Pub Date : 2019-07-04DOI: 10.1093/oso/9780198847809.003.0006
J. Baker
This chapter shows the steps whereby the tenant for years came to be protected against his lessor, and thereby to acquire an estate in land; the lease, though a chattel, became a ‘chattel real’. This required an act of judicial legislation in turning the trespassory action of ejectment – for ejecting a lessee from possession - into a real action by which the ejected lessee could be restored to possession. Ejectment was then seen to work more effectively than the real actions and assizes available to freeholders, and so a way was found of using it to displace them. Its perfection as an action for freeholders involved an elaborate fantasy with imaginary parties and imaginary leases; the procedure is illustrated. Finally, there are discussions about the possibility of creating entails and future estates in terms of years.
{"title":"The term of years","authors":"J. Baker","doi":"10.1093/oso/9780198847809.003.0006","DOIUrl":"https://doi.org/10.1093/oso/9780198847809.003.0006","url":null,"abstract":"This chapter shows the steps whereby the tenant for years came to be protected against his lessor, and thereby to acquire an estate in land; the lease, though a chattel, became a ‘chattel real’. This required an act of judicial legislation in turning the trespassory action of ejectment – for ejecting a lessee from possession - into a real action by which the ejected lessee could be restored to possession. Ejectment was then seen to work more effectively than the real actions and assizes available to freeholders, and so a way was found of using it to displace them. Its perfection as an action for freeholders involved an elaborate fantasy with imaginary parties and imaginary leases; the procedure is illustrated. Finally, there are discussions about the possibility of creating entails and future estates in terms of years.","PeriodicalId":197105,"journal":{"name":"Baker and Milsom Sources of English Legal History","volume":"55 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126796331","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-07-04DOI: 10.1093/oso/9780198847809.003.0017
J. Baker
The decision in Slade’s Case (1602) that the action of assumpsit could be brought for not paying a debt left open the question whether it would lie against a debtor’s executors. Executors had been immune from actions by writ of debt, unless there was a sealed acknowledgment of indebtedness, since they could not wage their testator’s law; but wager of law was not relevant in assumpsit. This chapter shows how the availability of assumpsit against executors, to recover debts from a deceased debtor’s estate, was a controversial question between the King’s Bench and Common Pleas, and how it was finally settled in 1611 in favour of allowing the action.
{"title":"Assumpsit against executors for money","authors":"J. Baker","doi":"10.1093/oso/9780198847809.003.0017","DOIUrl":"https://doi.org/10.1093/oso/9780198847809.003.0017","url":null,"abstract":"The decision in Slade’s Case (1602) that the action of assumpsit could be brought for not paying a debt left open the question whether it would lie against a debtor’s executors. Executors had been immune from actions by writ of debt, unless there was a sealed acknowledgment of indebtedness, since they could not wage their testator’s law; but wager of law was not relevant in assumpsit. This chapter shows how the availability of assumpsit against executors, to recover debts from a deceased debtor’s estate, was a controversial question between the King’s Bench and Common Pleas, and how it was finally settled in 1611 in favour of allowing the action.","PeriodicalId":197105,"journal":{"name":"Baker and Milsom Sources of English Legal History","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124144355","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-07-04DOI: 10.4135/9781452229669.n29
J. Baker
The writ of account was designed to make the defendant render an account of moneys received from or on behalf of the plaintiff. Only when the existence and exact extent of any indebtedness was established by audit could the plaintiff recover the debt as a liquidated sum. The cases in this chapter show how the action was extended from actions against bailiffs to reach non-contractual receivers of money. The bailiff actions were based on contract, the latter on quasi-contract (or restitution); but the action did not extend to the receipt of money by wrongdoers. There was much discussion of the defences which could be pleaded to the action, by way of denying accountability, as opposed to those which could only be pleaded before the auditors.
{"title":"Account","authors":"J. Baker","doi":"10.4135/9781452229669.n29","DOIUrl":"https://doi.org/10.4135/9781452229669.n29","url":null,"abstract":"The writ of account was designed to make the defendant render an account of moneys received from or on behalf of the plaintiff. Only when the existence and exact extent of any indebtedness was established by audit could the plaintiff recover the debt as a liquidated sum. The cases in this chapter show how the action was extended from actions against bailiffs to reach non-contractual receivers of money. The bailiff actions were based on contract, the latter on quasi-contract (or restitution); but the action did not extend to the receipt of money by wrongdoers. There was much discussion of the defences which could be pleaded to the action, by way of denying accountability, as opposed to those which could only be pleaded before the auditors.","PeriodicalId":197105,"journal":{"name":"Baker and Milsom Sources of English Legal History","volume":"125 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132975699","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-07-04DOI: 10.1093/oso/9780198847809.003.0023
J. Baker
This chapter shows how actions on the case were used both to supplant the assize of nuisance and to provide remedies for types of nuisance not within the assize. The King’s Bench allowed case to overlap with the assize, but this was opposed by the Common Pleas until 1601, when the King’s Bench view prevailed. The assize was chiefly concerned with easements and profits. But there were new difficulties over the extent to which neighbours had to put up with disagreeable activities and processes which disturbed their comfort. These were discussed in a case of 1569 concerning ancient lights in London, and in a leading case of 1629 concerning the use of sea-coal by a London brewery. The 1629 case seems to have resulted in judicial deadlock, but the judges agreed on the principle of ‘necessity’, meaning that activities which were desirable in the public interest should be protected.
{"title":"Actions on the case for nuisance","authors":"J. Baker","doi":"10.1093/oso/9780198847809.003.0023","DOIUrl":"https://doi.org/10.1093/oso/9780198847809.003.0023","url":null,"abstract":"This chapter shows how actions on the case were used both to supplant the assize of nuisance and to provide remedies for types of nuisance not within the assize. The King’s Bench allowed case to overlap with the assize, but this was opposed by the Common Pleas until 1601, when the King’s Bench view prevailed. The assize was chiefly concerned with easements and profits. But there were new difficulties over the extent to which neighbours had to put up with disagreeable activities and processes which disturbed their comfort. These were discussed in a case of 1569 concerning ancient lights in London, and in a leading case of 1629 concerning the use of sea-coal by a London brewery. The 1629 case seems to have resulted in judicial deadlock, but the judges agreed on the principle of ‘necessity’, meaning that activities which were desirable in the public interest should be protected.","PeriodicalId":197105,"journal":{"name":"Baker and Milsom Sources of English Legal History","volume":"182 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125157826","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-07-04DOI: 10.1093/oso/9780198847809.003.0008
J. Baker
This chapter contains cases concerning the action of debt, with particular reference to the modes of proof and pleading. If there was no deed evidencing the debt, but some quid pro quo, the plaintiff produced ‘suit’ (which became fictitious) and the defendant could usually wage his law by taking an oath that he owed nothing and producing eleven compurgators to back him up; the working of wager of law, which itself became semi-fictitious, is illustrated. The cases show considerable uncertainty as to the underlying law of contract, if indeed there was any, since it only occasionally surfaced for discussion. Where a deed was used, it usually took the form of a bond: a sealed writing acknowledging the indebtedness. Since a deed was superior to parol evidence, few defences were available to debt on a bond; this was found to cause considerable hardship.
{"title":"Debt","authors":"J. Baker","doi":"10.1093/oso/9780198847809.003.0008","DOIUrl":"https://doi.org/10.1093/oso/9780198847809.003.0008","url":null,"abstract":"This chapter contains cases concerning the action of debt, with particular reference to the modes of proof and pleading. If there was no deed evidencing the debt, but some quid pro quo, the plaintiff produced ‘suit’ (which became fictitious) and the defendant could usually wage his law by taking an oath that he owed nothing and producing eleven compurgators to back him up; the working of wager of law, which itself became semi-fictitious, is illustrated. The cases show considerable uncertainty as to the underlying law of contract, if indeed there was any, since it only occasionally surfaced for discussion. Where a deed was used, it usually took the form of a bond: a sealed writing acknowledging the indebtedness. Since a deed was superior to parol evidence, few defences were available to debt on a bond; this was found to cause considerable hardship.","PeriodicalId":197105,"journal":{"name":"Baker and Milsom Sources of English Legal History","volume":"45 2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125691078","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-07-04DOI: 10.1093/oso/9780198847809.003.0018
J. Baker
This chapter shows how the action of assumpsit for money, usually in the fictional form known as indebitatus assumpsit, was extended in the seventeenth century to cover situations beyond the reach of the old action of debt: for instance, actions on bills of exchange, actions for sums of money not quantified at the time of contracting (quantum meruit and quantum valebant), and restitutionary actions for money received to the plaintiff’s use. The last category overlapped with the action of account, but unlike account could be used against wrongdoers. Excessive use of ‘money had and received’ to replace the usual remedies in contract and tort was resisted, with only partial success, by Chief Justice Holt.
本章展示了为金钱而假设的诉讼，通常以一种虚构的形式被称为不可抵赖性假设，如何在17世纪扩展到涵盖旧的债务诉讼所不能涵盖的情况:例如，汇票诉讼，在合同时未量化的金钱诉讼(量子赏金和量子价值)，以及为收到的原告使用的金钱而采取的赔偿诉讼。最后一类与记帐行为重叠，但与记帐不同的是，它可以用来对付违法者。首席大法官霍尔特(Holt)反对过度使用“已获款项”(money had and received)来代替合同和侵权行为中的常规救济，但只取得了部分成功。
{"title":"Various developments of the money counts","authors":"J. Baker","doi":"10.1093/oso/9780198847809.003.0018","DOIUrl":"https://doi.org/10.1093/oso/9780198847809.003.0018","url":null,"abstract":"This chapter shows how the action of assumpsit for money, usually in the fictional form known as indebitatus assumpsit, was extended in the seventeenth century to cover situations beyond the reach of the old action of debt: for instance, actions on bills of exchange, actions for sums of money not quantified at the time of contracting (quantum meruit and quantum valebant), and restitutionary actions for money received to the plaintiff’s use. The last category overlapped with the action of account, but unlike account could be used against wrongdoers. Excessive use of ‘money had and received’ to replace the usual remedies in contract and tort was resisted, with only partial success, by Chief Justice Holt.","PeriodicalId":197105,"journal":{"name":"Baker and Milsom Sources of English Legal History","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130231310","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-07-04DOI: 10.1093/oso/9780198847809.003.0009
J. Baker
This chapter is concerned with the writ of detinue, which was very similar to, and in some cases had the same wording as, the writ of debt. It lay for specific chattels detained from someone with a better right to them, and the pleadings in the reported cases show the various kinds of claim which could be brought within the same formula. Detinue on a bailment rested on a direct transaction between the parties, but detinue could also be based solely on property, where a defendant had obtained possession of goods formerly in the plaintiff’s possession but without acquiring title from him. The principal species of the proprietary form was detinue sur trover (‘on a finding’), the ‘finding’ being open to fiction. The scope for special pleading in detinue was limited; but it came to be established that the liability of a bailee was stricter than that of a finder.
这一章是关于扣押令状的，它与债务令状非常相似，在某些情况下与债务令状有着相同的措辞。它规定了特定的动产，从有更好权利的人那里被扣留，在报告的案件中，诉状显示了可以在同一公式中提出的各种索赔。对保释金的扣押以当事人之间的直接交易为基础，但也可以仅以财产为基础，即被告获得了原属于原告的货物的占有权，但没有从原告那里获得所有权。专利形式的主要种类是detinue sur trover(“在一个发现上”)，这个“发现”对虚构是开放的。在未决案件中特别抗辩的范围是有限的;但后来确定的是，受托人的责任比发现者的责任更严格。
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Pub Date : 2019-07-04DOI: 10.1093/oso/9780198847809.003.0024
J. Baker
This chapter is concerned with miscellaneous actions on the case for causing economic loss, particularly in the context of monopolies. An action for drawing customers away from a market was allowed in 1310, and other monopolies were recognized under manorial customs, but a monopoly could not be acquired simply by being the first to use a trade in a particular place. A novel action of 1584 for infringing a trademark included elements of deceit and defamation, but there was as yet no concept of intellectual property. Monopolies granted by patent received a blow from a leading decision of 1602 concerning playing-cards. New kinds of economic tort were recognized in actions for intimidation (1621) and malicious injury in trade (1707), raising possibilities to be exploited in much later periods.
{"title":"Actions on the case for various kinds of economic loss","authors":"J. Baker","doi":"10.1093/oso/9780198847809.003.0024","DOIUrl":"https://doi.org/10.1093/oso/9780198847809.003.0024","url":null,"abstract":"This chapter is concerned with miscellaneous actions on the case for causing economic loss, particularly in the context of monopolies. An action for drawing customers away from a market was allowed in 1310, and other monopolies were recognized under manorial customs, but a monopoly could not be acquired simply by being the first to use a trade in a particular place. A novel action of 1584 for infringing a trademark included elements of deceit and defamation, but there was as yet no concept of intellectual property. Monopolies granted by patent received a blow from a leading decision of 1602 concerning playing-cards. New kinds of economic tort were recognized in actions for intimidation (1621) and malicious injury in trade (1707), raising possibilities to be exploited in much later periods.","PeriodicalId":197105,"journal":{"name":"Baker and Milsom Sources of English Legal History","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116264437","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-07-04DOI: 10.1093/oso/9780198847809.003.0016
J. Baker
Once it was established that the action of assumpsit would lie for nonfeasance, thoughts turned to using it for the non-payment of debts. This would enable the action of debt to be avoided, and thus prevent debtors from escaping their debts by waging law. The development was accepted by the King’s Bench in 1532, but resisted for over sixty years by the Common Pleas, which regarded wager of law as a right worth preserving. This chapter shows the arguments that were advanced on both sides, how the clash between the courts came to a head with the creation of the Exchequer Chamber in 1585, with jurisdiction to reverse King’s Bench judgments, and how the dispute was finally ended (by the barest majority) in Slade’s Case (1602). The 1602 decision was that every debt included an implied undertaking on which assumpsit would lie. This effectively put an end to wager of law.
{"title":"Assumpsit in lieu of debt","authors":"J. Baker","doi":"10.1093/oso/9780198847809.003.0016","DOIUrl":"https://doi.org/10.1093/oso/9780198847809.003.0016","url":null,"abstract":"Once it was established that the action of assumpsit would lie for nonfeasance, thoughts turned to using it for the non-payment of debts. This would enable the action of debt to be avoided, and thus prevent debtors from escaping their debts by waging law. The development was accepted by the King’s Bench in 1532, but resisted for over sixty years by the Common Pleas, which regarded wager of law as a right worth preserving. This chapter shows the arguments that were advanced on both sides, how the clash between the courts came to a head with the creation of the Exchequer Chamber in 1585, with jurisdiction to reverse King’s Bench judgments, and how the dispute was finally ended (by the barest majority) in Slade’s Case (1602). The 1602 decision was that every debt included an implied undertaking on which assumpsit would lie. This effectively put an end to wager of law.","PeriodicalId":197105,"journal":{"name":"Baker and Milsom Sources of English Legal History","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123943098","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-07-04DOI: 10.1093/oso/9780198847809.003.0025
J. Baker
The orthodoxy before 1500 was that the only remedy for defamatory words was a prosecution in the ecclesiastical courts. But it was a hard to deny a remedy if untrue words caused temporal damage, since damages could not be recovered in those courts. This chapter shows how actions on the case came to be available for causing temporal loss by words, and how indeed they became so common in the sixteenth century that the judges tried to discourage them by construing apparently defamatory words in a milder sense (‘in mitiori sensu’). Objections that such actions should not lie in respect of spiritual subject-matter, such as heresy or fornication, were overruled where temporal damage resulted. The final cases in the chapter show that the distinction between libel and slander was not the same, in its consequences, as that which became settled in later times.
{"title":"Actions on the case for defamation","authors":"J. Baker","doi":"10.1093/oso/9780198847809.003.0025","DOIUrl":"https://doi.org/10.1093/oso/9780198847809.003.0025","url":null,"abstract":"The orthodoxy before 1500 was that the only remedy for defamatory words was a prosecution in the ecclesiastical courts. But it was a hard to deny a remedy if untrue words caused temporal damage, since damages could not be recovered in those courts. This chapter shows how actions on the case came to be available for causing temporal loss by words, and how indeed they became so common in the sixteenth century that the judges tried to discourage them by construing apparently defamatory words in a milder sense (‘in mitiori sensu’). Objections that such actions should not lie in respect of spiritual subject-matter, such as heresy or fornication, were overruled where temporal damage resulted. The final cases in the chapter show that the distinction between libel and slander was not the same, in its consequences, as that which became settled in later times.","PeriodicalId":197105,"journal":{"name":"Baker and Milsom Sources of English Legal History","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128070802","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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