Actions on the case for defamation

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.

Actions on the case for nuisance

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.

Actions on the case for conversion

The action of detinue was unsatisfactory for plaintiffs in that defendants could escape by waging law, and indeed could truthfully deny a detainer of goods if they had destroyed or parted with them. The action on the case offered a solution. This chapter shows how it was first used against bailees who converted goods by damaging or destroying them. The extension to finders, including constructive ‘finders’, by a subtle shift in the meaning of ‘conversion’, provoked a controversy between the King’s Bench and the Common Pleas similar to that over the use of assumpsit to replace debt. It was resolved in favour of allowing the action, but with the qualification that not every detainer was a conversion. In its settled form, ‘trover and conversion’ was an action to try the relative title of the parties rather than an action in tort based on fault.

Executory interests under the Statute of Uses

This chapter shows how lawyers grappled with the effect of the Statutes of Uses and Wills on future interests in land, and the possibilities which they seemed to introduce for creating new kinds of estates in land. The legislation seemingly transformed land law by giving legal effect to a party’s wishes, in the first case by ‘executing the use’ and in the second by giving force to a testator’s ‘free will and pleasure’. Conveyancers thought for a time that this gave them the means of creating perpetual settlements of a family’s land. A number of leading cases reported by Coke show how perpetuity clauses were eventually outlawed by the judges, and how executory interests were to a limited extent subjected to principles of law. The chapter ends with Lord Nottingham’s formulation of a doctrine of perpetuities in 1682.

Actions on the case for various kinds of economic loss

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.

Various developments of the money counts

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.

Assumpsit for misfeasance

The principal species of action on the case in the fourteenth century was that brought for a non-forcible wrong causing physical damage, such as negligence by a carrier or surgeon. The cases in this chapter contain discussions of the distinction between such actions on the case for ‘misfeasance’, actions of trespass for battery with force, and actions of covenant for breaking a promise. The boundaries were important for practical reasons. Although the actions were seen to rest on undertakings – assumpsit means ‘he undertook’ - it was important for plaintiffs that they should be trespassory in form; this meant that the plaintiff did not have to produce a sealed document as proof, as in the action of covenant, and that the defendant could not wage his law.

The term of years

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.

Consideration and privity

This chapter shows how the doctrine of consideration emerged as an amalgam of the factors which would justify bringing an action of assumpsit for nonfeasance. The principal factors were a benefit conferred on the promisor (the essence of a bargain) and a detriment suffered by the promisee (the essence of a tort founded on reliance). Though lacking coherence, consideration was the closest approach to a basic substantive principle of contract law. Closely connected with it was the doctrine of privity. There was much debate over this, and in particular whether it was necessary for a plaintiff to be privy both to the consideration and to the promise. The reported arguments show how far it was thought possible for parties to make enforceable contracts for the benefit of others.

Uses, wills and trusts

The materials in this chapter relate to the early history and legal recognition of ‘uses’ of land, and to the legislation designed to prevent them from harming others, particularly by depriving the king and lords of their feudal incidents. The legal background to the Statutes of Uses (1536) and Wills (1540) is revealed from miscellaneous sources. Subsequent cases show the survival of equitable interests in the form of ‘trusts’ created by means of the ‘use upon a use’. The post-1535 trust was recognized judicially in The Duchess of Suffolk’s Case (1560), printed here in translation for the first time.