Chapter LIII: Part 53

"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.

"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.

"A glance into the pages of the _Judges of England, by
Foss,_ will show with what ruthless vigour the Stuarts
exercised their prerogative of dismissing Judges whose
decisions were displeasing to the court. Even after the
Revolution, the prerogative of dismissal, which was supposed
to keep the Judges dependent on the Crown, was jealously
defended. When in 1692 a Bill passed both Houses of
Parliament, establishing the independence of Judges by law,
and confirming their salaries, William III. withheld his Royal
assent. Bishop Burnet says, with reference to this exercise of
the Veto, that it was represented to the King by some of the
Judges themselves, that it was not fit that they should be out
of all dependence on the Court. When the Act of Settlement
secured that no Judge should be dismissed from office, except
in consequence of a conviction for some offence, or the
address of both Houses of Parliament, the Royal jealousy of
the measure is seen by the promise under which that
arrangement was not to take effect till the deaths of William
III. and of Anne, and the failure of their issue respectively,
in other words, till the accession of the House of Hanover. It
was not till the reign of George III. that the Commissions of
the Judges ceased to be void on the demise of the Crown."

_J. G. S. MacNeill,
Law Magazine and Review, 4th series,
volume 16 (1890-91), page 202._

COMMON LAW: A. D. 1760.
Stolen Bank Notes the Property of a Bona Fide Purchaser.

"The law of bills of exchange owes much of its scientific and
liberal character to the wisdom of the great jurist, Lord
Mansfield. Sixteen years before the American Revolution, he
held that bank notes, though stolen, become the property of
the person to whom they are bona fide delivered for value
without knowledge of the larceny. This principle is later
affirmed again and again as necessary to the preservation of
the circulation of all the paper in the country, and with it
all its commerce. Later there was a departure from this
principle in the noted English case of Gill v. Cubitt, in
which it was held that if the holder for value took it under
circumstances which ought to have excited the suspicion of a
prudent and careful man, he could not recover. This case
annoyed courts and innocent holders for years, until it was
sat upon, kicked, cuffed, and overruled, and the old doctrine
of 1760 re-established, which is now the undisputed and
settled law of England and this country."

_Wm. A. McClean,
Negotiable Paper
(The Green Bag, volume 5, page 86)._

COMMON LAW: A. D. 1768.
Only one Business Corporation Chartered in this Country before
the Declaration of Independence.

"Pennsylvania is entitled to the honor of having chartered the
first business corporation in this country, 'The Philadelphia
Contributionship for Insuring Houses from Loss by Fire.' It
was a mutual insurance company, first organized in 1752, but
not chartered until 1768. It was the only business corporation
whose charter antedated the Declaration of Independence. The
next in order of time were: 'The Bank of North America,'
chartered by Congress in 1781 and, the original charter having
been repealed in 1785, by Pennsylvania in 1787; 'The
Massachusetts Bank,' chartered in 1784; 'The Proprietors of
Charles River Bridge,' in 1785; 'The Mutual Assurance Company'
(Philadelphia), in 1786; 'The Associated Manufacturing Iron
Co.' (N. Y.), in 1786. These were the only joint-stock
business corporations chartered in America before 1787. After
that time the number rapidly increased, especially in
Massachusetts. Before the close of the century there were
created in that State about fifty such bodies, at least half
of them turn-pike and bridge companies. In the remaining
States combined, there were perhaps as many more. There was no
great variety in the purposes for which these early companies
were formed. Insurance, banking, turn-pike roads,
toll-bridges, canals, and, to a limited extent, manufacturing
were the enterprises which they carried on."

_S. Williston,
History of the Law of Business Corporations before 1800
(Harvard Law Review,
volume 2, pp. 165-166)._

A. D. 1776.
Ultimate property in land.

"When, by the Revolution, the Colony of New York became
separated from the Crown of Great Britain, and a republican
government was formed, The People succeeded the King in the
ownership of all lands within the State which had not already
been granted away, and they became from thenceforth the source
of all private titles."

_Judge Comstock,
People v. Rector, etc., of Trinity Church,
22 N. Y., 44-46._

"It is held that only such parts of the common law as, with
the acts of the colony in force on April 19, 1775, formed part
of the law of the Colony on that day, were adopted by the
State; and only such parts of the common and statute law of
England were brought by the colonists with them as suited
their condition, or were applicable to their situation. Such
general laws thereupon became the laws of the Colony until
altered by common consent, or by legislative enactment. The
principles and rules of the common law as applicable to this
country are held subject to modification and change, according
to the circumstances and condition of the people and
government here. … By the English common law, the King was
the paramount proprietor and source of all title to all land
within his dominion, and it was considered to be held
mediately or immediately of him. After the independence of the
United States, the title to land formerly possessed by the
English Crown in this country passed to the People of the
different States where the land lay, by virtue of the change
of nationality and of the treaties made. The allegiance
formerly due, also, from the people of this country to Great
Britain was transferred, by the Revolution, to the governments
of the States."

_James Gerard,
Titles to Real Estate (3rd edition),
pages 26 and 5._

"Hence the rule naturally follows, that no person can, by any
possible arrangement, become invested with the absolute
ownership of land. But as that ownership must be vested
somewhere, or great confusion, if not disturbance, might
result, it has, therefore, become an accepted rule of public
law that the absolute and ultimate right of property shall be
regarded as vested in the sovereign or corporate power of the
State where the land lies. This corporate power has been
naturally and appropriately selected for that purpose, because
it is the only one which is certain to survive the generations
of men as they pass away. Wherever that sovereign power is
represented by an individual, as in England, there the
absolute right of property to all land in the kingdom is
vested in that individual whoever succeeds to the sovereignty,
succeeds to that right of property and holds it in trust for
the nation.
{1975}
In this country, where the only sovereignty recognized in
regard to real property, is represented by the State in its
corporate capacity, that absolute right of property is vested
in the State."

_Anson Bingham,
Law of Real Property,
page 3._

COMMON LAW: A. D. 1778.
First Instance of Assumpsit upon a Vendor's Warranty.

"A vendor who gives a false warranty may be charged to-day, of
course, in contract; but the conception of such a warranty, as
a contract is quite modern. Stuart v. Wilkens [3 Doug., 18],
decided in 1778, is said to have been the first instance of an
action of assumpsit upon a vendor's warranty."

_J. B. Ames,
History of Assumpsit
(Harvard Law Review,
volume 2, page 8)._

COMMON LAW: A. D. 1783.
Lord Mansfield laid foundation of Law of Trade-Marks.

"The symbolism of commerce, conventionally called
'trade-marks,' is, according to Mr. Browne, in his excellent
work on trade-marks, as old as commerce itself. The Egyptians,
the Chinese, the Babylonians, the Greeks, the Romans, all used
various marks or signs to distinguish their goods and
handiwork. The right to protection in such marks has come to
be recognized throughout the civilized world. It is, however,
during the last seventy or eighty years that the present
system of jurisprudence has been built up. In 1742 Lord
Hardwick refused an injunction to restrain the use of the
Great Mogul stamp on cards. In 1783 Lord Mansfield laid the
foundation of the law of trade-marks as at present developed,
and in 1816, in the case of Day v. Day, the defendant was
enjoined from infringing the plaintiff's blacking label. From
that time to the present day there have arisen a multitude of
cases, and the theory of the law of trade-marks proper may be
considered as pretty clearly expounded. In 1875 the
Trade-marks Registration Act provided for the registration of
trade-marks, and defined what could in future properly be a
trade-mark. In this country the Act of 1870, corrected by the
Act of 1881, provided for the registration of trade-marks. The
underlying principle of the law of trade-marks is that of
preventing one man from acquiring the reputation of another by
fraudulent means, and of preventing fraud upon the public; in
other words, the application of the broad principles of
equity."

_Grafton D. Cushing,
Cases Analogous to Trade-marks
(Harvard Law Review,
volume 4, page 321)._

COMMON LAW: A. D. 1790.
Stoppage in Transitu, and Rights of Third Person
under a Bill of Lading.

"Lord Loughborough's most elaborate common law judgment was in
the case of Lichbarrow v. Mason, when he presided in the court
of Exchequer Chamber, on a writ of error from the Court of
King's Bench. The question was one of infinite importance to
commerce—'Whether the right of the unpaid seller of goods to
stop them while they are on their way to a purchaser who has
become insolvent, is divested by an intermediate sale to a
third person, through the indorsement of the bill of lading,
for a valuable consideration?' He concluded by saying:—'From
a review of all the cases it does not appear that there has
ever been a decision against the legal right of the consignor
to stop the goods in transitu before the case which we have
here to consider. The rule which we are now to lay down will
not disturb but settle the notions of the commercial port of
this country on a point of very great importance, as it
regards the security and good faith of their transactions. For
these reasons we think the judgment of the Court of King's Bench
ought to be reversed.' But a writ of error being brought in
the House of Lords, this reversal was reversed, and the right
of the intermediate purchaser as against the original seller,
has ever since been established."

_Lord Campbell,
Lives of the Chancellors,
volume 6, pages 138-139._

COMMON LAW: A. D. 1792.
Best-Evidence rule.

"In Grant v. Gould, 2 H. Bl. p. 104 (1792), Lord Loughborough
said: 'That all common law courts ought to proceed upon the
general rule, namely, the best evidence that the nature of the
case will admit, I perfectly agree.' But by this time it was
becoming obvious that this 'general rule' was misapplied and
over-emphasized. Blackstone, indeed, repeating Gilbert, had
said in 1770, in the first editions of his Commentaries (III.
368) as it was said in all the later ones: 'The one general
rule that runs through all the doctrine of trials is this,
that the best evidence the nature of the case will admit of
shall always be required, if possible to be had; but, if not
possible, then the best evidence that can be had shall be
allowed. For if it be found that there is any better evidence
existing than is produced, the very not producing it is a
presumption that it would have detected some falsehood that at
present is concealed.' But in 1794, the acute and learned
Christian, in editing the twelfth edition, pointed out the
difficulties of the situation: 'No rule of law,' he said, 'is
more frequently cited, and more generally misconceived, than
this. It is certainly true when rightly understood; but it is
very limited in its extent and application. It signifies
nothing more than that, if the best legal evidence cannot
possibly be produced, the next best legal evidence shall be
admitted.'"

_J. B. Thayer,
Select Cases on Evidence,
page 732._

COMMON LAW: A. D. 1794.
First Trial by Jury in United States Supreme Court.

"In the first trial by jury at the bar of the Supreme Court of
the United States, in 1794, Chief-Justice Jay, after remarking
to the jury that fact was, for the jury and law for the court,
went on to say: 'You have, nevertheless, a right to take upon
yourselves to judge of both, and to determine the law as well
as the fact in controversy.' But I am disposed to think that
the common-law power of the jury in criminal cases does not
indicate any right on their part; it is rather one of those
manifold illogical and yet rational results, which the good
sense of the English people brought about, in all parts of
their public affairs, by way of easing up the rigor of a
strict application of rules."

_J. B. Thayer,
Law and Fact in Jury Trials
(Harvard Law Review,
volume 4, page 171)._

ALSO IN:
_J. B. Thayer,
Select Cases on Evidence,
page 153._

COMMON LAW: A. D. 1813-1843.
Insolvents placed under Jurisdiction of a Court, and able to
claim Protection by a Surrender of Goods.

"It was not until 1813 that insolvents were placed under the
jurisdiction of a court, and entitled to seek their discharge
on rendering a true account of all their debts and property. A
distinction was at length recognized between poverty and crime.
This great remedial law restored liberty to crowds of wretched
debtors. In the next thirteen years upwards of 50,000 were set
free. Thirty years later, its beneficent principles were
further extended, when debtors were not only released from
confinement, but able to claim protection to their liberty, on
giving up all their goods."

_T. E. May,
Constitutional History of England
(Widdleton's edition)
volume 2, page 271._

See, also, DEBT, LAWS CONCERNING.

{1976}

COMMON LAW: A. D. 1819.
The Dartmouth College Case.