interrogated by their opponents, to order discovery of documents, to direct specific delivery of goods, to grant injunctions, and to hear interpleader actions, and equitable pleas were allowed to be urged in defence to common law actions."

_D. M. Kerly, History of Equity, page 288._

{1980}

COMMON LAW: A. D. 1854. "Another mode" (besides common law lien).

"Another mode of creating a security is possible, by which not merely the ownership of the thing but its possession also remains with the debtor. This is called by the Roman lawyers and their modern followers 'hypotheca.' Hypothecs may arise by the direct application of a rule of law, by judicial decision, or by agreement. Those implied by law, generally described as 'tacit hypothecs,' are probably the earliest. They are first heard of in Roman law in connection with that right of a landlord over the goods of his tenant, which is still well known on the Continent and in Scotland under its old name, and which in England takes the form of a right of Distress. Similar rights were subsequently granted to wives, pupils, minors, and legatees, over the property of husbands, tutors, curators, and heirs, respectively. The action by which the praetor Servius first enabled a landlord to claim the goods of his defaulting tenant in order to realize his rent, even if they had passed into the hands of third parties, was soon extended so as to give similar rights to any creditor over property which its owner had agreed should be held liable for a debt. A real right was thus created by the mere consent of the parties, without any transfer of possession, which although opposed to the theory of Roman law, became firmly established as applicable both to immoveable and moveable property. Of the modern States which have adopted the law of hypothec, Spain perhaps stands alone in adopting it to the fullest extent. The rest have, as a rule, recognized it only in relation to immoveables. Thus the Dutch law holds to the maxim 'mobilia non habent sequelam,' and the French Code, following the 'coutumes' of Paris and Normandy, lays down that 'les meubles n'ont pas de suite par hypotheque.' But by the 'Code de Commerce,' ships, though moveables, are capable of hypothecation; and in England what is called a mortgage, but is essentially a hypothec, of ships is recognized and regulated by the 'Merchant Shipping Acts,' under which the mortgage must be recorded by the registrar of the port at which the ship itself is registered [17 and 18 Vic. c. 104]. So also in the old contract of 'bottomry,' the ship is made security for money lent to enable it to proceed upon its voyage."

_T. E. Holland, Elements of Jurisprudence, 5th edition, p. 203._

COMMON LAW: A. D. 1854-1882. Simplification of Titles and Transfers of Land in England.