The doctrine of contract has been so thoroughly remodelled to meet the needs of modern times, that there is less here than elsewhere for historical research. It has been so ably discussed that there is less room here elsewhere for essentially new analysis. But a short of the growth of modern doctrines, whether necessary or not, will at least be interesting, while an analysis of their main characteristics cannot be omitted, and may present some new features.
It is popularly supposed that the oldest forms of contract known to our law are covenant and debt, and they are of early date, no doubt. But there are other contracts still in use which, although they have in some degree put on modern forms, at least suggest the question whether they were not of equally early appearance.
One of these, the promissory oath, is no longer the foundation of any rights in private law. It is used, but as mainly as a solemnity connected with entering upon a public office. The judge swears that he will execute justice according to law, the juryman that he will find his verdict according to law and the evidence, the newly adopted citizen that he will bear true faith and allegiance to the government of his choice.
But there is another contract which plays a more important part. It may, perhaps, sound paradoxical to mention [248] the contract of suretyship. Suretyship, nowadays, is only an accessory obligation, which presupposes a principal undertaking, and which, so far as the nature of the contract goes, is just like any other. But, as has been pointed out by Laferriere, /1/ and very likely by earlier writers, the surety of ancient law was the hostage, and the giving of hostages was by no means confined to international dealings.
In the old metrical romance of Huon of Bordeaux, Huon, having killed the son of Charlemagne, is required by the Emperor to perform various seeming impossibilities as the price of forgiveness. Huon starts upon the task, leaving twelve of his knights as hostages. /2/ He returns successful, but at first the Emperor is made to believe that his orders have been disobeyed. Thereupon Charlemagne cries out, "I summon hither the pledges for Huon. I will hang them, and they shall have no ransom." /3/ So, when Huon is to fight a duel, by way of establishing the truth or falsehood of a charge against him, each party begins by producing some of his friends as hostages.
When hostages are given for a duel which is to determine the truth or falsehood of an accusation, the transaction is very near to the giving of similar security in the trial of a cause in court. This was in fact the usual course of the Germanic procedure. It will be remembered that the earliest appearance of law was as a substitute for the private feuds between families or clans. But while a defendant who did not peaceably submit to the jurisdiction of the court might be put outside the protection of the law, so that any man might kill him at sight, there was at first [249] no way of securing the indemnity to which the plaintiff was entitled unless the defendant chose to give such security. /1/
English customs which have been preserved to us are somewhat more advanced, but one of the noticeable features in their procedure is the giving of security at every step. All lawyers will remember a trace of this in the fiction of John Doe and Richard Roe, the plaintiff's pledges to prosecute his action. But a more significant example is found in the rule repeated in many of the early laws, that a defendant accused of a wrong must either find security or go to prison. /2/ This security was the hostage of earlier days, and later, when the actions for punishment and for redress were separated from each other, became the bail of the criminal law. The liability was still conceived in the same way as when the bail actually put his own body into the power of the party secured.
One of Charlemagne's additions to the Lex Salica speaks of a freeman who has committed himself to the power of another by way of surety. /3/ The very phrase is copied in the English laws of Henry I. /4/ We have seen what this meant in the story of Huon of Bordeaux. The Mirror of Justices /5/ says that King Canute used to judge the mainprisors according as the principals when their principals not in judgment, but that King Henry I. confined Canute's rule to mainprisors who were consenting to the fact.
As late as the reign of Edward III., Shard, an English judge, after stating the law as it still is, that bail are a prisoner's [250] keepers, and shall be charged if he escapes, observes, that some say that the bail shall be hanged in his place. /1/ This was the law in the analogous case of a jailer. /2/ The old notion is to be traced in the form still given by modern writers for the undertaking of bail for felony. They are bound "body for body," /3/ and modern law-books find it necessary to state that this does not make them liable to the punishment of the principal offender if he does not appear, but only to a fine. /4/ The contract also differed from our modern ideas in the mode of execution. It was simply a solemn admission of liability in the presence of the officer authorized to take it. The signature of the bail was not necessary, /5/ and it was not requisite that the person bailed should bind himself as a party. /6/
But these peculiarities have been modified or done away with by statute, and I have dwelt upon the case, not so much as a special form of contract differing from all others as because the history of its origin shows one of the first appearances of contract in our law. It is to be traced to the gradual increase of faith in the honor of a hostage if the case calling for his surrender should arrive, and to the consequent relaxation of actual imprisonment. An illustration may be found in the parallel mode of dealing with the prisoner himself. His bail, to whom his body is supposed to be delivered, have a right to seize him at any time and anywhere, but he is allowed to go at large until [251] surrendered. It will be noticed that this form of contract, like debt as dealt with by the Roman law of the Twelve Tables, and for the same motive, although by a different process, looked to the body of the contracting party as the satisfaction.
Debt is another and more popular candidate for the honors of priority. Since the time of Savigny, the first appearance of contract both in Roman and German law has often been attributed to the case of a sale by some accident remaining incomplete. The question does not seem to be of great philosophical significance. For to explain how mankind first learned to promise, we must go to metaphysics, and find out how it ever came to frame a future tense. The nature of the particular promise which was first enforced in a given system can hardly lead to any truth of general importance. But the history of the action of debt is instructive, although in a humbler way. It is necessary to know something about it in order to understand the enlightened rules which make up the law of contract at the present time.
In Glanvill's treatise the action of debt is found already to be one of the well-known remedies. But the law of those days was still in a somewhat primitive state, and it will easily be imagined that a form of action which goes back as far as that was not founded on any very delicate discriminations. It was, as I shall try to show directly, simply the general form in which any money claim was collected, except unliquidated claims for damages by force, for which there was established the equally general remedy of trespass.
It has been thought that the action was adopted from the then more civilized procedure of the Roman law. A [252] natural opinion, seeing that all the early English law-writers adopt their phraseology and classification from Rome. Still it seems much more probable that the action is of pure German descent. It has the features of the primitive procedure which is found upon the Continent, as described by Laband. /1/
The substance of the plaintiff's claim as set forth in the writ of debt is that the defendant owes him so much and wrongfully withholds it. It does not matter, for a claim framed like that, how the defendant's duty arises. It is not confined to contract. It is satisfied if there is a duty to pay on any ground. It states a mere conclusion of law, not the facts upon which that conclusion is based, and from which the liability arises. The old German complaint was, in like manner, "A owes me so much."
It was characteristic of the German procedure that the defendant could meet that complaint by answering, in an equally general form, that he did not owe the plaintiff. The plaintiff had to do more than simply allege a debt, if he would prevent the defendant from escaping in that way. In England, if the plaintiff had not something to show for his debt, the defendant's denial turned him out of court; and even if he had, he was liable to be defeated by the defendant's swearing with some of his friends to back him that he owed nothing. The chief reason why debt was supplanted for centuries by a later remedy, assumpsit, was the survival of this relic of early days.
Finally, in England as in Germany, debt for the detention of money was the twin brother of the action brought for wrongfully withholding any other kind of chattel. The gist of the complaint in either case was the same.
It seems strange that this crude product of the infancy of law should have any importance for us at the present time. Yet whenever we trace a leading doctrine of substantive law far enough back, we are very likely to find some forgotten circumstance of procedure at its source. Illustrations of this truth have been given already. The action of debt and the other actions of contract will furnish others. Debt throws most light upon the doctrine of consideration.
[253] Our law does not enforce every promise which a man may make. Promises made as ninety-nine promises out of a hundred are, by word of mouth or simple writing, are not binding unless there is a consideration for them. That is, as it is commonly explained, unless the promisee has either conferred a benefit on the promisor, or incurred a detriment, as the inducement to the promise.
It has been thought that this rule was borrowed from Roman law by the Chancery, and, after undergoing some modification there, passed into the common law.
But this account of the matter is at least questionable. So far as the use of words goes, I am not aware that consideration is distinctly called cause before the reign of Elizabeth; in the earlier reports it always appears as quid pro quo. Its first appearance, so far as I know, is in Fleta's account of the action of debt, /1/ and although I am inclined to believe that Fleta's statement is not to be trusted, a careful consideration of the chronological order of the cases in the Year Books will show, I think, that the doctrine was fully developed in debt before any mention of it in equity can be found. One of the earliest [254] references to what a promisor was to have for his undertaking was in the action of assumpsit. /1/ But the doctrine certainly did not originate there. The first mention of consideration in connection with equity which I have seen is in the form of quid pro quo, /2/ and occurs after the requirement had been thoroughly established in debt. /3/
The single fact that a consideration was never required for contracts under seal, unless Fleta is to be trusted against the great weight of nearly contemporaneous evidence, goes far to show that the rule cannot have originated on grounds of policy as a rule of substantive law. And conversely, the coincidence of the doctrine with a peculiar mode of procedure points very strongly to the probability that the peculiar requirement and the peculiar procedure were connected. It will throw light on the question to put together a few undisputed facts, and to consider what consequences naturally followed. It will therefore be desirable to examine the action of debt a little further. But it is only fair to admit, at the outset, that I offer the explanation which follows with great hesitation, and, I think, with a full appreciation of the objections which might be urged.
It was observed a moment ago, that, in order to recover against a defendant who denied his debt, the plaintiff had to show something for it; otherwise he was turned over to the limited jurisdiction of the spiritual tribunals. /4/ This requirement did not mean evidence in the modern sense. It meant simply that he must maintain his cause in one of the ways then recognized by law. These were three, the [255] duel, a writing, and witnesses. The duel need not be discussed, as it soon ceased to be used in debt, and has no bearing on what I have to say. Trial by writing and by witnesses, on the other hand, must both be carefully studied. It will be convenient to consider the latter first and to find out what these witnesses were.
One thing we know at the start; they were not witnesses as we understand the term. They were not produced before a jury for examination and cross-examination, nor did their testimony depend for its effect on being believed by the court that heard it. Nowadays, a case is not decided by the evidence, but by a verdict, or a finding of facts, followed by a judgment. The oath of a witness has no effect unless it is believed. But in the time of Henry II. our trial by jury did not exist. When an oath was allowed to be sworn it had the same effect, whether it was believed or not. There was no provision for sifting it by a second body. In those cases where a trial by witnesses was possible, if the party called on to go forward could find a certain number of men who were willing to swear in a certain form, there was an end of the matter.
Now this seems like a more primitive way of establishing a debt than the production of the defendant's written acknowledgement, and it is material to discover its origin.
The cases in which this mode of trial was used appear from the early books and reports to have been almost wholly confined to claims arising out of a sale or loan. And the question at once occurs, whether we are not upon traces of an institution which was already ancient when Glanvill wrote. For centuries before the Conquest Anglo-Saxon law /1/ had required the election of a certain [256] number of official witnesses, two or three of whom were to be called in to every bargain of sale. The object for which these witnesses were established is not commonly supposed to have been the proof of debts. They go back to a time when theft and similar offences were the chief ground of litigation, and the purpose for which they were appointed was to afford a means of deciding whether a person charged with having stolen property had come by it rightfully or not. A defendant could clear himself of the felony by their oath that he had bought or received the thing openly in the way appointed by law.
Having been present at the bargain, the witnesses were able to swear to what they had seen and heard, if any question arose between the parties. Accordingly, their use was not confined to disposing of a charge of felony. But that particular service identifies the transaction witnesses of the Saxon period. Now we know that the use of these witnesses did not at once disappear under Norman influence. They are found with their old function in the laws of William the Conqueror. /1/ The language of Glanvill seems to prove that they were still known under Henry II. He says that, if a purchaser cannot summon in the man from whom he bought, to warrant the property to him and defend the suit, (for if he does, the peril is shifted to the seller,) then if the purchaser has sufficient proof of his having lawfully bought the thing, de legittimo marcatu suo, it will clear him of felony. But if he have not sufficient suit, he will be in danger. /2/ This is the law of William over again. It follows that purchasers still used the transaction witnesses.
[257] But Glanvill also seems to admit the use of witness to establish debts. /1/ As the transaction witnesses were formerly available for this purpose, I see no reason to doubt that they still were, and that he is speaking of them here also. /2/ Moreover, for a long time after Henry II., whenever an action was brought for a debt of which there was no written evidence, the plaintiff, when asked what he had to show for it, always answered "good suit," and tendered his witnesses, who were sometimes examined by the court. /3/ I think it is not straining the evidence to infer that the "good suit" of the later reports was the descendant of the Saxon transaction witnesses, as it has been shown that Glanvill's secta was. /4/
Assuming this step in the argument to have been taken, it will be well to recall again for a moment the original nature of the witness oath. It was confined to facts within the witnesses' knowledge by sight and hearing. But as the purposes for which witnesses were provided only required their presence when property changed hands, the principal case in which they could be of service between the parties [258] to a bargain was when a debt was claimed by reason of the delivery of property. The purpose did not extend to agreements which were executory on both sides, because there no question of theft could arise. And Glanvill shows that in his time the King's Court did not enforce such agreements. /1/ Now, if the oath of the secta could only be used to establish a debt where the transaction witnesses could have sworn, it will be seen, readily enough, how an accident of procedure may have led to a most important rule of substantive law.
The rule that witnesses could only swear to facts within their knowledge, coupled with the accident that these witnesses were not used in transactions which might create a debt, except for a particular fact, namely, the delivery of property, together with the further accident that this delivery was quid pro quo, was equivalent to the rule that, when a debt was proved by witnesses there must be quid pro quo. But these debts proved by witnesses, instead of by deed are what we call simple contract debts, and thus beginning with debt, and subsequently extending itself to other contracts, is established our peculiar and most important doctrine that every simple contract must have a consideration. This was never the law as to debts or contracts proved in the usual way by the defendant's seal, and the fact that it applied only to obligations which were formerly established by a procedure of limited use, [259] goes far to show that the connection with procedure was not accidental.
The mode of proof soon changed, but as late as the reign of Queen Elizabeth we find a trace of this original connection. It is said, "But the common law requires that there should be a new cause (i. e. consideration), whereof the country may have intelligence or knowledge for the trial of it, if need be, so that it is necessary for the Public-weal." /1/ Lord Mansfield showed his intuition of the historical grounds of our law when he said, "I take it that the ancient notion about the want of consideration was for the sake of evidence only; for when it is reduced into writing, as in covenants, specialties, bonds, etc., there was no objection to the want of consideration." /2/
If it should be objected that the preceding argument is necessarily confined to debt, whereas the requirement of consideration applies equally to all simple contracts, the answer is, that in all probability the rule originated with debt, and spread from debt to other contracts.
But, again, it may be asked whether there were no other contracts proved by witness except those which have been mentioned. Were there no contracts proved in that way to which the accidental consideration was wanting? To this also there is an easy answer. The contracts enforced by the civil courts, even as late as Henry II., were few and simple. The witness procedure was no doubt broad enough for all the contracts which were made in early times. Besides those of sale, loan, and the like, which have been mentioned, I find but two contractual [260] obligations. These were the warranties accompanying a sale and suretyship which was referred to at the beginning of the Lecture. Of the former, warranty of title was rather regarded as an obligation raised by the law out of the relation of buyer and seller than as a contract. Other express warranties were matters within the knowledge of the transaction witnesses, and were sworn to by them in Saxon times. /1/
But in the Norman period warranty is very little heard of, except with regard to land, and then it was decided by the duel. It so wholly disappeared, except where it was embodied in a deed, that it can have had no influence upon the law of consideration. I shall therefore assume, without more detail, that it does not bear upon the case.
Then as to the pledge or surety. He no longer paid with his body, unless in very exceptional cases, but his liability was translated into money, and enforced in an action of debt. This time-honored contract, like the other debts of Glanvill's time, could be established by witness without a writing, /2/ and in this case there was not such a consideration, such a benefit to the promisor, as the law required when the doctrine was first enunciated. But this also is unimportant, because his liability on the oath of witness came to an end, as well as that of the warrantor, before the foundations were laid for the rule which I am seeking to explain. A writing soon came to be required, as will be seen in a moment.
The result so far is, that the only action of contract in Glanvill's time was debt, that the only debts recovered [261] without writing were those which have been described, and that the only one of these for which there was not quid pro quo ceased to be recoverable in that way by the reign of Edward III.
But great changes were beginning in the reign of Henry II. More various and complex contracts soon came to be enforced. It may be asked, Why was not the scope of the witness oath enlarged, or, if any better proof were forthcoming, why was not the secta done away with, and other oral testimony admitted? In any event, what can the law of Henry II.'s time have to do with consideration, which not heard of until centuries later?
It is manifest that a witness oath, which disposes of a case by the simple fact that it is sworn, is not a satisfactory mode of proof. A written admission of debt produced in court, and sufficiently identified as issuing from the defendant, is obviously much better. The only weak point about a writing is the means of identifying it as the defendant's, and this difficulty disappeared as soon as the use of seals became common. This had more or less taken place in Glanvill's time, and then all that a party had to do was to produce the writing and satisfy the court by inspection that the impression on the wax fitted his opponent's seal. /1/ The oath of the secta could always be successfully met by wager of law, /2/ that is, by a counter oath the part of the defendant, with the same or double the number of fellow-swearers produced by the plaintiff. But a writing proved to be the defendant's could not be contradicted. [262] /1/ For if a man said he was bound, he was bound. There was no question of consideration, because there was as yet no such doctrine. He was equally bound if he acknowledged all obligation in any place having a record, such as the superior courts, by which his acknowledgment could be proved. Indeed, to this day some securities are taken simply by an oral admission before the clerk of a court noted by him in his papers. The advantage of the writing was not only that it furnished better proof in the old cases, but also that it made it possible to enforce obligations for which there would otherwise have been no proof at all.
What has been said sufficiently explains the preference of proof by writing to proof by the old-fashioned witness oath. But there were other equally good reasons why the latter should not be extended beyond its ancient limits. The transaction witnesses were losing their statutory and official character. Already in Glanvill's time the usual modes of proving a debt were by the duel or by writing. /2/ A hundred years later Bracton shows that the secta had degenerated to the retainers and household of the party, and he says that their oath raises but a slight presumption. /3/
Moreover, a new mode of trial was growing up, which, although it was not made use of in these cases /4/ for a good while, must have tended to diminish the estimate set on the witness oath by contrast. This was the beginning of our trial by jury. It was at first an inquest of the neighbors [263] most likely to know about a disputed matter of fact. They spoke from their own knowledge, but they were selected by an officer of the court instead of by the interested party, and were intended to be impartial. /1/ Soon witnesses were summoned before them, not, as of old, to the case by their oath, but to aid the inquest to find a verdict by their testimony. With the advent of this enlightened procedure, the secta soon ceased to decide the case, and it may well be asked why it did not disappear and leave no traces.
Taking into account the conservatism of the English law, and the fact that, before deeds came in, the only debts for which there had been a remedy were debts proved by the transaction witnesses, it would not have been a surprise to find the tender of suit persisting in those cases. But there was another reason still more imperative. The defence in debt where there was no deed was by wager of law. /2/ A section of Magna Charta was interpreted to prohibit a man's being put to his law on the plaintiff's own statement without good witness. /3/ Hence, the statute required witness—that is, the secta—in every case of debt where the plaintiff did not rely upon a writing. Thus it happened that suit continued to be tendered in those cases where it had been of old, /4/ and as the defendant, if he did not admit the debt in such cases, always waged his law, it was long before the inquest got much foothold.
To establish a debt which arose merely by way of promise or acknowledgment, and for which there had formerly [264] been no mode of trial provided, you must have a writing, the new form of proof which introduced it into the law. The rule was laid down, "by parol the party is not obliged." /1/ But the old debts were not conceived of as raised by a promise. /2/ They were a "duty" springing from the plaintiff's receipt of property, a fact which could be seen and sworn to. In these cases the old law maintained and even extended itself a little by strict analogy.
But the undertaking of a surety, in whatever form it was clothed, did not really arise out of any such fact. It had become of the same nature as other promises, and it was soon doubted whether it should not be proved by the same evidence. /3/ By the reign of Edward III., it was settled that a deed was necessary, /4/ except where the customs of particular cities had kept the old law in force. /5/
This reign may be taken as representing the time when the divisions and rules of procedure were established which have lasted until the present day. It is therefore worth while to repeat and sum up the condition of the law at that time.
It was still necessary that the secta should be tendered in every action of debt for which no writing was produced. For this, as well as for the other reasons which have been mentioned, the sphere of such actions was not materially enlarged beyond those cases which had formerly been established by the witness-oath. As suretyship was no [265] longer one of these, they became strictly limited to cases in which the debt arose from the receipt of a quid pro quo. Moreover there was no other action of contract which could be maintained without a writing. New species of contracts were now enforced by an action of covenant, but there a deed was always necessary. At the same time the secta had shrunk to a form, although it was still argued that its function was more important in contract than elsewhere. It could no longer be examined before the court. /1/ It was a mere survival, and the transaction witness had ceased to be an institution. Hence, the necessity of tendering the witness oath did not fix the limit of debt upon simple contract except by tradition, and it is not surprising to find that the action was slightly extended by analogy from its scope in Glanvill's time.
But debt remained substantially at the point which I have indicated, and no new action available for simple contracts was introduced for a century. In the mean time the inversion which I have explained took place, and what was an accident of procedure had become a doctrine of substantive law. The change was easy when the debts which could be enforced without deed all sprung from a benefit to the debtor.
The influence of the Roman law, no doubt, aided in bringing about this result. It will be remembered that in the reign of Henry II. most simple contracts and debts for which there was not the evidence of deed or witness were left to be enforced by the ecclesiastical courts, so far as their jurisdiction extended. /2/ Perhaps it was this circumstance [266] which led Glanvill and his successors to apply the terminology of the civilians to common-law debts. But whether he borrowed it from the ecclesiastical courts, or went directly to the fountain-head, certain it is that Glanvill makes use of the classification and technical language of the Corpus Juris throughout his tenth book.
There were certain special contracts in the Roman system called real, which bound the contractor either to return a certain thing put into his hands by the contractee, as in a case of lease or loan, or to deliver other articles of the same kind, as when grain, oil, or money was lent. This class did not correspond, except in the most superficial way, with the common-law debts. But Glanvill adopted the nomenclature, and later writers began to draw conclusions from it. The author of Fleta, a writer by no means always intelligent in following and adopting his predecessors' use of the Roman law, /1/ says that to raise a debt there must be not only a certain thing promised, but a certain thing promised in return. /2/
If Fleta had confined his statement to debts by simple contract, it might well have been suggested by the existing state of the law. But as he also required a writing and a seal, in addition to the matter given or promised in return, the doctrine laid down by him can hardly have prevailed at any time. It was probably nothing more than a slight vagary of reasoning based upon the Roman elements which he borrowed from Bracton.
[267] It only remains to trace the gradual appearance of consideration in the decisions. A case of the reign of Edward III. /1/ seems to distinguish between a parol obligation founded on voluntary payments by the obligee and one founded on a payment at the obligor's request. It also speaks of the debt or "duty" in that case as arising by cause of payments. Somewhat similar language is used in the next reign. /2/ So, in the twelfth year of Henry IV., /3/ there is an approach to the thought: "If money is promised to a man for making a release, and he makes the release, he will have a good action of debt in the matter." In the next reign /4/ it was decided that, in such a case, the plaintiff could not recover without having executed the release, which is explained by the editor on the ground that ex nudo pacto non oritur actio. But the most important fact is, that from Edward I. to Henry VI. we find no case where a debt was recovered, unless a consideration had in fact been received.
Another fact to be noticed is, that since Edward III. debts arising from a transaction without writing are said to arise from contract, as distinguished from debts arising from an obligation. /5/ Hence, when consideration was required as such, it was required in contracts not under seal, whether debts or not. Under Henry VI. quid pro quo became a necessity in all such contracts. In the third year of that reign /6/ it was objected to au action upon an [268] assumpsit for not building a mill, that it was not shown what the defendant was to have for doing it. In the thirty-sixth year of the same reign (A.D. 1459), the doctrine appears full grown, and is assumed to be familiar. /1/
The case turned upon a question which was debated for centuries before it was settled, whether debt would lie for a sum of money promised by the defendant to the plaintiff if he would marry the defendant's daughter. But whereas formerly the debate had been whether the promise was not so far incident to the marriage that it belonged exclusively to the jurisdiction of the spiritual courts, it now touched the purely mundane doubt whether the defendant had had quid pro quo.
It will be remembered that the fact formerly sworn to by the transaction witnesses was a benefit to the defendant, namely, a delivery of the things sold or the money lent to him. Such cases, also, offer the most obvious form of consideration. The natural question is, what the promisor was to have for his promise. /2/ It is only by analysis that the supposed policy of the law is seen to be equally satisfied by a detriment incurred by the promisee. It therefore not unnaturally happened that the judges, when they first laid down the law that there must be quid pro quo, were slow to recognize a detriment to the contractee as satisfying the requirement which had been laid down. In the case which I have mentioned some of the judges were inclined to hold that getting rid of his daughter was a sufficient benefit to the defendant to make him a debtor for the money which he promised; and there was even some hint of the opinion, that marrying the lady was a [269] consideration, because it was a detriment to the promisee. /1/ But the other opinion prevailed, at least for a time, because the defendant had had nothing from the plaintiff to raise a debt. /2/
So it was held that a service rendered to a third person upon the defendant's request and promise of a reward would not be enough, /3/ although not without strong opinions to the contrary, and for a time the precedents were settled. It became established law that an action of debt would only lie upon a consideration actually received by and enuring to the benefit of the debtor.
It was, however, no peculiarity of either the action or contract of debt which led to this view, but the imperfectly developed theory of consideration prevailing between the reigns of Henry VI. and Elizabeth. The theory the same in assumpsit, /4/ and in equity. /5/ Wherever consideration was mentioned, it was always as quid pro quo, as what the contractor was to have for his contract.
Moreover, before consideration was ever heard of, debt was the time-honored remedy on every obligation to pay money enforced by law, except the liability to damages for a wrong. /6/ It has been shown already that a surety could be sued in debt until the time of Edward III. without a writing, yet a surety receives no benefit from the dealing with his principal. For instance, if a man sells corn to A, [270] and B says, "I will pay if A does not," the sale does B no good so far as appears by the terms of the bargain. For this reason, debt cannot now be maintained against a surety in such a case.
It was not always so. It is not so to this day if there is an obligation under seal. In that case, it does not matter how the obligation arose, or whether there was any consideration for it or not. But a writing was a more general way of establishing a debt in Glanvill's time than witness, and it is absurd to determine the scope of the action by considering only a single class of debts enforced by it. Moreover, a writing for a long time was only another, although more conclusive, mode of proof. The foundation of the action was the same, however it was proved. This was a duty or "duity" /1/ to the plaintiff, in other words, that money was due him, no matter how, as any one may see by reading the earlier Year Books. Hence it was, that debt lay equally upon a judgment, /2/ which established such a duty by matter of record, or upon the defendant's admission recorded in like manner. /3/
To sum up, the action of debt has passed through three stages. At first, it was the only remedy to recover money due, except when the liability was simply to pay damages for a wrongful act. It was closely akin to—indeed it was but a branch of—the action for any form of personal property which the defendant was bound by contract or otherwise to hand over to the plaintiff. /4/ If there was a contract to pay money, the only question was how you [271] could prove it. Any such contract, which could be proved by any of the means known to early law, constituted a debt. There was no theory of consideration, and therefore, of course, no limit to either the action or the contract based upon the nature of the consideration received.
The second stage was when the doctrine of consideration was introduced in its earlier form of a benefit to the promisor. This applied to all contracts not under seal while it prevailed, but it was established while debt was the only action for money payable by such contracts. The precedents are, for the most part, precedents in debt.
The third stage was reached when a larger view was taken of consideration, and it was expressed in terms of detriment to the promisee. This change was a change in substantive law, and logically it should have been applied throughout. But it arose in another and later form of action, under circumstances peculiarly connected with that action, as will be explained hereafter. The result was that the new doctrine prevailed in the new action, and the old in the old, and that what was really the anomaly of inconsistent theories carried out side by side disguised itself in the form of a limitation upon the action of debt. That action did not remain, as formerly, the remedy for all binding contracts to pay money, but, so far as parol contracts were concerned, could only be used where the consideration was a benefit actually received by the promisor. With regard to obligations arising in any other way, it has remained unchanged.
I must now devote a few words to the effect upon our law of the other mode of proof which I have mentioned. I mean charters. A charter was simply a writing. As few could write, most people had to authenticate a document [272] in some other way, for instance, by making their mark. This was, in fact, the universal practice in England until the introduction of Norman customs. /1/ With them seals came in. But as late as Henry II. they were said by the Chief Justice of England to belong properly only to kings and to very great men. /2/ I know no ground for thinking that an authentic charter had any less effect at that time when not under seal than when it was sealed. /3/ It was only evidence either way, and is called so in many of the early cases. /4/ It could be waived, and suit tendered in its place. /5/ Its conclusive effect was due to the satisfactory nature of the evidence, not to the seal. /6/
But when seals came into use they obviously made the evidence of the charter better, in so far as the seal was more difficult to forge than a stroke of the pen. Seals acquired such importance, that, for a time, a man was bound by his seal, although it was affixed without his consent. /7/ At last a seal came to be required, in order that a charter should have its ancient effect. /8/
A covenant or contract under seal was no longer a promise well proved; it was a promise of a distinct nature, for which a distinct form of action came to be provided. [273] /1/ I have shown how the requirement of consideration became a rule of substantive law, and also why it never had any foothold in the domain of covenants. The exception of covenants from the requirement became a rule of substantive law also. The man who had set his hand to a charter, from being bound because he had consented to be, and because there was a writing to prove it, /2/ was now held by force of the seal and by deed alone as distinguished from all other writings. And to maintain the integrity of an inadequate theory, a seal was said to a consideration.
Nowadays, it is sometimes thought more philosophical to say that a covenant is a formal contract, which survives alongside of the ordinary consensual contract, just as happened in the Roman law. But this is not a very instructive way of putting it either. In one sense, everything is form which the law requires in order to make a promise binding over and above the mere expression of the promisor's will. Consideration is a form as much as a seal. The only difference is, that one form is of modern introduction, and has a foundation in good sense, or at least in with our common habits of thought, so that we do not notice it, whereas the other is a survival from an older condition of the law, and is less manifestly sensible, or less familiar. I may add, that, under the influence of the latter consideration, the law of covenants is breaking down. In many States it is held that a mere scroll or flourish of the pen is a sufficient seal. From this it is a short step to abolish the distinction between sealed and unsealed instruments altogether, and this has been done in some of the Western States.
[274] While covenants survive in a somewhat weak old age, and debt has disappeared, leaving a vaguely disturbing influence behind it, the whole modern law of contract has grown up through the medium of the action of Assumpsit, which must now be explained.
After the Norman conquest all ordinary actions were begun by a writ issuing from the king, and ordering the defendant to be summoned before the court to answer the plaintiff. These writs were issued as a matter of course, in the various well-known actions from which they took their names. There were writs of debt and of covenant; there were writs of trespass for forcible injuries to the plaintiff's person, or to property in his possession, and so on. But these writs were only issued for the actions which were known to the law, and without a writ the court had no authority to try a case. In the time of Edward I. there were but few of such actions. The cases in which you could recover money of another fell into a small number of groups, for each of which there was a particular form of suing and stating your claim.
These forms had ceased to be adequate. Thus there were many cases which did not exactly fall within the definition of a trespass, but for which it was proper that a remedy should be furnished. In order to furnish a remedy, the first thing to be done was to furnish a writ. Accordingly, the famous statute of 13 Edward I., c. 24, authorized the office from which the old writs issued to frame new ones in cases similar in principle to those for which writs were found, and requiring like remedy, but not exactly falling within the scope of the writs already in use.
Thus writs of trespass on the case began to make their appearance; that is, writs stating a ground of complaint [275] to a trespass, but not quite amounting to a trespass as it had been sued for in the older precedents. To take an instance which is substantially one of the earliest cases, suppose that a man left a horse with a blacksmith to be shod, and he negligently drove a nail into the horse's foot. It might be that the owner of the horse could not have one of the old writs, because the horse was not in his possession when the damage was done. A strict trespass property could only be committed against the person in possession of it. It could not be committed by one who was in possession himself. /1/ But as laming the horse was equally a wrong, whether the owner held the horse by the bridle or left it with the smith, and as the wrong was closely analogous to a trespass, although not one, the law gave the owner a writ of trespass on the case. /2/
An example like this raises no difficulty; it is as much an action of tort for a wrong as trespass itself. No contract was stated, and none was necessary on principle. But this does not belong to the class of cases to be considered, for the problem before us is to trace the origin of assumpsit, which is an action of contract. Assumpsit, however, began as an action of trespass on the case, and the thing to be discovered is how trespass on the case ever became available for a mere breach of agreement.
It will be well to examine some of the earliest cases in which an undertaking (assumpsit) was alleged. The first reported in the books is of the reign of Edward III. /3/ The plaintiff alleged that the defendant undertook to carry the plaintiff's horse safely across the Humber, but surcharged [276] the boat, by reason of which the horse perished. It was objected that the action should have been either covenant for breach of the agreement, or else trespass. But it was answered that the defendant committed a wrongful act when he surcharged the boat, and the objection was overruled. This case again, although an undertaking was stated, hardly introduced a new principle. The force did not proceed directly from the defendant, to be sure, but it was brought to bear by the combination of his overloading and then pushing into the stream.
The next case is of the same reign, and goes further. /1/ The writ set forth that the defendant undertook to cure the plaintiff's horse of sickness (manucepit equum praedicti W. de infirmirate), and did his work so negligently that the horse died. This differs from the case of laming the horse with a nail in two respects. It does not charge any forcible act, nor indeed any act at all, but a mere omission. On the other hand, it states an undertaking, which the other did not. The defendant at once objected that this was an action for a breach of an undertaking, and that the plaintiff should have brought covenant. The plaintiff replied, that he could not do that without a deed, and that the action was for negligently causing the death of the horse; that is, for a tort, not for a breach of contract. Then, said the defendant, you might have had trespass. But the plaintiff answered that by saying that the horse was not killed by force, but died per def. de sa cure; and upon this argument the writ was adjudged good, Thorpe, J. saying that he had seen a man indicted for killing a patient by want of care (default in curing), whom he had undertaken to cure.
[277] Both these cases, it will be seen, were dealt with by the court as pure actions of tort, notwithstanding the allegation of an undertaking on the part of the defendant. But it will also be seen that they are successively more remote from an ordinary case of trespass. In the case last stated, especially, the destroying force did not proceed from the defendant in any sense. And thus we are confronted with the question, What possible analogy could have been found between a wrongful act producing harm, and a failure to act at all?
I attempt to answer it, let me illustrate a little further by examples of somewhat later date. Suppose a man undertook to work upon another's house, and by his unskilfulness spoiled his employer's timbers; it would be like a trespass, although not one, and the employer would sue in trespass on the case. This was stated as clear law by one of the judges in the reign of Henry IV. /1/ But suppose that, instead of directly spoiling the materials, the carpenter had simply left a hole in the roof through which the rain had come in and done the damage. The analogy to the previous case is marked, but we are a step farther away from trespass, because the force does not come from the defendant. Yet in this instance also the judges thought that trespass on the case would lie. /2/ In the time of Henry IV. the action could not have been maintained for a simple refusal to build according to agreement; but it was suggested by the court, that, if the writ had mentioned "that the thing had been commenced and then by not done, it would have been otherwise." /3/
[278] I now recur to the question, What likeness could there have been between an omission and a trespass sufficient to warrant a writ of trespass on the case? In order to find an answer it is essential to notice that in all the earlier cases the omission occurred in the course of dealing with the plaintiff's person or property, and occasioned damage to the one or the other. In view of this fact, Thorpe's reference to indictments for killing a patient by want of care, and the later distinction between neglect before and after the task is commenced, are most pregnant. The former becomes still more suggestive when it is remembered that this is the first argument or analogy to be found upon the subject.
The meaning of that analogy is plain. Although a man has a perfect right to stand by and see his neighbor's property destroyed, or, for the matter of that, to watch his neighbor perish for want of his help, yet if he once intermeddles he has no longer the same freedom. He cannot withdraw at will. To give a more specific example, if a surgeon from benevolence cuts the umbilical cord of a newly-born child, he cannot stop there and watch the patient bleed to death. It would be murder wilfully to allow death to come to pass in that way, as much as if the intention had been entertained at the time of cutting the cord. It would not matter whether the wickedness began with the act, or with the subsequent omission.
The same reasoning applies to civil liability. A carpenter need not go to work upon another man's house at all, but if he accepts the other's confidence and intermeddles, he cannot stop at will and leave the roof open to the weather. So in the case of the farrier, when he had taken charge of the horse, he could not stop at the critical moment [279] and leave the consequences to fortune. So, still more clearly, when the ferryman undertook to carry a horse across the Humber, although the water drowned the horse, his remote acts of overloading his boat and pushing it into the stream in that condition occasioned the loss, and he was answerable for it.
In the foregoing cases the duty was independent of contract, or at least was so regarded by the judges who decided them, and stood on the general rules applied to human conduct even by the criminal law. The immediate occasion of the damage complained of may have been a mere omission letting in the operation of natural forces. But if you connect it, as it was connected in fact, with the previous dealings, you have a course of action and conduct which, taken as a whole, has caused or occasioned the harm.
The objection may be urged, to be sure, that there is a considerable step from holding a man liable for the consequences of his acts which he might have prevented, to making him answerable for not having interfered with the course of nature when he neither set it in motion nor opened the door for it to do harm, and that there is just that difference between making a hole in a roof and leaving it open, or cutting the cord and letting it bleed, on the one side, and the case of a farrier who receives a sick horse and omits proper precautions, on the other. /1/
There seem to be two answers to this. First, it is not clear that such a distinction was adverted to by the court which decided the case which I have mentioned. It was alleged that the defendant performed his cure so negligently that the horse died. It might not have occurred to [280] the judges that the defendant's conduct possibly went no further than the omission of a series of beneficial measures. It was probably assumed to have consisted of a combination of acts and neglects, which taken as a whole amounted to an improper dealing with the thing.
In the next place, it is doubtful whether the distinction is a sound one on practical grounds. It may well be that, so long as one allows a trust to be reposed in him, he is bound to use such precautions as are known to him, although he has made no contract, and is at liberty to renounce the trust in any reasonable manner. This view derives some support from the issue on which the parties went to trial, which was that the defendant performed the cure as well as he knew how, without this, that the horse died for default of his care (cure?). /1/
But it cannot be denied that the allegation of an undertaking conveyed the idea of a promise, as well as that of an entering upon the business in hand. Indeed, the latter element is sufficiently conveyed, perhaps, without it. It may be asked, therefore, whether the promise did not count for something in raising a duty to act. So far as this involves the consequence that the action was in fact for the breach of a contract, the answer has been given already, and is sustained by too great a weight of authority to be doubted. /2/ To bind the defendant by a contract, an instrument under seal was essential. As has been shown, already, even the ancient sphere of debt had been limited by this requirement, and in the time of Edward III. a deed was necessary even to bind a surety. It was so [281] a fortiori to introduce a liability upon promises not enforced by the ancient law. Nevertheless, the suggestion was made at an early date, that an action on the case for damage by negligence, that is, by an omission of proper precautions, alleging an undertaking by way of inducement, was in fact an action of contract.
Five years after the action for negligence in curing a horse, which has been stated, an action was brought /1/ in form against a surgeon, alleging that he undertook to cure the plaintiff's hand, and that by his negligence the hand was maimed. There was, however, this difference, that it was set forth that the plaintiff's hand had been wounded by one T.B. And hence it appeared that, however much the bad treatment may have aggravated matters, the maiming was properly attributable to T.B., and that the plaintiff had an action against him. This may have led the defendant to adopt the course he did, because he felt uncertain whether any action of tort would lie. He took issue on the undertaking, assuming that to be essential to the plaintiff's case, and then objected that the writ did not show the place of the undertaking, and hence was bad, because it did not show whence the inquest should be summoned to speak to that point. The writ was adjudged bad on that ground, which seems as if the court sanctioned the defendant's view. Indeed, one of the judges called it an action of covenant, and said that "of necessity it was maintainable without specialty, because for so small a matter a man cannot always have a clerk at hand to write a deed" (pur faire especially). At the same time the earlier cases which [282] have been mentioned were cited and relied on, and it is evident that the court was not prepared to go beyond them, or to hold that the action could be maintained on its merits apart from the technical objection. In another connection it seems to have considered the action from the point of view of trespass. /1/
Whatever questions this case may suggest, the class of actions which alleged an undertaking on the part of the defendant continued to be dealt with as actions of tort for a long time after Edward III. The liability was limited to damage to person or property arising after the defendant had entered upon the employment. And it was mainly through reasoning drawn from the law of tort that it was afterwards extended, as will be seen.
At the beginning of the reign of Henry VI. it was probably still the law that the action would not lie for a simple failure to keep a promise. /2/ But it had been several times suggested, as has been shown, that it would be otherwise if the omission or neglect occurred in the course of performance, and the defendant's conduct had been followed by physical damage. /3/ This suggestion took its most striking form in the early years of Henry VI., when the case of the carpenter leaving a hole in the roof was put. /4/ When the courts had got as far as this, it was easy to go one step farther, and to allow the same effect to an omission at any stage, followed by similar damage.
[283] What is the difference in principle, it was asked, a few years later, /1/ between the cases where it is admitted that the action will lie, and that of a smith who undertakes to shoe a horse and does not, by reason of which the horse goes lame,—or that of a lawyer, who undertakes to argue your case, and, after thus inducing you to rely upon him, neglects to be present, so that you lose it? It was said that in the earlier instances the duty was dependent on or accessory to the covenant, and that, if the action would lie on the accessory matter, it would lie on the principal. /2/ It was held on demurrer that an action would lie for not procuring certain releases which the defendant had undertaken to get.
Five years later another case /3/ came up, which was very like that of the farrier in the reign of Edward III. It was alleged that the defendant undertook to cure the plaintiff's horse, and applied medicine so negligently that the horse died. In this, as in the earlier case, the issue was taken on the assumpsit. And now the difference between an omission and an act was clearly stated, the declaration was held not to mean necessarily anything more than an omission, and it was said that but for the undertaking the defendant would have owed no duty to act. Hence the allegation of the defendant's promise was material, and an issue could properly be taken on it.
This decision distinctly separated from the mass of actions on the case a special class arising out of a promise as the source of the defendant's obligation, and it was only a matter of time for that class to become a new and distinct [284] action of contract. Had this change taken place at once, the doctrine of consideration, which was first definitely enunciated about the same time, would no doubt have been applied, and a quid pro quo would have been required for the undertaking. /1/ But the notion of tort was not at once abandoned. The law was laid down at the beginning of the reign of Henry VII., in accordance with the earlier decisions, and it was said that the action would not lie for a failure to keep a promise, but only for negligence after the defendant had entered upon his undertaking. /2/
So far as the action did not exceed the true limits of tort, it was immaterial whether there was a consideration for the undertaking or not. But when the mistake was made of supposing that all cases, whether proper torts or not, in which an assumpsit was alleged, were equally founded on the promise, one of two erroneous conclusions was naturally thought to follow. Either no assumpsit needed any quid pro quo, /3/ as there was clearly none in the older precedents, (they being cases of pure tort,) or else those precedents were wrong, and a quid pro quo should be alleged in every case. It was long recognized with more or less understanding of the true limit, that, in cases where the gist of the action was negligent damage to property, a consideration was not necessary. /4/ And there are some traces of the notion that it was always superfluous, as late as Charles I.
[285] In a case of that reign, the defendant retained an attorney to act in a suit for a third person, and promised to pay him all his fees and expenses. The attorney rendered the service, and then brought debt. It was objected that debt did not lie, because there was no contract between the parties, and the defendant had not any quid pro quo. The court adopted the argument, and said that there was no contract or consideration to ground this action, but that the plaintiff might have sued in assumpsit. /1/
It was, perhaps, the lingering of this idea, and the often repeated notion that an assumpsit was not a contract, /2/ to which was attributable a more enlarged theory of consideration than prevailed in debt. It was settled that assumpsit would lie for a mere omission or nonfeasance. The cases which have been mentioned of the reign of Henry VI. were followed by others in the latter years of Henry VII., /3/ and it was never again doubted. An action for such a cause was clearly for a breach of promise, as had been recognized from the time of Edward III. If so, a consideration was necessary. /4/ Notwithstanding occasional vagaries, that also had been settled or taken for granted in many cases of Queen Elizabeth's time. But the bastard origin of the action which gave rise to the doubt how far any consideration at all was necessary, made it possible to hold considerations sufficient which had been in debt.
Another circumstance may not have been without its influence. It would seem that, in the period when assumpsit [286] was just growing into its full proportions, there was some little inclination to identify consideration with the Roman causa, taken in its broadest sense. The word "cause" was used for consideration in the early years of Elizabeth, with reference to a covenant to stand seized to uses. /1/ It was used in the same sense in the action of assumpsit. /2/ In the last cited report, although the principal case only laid down a doctrine that would be followed to-day, there was also stated an anonymous case which was interpreted to mean that an executed consideration furnished upon request, but without any promise of any kind, would support a subsequent promise to pay for it. /3/ Starting from this authority and the word "cause," the conclusion was soon reached that there was a great difference between a contract and an assumpsit; and that, whereas in contracts "everything which is requisite ought to concur and meet together, viz. the consideration of the one side, and the sale or the promise on the other side,... to maintain an action upon an assumpsit, the same is not requisite, for it is sufficient if there be a moving cause or consideration precedent; for which cause or consideration the promise was made." /4/
Thus, where the defendant retained the plaintiff to be [287] to his aunt at ten shillings a week, it was held that assumpsit would lie, because the service, though not beneficial to the defendant, was a charge or detriment to the plaintiff. /1/ The old questions were reargued, and views which were very near prevailing in debt under Henry VI., prevailed in assumpsit under Elizabeth and James.
A surety could be sued in assumpsit, although he had ceased to be liable in debt. /2/ There was the same remedy on a promise in consideration that the plaintiff would marry the defendant's daughter. /3/ The illusion that assumpsit thus extended did not mean contract, could not be kept up. In view of this admission and of the ancient precedents, the law oscillated for a time in the direction of reward as the true essence of consideration. /4/ But the other view prevailed, and thus, in fact, made a change in the substantive law. A simple contract, to be recognized as binding by the courts of Henry VI., must have been based upon a benefit to the debtor; now a promise might be enforced in consideration of a detriment to the promisee. But in the true archaic spirit the doctrine was not separated or distinguished from the remedy which introduced it, and thus debt in modern times has presented the altered appearance of a duty limited to cases where the consideration was of a special sort.
The later fortunes of assumpsit can be briefly told. It introduced bilateral contracts, because a promise was a [288] detriment, and therefore a sufficient consideration for another promise. It supplanted debt, because the existence of the duty to pay was sufficient consideration for a promise to pay, or rather because, before a consideration was required, and as soon as assumpsit would lie for a nonfeasance, this action was used to avoid the defendant's wager of law. It vastly extended the number of actionable contracts, which had formerly been confined to debts and covenants, whereas nearly any promise could be sued in assumpsit; and it introduced a theory which has had great influence on modern law,—that all the liabilities of a bailee are founded on contract. /1/ Whether the prominence which was thus given to contract as the foundation of legal rights and duties had anything to do with the similar prominence which it soon acquired in political speculation, it is beyond my province to inquire.
[289]
LECTURE VIII. — CONTRACT. II. ELEMENTS.
THE general method to be pursued in the analysis of contract is the same as that already explained with regard to possession. Wherever the law gives special rights to one, or imposes special burdens on another, it does so on the ground that certain special facts are true of those individuals. In all such cases, therefore, there is a twofold task. First, to determine what are the facts to which the special consequences are attached; second, to ascertain the consequences. The first is the main field of legal argument. With regard to contracts the facts are not always the same. They may be that a certain person has signed, sealed, and delivered a writing of a certain purport. They may be that he has made an oral promise, and that the promisee has furnished him a consideration.The common element of all contracts might be said to be a promise, although even a promise was not necessary to a liability in debt as formerly understood. But as it will not be possible to discuss covenants further, and as consideration formed the main topic of the last Lecture, I will take up that first. Furthermore, as there is an historical difference between consideration in debt and in assumpsit, I shall confine myself to the latter, which is the later and more philosophical form.
It is said that any benefit conferred by the promisee on the promisor, or any detriment incurred by the promisee, [290] may be a consideration. It is also thought that every consideration may be reduced to a case of the latter sort, using the word "detriment" in a somewhat broad sense.
To illustrate the general doctrine, suppose that a man is desirous of having a cask of brandy carried from Boston to Cambridge, and that a truckman, either out of kindness or from some other motive, says that he will carry it, and it is delivered to him accordingly. If he carelessly staves in the cask, there would perhaps be no need to allege that he undertook to carry it, and on principle, and according to the older cases, if an undertaking was alleged, no consideration for the assumpsit need be stated. /1/ The ground of complaint in that case would be a wrong, irrespective of contract. But if the complaint was that he did not carry it as agreed, the plaintiff's difficulty would be that the truckman was not bound to do so unless there was a consideration for his promise. Suppose, therefore, that it was alleged that he promised to do so in consideration of the delivery to him. Would this be a sufficient consideration? The oldest cases, going on the notion of benefit to the promisor, said that it could not be, for it was a trouble, not a benefit. /2/ Then take it from the side of detriment. The delivery is a necessary condition to the promisor's doing the kindness, and if he does it, the delivery, so far from being a detriment to the promisee, is a clear benefit to him.
But this argument is a fallacy. Clearly the delivery would be sufficient consideration to enable the owner to declare in assumpsit for the breach of those duties which [291] arose, irrespective of contract, from the defendant's having undertaken to deal with the thing. /1/ It would be a sufficient consideration for any promise not involving a dealing with the thing for its performance, for instance, to pay a thousand dollars. /2/ And the law has not pronounced the consideration good or bad according to the nature of the promise founded upon it. The delivery is a sufficient consideration for any promise. /3/
The argument on the other side leaves out of sight the point of time at which the sufficiency of the consideration is to be determined. This is the moment when the consideration is furnished. At that moment the delivery of the cask is a detriment in the strictest sense. The owner of the cask has given up a present control over it, which he has a right to keep, and he has got in return, not a performance for which a delivery was necessary, but a mere promise of performance. The performance is still future. /4/
But it will be seen that, although the delivery may be a consideration, it will not necessarily be one. A promise to carry might be made and accepted on the understanding that it was mere matter of favor, without consideration, and not legally binding. In that case the detriment of delivery would be incurred by the promisee as before, but obviously it would be incurred for the sole purpose of enabling the promisor to carry as agreed.
[292] It appears to me that it has not always been sufficiently borne in mind that the same thing may be a consideration or not, as it is dealt with by the parties. The popular explanation of Coggs v. Bernard is, that the delivery was a consideration for a promise to carry the casks safely. I have given what I believe to be the true explanation, and that which I think Lord Holt had in view, in the fifth Lecture. /1/ But whether that which I have offered be true or not, a serious objection to the one which is commonly accepted is that the declaration does not allege that the delivery was the consideration.
The same caution should be observed in construing the terms of an agreement. It is hard to see the propriety of erecting any detriment which an instrument may disclose or provide for, into a consideration, unless the parties have dealt with it on that footing. In many cases a promisee may incur a detriment without thereby furnishing a consideration. The detriment may be nothing but a condition precedent to performance of the promise, as where a man promises another to pay him five hundred dollars if he breaks his leg. /2/
The courts, however, have gone far towards obliterating this distinction. Acts which by a fair interpretation of language would seem to have been contemplated as only the compliance with a condition, have been treated as the consideration of the promise. /3/ And so have counter promises in an agreement which expressly stated other matters as the consideration. /4/ So it should be mentioned, subject [293] to the question whether there may not be a special explanation for the doctrine, that it is said that an assignment of a leasehold cannot be voluntary under the statute of 27 Elizabeth, c. 4, because the assignee comes into the obligations of the tenant. /1/ Yet the assignee's incurring this detriment may not be contemplated as the inducement of the assignment, and in many cases only amounts to a deduction from the benefit conferred, as a right of way would be, especially if the only obligation is to pay rent, which issues out of the land in theory of law.
But although the courts may have sometimes gone a little far in their anxiety to sustain agreements, there can be no doubt of the Principle which I have laid down, that the same thing may be a consideration or not, as it is dealt with by the parties. This raises the question how a thing must be dealt with, in order to make it a consideration.
It is said that consideration must not be confounded with motive. It is true that it must not be confounded with what may be the prevailing or chief motive in actual fact. A man may promise to paint a picture for five hundred dollars, while his chief motive may be a desire for fame. A consideration may be given and accepted, in fact, solely for the purpose of making a promise binding. But, nevertheless, it is the essence of a consideration, that, by the terms of the agreement, it is given and accepted as the motive or inducement of the promise. Conversely, the promise must be made and accepted as the conventional motive or inducement for furnishing the consideration. The root of the whole matter is the relation of reciprocal [294] conventional inducement, each for the other, between consideration and promise.
A good example of the former branch of the proposition is to be found in a Massachusetts case. The plaintiff refused to let certain wood be removed from his land by one who had made an oral bargain and given his note for it, unless he received additional security. The purchaser and the plaintiff accordingly went to the defendant, and the defendant put his name upon the note. The plaintiff thereupon let the purchaser carry off the wood. But, according to the testimony, the defendant signed without knowing that the plaintiff was to alter his position in any way on the faith of the signature, and it was held that, if that story was believed, there was no consideration. /1/
An illustration of the other half of the rule is to be found in those cases where a reward is offered for doing something, which is afterwards done by a person acting in ignorance of the offer. In such a case the reward cannot be claimed, because the alleged consideration has not been furnished on the faith of the offer. The tendered promise has not induced the furnishing of the consideration. The promise cannot be set up as a conventional motive when it was not known until after the alleged consideration was performed. /2/
Both sides of the relation between consideration and promise, and the conventional nature of that relation, may be illustrated by the case of the cask. Suppose that the [295] truckman is willing to carry the cask, and the owner to let him carry it, without any bargain, and that each knows the other's state of mind; but that the truckman, seeing his own advantage in the matter, says to the owner, "In consideration of your delivering me the cask, and letting me carry it, I promise to carry it," and that the owner thereupon delivers it. I suppose that the promise would be binding. The promise is offered in terms as the inducement for the delivery, and the delivery is made in terms as the inducement for the promise. It may be very probable that the delivery would have been made without a promise, and that the promise would have been made in gratuitous form if it had not been accepted upon consideration; but this is only a guess after all. The delivery need not have been made unless the owner chose, and having been made as the term of a bargain, the promisor cannot set up what might have happened to destroy the effect of what did happen. It would seem therefore that the same transaction in substance and spirit might be voluntary or obligatory, according to the form of words which the parties chose to employ for the purpose of affecting the legal consequences.
If the foregoing principles be accepted, they will be seen to explain a doctrine which has given the courts some trouble to establish. I mean the doctrine that an executed consideration will not sustain a subsequent promise. It has been said, to be sure, that such a consideration was sufficient if preceded by a request. But the objections to the view are plain. If the request was of such a nature, and so put, as reasonably to imply that the other person was to have a reward, there was an express promise, although not put in words, and that promise was made at [296] the same time the consideration was given, and not afterwards. If, on the other hand, the words did not warrant the understanding that the service was to be paid for, the service was a gift, and a past gift can no more be a consideration than any other act of the promisee not induced by the promise.
The source of the error can be traced partially, at least, in history. Some suggestions touching the matter were made in the last Lecture. A few words should be added here. In the old cases of debt, where there was some question whether the plaintiff had showed enough to maintain his action, a "contract precedent" was spoken of several times as raising the duty. Thus, where a man had granted that he would be bound in one hundred shillings to pay his servant on a certain day for his services, and for payments made by the servant on his account, it was argued that there was no contract precedent, and that by parol the party is not obliged; and, further, that, so far as appeared, the payments were made by the servant out of his own head and at no request, from which no duty could commence. /1/
So when debt was brought on a deed to pay the plaintiff ten marks, if he would take the defendant's daughter to wife, and it was objected that the action should have been covenant, it was answered that the plaintiff had a contract precedent which gave him debt. /2/
The first case in assumpsit /3/ only meant to adopt this long familiar thought. A man went bail for his friend's servant, who had been arrested. Afterwards the master [297] promised to indemnify the bail, and on his failure to do so was sued by him in assumpsit. It was held that there was no consideration wherefore the defendant should be charged unless the master had first promised to indemnify the plaintiff before the servant was bailed; "for the master did never make request to the plaintiff for his servant to do so much, but he did it of his own head." This is perfectly plain sailing, and means no more than the case in the Year Books. The report, however, also states a case in which it was held that a subsequent promise, in consideration that the plaintiff at the special instance of the defendant had married the defendant's cousin, was binding, and that the marriage was "good cause... because [it] ensued the request of the defendant." Whether this was intended to establish a general principle, or was decided with reference to the peculiar consideration of marriage, /1/ it was soon interpreted in the broader sense, as was shown in the last Lecture. It was several times adjudged that a past and executed matter was a sufficient consideration for a promise at a later day, if only the matter relied on had been done or furnished at the request of the promisor. /2/
It is now time to analyze the nature of a promise, which is the second and most conspicuous element in a simple contract. The Indian Contract Act, 1872, Section 2,8 says:— "(a.) When one person signifies to another his willingness [298] to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal: "(b.) When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal when accepted becomes a promise."According to this definition the scope of promises is confined to conduct on the part of the promisor. If this only meant that the promisor alone must bear the legal burden which his promise may create, it would be true. But this is not the meaning. For the definition is of a promise, not of a legally binding promise. We are not seeking for the legal effects of a contract, but for the possible contents of a promise which the law may or may not enforce. We must therefore only consider the question what can possibly be promised in a legal sense, not what will be the secondary consequence of a promise binding, but not performed.
An assurance that it shall rain to-morrow, /1/ or that a third person shall paint a picture, may as well be a promise as one that the promisee shall receive from some source one hundred bales of cotton, or that the promisor will pay the promisee one hundred dollars. What is the difference in the cases? It is only in the degree of power possessed by the promisor over the event. He has none in the first case. He has equally little legal authority to make a man paint a picture, although he may have larger means of persuasion. He probably will be able to make sure that the promisee has the cotton. Being a rich man, he is certain [299] to be able to pay the one hundred dollars, except in the event of some most improbable accident.
But the law does not inquire, as a general thing, how far the accomplishment of an assurance touching the future is within the power of the promisor. In the moral world it may be that the obligation of a promise is confined to what lies within reach of the will of the promisor (except so far as the limit is unknown on one side, and misrepresented on the other). But unless some consideration of public policy intervenes, I take it that a man may bind himself at law that any future event shall happen. He can therefore promise it in a legal sense. It may be said that when a man covenants that it shall rain to-morrow, or that A shall paint a picture, he only says, in a short form, I will pay if it does not rain, or if A does not paint a picture. But that is not necessarily so. A promise could easily be framed which would be broken by the happening of fair weather, or by A not painting. A promise, then, is simply an accepted assurance that a certain event or state of things shall come to pass.
But if this be true, it has more important bearings than simply to enlarge the definition of the word promise. It concerns the theory of contract. The consequences of a binding promise at common law are not affected by the degree of power which the promisor possesses over the promised event. If the promised event does not come to pass, the plaintiff's property is sold to satisfy the damages, within certain limits, which the promisee has suffered by the failure. The consequences are the same in kind whether the promise is that it shall rain, or that another man shall paint a picture, or that the promisor will deliver a bale of cotton.
[300] If the legal consequence is the same in all cases, it seems proper that all contracts should be considered from the same legal point of view. In the case of a binding promise that it shall rain to-morrow, the immediate legal effect of what the promisor does is, that he takes the risk of the event, within certain defined limits, as between himself and the promisee. He does no more when he promises to deliver a bale of cotton.
If it be proper to state the common-law meaning of promise and contract in this way, it has the advantage of freeing the subject from the superfluous theory that contract is a qualified subjection of one will to another, a kind of limited slavery. It might be so regarded if the law compelled men to perform their contracts, or if it allowed promisees to exercise such compulsion. If, when a man promised to labor for another, the law made him do it, his relation to his promisee might be called a servitude ad hoc with some truth. But that is what the law never does. It never interferes until a promise has been broken, and therefore cannot possibly be performed according to its tenor. It is true that in some instances equity does what is called compelling specific performance. But, in the first place, I am speaking of the common law, and, in the next, this only means that equity compels the performance of certain elements of the total promise which are still capable of performance. For instance, take a promise to convey land within a certain time, a court of equity is not in the habit of interfering until the time has gone by, so that the promise cannot be performed as made. But if the conveyance is more important than the time, and the promisee prefers to have it late rather than never, the law may compel the performance of [301] that. Not literally compel even in that case, however, but put the promisor in prison unless he will convey. This remedy is an exceptional one. The only universal consequence of a legally binding promise is, that the law makes the promisor pay damages if the promised event does not come to pass. In every case it leaves him free from interference until the time for fulfilment has gone by, and therefore free to break his contract if he chooses.
A more practical advantage in looking at a contract as the taking of a risk is to be found in the light which it throws upon the measure of damages. If a breach of contract were regarded in the same light as a tort, it would seem that if, in the course of performance of the contract the promisor should be notified of any particular consequence which would result from its not being performed, he should be held liable for that consequence in the event of non-performance. Such a suggestion has been made. /1/ But it has not been accepted as the law. On the contrary, according to the opinion of a very able judge, which seems to be generally followed, notice, even at the time of making the contract, of special circumstances out of which special damages would arise in case of breach, is not sufficient unless the assumption of that risk is to be taken as having fairly entered into the contract. /2/ If a carrier should undertake to carry the machinery of a saw-mill from Liverpool to Vancouver's Island, and should fail [302] to do so, he probably would not be held liable for the rate of hire of such machinery during the necessary delay, although he might know that it could not be replaced without sending to England, unless he was fairly understood to accept "the contract with the special condition attached to it." /1/
It is true that, when people make contracts, they usually contemplate the performance rather than the breach. The express language used does not generally go further than to define what will happen if the contract is fulfilled. A statutory requirement of a memorandum in writing would be satisfied by a written statement of the promise as made, because to require more would be to run counter to the ordinary habits of mankind, as well as because the statement that the effect of a contract is the assumption of the risk of a future event does not mean that there is a second subsidiary promise to assume that risk, but that the assumption follows as a consequence directly enforced by the law, without the promisor's co-operation. So parol evidence would be admissible, no doubt, to enlarge or diminish the extent of the liability assumed for nonperformance, where it would be inadmissible to affect the scope of the promise.
But these concessions do not affect the view here taken. As the relation of contractor and contractee is voluntary, the consequences attaching to the relation must be voluntary. What the event contemplated by the promise is, or in other words what will amount to a breach of contract, is a matter of interpretation and construction. What consequences of the breach are assumed is more remotely, in like manner, a matter of construction, having regard [303] to the circumstances under which the contract is made. Knowledge of what is dependent upon performance is one of those circumstances. It is not necessarily conclusive, but it may have the effect of enlarging the risk assumed.
The very office of construction is to work out, from what is expressly said and done, what would have been said with regard to events not definitely before the minds of the parties, if those events had been considered. The price paid in mercantile contracts generally excludes the construction that exceptional risks were intended to be assumed. The foregoing analysis is believed to show that the result which has been reached by the courts on grounds of practical good sense, falls in with the true theory of contract under the common law.
The discussion of the nature of a promise has led me to analyze contract and the consequences of contract somewhat in advance of their place. I must say a word more concerning the facts which constitute a promise. It is laid down, with theoretical truth, that, besides the assurance or offer on the one side, there must be an acceptance on the other. But I find it hard to think of a case where a simple contract fails to be made, which could not be accounted for on other grounds, generally by the want of relation between assurance or offer and consideration as reciprocal inducements each of the other. Acceptance of an offer usually follows by mere implication from the furnishing of the consideration; and inasmuch as by our law an accepted offer, or promise, until the consideration is furnished, stands on no different footing from an offer not yet accepted, each being subject to revocation until that time, and each continuing [304] until then unless it has expired or has been revoked, the question of acceptance is rarely of practical importance.
Assuming that the general nature of consideration and promise is understood, some questions peculiar to bilateral contracts remain to be considered. These concern the sufficiency of the consideration and the moment when the contract is made.
A promise may be a consideration for a promise, although not every promise for every other. It may be doubted whether a promise to make a gift of one hundred dollars would be supported by a promise to accept it. But in a case of mutual promises respectively to transfer and to accept unpaid shares in a railway company, it has been held that a binding contract was made. Here one party agrees to part with something which may prove valuable, and the other to assume a liability which may prove onerous. /1/
But now suppose that there is no element of uncertainty except in the minds of the parties. Take, for instance, a wager on a past horse-race. It has been thought that this would amount to an absolute promise on one side, and no promise at all on the other. /2/ But this does not seem to me sound. Contracts are dealings between men, by which they make arrangements for the future. In making such arrangements the important thing is, not what is objectively true, but what the parties know. Any present fact which is unknown to the parties is just as uncertain for the purposes of making an arrangement at this moment, as any future fact. It is therefore a detriment to undertake to be ready to pay if the event turns out not [305] to have been as expected. This seems to be the true explanation why forbearance to sue upon a claim believed the plaintiff to be good is a sufficient consideration, although the claim was bad in fact, and known by the defendant to be bad. /1/ Were this view unsound, it is hard to see how wagers on any future event, except a miracle, could be sustained. For if the happening or not happening of the event is subject to the law of causation, the only uncertainty about it is in our foresight, not in its happening.
The question when a contract is made arises for the most part with regard to bilateral contracts by letter, the doubt being whether the contract is complete at the moment when the return promise is put into the post, or at the moment when it is received. If convenience preponderates in favor of either view, that is a sufficient reason for its adoption. So far as merely logical grounds go, the most ingenious argument in favor of the later moment is Professor Langdell's. According to him the conclusion follows from the fact that the consideration which makes the offer binding is itself a promise. Every promise, he says, is an offer before it is a promise, and the essence of an offer is that it should be communicated. /2/ But this reasoning seems unsound. When, as in the case supposed, the consideration for the return promise has been put into the power of the offeree and the return promise has been accepted in advance, there is not an instant, either in time or logic, when the return promise is an offer. It is a promise and a term of a binding contract as soon as it is anything. An offer is a revocable and unaccepted communication of willingness to promise. [306] When an offer of a certain bilateral contract has been made, the same contract cannot be offered by the other side. The so-called offer would neither be revocable nor unaccepted. It would complete the contract as soon as made.
If it be said that it is of the essence of a promise to be communicated, whether it goes through the stage of offer or not, meaning by communicated brought to the actual knowledge of the promisee, the law is believed to be otherwise. A covenant is binding when it is delivered and accepted, whether it is read or not. On the same principle, it is believed that, whenever the obligation is to be entered into by a tangible sign, as, in the case supposed, by letter containing the return promise, and the consideration for and assent to the promise are already given, the only question is when the tangible sign is sufficiently put into the power of the promisee. I cannot believe that, if the letter had been delivered to the promisee and was then snatched from his hands before he had read it, there would be no contract. /1/ If I am right, it appears of little importance whether the post-office be regarded as agent or bailee for the offerer, or as a mere box to which he has access. The offeree, when he drops the letter containing the counter-promise into the letter-box, does an overt act, which by general understanding renounces control over the letter, and puts it into a third hand for the benefit of the offerer, with liberty to the latter at any moment thereafter to take it.
The principles governing revocation are wholly different. One to whom an offer is made has a right to assume that it remains open according to its terms until he has actual [307] notice to the contrary. The effect of the communication must be destroyed by a counter communication. But the making of a contract does not depend on the state of the parties' minds, it depends on their overt acts. When the sign of the counter promise is a tangible object, the contract is completed when the dominion over that object changes.
[308]
LECTURE IX. — CONTRACT.—III. VOID AND VOIDABLE.
THE elements of fact necessary to call a contract into existence, and the legal consequences of a contract when formed, have been discussed. It remains to consider successively the cases in which a contract is said to be void, and those in which it is said to be voidable,—in which, that is, a contract fails to be made when it seems to have been, or, having been made, can be rescinded by one side or the other, and treated as if it had never been. I take up the former class of cases first.When a contract fails to be made, although the usual forms have been gone through with, the ground of failure is commonly said to be mistake, misrepresentation, or fraud. But I shall try to show that these are merely dramatic circumstances, and that the true ground is the absence of one or more of the primary elements, which have been shown, or are seen at once, to be necessary to the existence of a contract.
If a man goes through the form of making a contract with A through B as A's agent, and B is not in fact the agent of A, there is no contract, because there is only one party. The promise offered to A has not been accepted by him, and no consideration has moved from him. In such a case, although there is generally mistake on one side and fraud on the other, it is very clear that no special [309] doctrine need be resorted to, because the primary elements of a contract explained in the last Lecture are not yet present.
Take next a different case. The defendant agreed to buy, and the plaintiff agreed to sell, a cargo of cotton, "to arrive ex Peerless from Bombay." There were two such vessels sailing from Bombay, one in October, the other in December. The plaintiff meant the latter, the defendant the former. It was held that the defendant was not bound to accept the cotton. /1/ It is commonly said that such a contract is void, because of mutual mistake as to the subject-matter, and because therefore the parties did not consent to the same thing. But this way of putting it seems to me misleading. The law has nothing to do with the actual state of the parties' minds. In contract, as elsewhere, it must go by externals, and judge parties by their conduct. If there had been but one "Peerless," and the defendant had said "Peerless" by mistake, meaning "Peri," he would have been bound. The true ground of the decision was not that each party meant a different thing from the other, as is implied by the explanation which has been mentioned, but that each said a different thing. The plaintiff offered one thing, the defendant expressed his assent to another.
A proper name, when used in business or in pleading, /2/ means one individual thing, and no other, as every one knows, and therefore one to whom such a name is used must find out at his peril what the object designated is. If there are no circumstances which make the use deceptive on either side, each is entitled to insist on the [310] meaning favorable to him for the word as used by him, and neither is entitled to insist on that meaning for the word as used by the other. So far from mistake having been the ground of decision, as mistake, its only bearing, as it seems to me, was to establish that neither party knew that he was understood by the other to use the word "Peerless "in the sense which the latter gave to it. In that event there would perhaps have been a binding contract, because, if a man uses a word to which he knows the other party attaches, and understands him to attach, a certain meaning, he may be held to that meaning, and not be allowed to give it any other. /1/
Next, suppose a case in which the offer and acceptance do not differ, and in which both parties have used the same words in the same sense. Suppose that A agreed to buy, and B agreed to sell, "these barrels of mackerel," and that the barrels in question turn out to contain salt. There is mutual mistake as to the contents of the barrels, and no fraud on either side. I suppose the contract would be void. /2/
It is commonly said that the failure of the contract in such a case is due to the fact of a difference in kind between the actual subject-matter and that to which the intention of the parties was directed. It is perhaps more instructive to say that the terms of the supposed contract, although seemingly consistent, were contradictory, in matters that went to the root of the bargain. For, by one of the essential terms, the subject-matter of the agreement was the contents of certain barrels, and nothing else, and, by another equally important, it was mackerel, and nothing else; [311] while, as a matter of fact, it could not be both, because the contents of the barrels were salt. As neither term could be left out without forcing on the parties a contract which they did not make, it follows that A cannot be required to accept, nor B to deliver either these barrels of salt, or other barrels of mackerel; and without omitting one term, the promise is meaningless.
If there had been fraud on the seller's part, or if he had known what the barrels really contained, the buyer might have had a right to insist on delivery of the inferior article. Fraud would perhaps have made the contract valid at his option. Because, when a man qualifies sensible words with others which he knows, on secret grounds, are insensible when so applied, he may fairly be taken to authorize his promisee to insist on the possible part of his promise being performed, if the promisee is willing to forego the rest.
Take one more illustration like the last case. A policy of insurance is issued on a certain building described in the policy as a machine-shop. In fact the building is not a machine-shop, but an organ factory, which is a greater risk. The contract is void, not because of any misrepresentation, but, as before, because two of its essential terms are repugnant, and their union is insensible. /1/
Of course the principle of repugnancy last explained might be stretched to apply to any inconsistency between the different terms of a contract. It might be said, for instance, that if a piece of gold is sold as eighteen-carat gold, and it is in fact not so pure, or if a cow is sold as yielding an average of twelve quarts of milk a day, and in fact she yields only six quarts, there is no logical difference, [312] according to the explanation which has just been offered, between those cases and that of the barrel of salt sold for mackerel. Yet those bargains would not be void. At the most, they would only be voidable, if the buyer chose to throw them up.
The distinctions of the law are founded on experience, not on logic. It therefore does not make the dealings of men dependent on a mathematical accuracy. Whatever is promised, a man has a right to be paid for, if it is not given; but it does not follow that the absence of some insignificant detail will authorize him to throw up the contract, still less that it will prevent the formation of a contract, which is the matter now under consideration. The repugnant terms must both be very important,—so important that the court thinks that, if either is omitted, the contract would be different in substance from that which the words of the parties seemed to express.
A term which refers directly to an identification by the senses has always this degree of importance. If a promise is made to sell this cow, or this mackerel, to this man, whatever else may be stricken from the contract, it can never be enforced except touching this object and by this man. If this barrel of salt is fraudulently sold for a barrel of mackerel, the buyer may perhaps elect to take this barrel of salt if he chooses, but he cannot elect to take another barrel of mackerel. If the seller is introduced by the name B, and the buyer supposes him to be another person of the same name, and under that impression delivers his written promise to buy of B, the B to whom the writing is delivered is the contractee, if any one is, and, notwithstanding what has been said of the use of proper names, I should suppose [313] a contract would be made. /1/ For it is further to be said that, so far as by one of the terms of a contract the thing promised or the promisee is identified by sight and hearing, that term so far preponderates over all others that it is very rare for the failure of any other element of description to prevent the making of a contract. /2/ The most obvious of seeming exceptions is where the object not in fact so identified, but only its covering or wrapper.
Of course the performance of a promise may be made conditional on all the terms stipulated from the other side being complied with, but conditions attaching to performance can never come into consideration until a contract has been made, and so far the question has been touching the existence of a contract in the first instance.
A different case may be suggested from any yet considered. Instead of a repugnancy between offer and assent which prevents an agreement, or between the terms of an agreement which makes it insensible on its fact, there may be a like repugnancy between a term of the contract and a previous representation of fact which is not expressly made a part of the contract. The representation may have been the chief inducement and very foundation of the bargain. It may be more important than any of the expressed terms, and yet the contract may have [314] been reduced to writing in words which cannot fairly be construed to include it. A vendor may have stated that barrels filled with salt contain mackerel, but the contract may be only for the barrels and their contents. An applicant for insurance may have misstated facts essential to the risk, yet the policy may simply insure a certain building or a certain life. It may be asked whether these contracts are not void also.
There might conceivably be cases in which, taking into account the nature of the contract, the words used could be said to embody the representation as a term by construction. For instance, it might be said that the true and well-understood purport of a contract of insurance is not, as the words seem to say, to take the risk of any loss by fire or perils of the sea, however great the risk may be, but to take a risk of a certain magnitude, and no other, which risk has been calculated mathematically from the statements of the party insured. The extent of the risk taken is not specified in the policy, because the old forms and established usage are otherwise, but the meaning is perfectly understood.
If this reasoning were adopted, there would be an equal repugnancy in the terms of the contract, whether the nature of the risk were written in the policy or fixed by previous description. But, subject to possible exceptions of this kind, it would seem that a contract would be made, and that the most that could be claimed would be a right to rescind. Where parties having power to bind themselves do acts and use words which are fit to create an obligation, I take it that an obligation arises. If there is a mistake as to a fact not mentioned in the contract, it goes only to the motives for making the contract. But a [315] contract is not prevented from being made by the mere fact that one party would not have made it if he had known the truth. In what cases a mistake affecting motives is a ground for avoidance, does not concern this discussion, because the subject now under consideration is when a contract is made, and the question of avoiding or rescinding it presupposes that it has been made.
I think that it may now be assumed that, when fraud, misrepresentation, or mistake is said to make a contract void, there is no new principle which comes in to set aside an otherwise perfect obligation, but that in every such case there is wanting one or more of the first elements which were explained in the foregoing Lecture. Either there is no second party, or the two parties say different things, or essential terms seemingly consistent are really inconsistent as used.
When a contract is said to be voidable, it is assumed that a contract has been made, but that it is subject to being unmade at the election of one party. This must be because of the breach of some condition attached to its existence either expressly or by implication.
If a condition is attached to the contract's coming into being, there is as yet no contract. Either party may withdraw, at will, until the condition is determined. There is no obligation, although there may be an offer or a promise, and hence there is no relation between the parties which requires discussion here. But some conditions seemingly arising out of a contract already made are conditions of this sort. Such is always the case if the condition of a promise lies within the control of the promisor's own will. For instance, a promise to pay for clothes if made to the customer's satisfaction, has been held in Massachusetts to [316] make the promisor his own final judge. /1/ So interpreted, it appears to me to be no contract at all, until the promisor's satisfaction is expressed. His promise is only to pay if he sees fit, and such a promise cannot be made a contract because it cannot impose any obligation. /2/ If the promise were construed to mean that the clothes should be paid for provided they were such as ought to satisfy the promisor, /3/ and thus to make the jury the arbiter, there would be a contract, because the promisor gives up control over the event, but it would be subject to a condition in the sense of the present analysis.
The conditions which a contract may contain have been divided by theorists into conditions precedent and conditions subsequent. The distinction has even been pronounced of great importance. It must be admitted that, if the course of pleading be taken as a test, it is so. In some cases, the plaintiff has to state that a condition has been performed in order to put the defendant to his answer; in others, it is left to the defendant to set up that a condition has been broken.
In one sense, all conditions are subsequent; in another, all are precedent. All are subsequent to the first stage of the obligation. /4/ Take, for instance, the case of a promise to pay for work if done to the satisfaction of an architect. The condition is a clear case of what is called a condition precedent. There can be no duty to pay until the architect is satisfied. But there can be a [317] contract before that moment, because the determination whether the promisor shall pay or not is no longer within his control. Hence the condition is subsequent to the existence of the obligation.
On the other hand, every condition subsequent is precedent to the incidence of the burden of the law. If we look at the law as it would be regarded by one who had no scruples against doing anything which he could do without incurring legal consequences, it is obvious that the main consequence attached by the law to a contract is a greater or less possibility of having to pay money. The only question from the purely legal point of view is whether the promisor will be compelled to pay. And the important moment is that at which that point is settled. All conditions are precedent to that.
But all conditions are precedent, not only in this extreme sense, but also to the existence of the plaintiff's cause of action. As strong a case as can be put is that of a policy of insurance conditioned to be void if not sued upon within one year from a failure to pay as agreed. The condition does not come into play until a loss has occurred, the duty to pay has been neglected, and a cause of action has arisen. Nevertheless, it is precedent to the plaintiff's cause of action. When a man sues, the question is not whether he has had a cause of action in the past, but whether he has one then. He has not one then, unless the year is still running. If it were left for the defendant to set up the lapse of the year, that would be due to the circumstance that the order of pleading does not require a plaintiff to meet all possible defences, and to set out a case unanswerable except by denial. The point at which the law calls on the defendant for an answer varies [318] in different cases. Sometimes it would seem to be governed simply by convenience of proof, requiring the party who has the affirmative to plead and prove it. Sometimes there seems to be a reference to the usual course of events, and matters belong to the defence because they are only exceptionally true.
The most logical distinction would be between conditions which must be satisfied before a promise can be broken, and those which, like the last, discharge the liability after a breach has occurred. /1/ But this is of the slightest possible importance, and it may be doubted whether another case like the last could be found.
It is much more important to mark the distinction between a stipulation which only has the effect of confining a promise to certain cases, and a condition properly so called. Every condition, it is true, has this effect upon the promise to which it is attached, so that, whatever the rule of pleading may be, /2/ a promise is as truly kept and performed by doing nothing where the condition of the stipulated act has been broken, as it would have been by doing the act if the condition had been fulfilled. But if this were all, every clause in a contract which showed what the promisor did not promise would be a condition, and the word would be worse than useless. The characteristic feature is quite different.
A condition properly so called is an event, the happening of which authorizes the person in whose favor the condition is reserved to treat the contract as if it had not been made,—to avoid it, as is commonly said,—that is, to insist on both parties being restored to the position in [319] which they stood before the contract was made. When a condition operates as such, it lets in an outside force to destroy the existing state of things. For although its existence is due to consent of parties, its operation depends on the choice of one of them. When a condition is broken, the person entitled to insist on it may do so if he chooses; but he may, if he prefers, elect to keep the contract on foot. He gets his right to avoid it from the agreement, but the avoidance comes from him.
Hence it is important to distinguish those stipulations which have this extreme effect from those which only interpret the extent of a promise, or define the events to which it applies. And as it has just been shown that a condition need not be insisted on as such, we must further distinguish between its operation by way of avoidance, which is peculiar to it, and its incidental working by way of interpretation and definition, in common with other clauses not conditions.
This is best illustrated by taking a bilateral contract between A and B, where A's undertaking is conditional on B's doing what he promises to do, and where, after A has got a certain distance in his task, B breaks his half of the bargain. For instance, A is employed as a clerk by B, and is wrongfully dismissed in the middle of a quarter. In favor of A, the contract is conditional on B's keeping his agreement to employ him. Whether A insists on the condition or not, he is not bound to do any more. /1/ So far, the condition works simply by way of definition. It establishes that A has not promised to act in the case which has happened. But besides this, for which a condition [320] was not necessary, A may take his choice between two courses. In the first place, he may elect to avoid the contract. In that case the parties stand as if no contract had been made, and A, having done work for B which was understood not to be gratuitous, and for which no rate of compensation has been fixed, can recover what the jury think his services were reasonably worth. The contract no longer determines the quid pro quo. But as an alternative course A may stand by the contract if he prefers to do so, and sue B for breaking it. In that case he can recover as part of his damages pay at the contract rate for what he had done, as well as compensation for his loss of opportunity to finish it. But the points which are material for the present discussion are, that these two remedies are mutually exclusive, /1/ one supposing the contract to be relied on, the other that it is set aside, but that A's stopping work and doing no more after B's breach is equally consistent with either choice, and has in fact nothing to do with the matter.
One word should be added to avoid misapprehension. When it is said that A has done all that he promised to do in the case which has happened, it is not meant that he is necessarily entitled to the same compensation as if he had done the larger amount of work. B's promise in the case supposed was to pay so much a quarter for services; and although the consideration of the promise was the promise by A to perform them, the scope of it was limited to the case of their being performed in fact. Hence A could not simply wait till the end of his term, and then recover the full amount which he would have had if the employment had continued. Nor is he any more entitled to do so from [321] the fact that it was B's fault that the services were not rendered. B's answer to any such claim is perfect. He is only liable upon a promise, and he in his turn only promised to pay in a case which has not happened. He did promise to employ, however, and for not doing that he is liable in damages.
One or two more illustrations will be useful. A promises to deliver, and B promises to accept and pay for, certain goods at a certain time and place. When the time comes, neither party is on hand. Neither would be liable to an action, and, according to what has been said, each has done all that he promised to do in the event which has happened, to wit, nothing. It might be objected that, if A has done all that he is bound to do, he ought to be able to sue B, since performance or readiness to perform was all that was necessary to give him that right, and conversely the same might be said of B. On the other hand, considering either B or A as defendant, the same facts would be a complete defence. The puzzle is largely one of words.
A and B have, it is true, each performed all that they promised to do at the present stage, because they each only promised to act in the event of the other being ready and willing to act at the same time. But the readiness and willingness, although not necessary to the performance of either promise, and therefore not a duty, was necessary in order to present a case to which the promise of action on the other side would apply. Hence, although A and B have each performed their own promise, they have not performed the condition to their right of demanding more from the other side. The performance of that condition is purely optional until one side has brought it within the [322] scope of the other's undertaking by performing it himself. But it is performance in the latter sense, that is, the satisfying of all conditions, as well as the keeping of his own promises, which is necessary to give A or B a right of action.
Conditions may be created by the very words of a contract. Of such cases there is nothing to be said, for parties may agree to what they choose. But they may also be held to arise by construction, where no provision is made in terms for rescinding or avoiding the contract in any case. The nature of the conditions which the law thus reads in needs explanation. It may be said, in a general way, that they are directed to the existence of the manifest grounds for making the bargain on the side of the rescinding party, or the accomplishment of its manifest objects. But that is not enough. Generally speaking, the disappointment must be caused by the wrong-doing of the person on the other side; and the most obvious cases of such wrong-doing are fraud and misrepresentation, or failure to perform his own part of the contract.
Fraud and misrepresentation thus need to be considered once more in this connection. I take the latter first. In dealing with it the first question which arises is whether the representation is, or is not, part of the contract. If the contract is in writing and the representation is set out on the face of the paper, it may be material or immaterial, but the effect of its untruth will be determined on much the same principles as govern the failure to perform a promise on the same side. If the contract is made by word of mouth, there may be a large latitude in connecting words of representation with later words of promise; but when they are determined to be a part of the contract, [323] the same principles apply as if the whole were in writing.
The question now before us is the effect of a misrepresentation which leads to, but is not a part of, the contract. Suppose that the contract is in writing, but does not contain it, does such a previous misrepresentation authorize rescission in any case? and if so, does it in any case except where it goes to the height of fraud? The promisor might say, It does not matter to me whether you knew that your representation was false or not; the only thing I am concerned with is its truth. If it is untrue, I suffer equally whether you knew it to be so or not. But it has been shown, in an earlier Lecture, that the law does not go on the principle that a man is answerable for all the consequences of all his acts. An act is indifferent in itself. It receives its character from the concomitant facts known to the actor at the time. If a man states a thing reasonably believing that he is speaking from knowledge, it is contrary to the analogies of the law to throw the peril of the truth upon him unless he agrees to assume that peril, and he did not do so in the case supposed, as the representation was not made part of the contract.
It is very different when there is fraud. Fraud may as well lead to the making of a contract by a statement outside the contract as by one contained in it. But the law would hold the contract not less conditional on good faith in one case than in the other.
To illustrate, we may take a somewhat extreme case. A says to B, I have not opened these barrels myself, but they contain No. 1 mackerel: I paid so much for them to so and so, naming a well-known dealer. Afterwards A writes B, I will sell the barrels which you saw, and their [324] contents, for so much; and B accepts. The barrels turn out to contain salt. I suppose the contract would be binding if the statements touching the contents were honest, and voidable if they were fraudulent.
Fraudulent representations outside a contract can never, it would seem, go to anything except the motives for making it. If outside the contract, they cannot often affect its interpretation. A promise in certain words has a definite meaning, which the promisor is presumed to understand. If A says to B, I promise you to buy this barrel and its contents, his words designate a person and thing identified by the senses, and they signify nothing more. There is no repugnancy, and if that person is ready to deliver that thing, the purchaser cannot say that any term in the contract itself is not complied with. He may have been fraudulently induced to believe that B was another B, and that the barrel contained mackerel; but however much his belief on those points may have affected his willingness to make the promise, it would be somewhat extravagant to give his words a different meaning on that account. "You" means the person before the speaker, whatever his name, and "contents" applies to salt, as well as to mackerel.
It is no doubt only by reason of a condition construed into the contract that fraud is a ground of rescission. Parties could agree, if they chose, that a contract should be binding without regard to truth or falsehood outside of it on either part.
But, as has been said before in these Lectures, although the law starts from the distinctions and uses the language of morality, it necessarily ends in external standards not dependent on the actual consciousness of the individual. [325] So it has happened with fraud. If a man makes a representation, knowing facts which by the average standard of the community are sufficient to give him warning that it is probably untrue, and it is untrue, he is guilty of fraud in theory of law whether he believes his statement or not. The courts of Massachusetts, at least, go much further. They seem to hold that any material statement made by a man as of his own knowledge, or in such a way as fairly to be understood as made of his own knowledge, is fraudulent if untrue, irrespective of the reasons he may have had for believing it and for believing that he knew it. /1/ It is clear, therefore, that a representation may be morally innocent, and yet fraudulent in theory of law. Indeed, the Massachusetts rule seems to stop little short of the principle laid down by the English courts of equity, which has been criticised in an earlier Lecture, /2/ since most positive affirmations of facts would at least warrant a jury in finding that they were reasonably understood to be made as of the party's own knowledge, and might therefore warrant a rescission if they turned out to be untrue. The moral phraseology has ceased to be apposite, and an external standard of responsibility has been reached. But the starting-point is nevertheless fraud, and except on the ground of fraud, as defined by law, I do not think that misrepresentations before the contract affect its validity, although they lead directly to its making. But neither the contract nor the implied condition calls for the existence of the facts as to which the false representations were made. They call only for the absence of certain false representations. The condition is not that the promisee shall be a certain other B, or that the contents of the barrel shall be mackerel, [326] but that the promisee has not lied to him about material facts.
Then the question arises, How do you determine what facts are material? As the facts are not required by the contract, the only way in which they can be material is that a belief in their being true is likely to have led to the making of the contract.
It is not then true, as it is sometimes said, that the law does not concern itself with the motives for making contracts. On the contrary, the whole scope of fraud outside the contract is the creation of false motives and the removal of true ones. And this consideration will afford a reasonable test of the cases in which fraud will warrant rescission. It is said that a fraudulent representation must be material to have that effect. But how are we to decide whether it is material or not? If the above argument is correct, it must be by an appeal to ordinary experience to decide whether a belief that the fact was as represented would naturally have led to, or a contrary belief would naturally have prevented, the making of the contract.
If the belief would not naturally have had such an effect, either in general or under the known circumstances of the particular case, the fraud is immaterial. If a man is induced to contract with another by a fraudulent representation of the latter that he is a great-grandson of Thomas Jefferson, I do not suppose that the contract would be voidable unless the contractee knew that, for special reasons, his lie would tend to bring the contract about.
The conditions or grounds for avoiding a contract which have been dealt with thus far are conditions concerning the conduct of the parties outside of the itself. [327] Still confining myself to conditions arising by construction of law,—that is to say, not directly and in terms attached to a promise by the literal meaning of the words in which it is expressed,—I now come to those which concern facts to which the contract does in some way refer.
Such conditions may be found in contracts where the promise is only on one side. It has been said that where the contract is unilateral, and its language therefore is all that of the promisor, clauses in his favor will be construed as conditions more readily than the same words in a bilateral contract; indeed, that they must be so construed, because, if they do not create a condition, they do him no good, since ex hypothesi they are not promises by the other party. /1/ How far this ingenious suggestion has had a practical effect on doctrine may perhaps be doubted.
But it will be enough for the purposes of this general survey to deal with bilateral contracts, where there are undertakings on both sides, and where the condition implied in favor of one party is that the other shall make good what he on his part has undertaken.
The undertakings of a contract may be for the existence of a fact in the present or in the future. They can be promises only in the latter case; but in the former, they be equally essential terms in the bargain.
Here again we come on the law of representations, but in a new phase. Being a part of the contract, it is always possible that their truth should make a condition of the contract wholly irrespective of any question of fraud. And it often is so in fact. It is not, however, every representation embodied in the words used on one side which will [328] make a condition in favor of the other party. Suppose A agrees to sell, and B agrees to buy, "A's seven-year-old sorrel horse Eclipse, now in the possession of B on trial," and in fact the horse is chestnut-colored, not sorrel. I do not suppose that B could refuse to pay for the horse on that ground. If the law were so foolish as to aim at merely formal consistency, it might indeed be said that there was as absolute a repugnancy between the different terms of this contract as in the ease of an agreement to sell certain barrels of mackerel, where the barrels turned out to contain salt. If this view were adopted, there would not be a contract subject to a condition, there would be no contract at all. But in truth there is a contract, and there is not even a condition. As has been said already, it is not every repugnancy that makes a contract void, and it is not every failure in the terms of the counter undertaking that makes it voidable. Here it plainly appears that the buyer knows exactly what he is going to get, and therefore that the mistake of color has no bearing on the bargain. /1/
If, on the other hand, a contract contained a representation which was fraudulent, and which misled the party to whom it was made, the contract would be voidable on the same principles as if the representation had been made beforehand. But words of description in a contract are very frequently held to amount to what is sometimes called a warranty, irrespective of fraud. Whether they do so or not is a question to be determined by the court on grounds of common sense, looking to the meaning of the words, the importance in the transaction of the facts [329] which the words convey, and so forth. But when words of description are determined to be a warranty, the meaning of the decision is not merely that the party using them binds himself to answer for their truth, but that their truth is a condition of the contract.
For instance, in a leading case /1/ the agreement was that the plaintiff's ship, then in the port of Amsterdam, should, with all possible despatch, proceed direct to Newport, England, and there load a cargo of coals for Hong Kong. At the date of the charter-party the vessel was not in Amsterdam, but she arrived there four days later. The plaintiff had notice that the defendant considered time important. It was held that the presence of the vessel in the port of Amsterdam at the date of the contract was a condition, the breach of which entitled the defendant to refuse to load, and to rescind the contract. If the view were adopted that a condition must be a future event, and that a promise purporting to be conditional on a past or present event is either absolute or no promise at all, it would follow that in this case the defendant had never made a promise. /2/ He had only promised if circumstances existed which did not exist. I have already stated my objections to this way of looking at such cases, /2/ and will only add that the courts, so far as I am aware, do not sanction it, and certainly did not in this instance.
There is another ground for holding the charter-party void and no contract, instead of regarding it as only voidable, which is equally against authority, which nevertheless I have never been able to answer wholly to my satisfaction. In the case put, the representation of the lessor of the vessel [330] concerned the vessel itself, and therefore entered into the description of the thing the lessee agreed to take. I do not quite see why there is not as fatal a repugnancy between the different terms of this contract as was found in that for the sale of the barrels of salt described as containing mackerel. Why is the repugnancy between the two terms,—first, that the thing sold is the contents of these barrels, and, second, that it is mackerel—fatal to the existence of a contract? It is because each of those terms goes to the very root and essence of the contract, /1/—because to compel the buyer to take something answering to one, but not to the other requirement, would be holding him to do a substantially different thing from what he promised, and because a promise to take one and the same thing answering to both requirements is therefore contradictory in a substantial matter. It has been seen that the law does not go on any merely logical ground, and does not hold that every slight repugnancy will make a contract even voidable. But, on the other hand, when the repugnancy is between terms which are both essential, it is fatal to the very existence of the contract. How then do we decide whether a given term is essential? Surely the best way of finding out is by seeing how the parties have dealt with it. For want of any expression on their part we may refer to the speech and dealings of every day, /2/ and say that, if its absence would make the subject-matter a different thing, its presence is essential to the existence of the agreement. But the parties may agree that anything, however trifling, shall be essential, as well [331] as that anything, however important, shall not be; and if that essential is part of the contract description of a specific thing which is also identified by reference to the senses, how can there be a contract in its absence any more than if the thing is in popular speech different in kind from its description? The qualities that make sameness or difference of kind for the purposes of a contract are not determined by Agassiz or Darwin, or by the public at large, but by the will of the parties, which decides that for their purposes the characteristics insisted on are such and such. /1/1 Now, if this be true, what evidence can there be that a certain requirement is essential, that without it the subject-matter will be different in kind from the description, better than that one party has required and the other given a warranty of its presence? Yet the contract description of the specific vessel as now in the port of Amsterdam, although held to be an implied warranty, does not seem to have been regarded as making the contract repugnant and void, but only as giving the defendant the option of avoiding it. /2/ Even an express warranty of quality in sales does not have this effect, and in England, indeed, it does not allow the purchaser to rescind in case of breach. On this last point the law of Massachusetts is different.
The explanation has been offered of the English doctrine with regard to sales, that, when the title has passed, the purchaser has already had some benefit from the contract, and therefore cannot wholly replace the seller in statu quo, as must be done when a contract is rescinded. /3/ This reasoning [332] seems doubtful, even to show that the contract is not voidable, but has no bearing on the argument that it is void. For if the contract is void, the title does not pass.
It might be said that there is no repugnancy in the charterer's promise, because he only promises to load a certain ship, and that the words "now in the port of Amsterdam" are merely matter of history when the time for loading comes, and no part of the description of the vessel which he promised to load. But the moment those words are decided to be essential they become part of the description, and the promise is to load a certain vessel which is named the Martaban, and which was in the port of Amsterdam at the date of the contract. So interpreted, it is repugnant.
Probably the true solution is to be found in practical considerations. At any rate, the fact is that the law has established three degrees in the effect of repugnancy. If one of the repugnant terms is wholly insignificant, it is simply disregarded, or at most will only found a claim for damages. The law would be loath to hold a contract void for repugnancy in present terms, when if the same terms were only promised a failure of one of them would not warrant a refusal to perform on the other side. If, on the other hand, both are of the extremest importance, so that to enforce the rest of the promise or bargain without one of them would not merely deprive one party of a stipulated incident, but would force a substantially different bargain on him, the promise will be void. There is an intermediate class of cases where it is left to the disappointed party to decide. But as the lines between the three are of this vague kind, it is not surprising that they have been differently drawn in different jurisdictions.
[333] The examples which have been given of undertakings for a present state of facts have been confined to those touching the present condition of the subject-matter of the contract. Of course there is no such limit to the scope of their employment. A contract may warrant the existence of other facts as well, and examples of this kind probably might be found or imagined where it would be clear that the only effect of the warranty was to attach a condition to the contract, in favor of the other side, and where the question would be avoided whether there was not something more than a condition,—a repugnancy which prevented the formation of any contract at all. But the preceding illustrations are enough for the present purpose.
We may now pass from undertakings that certain facts are true at the time of making the contract, to undertakings that certain facts shall be true at some later time,—that is, to promises properly so called. The question is when performance of the promise on one side is a condition to the obligation of the contract on the other. In practice, this question is apt to be treated as identical with another, which, as has been shown earlier, is a distinct point; namely, when performance on one side is a condition of the right to call for performance on the other. It is of course conceivable that a promise should be limited to the case of performance of the things promised on the other side, and yet that a failure of the latter should not warrant a rescission of the contract. Wherever one party has already received a substantial benefit under a contract of a kind which cannot be restored, it is too late to rescind, however important a breach may be committed later by the other side. Yet he may be [334] excused from going farther. Suppose a contract is made for a month's labor, ten dollars to be paid down, not to be recovered except in case of rescission for the laborer's fault, and thirty dollars at the end of the month. If the laborer should wrongfully stop work at the end of a fortnight, I do not suppose that the contract could be rescinded, and that the ten dollars could be recovered as money had and received; /1/ but, on the other hand, the employer would not be bound to pay the thirty dollars, and of course he could sue for damages on the contract. /2/
But, for the most part, a breach of promise which discharges the promisee from further performance on his side will also warrant rescission, so that no great harm is done by the popular confusion of the two questions. Where the promise to perform on one side is limited to the case of performance on the other, the contract is generally conditioned on it also. In what follows, I shall take up the cases which I wish to notice without stopping to consider whether the contract was in a strict sense conditioned on performance of the promise on one side, or whether the true construction was merely that the promise on the other side was limited to that event.
Now, how do we settle whether such a condition exists? It is easy to err by seeking too eagerly for simplicity, and by striving too hard to reduce all cases to artificial presumptions, which are less obvious than the decisions which they are supposed to explain. The foundation of the whole matter is, after all, good sense, as the courts have often said. The law means to carry out the intention of the parties, and, so far as they have not provided [335] for the event which has happened, it has to say what they naturally would have intended if their minds had been turned to the point. It will be found that decisions based on the direct implications of the language used, and others based upon a remoter inference of what the parties must have meant, or would have said if they had spoken, shade into each other by imperceptible degrees.
Mr. Langdell has called attention to a very important principle, and one which, no doubt, throws light on many decisions. /1/ This is, that, where you have a bilateral contract, while the consideration of each promise is the counter promise, yet prima facie the payment for performance of one is performance of the other. The performance of the other party is what each means to have in return for his own. If A promises a barrel of flour to B, and B promises him ten dollars for it, A means to have the ten dollars for his flour, and B means to have the flour for his ten dollars. If no time is set for either act, neither can call on the other to perform without being ready at the same time himself.
But this principle of equivalency is not the only principle to be drawn even from the form of contracts, without considering their subject-matter, and of course it is not offered as such in Mr. Langdell's work.
Another very clear one is found in contracts for the sale or lease of a thing, and the like. Here the qualities or characteristics which the owner promises that the thing furnished shall possess, go to describe the thing which the buyer promises to accept. If any of the promised traits are wanting in the thing tendered, the buyer may refuse to accept, not merely on the ground that he has not [336] been offered the equivalent for keeping his promise, but also on the ground that he never promised to accept what is offered him. /1/ It has been seen that, where the contract contains a statement touching the condition of the thing at an earlier time than the moment for its acceptance, the past condition may not always be held to enter into the description of the thing to be accepted. But no such escape is possible here. Nevertheless there are limits to the right of refusal even in the present class of cases. If the thing promised is specific, the preponderance of that part of the description which identifies the object by reference to the senses is sometimes strikingly illustrated. One case has gone so far as to hold that performance of an executory contract to purchase a specific thing cannot be refused because it fails to come up to the warranted quality. /2/
Another principle of dependency to be drawn from the form of the contract itself is, that performance of the promise on one side may be manifestly intended to furnish the means for performing the promise on the other. If a tenant should promise to make repairs, and the landlord should promise to furnish him wood for the purpose, it is believed that at the present day, whatever may have been the old decisions, the tenant's duty to repair would be dependent upon the landlord's furnishing the material when required. /3/
[337] Another case of a somewhat exceptional kind is where a party to a bilateral contract agrees to do certain things and to give security for his performance. Here it is manifest good-sense to hold giving the security a condition of performance on the other side, if it be possible. For the requirement of security shows that the party requiring it was not content to rely on the simple promise of the other side, which he would be compelled to do if he had to perform before the security was given, and thus the very object of requiring it would be defeated. /1/
This last case suggests what is very forcibly impressed on any one who studies the cases,—that, after all, the most important element of decision is not any technical, or even any general principle of contracts, but a consideration of the nature of the particular transaction as a practical matter. A promises B to do a day's work for two dollars, and B promises A to pay two dollars for a day's work. There the two promises cannot be performed at the same time. The work will take all day, the payment half a minute. How are you to decide which is to be done first, that is to say, which promise is dependent upon performance on the other side? It is only by reference to the habits of the community and to convenience. It is not enough to say that on the principle of equivalency a man is not presumed to intend to pay for a thing until he has it. The work is payment for the money, as much as the [338] money for the work, and one must be paid in advance. The question is, why, if one man is not presumed to intend to pay money until he has money's worth, the other is presumed to intend to give money's worth before he has money. An answer cannot be obtained from any general theory. The fact that employers, as a class, can be trusted for wages more safely than the employed for their labor, that the employers have had the power and have been the law-makers, or other considerations, it matters not what, have determined that the work is to be done first. But the grounds of decision are purely practical, and can never be elicited from grammar or from logic.
A reference to practical considerations will be found to run all through the subject. Take another instance. The plaintiff declared on a mutual agreement between himself and the defendant that he would sell, and the defendant would buy, certain Donskoy wool, to be shipped by the plaintiff at Odessa, and delivered in England. Among the stipulations of the contract was one, that the names of the vessels should be declared as soon as the wools were shipped. The defence was, that the wool was bought, with the knowledge of both parties, for the purpose of reselling it in the course of the defendant's business; that it was an article of fluctuating value, and not salable until the names of the vessels in which it was shipped should have been declared according to the contract, but that the plaintiff did not declare the names of the vessels as agreed. The decision of the court was given by one of the greatest technical lawyers that ever lived, Baron Parke; yet he did not dream of giving any technical or merely logical reason for the decision, but, after stating in the above words the facts which were deemed material to the question [339] whether declaring the names of the vessels was a condition to the duty to accept, stated the ground of decision thus: "Looking at the nature of the contract, and the great importance of it to the object with which the contract was entered into with the knowledge of both parties, we think it was a condition precedent." /1/
[340]
LECTURE X. — SUCCESSIONS AFTER DEATH.
In the Lecture on Possession, I tried to show that the notion of possessing a right as such was intrinsically absurd. All rights are consequences attached to filling some situation of fact. A right which may be acquired by possession differs from others simply in being attached to a situation of such a nature that it may be filled successively by different persons, or by any one without regard to the lawfulness of his doing so, as is the case where the situation consists in having a tangible object within one's power.When a right of this sort is recognized by the law, there is no difficulty in transferring it; or, more accurately, there is no difficulty in different persons successively enjoying similar rights in respect of the subject-matter. If A, being the possessor of a horse or a field, gives up the possession to B, the rights which B acquires stand on the same ground as A's did before. The facts from which A's rights sprang have ceased to be true of A, and are now true of B. The consequences attached by the law to those facts now exist for B, as they did for A before. The situation of fact from which the rights spring is continuing one, and any one who occupies it, no matter how, has the rights attached to it. But there is no possession possible of a contract. The [341] fact that a consideration was given yesterday by A to B, and a promise received in return, cannot be laid hold of by X, and transferred from A to himself. The only thing can be transferred is the benefit or burden of the promise, and how can they be separated from the facts which gave rise to them? How, in short, can a man sue or be sued on a promise in which he had no part?
Hitherto it has been assumed, in dealing with any special right or obligation, that the facts from which it sprung were true of the individual entitled or bound. But it often happens, especially in modern law, that a person acquires and is allowed to enforce a special right, although that facts which give rise to it are not true of him, or are true of him only in part. One of the chief problems of the law is to explain the machinery by which this result has been brought to pass.
It will be observed that the problem is not coextensive with the whole field of rights. Some rights cannot be transferred by any device or contrivance; for instance, a man's right a to bodily safety or reputation. Others again are incident to possession, and within the limits of that conception no other is necessary. As Savigny said, "Succession does not apply to possession by itself." /1/
But the notion of possession will carry us but a very little way in our understanding of the modern theory of transfer. That theory depends very largely upon the notion of succession, to use the word just quoted from Savigny, and accordingly successions will be the subject of this and the following Lecture. I shall begin by explaining the theory of succession to persons deceased, and after that is done shall pass to the theory of transfer between living [342] people, and shall consider whether any relation can be established between the two.
The former is easily shown to be founded upon a fictitious identification between the deceased and his successor. And as a first step to the further discussion, as well as for its own sake, I shall briefly state the evidence touching the executor, the heir, and the devisee. In order to understand the theory of our law with regard to the first of these, at least, scholars are agreed that it is necessary to consider the structure and position of the Roman family as it was in the infancy of Roman society.
Continental jurists have long been collecting the evidence that, in the earlier periods of Roman and German law alike, the unit of society was the family. The Twelve Tables of Rome still recognize the interest of the inferior members of the family in the family property. Heirs are called sui heredes, that is, heirs of themselves or of their own property, as is explained by Gaius. /1/ Paulus says that they are regarded as owners in a certain sense, even in the lifetime of their father, and that after his death they do not so much receive an inheritance as obtain the full power of dealing with their property. /2/
Starting from this point it is easy to understand the [343] succession of heirs to a deceased paterfamilias in the Roman system. If the family was the owner of the property administered by a paterfamilias, its rights remained unaffected by the death of its temporary head. The family continued, although the head died. And when, probably by a gradual change, /1/ the paterfamilias came to be regarded as owner, instead of a simple manager of the family rights, the nature and continuity of those rights did not change with the title to them. The familia continued to the heirs as it was left by the ancestor. The heir succeeded not to the ownership of this or that thing separately, but to the total hereditas or headship of the family with certain rights of property as incident, /2/ and of course he took this headship, or right of representing the family interests, subject to the modifications effected by the last manager.
The aggregate of the ancestor's rights and duties, or, to use the technical phrase, the total persona sustained by him, was easily separated from his natural personality. For this persona was but the aggregate of what had formerly been family rights and duties, and was originally sustained by any individual only as the family head. Hence it was said to be continued by the inheritance, /3/ and when the heir assumed it he had his action in respect of injuries previously committed. /4/
Thus the Roman heir came to be treated as identified with his ancestor for the purposes of the law. And thus it is clear how the impossible transfers which I seek to explain were accomplished in that instance. Rights to which B [344] as B could show no title, he could readily maintain under the fiction that he was the same person as A, whose title was not denied.
It is not necessary at this point to study family rights in the German tribes. For it is not disputed that the modern executor derives his characteristics from the Roman heir. Wills also were borrowed from Rome, and were unknown to the Germans of Tacitus. /1/ Administrators were a later imitation of executors, introduced by statute for cases where there was no will, or where, for any other reason, executors were wanting.
The executor has the legal title to the whole of the testator's personal estate, and, generally speaking, the power of alienation. Formerly he was entitled to the undistributed residue, not, it may fairly be conjectured, as legatee of those specific chattels, but because he represented the person of the testator, and therefore had all the rights which the testator would have had after distribution if alive. The residue is nowadays generally bequeathed by the will, but it is not even now regarded as a specific gift of the chattels remaining undisposed of, and I cannot help thinking that this doctrine echoes that under which the executor took in former times.
No such rule has governed residuary devises of real estate, which have always been held to be specific in England down to the present day. So that, if a devise of land should fail, that land would not be disposed of by the residuary clause, but would descend to the heir as if there had been no will.
Again, the appointment of an executor relates back to the date of the testator's death. The continuity of person [345] is preserved by this fiction, as in Rome it was by personifying the inheritance ad interim.
Enough has been said to show the likeness between our executor and the Roman heir. And bearing in mind what was said about the heres, it will easily be seen how it came to be said, as it often was in the old books, that the executor "represents the person of his testator." /1/ The meaning of this feigned identity has been found in history, but the aid which it furnished in overcoming a technical difficulty must also be appreciated. If the executor represents the person of the testator, there is no longer any trouble in allowing him to sue or be sued on his testator's contracts. In the time of Edward III., when an action of covenant was brought against executors, Persay objected: "I never heard that one should have a writ of covenant against executors, nor against other person but the very one who made the covenant, for a man cannot oblige another person to a covenant by his deed except him who was party to the covenant." /2/ But it is useless to object that the promise sued upon was made by A, the testator, not by B, the executor, when the law says that for this purpose B is A. Here then is one class of cases in which a transfer is accomplished by the help of a fiction, which shadows, as fictions so often do, the facts of an early stage of society, and which could hardly have been invented had these facts been otherwise.
Executors and administrators afford the chief, if not the only, example of universal succession in the English [346] law. But although they succeed per universitatem, as has been explained, they do not succeed to all kinds of property. The personal estate goes to them, but land takes another course. All real estate not disposed of by will goes to the heir, and the rules of inheritance are quite distinct from those which govern the distribution of chattels. Accordingly, the question arises whether the English heir or successor to real estate presents the same analogies to the Roman heres as the executor.
The English heir is not a universal successor. Each and every parcel of land descends as a separate and specific thing. Nevertheless, in his narrower sphere he unquestionably represents the person of his ancestor. Different opinions have been held as to whether the same thing was true in early German law. Dr. Laband says that it was; /1/ Sohm takes the opposite view. /2/ It is commonly supposed that family ownership, at least of land, came before that of individuals in the German tribes, and it has been shown how naturally representation followed from a similar state of things in Rome. But it is needless to consider whether our law on this subject is of German or Roman origin, as the principle of identification has clearly prevailed from the time of Glanvill to the present day. If it was not known to the Germans, it is plainly accounted for by the influence of the Roman law. If there was anything of the sort in the Salic law, it was no doubt due to natural causes similar to those which gave rise to the principle at Rome. But in either event I cannot doubt that the modern doctrine has taken a good deal of its form, and perhaps some of its substance, from the mature system [347] of the civilians, in whose language it was so long expressed. For the same reasons that have just been mentioned, it is also needless to weigh the evidence of the Anglo-Saxon sources, although it seems tolerably clear from several passages in the laws that there was some identification. /1/
As late as Bracton, two centuries after the Norman conquest, the heir was not the successor to lands alone, but represented his ancestor in a much more general sense, as will be seen directly. The office of executor, in the sense of heir, was unknown to the Anglo-Saxons, /2/ and even in Bracton's time does not seem to have been what it has since become. There is, therefore, no need to go back further than to the early Norman period, after the appointment of executors had become common, and the heir was more nearly what he is now.
When Glanvill wrote, a little more than a century after the Conquest, the heir was bound to warrant the reasonable gifts of his ancestor to the grantees and their heirs; /3/ and if the effects of the ancestor were insufficient to pay his debts, the heir was bound to make up the deficiency from his own property. /4/ Neither Glanvill nor his Scotch imitator, the Regiam Majestatem, /5/ limits the liability to the amount of property inherited from the same source. This makes the identification of heir and ancestor as complete as that of the Roman law before such a limitation was introduced by Justinian. On the other hand, a century [348] later, it distinctly appears from Bracton, /1/ that the heir was only bound so far as property had descended to him, and in the early sources of the Continent, Norman as well as other, the same limitation appears. /2/ The liabilities of the heir were probably shrinking. Britton and Fleta, the imitators of Bracton, and perhaps Bracton himself, say that an heir is not bound to pay his ancestor's debt, unless he be thereto especially bound by the deed of his ancestor. /3/ The later law required that the heir should be mentioned if he was to be held.
But at all events the identification of heir and ancestor still approached the nature of a universal succession in the time of Bracton, as is shown by another statement of his. He asks if the testator can bequeath his rights of action, and answers, No, so far as concerns debts not proved and recovered in the testator's life. But actions of that sort belong to the heirs, and must be sued in the secular court; for before they are so recovered in the proper court, the executor cannot proceed for them in the ecclesiastical tribunal. /4/
This shows that the identification worked both ways. The heir was liable for the debts due from his ancestor, and he could recover those which were due to him, until [349] the executor took his place in the King's Courts, as well as in those of the Church. Within the limits just explained the heir was also bound to warrant property sold by his ancestor to the purchaser and his heirs. /1/ It is not necessary, after this evidence that the modern heir began by representing his ancestor generally, to seek for expressions in later books, since his position has been limited. But just as we have seen that the executor is still said to represent the person of his testator, the heir was said to represent the person of his ancestor in the time of Edward I. /2/ So, at a much later date, it was said that "the heir is in representation in point of taking by inheritance eadam persona cum antecessore," /3/ the same persona as his ancestor.
A great judge, who died but a few years ago, repeats language which would have been equally familiar to the lawyers of Edward or of James. Baron Parke, after laying down that in general a party is not required to make profert of an instrument to the possession of which he is not entitled, says that there is an exception "in the cases of heir and executor, who may plead a release to the ancestor or testator whom they respectively represent; so also with respect to several tortfeasors, for in all these cases there is a privity between the parties which constitutes an identity of person." /4/
But this is not all. The identity of person was carried [350] farther still. If a man died leaving male children, and owning land in fee, it went to the oldest son alone; but, if he left only daughters, it descended to them all equally. In this case several individuals together continued the persona of their ancestor. But it was always laid down that they were but one heir. /1/ For the purpose of working out this result, not only was one person identified with another, but several persons were reduced to one, that they might sustain a single persona.
What was the persona? It was not the sum of all the rights and duties of the ancestor. It has been seen that for many centuries his general status, the sum of all his rights and duties except those connected with real property, has been taken up by the executor or administrator. The persona continued by the heir was from an early day confined to real estate in its technical sense; that is, to property subject to feudal principles, as distinguished from chattels, which, as Blackstone tells us, /2/ include whatever was not a feud.
But the heir's persona was not even the sum of all the ancestor's rights and duties in connection with real estate. It has been said already that every fee descends specifically, and not as incident to a larger universitas. This appears not so much from the fact that the rules of descent governing different parcels might be different, /3/ so that the same person would not be heir to both, as from the very nature of feudal property. Under the feudal system in its vigor, the holding of land was only one [351] incident of a complex personal relation. The land was forfeited for a failure to render the services for which it was granted; the service could be renounced for a breach of correlative duties on the part of the lord. /1/ It rather seems that, in the beginning of the feudal period under Charlemagne, a man could only hold land of one lord. /2/ Even when it had become common to hold of more than one, the strict personal relation was only modified so far as to save the tenant from having to perform inconsistent services. Glanvill and Bracton /3/ a tell us that a tenant holding of several lords was to do homage for each fee, but to reserve his allegiance for the lord of whom he held his chief estate; but that, if the different lords should make war upon each other, and the chief lord should command the tenant to obey him in person, the tenant ought to obey, saving the service due to the other lord for the fee held of him.
We see, then, that the tenant had a distinct persona or status in respect of each of the fees which he held. The rights and duties incident to one of them had no relation to the rights and duties incident to another. A succession to one had no connection with the succession to another. Each succession was the assumption of a distinct personal relation, in which the successor was to be determined by the terms of the relation in question.
The persona which we are seeking to define is the estate. Every fee is a distinct persona, a distinct hereditas, or inheritance, as it has been called since the time of Bracton. We have already seen that it may be sustained by more [352] than one where there are several heirs, as well as by one, just as a corporation may have more or less members. But not only may it be divided lengthwise, so to speak, among persons interested in the same way at the same time: it may also be cut across into successive interests, to be enjoyed one after another. In technical language, it may be divided into a particular estate and remainders. But they are all parts of the same fee, and the same fiction still governs them. We read in an old case that "he in reversion and particular tenant are but one tenant." /1/ This is only a statement of counsel, to be sure; but it is made to account for a doctrine which seems to need the explanation, to the effect that, after the death of the tenant for life, he in reversion might have error or attaint on an erroneous judgment or false verdict given against the tenant for life. /2/
To sum up the results so far, the heir of modern English law gets his characteristic features from the law as it stood soon after the Conquest. At that time he was a universal successor in a very broad sense. Many of his functions as such were soon transferred to the executor. The heir's rights became confined to real estate, and his liabilities to those connected with real estate, and to obligations of his ancestor expressly binding him. The succession to each fee or feudal inheritance is distinct, not part of the sum of all the ancestor's rights regarded as one whole. But to this day the executor in his sphere, and the heir in his, represent the person of the deceased, and are treated as if they were one with him, for the purpose of settling their rights and obligations.
The bearing which this has upon the contracts of the [353] deceased has been pointed out. But its influence is not confined to contract; it runs through everything. The most striking instance, however, is the acquisition of prescriptive rights. Take the case of a right of way. A right of way over a neighbor's land can only be acquired by grant, or by using it adversely for twenty years. A man uses a way for ten years, and dies. Then his heir uses it ten years. Has any right been acquired? If common sense alone is consulted, the answer must be no. The ancestor did not get any right, because he did not use the way long enough. And just as little did the heir. How can it better the heir's title that another man had trespassed before him? Clearly, if four strangers to each other used the way for five years each, no right would be acquired by the last. But here comes in the fiction which has been so carefully explained. From the point of view of the law it is not two persons who have used the way for ten years each, but one who has used it for twenty. The heir has the advantage of sustaining his ancestor's and the right is acquired.
LECTURE X. — SUCCESSIONS INTER VIVOS
I now reach the most difficult and obscure part of the subject. It remains to be discovered whether the fiction of identity was extended to others besides the heir and executor. And if we find, as we do, that it went but little farther in express terms, the question will still arise whether the mode of thought and the conceptions made possible by the doctrine of inheritance have not silently modified the law as to dealings between the living. It seems to me demonstrable that their influence has been profound, and that, without understanding the theory of inheritance, it is impossible to understand the theory of transfer inter vivos.[354] The difficulty in dealing with the subject is to convince the sceptic that there is anything to explain. Nowadays, the notion that a right is valuable is almost identical with the notion that it may be turned into money by selling it. But it was not always so. Before you can sell a right, you must be able to make a sale thinkable in legal terms. I put the case of the transfer of a contract at the beginning of the Lecture. I have just mentioned the case of gaining a right by prescription, when neither party has complied with the requirement of twenty years' adverse use. In the latter instance, there is not even a right at the time of the transfer, but a mere fact of ten years' past trespassing. A way, until it becomes a right of way, is just as little susceptible of being held by a possessory title as a contract. If then a contract can be sold, if a buyer can add the time of his seller's adverse user to his own, what is the machinery by which the law works out the result?
The most superficial acquaintance with any system of law in its earlier stages will show with what difficulty and by what slow degrees such machinery has been provided, and how the want of it has restricted the sphere of alienation. It is a great mistake to assume that it is a mere matter of common sense that the buyer steps into the shoes of the seller, according to our significant metaphor. Suppose that sales and other civil transfers had kept the form of warlike capture which it seems that they had in the infancy of Roman law, /1/ and which was at least [355] partially retained in one instance, the acquisition of wives, after the transaction had, in fact, taken the more civilized shape of purchase. The notion that the buyer came in adversely to the seller would probably have accompanied the fiction of adverse taking, and he would have stood on his own position as founding a new title. Without the aid of conceptions derived from some other source, it would have been hard to work out a legal transfer of objects which did not admit of possession.
A possible source of such other conceptions was to be found in family law. The principles of inheritance furnished a fiction and a mode of thought which at least might have been extended into other spheres. In order to prove that they were in fact so extended, it will be necessary to examine once more the law of Rome, as well as the remains of German and Anglo-Saxon customs.
I will take up first the German and Anglo-Saxon laws which are the ancestors of our own on one side of the house. For although what we get from those sources is not in the direct line of the argument, it lays a foundation for it by showing the course of development in different fields.
The obvious analogy between purchaser and heir seems to have been used in the folk-laws, but mainly for another purpose than those which will have to be considered in the English law. This was to enlarge the sphere of alienability. It will be remembered that there are many traces of family ownership in early German, as well as in early Roman law; and it would seem that the transfer [356] of property which originally could not be given outside the family, was worked out through the form of making the grantee an heir.
The history of language points to this conclusion. Heres, as Beseler /1/ and others have remarked, from meaning a successor to the property of a person deceased, was extended to the donee mortis causa, and even more broadly to grantees in general. Hereditare was used in like manner for the transfer of land. Hevin is quoted by Laferriere /2/ as calling attention to the fact that the ancient usage was to say heriter for purchase, heritier for purchaser, and desheriter for sell.
The texts of the Salic law give us incontrovertible evidence. A man might transfer the whole or any part of his property /3/ by delivering possession of it to a trustee who, within twelve months, handed it over to the beneficiaries. /4/ To those, the text reads, whom the donor has named heredes (quos heredes appellavit). Here then was a voluntary transfer of more or less property at pleasure to persons freely chosen, who were not necessarily universal successors, if they ever were, and who nevertheless took under the name heredes. The word, which must have meant at first persons taking by descent, was extended to persons taking by purchase. /5/ If the word became enlarged in meaning, it is probably because the thought which it conveyed was turned to new uses. The transaction seems [357] to have fallen half-way between the institution of an heir and a sale. The later law of the Ripuarian Franks treats it more distinctly from the former point of view. It permits a man who has no sons to give all his property to whomsoever he chooses, whether relatives or strangers, as inheritance, either by way of adfathamire, as the Salic form was called, or by writing or delivery. /1/
The Lombards had a similar transfer, in which the donee was not only called heres, but was made liable like an heir for the debts of the donor on receiving the property after the donor's death. /2/2 By the Salic law a man who could not pay the wergeld was allowed to transfer formally his house-lot, and with it the liability. But the transfer was to the next of kin. /3/
The house-lot or family curtilage at first devolved strictly within the limits of the family. Here again, at least in England, freedom of alienation seems to have grown up by gradually increased latitude in the choice of successors. If we may trust the order of development to be noticed in the early charters, which it is hard to believe [358] accidental, although the charters are few, royal grants at first permitted an election of heirs among the kindred, and then extended it beyond them. In a deed of the year 679, the language is, "as it is granted so do you hold it and your posterity." One a century later reads, "which let him always possess, and after his death leave to which of his heirs he will." Another, "and after him with free power (of choice) leave to the man of his kin to whom he wishes to" (leave it). A somewhat earlier charter of 736 goes a step further: "So that as long as he lives he shall have the power of holding and possessing (and) of leaving it to whomsoever he choose, either in his lifetime, or certainly after his death." At the beginning of the ninth century the donee has power to leave the property to whomsoever he will, or, in still broader terms, to exchange or grant in his lifetime, and after his death to leave it to whom he chooses,—or to sell, exchange, and leave to whatsoever heir he chooses. /1/ This choice of heirs [359] recalls the quos heredes appellavit of the Salic law just mentioned, and may be compared with the language of a Norman charter of about the year 1190: "To W. and his heirs, to wit those whom he may constitute his heirs." /1/
A perfect example of a singular succession worked out by the fiction of kinship is to be found in the story of Burnt Njal, an Icelandic saga, which gives us a living picture of a society hardly more advanced than the Salian Franks, as we see them in the Lex Salica. A lawsuit was to be transferred by the proper plaintiff to another more versed in the laws, and better able to carry it on,—in fact, to an attorney. But a lawsuit was at that time the alternative of a feud, and both were the peculiar affair of the family concerned. /2/ Accordingly, when a suit for killing a member of the family was to be handed over to a stranger, the innovation had to be reconciled with the theory that such suit belonged only to the next of kin. Mord is to take upon himself Thorgeir's suit against Flosi for killing Helgi, and the form of transfer is described as follows.
"Then Mord took Thorgeir by the hand and named two witnesses to bear witness, 'that Thorgeir Thofir's son hands me over a suit for manslaughter against Flosi Thord's son, to plead it for the slaying of Helgi Njal's son, with all those proofs which have to follow the suit. Thou handest over to me this suit to plead and to settle, and to enjoy all rights in it, as though I were the rightful next of kin. Thou handest it over to me by law; and I [360] take it from thee by law.'" Afterwards, these witnesses come before the court, and bear witness to the transfer in like words: "He handed over to him then this suit, with all the proofs and proceedings which belonged to the suit, he handed it over to him to plead and to settle, and to make use of all rights, as though he were the rightful next of kin. Thorgeir handed it over lawfully, and Mord took it lawfully." The suit went on, notwithstanding the change of hands, as if the next of kin were plaintiff. This is shown by a further step in the proceedings. The defendant challenges two of the court, on the ground of their connection with Mord, the transferee, by blood and by baptism. But Mord replies that this is no good challenge; for "he challenged them not for their kinship to the true plaintiff, the next of kin, but for their kinship to him who pleaded the suit." And the other side had to admit that Mord was right in his law.
I now turn from the German to the Roman sources. These have the closest connection with the argument, because much of the doctrine to be found there has been transplanted unchanged into modern law.
The early Roman law only recognized as relatives those who would have been members of the same patriarchal family, and under the same patriarchal authority, had the common ancestor survived. As wives passed into the families of their husbands, and lost all connection with that in which they were born, relationship through females was altogether excluded. The heir was one who traced his relationship to the deceased through males alone. With the advance of civilization this rule was changed. The praetor gave the benefits of the inheritance to the blood relations, although they were not heirs, and could [361] not be admitted to the succession according to the ancient law. /1/ But the change was not brought about by repealing the old law, which still subsisted under the name of the jus civile. The new principle was accommodated to the old forms by a fiction. The blood relation could sue on the fiction that he was an heir, although he was not one in fact. /2/
One the early forms of instituting an heir was a sale of the familia or headship of the family to the intended heir, with all its rights and duties. /3/ This sale of the universitas was afterwards extended beyond the case of inheritance to that of bankruptcy, when it was desired to put the bankrupt's property into the hands of a trustee for distribution. This trustee also could make use of the fiction, and sue as if he had been the bankrupt's heir. /4/ We are told by one of the great jurisconsults that in general universal successors stand in the place of heirs. /5/
The Roman heir, with one or two exceptions, was always a universal successor; and the fiction of heirship, as such, could hardly be used with propriety except to enlarge the sphere of universal successions. So far as it extended, however, all the consequences attached to the original fiction of identity between heir and ancestor followed as of course.
[362] To recur to the case of rights acquired by prescription, every universal successor could add the time of his predecessor's adverse use to his own in order to make out the right. There was no addition, legally speaking, but one continuous possession.
The express fiction of inheritance perhaps stopped here. But when a similar joinder of times was allowed between a legatee or devisee (legatarius) and his testator, the same explanation was offered. It was said, that, when a specific thing was left to a person by will, so far as concerned having the benefit of the time during which the testator had been in possession for the purpose of acquiring a title, the legatee was in a certain sense quasi an heir. /1/ Yet a legatarius was not a universal successor, and for most purposes stood in marked contrast with such successors. /2/
Thus the strict law of inheritance had made the notion familiar that one man might have the advantage of a position filled by another, although it was not filled, or was only partially filled, by himself; and the second fiction, by which the privileges of a legal heir in this respect as well as others had been extended to other persons, broke down the walls which might otherwise have confined those privileges to a single case. A new conception was introduced into the law, and there was nothing to hinder its further application. As has been shown, it was applied in terms to a sale of the universitas for business purposes, and to at least one case where the succession was confined to a single specific thing. Why, then, might not every gift or sale be regarded as a succession, so far as to insure the same advantages?
[363] The joinder of times to make out a title was soon allowed between buyer and seller, and I have no doubt, from the language always used by the Roman lawyers, that it was arrived at in the way I have suggested. A passage from Scaevola (B. C. 30) will furnish sufficient proof. Joinder of possessions, he says, that is, the right to add the time of one's predecessor's holding to one's own, clearly belongs to those who succeed to the place of others, whether by contract or by will: for heirs and those who are treated as holding the place of successors are allowed to add their testator's possession to their own. Accordingly, if you sell me a slave I shall have the benefit of your holding. /1/
The joinder of times is given to those who succeed to the place of another. Ulpian cites a like phrase from a jurisconsult of the time of the Antonines,—"to whose place I have succeeded by inheritance, or purchase, or any other right." /2/ Succedere in locum aliorum, like sustinere personam, is an expression of the Roman lawyers for those continuations of one man's legal position by another of which the type was the succession of heir to ancestor. Suecedere alone is used in the sense of inherit, /3/ and successio in that of "inheritance." /4/ The succession par excellence was the inheritance; and it is believed that scarcely any instance will be found in the Roman sources where "succession" does not convey that analogy, and indicate the partial [364] assumption, at least, of a persona formerly sustained by another. It clearly does so in the passage before us.
But the succession which admits a joinder of times is not hereditary succession alone. In the passage which has been cited Scaevola says that it may be by contract or purchase, as well as by inheritance or will. It may be singular, as well as universal. The jurists often mention antithetically universal successions and those confined to a single specific thing. Ulpian says that a man succeeds to another's place, whether his succession be universal or to the single object. /1/
If further evidence were wanting for the present argument, it would be found in another expression of Ulpian's. He speaks of the benefit of joinder as derived from the persona of the grantor. "He to whom a thing is granted shall have the benefit of joinder from the persona of his grantor." /2/ A benefit cannot be derived from a persona except by sustaining it.
It farther appears pretty plainly from Justinian's Institutes and the Digest, that the benefit was not extended to purchasers in all cases until a pretty late period. /3/
Savigny very nearly expressed the truth when he said, somewhat broadly, that "every accessio, for whatever purpose, presupposes nothing else than a relation of juridical [365] succession between the previous and present possessor. For succession does not apply to possession by itself." /1/ And I may add, by way of further explanation, that every relation of juridical succession presupposes either an inheritance or a relation to which, so far as it extends, the analogies of the inheritance may be applied.
The way of thinking which led to the accessio or joinder of times is equally visible in other cases. The time during which a former owner did not use an casement was imputed to the person who had succeeded to his place. /2/ The defence that the plaintiff had sold and delivered the thing in controversy was available not only to the purchaser, but to his heirs or to a second purchaser, even before delivery to him, against the successors of the seller, whether universal or only to the thing in question. /3/ If one used a way wrongfully as against the predecessor in title, it was wrongful as against the successor, whether by inheritance, purchase, or any other right. /4/ The formal oath of a party to an action was conclusive in favor of his successors, universal or singular. /5/ Successors by purchase or gift had the [366] benefit of agreements made with the vendor. /1/ A multitude of general expressions show that for most purposes, whether of action or defence, the buyer stood in the shoes of the seller, to use the metaphor of our own law. /2/ And what is more important than the result, which often might have been reached by other ways, the language and analogies are drawn throughout from the succession to the inheritance.
Thus understood, there could not have been a succession between a person dispossessed of a thing against his will and the wrongful possessor. Without the element of consent there is no room for the analogy just explained. Accordingly, it is laid down that there is no joinder of times when the possession is wrongful, /3/ and the only enumerated means of succeeding in rem are by will, sale, gift, or some other right.
The argument now returns to the English law, fortified with some general conclusions. It has been shown that in both the systems from whose union our law arose the rules governing conveyance, or the transfer of specific [367] objects between living persons, were deeply affected by notions drawn from inheritance. It had been shown previously that in England the principles of inheritance applied directly to the singular succession of the heir to a specific fee, as well as to the universal succession of the executor. It would be remarkable, considering their history, if the same principles had not affected other singular successions also. It will soon appear that they have. And not to be too careful about the order of proof, I will first take up the joinder of times in prescription, as that has just been so fully discussed. The English law of the subject is found on examination to be the same as the Roman in extent, reason, and expression. It is indeed largely copied from that source. For servitudes, such as rights of way, light, and the like, form the chief class of prescriptive rights, and our law of servitudes is mainly Roman. Prescriptions, it is said, "are properly personal, and therefore are always alleged in the person of him who prescribes, viz. that he and all those whose estate he hath, &c.; therefore, a bishop or a parson may prescribe,... for there is a perpetual estate, and a perpetual succession and the successor hath the very same estate which his predecessor had, for that continues, though the person alters, like the case of the ancestor and the heir." /1/ So in a modern case, where by statute twenty years' dispossession extinguished the owner's title, the Court of Queen's Bench said that probably the right would be transferred to the possessor "if the same person, or several persons, claiming one from the other by descent, will [368] or conveyance, had been in possession for the twenty years." "But.... such twenty years' possession must be either by the same person, or several persons claiming one from the other, which is not the case here." /1/
In a word, it is equally clear that the continuous possession of privies in title, or, in Roman phrase, successors, has all the effect of the continuous possession of one, and that such an effect is not attributed to the continuous possession of different persons who are not in the same chain of title. One who dispossesses another of land cannot add the time during which his disseisee has used a way to the period of his own use, while one who purchased can. /2/
The authorities which have been quoted make it plain that the English law proceeds on the same theory as the Roman. One who buys land of another gets the very same estate which his seller had. He is in of the same fee, or hereditas, which means, as I have shown, that he sustains the same persona. On the other hand, one who wrongfully dispossesses another,—a disseisor,—gets a different estate, is in of a new fee, although the land is the same; and much technical reasoning is based upon this doctrine.
In the matter of prescription, therefore, buyer and seller were identified, like heir and ancestor. But the question [369] remains whether this identification bore fruit in other parts of the law also, or whether it was confined to one particular branch, where the Roman law was grafted upon the English stock.
There can be no doubt which answer is most probable, but it cannot be proved without difficulty. As has been said, the heir ceased to be the general representative of his ancestor at an early date. And the extent to which even he was identified came to be a matter of discussion. Common sense kept control over fiction here as elsewhere in the common law. But there can be no doubt that in matters directly concerning the estate the identification of heir and ancestor has continued to the present day; and as an estate in fee simple has been shown to be a distinct persona, we should expect to find a similar identification of buyer and seller in this part of the law, if anywhere.
Where the land was devised by will, the analogy applied with peculiar ease. For although there is no difference in principle between a devise of a piece of land by will and a conveyance of it by deed, the dramatic resemblance of a devisee to an heir is stronger than that of a grantee. It will be remembered that one of the Roman jurists said that a legatarius (legatee or devisee) was in a certain sense quasi heres. The English courts have occasionally used similar expressions. In a case where a testator owned a rent, and divided it by will among his sons, and then one of the sons brought debt for his part, two of the judges, while admitting that the testator could not have divided the tenant's liability by a grant or deed in his lifetime, thought that it was otherwise with regard to a division by will. Their reasoning was that "the devise is quasi [370] an act of law, which shall inure without attornment, and shall make a sufficient privity, and so it may well be apportioned by this means." /1/ So it was said by Lord Ellenborough, in a case where a lessor and his heirs were entitled to terminate a lease on notice, that a devisee of the land as heres factus would be understood to have the same right. /2/
But wills of land were only exceptionally allowed by custom until the reign of Henry VIII., and as the main doctrines of conveyancing had been settled long before that time, we must look further back and to other sources for their explanation. We shall find it in the history of warranty. This, and the modern law of covenants running with the land, will be treated in the next Lecture.
[371]
LECTURE XI. — SUCCESSIONS.—II. INTER VIVOS.
The principal contracts known to the common law and suable in the King's Courts, a century after the Conquest, were suretyship and debt. The heir, as the general representative of his ancestor's rights and obligations, was liable for his debts, and was the proper person to sue for those which were due the estate. By the time of Edward III. this had changed. Debts had ceased to concern the heir except secondarily. The executor took his place both for collection and payment. It is said that even when the heir was bound he could not be sued except in case the executor had no assets. /1/But there was another ancient obligation which had a different history. I refer to the warranty which arose upon the transfer of property. We should call it a contract, but it probably presented itself to the mind of Glanvill's predecessors simply as a duty or obligation attached by law to a transaction which was directed to a different point; just as the liability of a bailee, which is now treated as arising from his undertaking, was originally raised by the law out of the position in which he stood toward third persons.
After the Conquest we do not hear much of warranty, except in connection with land, and this fact will at once [372] account for its having had a different history from debt. The obligation of warranty was to defend the title, and, if the defence failed, to give to the evicted owner other land of equal value. If an ancestor had conveyed lands with warranty, this obligation could not be fulfilled by his executor, but only by his heir, to whom his other lands had descended. Conversely as to the benefit of warranties made to a deceased grantee, his heir was the only person interested to enforce such warranties, because the land descended to him. Thus the heir continued to represent his ancestor in the latter's rights and obligations by way of warranty, after the executor had relieved him of the debts, just as before that time he had represented his ancestor in all respects.
If a man was sued for property which he had bought from another, the regular course of litigation was for the defendant to summon in his seller to take charge of the defence, and for him, in turn, to summon in his, if he had one, and so on until a party was reached in the chain of title who finally took the burden of the case upon himself. A contrast which was early stated between the Lombard and the Roman law existed equally between the Anglo-Saxon and the Roman. It was said that the Lombard presents his grantor, the Roman stands in his grantor's shoes,—Langobardus dat auctorem, Romanus stat loco auctoris. /1/
Suppose, now, that A gave land to B, and B conveyed over to C. If C was sued by D, claiming a better title, C practically got the benefit of A's warranty, /2/ because, when he summoned B, B would summon A, and thus A [373] would defend the case in the end. But it might happen that between the time when B conveyed to C, and the time when the action was begun, B had died. If he left an heir, C might still be protected. But supposing B left no heir, C got no help from A, who in the other event would have defended his suit. This no doubt was the law in the Anglo-Saxon period, but it was manifestly unsatisfactory. We may conjecture, with a good deal of confidence, that a remedy would be found as soon as there was machinery to make it possible. This was furnished by the Roman law. According to that system, the buyer stood in the place of his seller, and a fusion of the Roman with the Anglo-Saxon rule was all that was needed.
Bracton, who modelled his book upon the writings of the mediaeval civilians, shows how this thought was used. He first puts the case of a conveyance with the usual clause binding the grantor and his heirs to warrant and defend the grantee and his heirs. He then goes on: "Again one may make his gift greater and make other persons quasi heirs [of his grantee], although, in fact, they are not heirs, as when he says in the gift, to have and to hold to such a one and his heirs, or to whomsoever he shall choose to give or assign the said land, and I and my heirs will warrant to the said so and so, and his heirs, or to whomsoever he shall choose to give or assign the said land, and their heirs, against all persons. In which case if the grantee shall have given or assigned the land, and then have died without heirs, the [first] grantor and his heirs begin to hold the place of the first grantee and his heirs, and are in place of the first grantee's heir (pro herede) so far as concerns warranting to his assigns and their heirs [374] according to the clause contained in the first grantor's charter, which would not be but for the mention of assigns in the first gift. But so long as the first grantee survives, or his heirs, they are held to warranty, and not the first grantor." /1/
Here we see that, in order to entitle the assign to the benefit of the first grantor's warranty, assigns must be mentioned in the original grant and covenant. The scope of the ancient obligation was not extended without the warrantor's assent. But when it was extended, it was not by a contrivance like a modern letter of credit. Such a conception would have been impossible in that stage of the law. By mentioning assigns the first grantor did not offer a covenant to any person who would thereafter purchase the land. If that had been the notion, there would have been a contract directly binding the first grantor to the assign, as soon as the land was sold, and thus there would have been two warranties arising from the same clause,—one to the first grantee, a second to the assign. But in fact the assign recovered on the original warranty to the first grantee. /2/ He could only come on the first grantor after a failure of his immediate grantor's heirs. The first grantor by mentioning assigns simply enlarged the limits of his grantee's succession. The assign could vouch the first grantor only on the principles of succession. That is to say, he could only do so when, by the failure of the first grantee's blood, the first grantee's feudal relation to the first grantor, his persona, came to be sustained by the assign. /3/
[375] This was not only carrying out the fiction with technical consistency, but was using it with good sense, as fictions generally have been used in the English law. Practically it made little difference whether the assign got the benefit of the first grantor's warranty mediately or immediately, if he got it. The trouble arose where he could not summon the mesne grantor, and the new right was given him for that case alone. Later, the assign did not have to wait for the failure of his immediate grantor's blood, but could take advantage of the first grantor's warranty from the beginning. /1/
If it should be suggested that what has been said goes to show that the first grantor's duty to warrant arose from the assign's becoming his man and owing homage, the answer is that he was not bound unless he had mentioned assigns in his grant, homage or no homage. In this Bracton is confirmed by all the later authorities. /2/
Another rule on which there are vast stores of forgotten learning will show how exactly the fiction fell in with the earlier law. Only those who were privy in estate with the person to whom the warranty was originally given, could vouch the original warrantor. Looking back to the early [376] procedure, it will be seen that of course only those in the same chain of title could even mediately get the benefit of a former owner's warranty. The ground on which a man was bound to warrant was that he had conveyed the property to the person who summoned him. Hence a man could summon no one but his grantor, and the successive vouchers came to an end when the last vouchee could not call on another from whom he had bought. Now when the process was abridged, no persons were made liable to summons who would not have been liable before. The present owner was allowed to vouch directly those who otherwise would have been indirectly bound to defend his title, but no others. Hence he could only summon those from whom his grantor derived his title. But this was equally well expressed in terms of the fiction employed. In order to vouch, the present owner must have the estate of the person to whom the warranty was made. As every lawyer knows, the estate does not mean the land. It means the status or persona in regard to that land formerly sustained by another. The same word was used in alleging a right by prescription, "that he and those whose estate he hath have for time whereof memory runneth not to the contrary," &c.; and it will be remembered that the word corresponds to the same requirement of succession there.
To return to Bracton, it must be understood that the description of assigns as quasi heredes is not accidental. He describes them in that way whenever he has occasion to speak of them. He even pushes the reasoning drawn from the analogy of inheritance to extremes, and refers to it in countless passages. For instance: "It should be noted that of heirs some are true heirs and some quasi [377] heirs, in place of heirs, &c.; true heirs by way of succession quasi heirs, &c. by the form of the gift; such as assigns," &c. /1/
If it should be suggested that Bracton's language is only a piece of mediaeval scholasticism, there are several answers. In the first place it is nearly contemporaneous with the first appearance of the right in question. This is shown by his citing authority for it as for something which might be disputed. He says, "And that warranty must be made to assigns according to the form of the gift is proved [by a case] in the circuit of W. de Ralegh, about the end of the roll,"&c. /2/ It is not justifiable to assume that a contemporary explanation of a new rule had nothing to do with its appearance. Again, the fact is clear that the assign got the benefit of the warranty to the first grantee, not of a new one to himself, as has been shown, and Bracton's explanation of how this was worked out falls in with what has been seen of the course of the German and Anglo-Saxon law, and with the pervading thought of the Roman law. Finally, and most important, the requirement that the assign should be in of the first grantee's estate has remained a requirement from that day to this. The fact that the same thing is required in the same words as in prescription goes far to show that the same technical thought has governed both.
I have said, Glanvill's predecessors probably regarded warranty as an obligation incident to a conveyance, rather than as a contract. But when it became usual to insert the undertaking to warrant in a deed or charter of feoffment, it lost something of its former isolation as a duty standing by itself, and admitted of being [378] generalized. It was a promise by deed, and a promise by deed was a covenant. /1/ This was a covenant having peculiar consequences attached to it, no doubt. It differed also in the scope of its obligation from some other covenants, as will be shown hereafter. But still it was a covenant, and could sometimes be sued on as such. It was spoken of in the Year Books of Edward III. as a covenant which "falls in the blood," /2/ as distinguished from those where the acquittance fell on the land, and not on the person. /3/
The importance of this circumstance lies in the working of the law of warranty upon other covenants which took its place. When the old actions for land gave way to more modern and speedier forms, warrantors were no longer vouched in to defend, and if a grantee was evicted, damages took the place of a grant of other land. The ancient warranty disappeared, and was replaced by the covenants which we still find in our deeds, including the covenants for seisin, for right to convey, against incumbrances, for quiet enjoyment, of warranty, and for further assurance. But the principles on which an assign could have the benefit of these covenants were derived from those which governed warranty, as any one may see by looking at the earlier decisions.
For instance, the question, what was a sufficient assignment to give an assign the benefit of a covenant for quiet enjoyment, was argued and decided on the authority of the old cases of warranty. /4/
[379] The assign, as in warranty, came in under the old covenant with the first covenantee, not by any new right of his own. Thus, in an action by an assign on a covenant for further assurance, the defendant set up a release by the original covenantee after the commencement of the suit. The court held that the assignee should have the benefit of the covenant. "They held, that although the breach was in the time of the assignee, yet if the release had been by the covenantee (who is a party to the deed, and from whom the plaintiff derives) before any breach, or before the suit commenced, it had been a good bar to the assignee from bringing this writ of covenant. But the breach of the covenant being in the time of the assignee,... and the action brought by him, and so attached in his person, the covenantee cannot release this action wherein the assignee is interested." /1/ The covenantee even after assignment remains the legal party to the contract. The assign comes in under him, and does not put an end to his control over it, until by breach and action a new right attaches in the assign's person, distinct from the rights derived from the persona of his grantor. Later, the assign got a more independent standing, as the original foundation of his rights sunk gradually out of sight, and a release after assignment became ineffectual, at least in the case of a covenant to pay rent. /2/
Only privies in estate with the original covenantee can have the benefit of covenants for title. It has been shown that a similar limitation of the benefits of the ancient [380] warranty was required by its earlier history before the assign was allowed to sue, and that the fiction by which he got that right could not extend it beyond that limit. This analogy also was followed. For instance, a tenant in tail male made a lease for years with covenants of right to let and for quiet enjoyment, and then died without issue male. The lessee assigned the lease to the plaintiff. The latter was soon turned out, and thereupon brought an action upon the covenant against the executor of the lessor. It was held that he could not recover, because he was not privy in estate with the original covenantee. For the lease, which was the original covenantee's estate, was ended by the death of the lessor and termination of the estate tail out of which the lease was granted, before the form of assignment to the plaintiff. /1/
The only point remaining to make the analogy between covenants for title and warranty complete was to require assigns to be mentioned in order to enable them to sue. In modern times, of course, such a requirement, if it should exist, would be purely formal, and would be of no importance except as an ear-mark by which to trace the history of a doctrine. It would aid our studies if we could say that wherever assigns are to get the benefit of a covenant as privies in estate with the covenantee, they must be mentioned in the covenant. Whether such a requirement does exist or not would be hard to tell from the decisions alone. It is commonly supposed not to. But the popular opinion on this trifling point springs from a failure to understand one of the great antinomies of the law, which must now be explained.
So far as we have gone, we have found that, wherever [381] one party steps into the rights or obligations of another, without in turn filling the situation of fact of which those rights or obligations are the legal consequences, the substitution is explained by a fictitious identification of the two individuals, which is derived from the analogy of the inheritance. This identification has been seen as it has been consciously worked out in the creation of the executor, whose entire status is governed by it. It has been seen still consciously applied in the narrower sphere of the heir. It has been found hidden at the root of the relation between buyer and seller in two cases at least, prescription and warranty, when the history of that relation is opened to a sufficient depth.
But although it would be more symmetrical if this analysis exhausted the subject, there is another class of cases in which the transfer of rights takes place upon a wholly different plan. In explaining the succession which is worked out between buyer and seller for the purpose of creating a prescriptive right, such as a right of way over neighboring land to the land bought and sold, it was shown that one who, instead of purchasing the land, had wrongfully possessed himself of it by force, would not be treated as a successor, and would get no benefit from the previous use of the way by his disseisee. But when the former possessor has already gained a right of way before he is turned out, a new principle comes into operation. If the owner of the land over which the way ran stopped it up, and was sued by the wrongful possessor, a defence on the ground that the disseisor had not succeeded to the former owner's rights would not prevail. The disseisor would be protected in his possession of the land against all but the rightful owner, and he would equally be protected [382] in his use of the way. This rule of law does not stand on a succession between the wrongful possessor and the owner, which is out of the question. Neither can it be defended on the same ground as the protection to the occupation of the land itself. That ground is that the law defends possession against everything except a better title. But, as has been said before, the common law does not recognize possession of a way. A man who has used a way ten years without title cannot sue even a stranger for stopping it. He was a trespasser at the beginning, he is nothing but a trespasser still. There must exist a right against the servient owner before there is a right against anybody else. At the same time it is clear that a way is no more capable of possession because somebody else has a right to it, than if no one had.
How comes it, then, that one who has neither title nor possession is so far favored? The answer is to be found, not in reasoning, but in a failure to reason. In the first Lecture of this course the thought with which we have to deal was shown in its theological stage, to borrow Comte's well-known phraseology, as where an axe was made the object of criminal process; and also in the metaphysical stage, where the language of personification alone survived, but survived to cause confusion of reasoning. The case put seems to be an illustration of the latter. The language of the law of easements was built up out of similes drawn from persons at a time when the noxoe deditio was still familiar; and then, as often happens, language reacted upon thought, so that conclusions were drawn as to the rights themselves from the terms in which they happened to be expressed. When one estate was said to be enslaved to another, or a right of way was said to be a quality or [383] incident of a neighboring piece of land, men's minds were not alert to see that these phrases were only so many personifying metaphors, which explained nothing unless the figure of speech was true.
Rogron deduced the negative nature of servitudes from the rule that the land owes the services, not the person,—Proedium non persona servit. For, said Rogron, the land alone being bound, it can only be bound passively. Austin called this an "absurd remark." /1/ But the jurists from whom we have inherited our law of easements were contented with no better reasoning. Papinian himself wrote that servitudes cannot be partially extinguished, because they are due from lands, not persons. /2/ Celsus thus decides the case which I took for my illustration: Even if possession of a dominant estate is acquired by forcibly ejecting the owner, the way will be retained; since the estate is possessed in such quality and condition as it is when taken. /3/ The commentator Godefroi tersely adds that there are two such conditions, slavery and freedom; and his antithesis is as old as Cicero. /4/ So, in another passage, Celsus asks, What else are the rights attaching to land but qualities of that land? /5/ So Justinian's Institutes speak of servitudes which inhere in buildings. /6/ So Paulus [384] speaks of such rights as being accessory to bodies. "And thus," adds Godefroi, "rights may belong to inanimate things." /1/ It easily followed from all this that a sale of the dominant estate carried existing easements, not because the buyer succeeded to the place of the seller, but because land is bound to land. /2/
All these figures import that land is capable of having rights, as Austin recognizes. Indeed, he even says that the land "is erected into a legal or fictitious person, and is styled 'praedium dominans.'" /3/ But if this means anything more than to explain what is implied by the Roman metaphors, it goes too far. The dominant estate was never "erected into a legal person," either by conscious fiction or as a result of primitive beliefs. /4/ It could not sue or be sued, like a ship in the admiralty. It is not supposed that its possessor could maintain an action for an interference with an easement before his time, as an heir could for an injury to property of the hereditas jacens. If land had even been systematically treated as capable of acquiring rights, the time of a disseisee might have been added to that Of the wrongful occupant, on the ground that the land, and not this or that individual, was gaining the easement, and that long association between the enjoyment of the privilege and the land was sufficient, which has never been the law.
All that can be said is, that the metaphors and similes employed naturally led to the rule which has prevailed, [385] and that, as this rule was just as good as any other, or at least was unobjectionable, it was drawn from the figures of speech without attracting attention, and before any one had seen that they were only figures, which proved nothing and justified no conclusion.
As easements were said to belong to the dominant estate, it followed that whoever possessed the land had a right of the same degree over what was incidental to it. If the true meaning had been that a way or other easement admits of possession, and is taken possession of with the land to which it runs, and that its enjoyment is protected on the same grounds as possession in other cases, the thought could have been understood. But that was not the meaning of the Roman law, and, as has been shown, it is not the doctrine of ours. We must take it that easements have become an incident of land by an unconscious and unreasoned assumption that a piece of land can have rights. It need not be said that this is absurd, although the rules of law which are based upon it are not so.
Absurd or not, the similes as well as the principles of the Roman law reappear in Bracton. He says, "The servitude by which land is subjected to [other] land, is made on the likeness of that by which man is made the slave of man." /1/ "For rights belong to a free tenement, as well as tangible things.... They may be called rights or liberties with regard to the tenements to which they are owed, but servitudes with regard to the tenements by which they are owed.... One estate is free, the other subjected to slavery." /2/ "[A servitude] may be called an arrangement by which house is subjected to house, farm to [386] farm, holding to holding." /1/ No passage has met my eye in which Bracton expressly decides that an easement goes with the dominant estate upon a disseisin, but what he says leaves little doubt that he followed the Roman law in this as in other things.
The writ against a disseisor was for "so much land and its appurtenances," /2/ which must mean that he who had the land even wrongfully had the appurtenances. So Bracton says an action is in rem "whether it is for the principal thing, or for a right which adheres to the thing,... as when one sues for a right of way, ... since rights of this sort are all incorporeal things, and are quasi possessed and reside in bodies, and cannot be got or kept without the bodies in which they inhere, nor in any way had without the bodies to which they belong." /3/ And again, "Since rights do not admit of delivery, but are transferred with the thing in which they are, that is, the bodily thing, he to whom they are transferred forthwith has a quasi possession of those rights as soon as he has the body in which they are." /4/
There is no doubt about the later law, as has been said at the outset.
We have thus traced two competing and mutually inconsistent principles into our law. On the one hand is the conception of succession or privity; on the other, that of rights inhering in a thing. Bracton seems to have vacillated a little from a feeling of the possibility of conflict between the two. The benefit of a warranty was confined to those who, by the act and consent of the [387] grantee, succeeded to his place. It did not pass to assigns unless assigns were mentioned. Bracton supposes grants of easements with or without mention of assigns, which looks as if he thought the difference might be material with regard to easements also. He further says, that if an easement be granted to A, his heirs and assigns, all such by the form of the grant are allowed the use in succession, and all others are wholly excluded. /1/ But he is not speaking of what the rights of a disseisor would be as against one not having a better title, and he immediately adds that they are rights over a corporeal object belonging to a corporeal object.
Although it may be doubted whether the mention of assigns was ever necessary to attach an easement to land, and although it is very certain that it did not remain so long, the difficulty referred to grew greater as time went on. It would have been easily disposed of if the only rights which could be annexed to land were easements, such as a right of way. It then might have been said that these were certain limited interests in land, less than ownership in extent, but like it in kind, and therefore properly transferred by the same means that ownership was. A right of way, it might have been argued, is not to be approached from the point of view of contract. It does not presuppose any promise on the part of the servient owner. His obligation, although more troublesome to him than to others, is the same as that of every one else. It is the purely negative duty not to obstruct or interfere with a right of property. /2/
[388] But although the test of rights going with the land may have been something of that nature, this will not help us to understand the cases without a good deal of explanation. For such rights might exist to active services which had to be performed by the person who held the servient estate. It strikes our ear strangely to hear a right to services from an individual called a right of property as distinguished from contract. Still this will be found to have been the way in which such rights were regarded. Bracton argues that it is no wrong to the lord for the tenant to alienate land held by free and perfect gift, on the ground that the land is bound and charged with the services into whose hands soever it may come. The lord is said to have a fee in the homage and services; and therefore no entry upon the land which does not disturb them injures him. /1/ It is the tenement which imposes the obligation of homage, /2/ and the same thing is true of villein and other feudal services. /3/
The law remained unchanged when feudal services took the form of rent. /4/ Even in our modern terms for years rent is still treated as something issuing out of the leased premises, so that to this day, although, if you hire a whole house and it burns down, you have to pay without abatement, because you have the land out of which the rent issues, yet if you only hire a suite of rooms and they are burned, you pay rent no longer, because you no longer have the tenement out of which it comes. /5/
[389] It is obvious that the foregoing reasoning leads to the conclusion that a disseisor of the tenant would be bound as much as the tenant himself, and this conclusion was adopted by the early law. The lord could require the services, /1/ or collect the rent /2/ of any one who had the land, because, as was said in language very like Bracton's, "the charge of the rent goes with the land." /3/
Then as to the right to the rent. Rent was treated in early law as a real right, of which a disseisin was possible, and for which a possessory action could be brought. If, as was very frequently the case, the leased land lay within a manor, the rent was parcel of the manor, /4/ so that there was some ground for saying that one who was seised of the manor, that is, who possessed the lands occupied by the lord of the manor, and was recognized by the tenants as lord, had the rents as incident thereto. Thus Brian, Chief Justice of England under Henry VII., says, "If I am disseised of a manor, and the tenants pay their rent to the disseisor, and then I re-enter, I shall not have the back rent of my tenants which they have paid to my disseisor, but the disseisor shall pay for all in trespass or assize." /5/ This opinion was evidently founded on the notion that the rent was attached to the chief land like an easement. Sic fit ut debeantur rei a re. /6/
Different principles might have applied when the rent was not parcel of a manor, and was only part of the reversion; that is, part of the landlord's fee or estate out of [390] which the lease was carved. If the lease and rent were merely internal divisions of that estate, the rent could not be claimed except by one who was privy to that estate. A disseisor would get a new and different fee, and would not have the estate of which the rent was part. And therefore it would seem that in such a case the tenant could refuse to pay him rent, and that payment to him would be no defence against the true owner. /1/ Nevertheless, if the tenant recognized him, the disseisor would be protected as against persons who could not show a better title. /2/ Furthermore, the rent was so far annexed to the land that whoever came by the reversion lawfully could collect it, including the superior lord in case of escheat. /3/ Yet escheat meant the extinction of the fee of which the lease and rent were parts, and although Bracton regarded the lord as coming in under the tenant's title pro herede, in privity, it was soon correctly settled that he did not, but came in paramount. This instance, therefore, comes very near that of a disseisor.
Services and rent, then, were, and to some extent are still, dealt with by the law from the point of view of property. They were things which could be owned and transferred like other property. They could be possessed even by wrong, and possessory remedies were given for them.
No such notion was applied to warranties, or to any right which was regarded wholly from the point of view of contract. And when we turn to the history of those remedies for rent which sounded in contract, we find that they were so regarded. The actions of debt and covenant [391] could not be maintained without privity. In the ninth year of Henry VI. /1/ it was doubted whether an heir having the reversion by descent could have debt, and it was held that a grantee of the reversion, although he had the rent, could not have that remedy for it. A few years later, it was decided that the heir could maintain debt, /2/ and in Henry VII.'s reign the remedy was extended to the devisee, /3/ who, as has been remarked above, seemed more akin to the heir than a grantee, and was more easily likened to him. It was then logically necessary to give assigns the same action, and this followed. /4/ The privity of contract followed the estate, so that the assignee of the reversion could sue the person then holding the term. /5/ On like grounds he was afterwards allowed to maintain covenant. /6/ But these actions have never lain for or against persons not privy in estate with the lessor and lessee respectively, because privity to the contract could never be worked out without succession to the title. /7/
However, all these niceties had no application to the old freehold rents of the feudal period, because the contractual remedies did not apply to them until the time of Queen Anne. /8/ The freehold rent was just as much real estate as an acre of land, and it was sued for by the similar remedy of an assize, asking to be put back into possession.
[392] The allowance of contractual remedies shows that rent and feudal services of that nature, although dealt with as things capable of possession, and looked at generally from the point of view of property rather than of contract, yet approach much nearer to the nature of the latter than a mere duty not to interfere with a way. Other cases come nearer still. The sphere of prescription and custom in imposing active duties is large in early law. Sometimes the duty is incident to the ownership of certain land; sometimes the right is, and sometimes both are, as in the case of an easement. When the service was for the benefit of other land, the fact that the burden, in popular language, fell upon one parcel, was of itself a reason for the benefit attaching to the other.
Instances of different kinds are these. A parson might be bound by custom to keep a bull and a boar for the use of his parish. /1/ A right could be attached to a manor by prescription to have a convent sing in the manor chapel. /2/ A right might be gained by like means to have certain land fenced by the owner of the neighboring lot. /3/ Now, it may readily be conceded that even rights like the last two, when attached to land, were looked at as property, and were spoken of as the subject of grant. /4/ It may be conceded that, in many cases where the statement sounds strange to modern ears, the obligation was regarded as failing on the land alone, and not on the person of the [393] tenant. And it may be conjectured that this view arose naturally and reasonably from there having been originally no remedy to compel performance of such services, except a distress executed on the servient land. /1/ But any conjectured distinction between obligations for which the primitive remedy was distress alone, and others, if it ever existed, must soon have faded from view; and the line between those rights which can be deemed rights of property, and those which are mere contracts, is hard to see, after the last examples. A covenant to repair is commonly supposed to be a pure matter of contract. What is the difference between a duty to repair, and a duty to fence? The difficulty remains almost as great as ever of finding the dividing line between the competing principles of transfer,—succession on the one side, and possession of dominant land on the other. If a right in the nature of an easement could be attached to land by prescription, it could equally be attached by grant. If it went with the land in one case, even into the hands of a disseisor, it must have gone with it in the other. No satisfactory distinction could be based on the mode of acquisition, /2/ nor was any attempted. As the right was not confined to assigns, there was no need of mentioning assigns. /3/ In modern times, at least, if not in early law, such rights can be created by covenant as well [394] as by grant. /1/ And, on the other hand, it is ancient law that an action of covenant may be maintained upon an instrument of grant. /2/ The result of all this was that not only a right created by covenant, but the action of covenant itself, might in such cases go to assigns, although not mentioned, at a time when such mention was essential to give them the benefit of a warranty. Logically, these premises led one step farther, and not only assigns not named, but disseisors, should have been allowed to maintain their action on the contract, as they had the right arising out of it. Indeed, if the plaintiff had a right which when obtained by grant would have entitled him to covenant, it was open to argument that he should be allowed the same action when he had the right by prescription, although, as has been seen in the case of rent, it did not follow in practice from a man's having a right that he had the contractual remedies for it. /3/ Covenant required a specialty, but prescription was said to be a sufficiently good specialty. /4/ Where, then, was the line to be drawn between covenants that devolved only to successors, and those that went with the land?
The difficulty becomes more striking upon further examination of the early law. For side by side with the personal warranty which has been discussed hitherto, there was another warranty which has not yet been mentioned [395] by which particular land alone was bound. /1/ The personal warranty bound only the warrantor and his heirs. As was said in a case of the time of Edward I., "no one can bind assigns to warranty, since warranty always extends to heirs who claim by succession and not by assignment." /2/ But when particular land was bound, the warranty went with it, even into the hands of the King, because, as Bracton says, the thing goes with its burden to every one. /3/ Fleta writes that every possessor will be held. /4/ There cannot be a doubt that a disseisor would have been bound equally with one whose possession was lawful.
We are now ready for a case /5/ decided under Edward III., which has been discussed from the time of Fitzherbert and Coke down to Lord St. Leonards and Mr. Rawle, which is still law, and is said to remain still unexplained. /6/ It shows the judges hesitating between the two conceptions to which this Lecture has been devoted. If they are understood, I think the explanation will be clear.
Pakenham brought covenant as heir of the covenantee against a prior, for breach of a covenant made by the defendant's predecessor with the plaintiff's great-grandfather, that the prior and convent should sing every week in a chapel in his manor, for him and his servants. The defendant first pleaded that the plaintiff and his servants were not dwelling within the manor; but, not daring to [396] rest his case on that, he pleaded that the plaintiff was not heir, but that his elder brother was. The plaintiff replied that he was tenant of the manor, and that his great-grandfather enfeoffed a stranger, who enfeoffed the plaintiff and his wife; and that thus the plaintiff was tenant of the manor by purchase, and privy to the ancestor; and also that the services had been rendered for a time whereof the memory was not.
It is evident from these pleadings that assigns were not mentioned in the covenant, and so it has always been taken. /1/ It also appears that the plaintiff was trying to stand on two grounds; first, privity, as descendant and assign of the covenantee; second, that the service was attached to the manor by covenant or by prescription, and that he could maintain covenant as tenant of the manor, from whichever source the duty arose.
Finchden, J. puts the case of parceners making partition, and one covenanting with the other to acquit of suit. A purchaser has the advantage of the covenant. Belknap, for the defendants, agrees, but distinguishes. In that case the acquittance falls on the land, and not on the person. /2/ (That is to say, such obligations follow the analogy of easements, and, as the burden falls on the quasi servient estate, the benefit goes with the dominant land to assigns, whether mentioned or not, and they are not considered from the point of view of contract at all. Warranty, on the other hand, is a contract pure and simple, and lies in the blood,—falls on the person, not on the land. /3/)
Finchden: a fortiori in this case; for there the action [397] was maintained because the plaintiff was tenant of the land from which the suit was due, and here he is tenant of the manor where the chapel is.
Wichingham, J.: If the king grants warren to another who is tenant of the manor, he shall have warren, &c.; but the warren will not pass by the grant [of the manor], because the warren is not appendant to the manor. No more does it seem the services are here appendant to the manor.
Thorpe, C. J., to Belknap: "There are some covenants on which no one shall have an action, but the party to the covenant, or his heir, and some covenants have inheritance in the land, so that whoever has the land by alienation, or in other manner, shall have action of covenant; [or, as it is stated in Fitzherbert's Abridgment, /1/ the inhabitants of the land as well as every one who has the land, shall have the covenant;] and when you say he is not heir, he is privy of blood, and may be heir: /2/ and also he is tenant of the land, and it is a thing which is annexed to the chapel, which is in the manor, and so annexed to the manor, and so he has said that the services have been rendered for all time whereof there is memory, whence it is right this action should be maintained." Belknap denied that the plaintiff counted on such a prescription; but Thorpe said he did, and we bear record of it, and the case was adjourned. /3/
It will be seen that the discussion followed the lines marked out by the pleading. One judge thought that [398] the plaintiff was entitled to recover as tenant of the manor. The other puisne doubted, but agreed that the case must be discussed on the analogy of easements. The Chief Justice, after suggesting the possibility of sufficient privity on the ground that the plaintiff was privy in blood and might be heir, turns to the other argument as more promising, and evidently founds his opinion upon it. /1/ It would almost seem that he considered a prescriptive right enough to support the action, and it is pretty clear that he thought that a disseisor would have had the same rights as the plaintiff.
In the reign of Henry IV., another case /2/ arose upon a covenant very like the last. But this time the facts were reversed. The plaintiff counted as heir, but did not allege that he was tenant of the manor. The defendant, not denying the plaintiff's descent, pleaded in substance that he was not tenant of the manor in his own right. The question raised by the pleadings, therefore, was whether the heir of the covenantee could sue without being tenant of the manor. If the covenant was to be approached from the side of contract, the heir was party to it as representing the covenantee. If, on the other hand, it was treated as amounting to the grant of a service like an easement, it would naturally go with the manor if made to the lord of the manor. It seems to have been thought that such a covenant might go either way, according as it was made to the tenant of the manor or to a stranger. Markham, one of the judges, says: "In a writ of covenant one must be privy to the covenant if he would have a writ of covenant or aid by the covenant. But, peradventure, if the covenant [399] had been made with the lord of the manor, who had inheritance in the manor, ou issint come determination poit estre fait, it would be otherwise," which was admitted. /1/ It was assumed that the covenant was not so made as to attach to the manor, and the court, observing that the service was rather spiritual than temporal, were inclined to think that the heir could sue. /2/ The defendant accordingly over and set up a release. It will be seen how fully this agrees with the former case.
The distinction taken by Markham is stated very clearly in a reported by Lord Coke. In the argument of Chudleigh's Case the line is drawn thus: "Always, the warranty as to voucher requires privity of estate to which it was annexed," (i.e. succession to the original covenantee,) "and the same law of a use.... But of things annexed to land, it is otherwise, as of commons, advowsons, and the like appendants or appurtenances.... So a disseisor, abator, intruder, or the lord by escheat, &c., shall have them as things annexed to the land. So note a diversity between a use or warranty, and the like things annexed to the estate of the land in privity, and commons, advowsons, and other hereditaments annexed to the possession of the land." /3/ And this, it seems to me, is the nearest approach which has ever been made to the truth.
Coke, in his Commentary on Littleton (385 a), takes a distinction between a warranty, which binds the party to yield lands in recompense, and a covenant annexed to the land, which is to yield but damages. If Lord Coke had [400] meant to distinguish between warranties and all covenants which in our loose modern sense are said to run with the land, this statement would be less satisfactory than the preceding.
A warranty was a covenant which sometimes yielded but damages, and a covenant in the old law sometimes yielded land. In looking at the early cases we are reminded of the still earlier German procedure, in which it did not matter whether the plaintiff's claim was founded on a right of property in a thing, or simply on a contract for it. /1/ Covenant was brought for a freehold under Edward I., /2/ and under Edward III. it seems that a mill could be abated by the same action, when maintained contrary to an easement created by covenant. /3/ But Lord Coke did not mean to lay down any sweeping doctrine, for his conclusion is, that "a covenant is in many cases extended further than the warrantie." Furthermore, this statement, as Lord Coke meant it, is perfectly consistent with the other and more important distinction between warranties and rights in the nature of easements or covenants creating such rights. For Lord Coke's examples are confined to covenants of the latter sort, being in fact only the cases just stated from the Year Books.
Later writers, however, have wholly forgotten the distinction in question, and accordingly it has failed to settle the disputed line between conflicting principles. Covenants which started from the analogy of warranties, and others to which was applied the language and reasoning of easements, have been confounded together under the title of [401] covenants running with the land. The phrase "running with the land" is only appropriate to covenants which pass like easements. But we can easily see how it came to be used more loosely.
It has already been shown that covenants for title, like warranties, went only to successors of the original covenantee. The technical expression for the rule was that they were annexed to the estate in privity. Nothing was easier than to overlook the technical use of the word "estate," and to say that such covenants went with the land. This was done, and forthwith all distinctions became doubtful. It probably had been necessary to mention assigns in covenants for title, as it certainly had been to give them the benefit of the ancient warranty; /1/ for this seems to have been the formal mark of those covenants which passed only to privies. But it was not necessary to mention assigns in order to attach easements and the like to land. Why should it be necessary for one covenant running with the land more than another? and if necessary for one, why not for all? /2/ The necessity of such mention in modern times has been supposed to be governed by a fanciful rule of Lord Coke's. /3/ On the other hand, the question is raised whether covenants which should pass irrespective of privity are not governed by the same rule which governs warranties.
These questions have not lost their importance. Covenants for title are in every deed, and other covenants are [402] only less common, which, it remains to show, belong to the other class.
Chief among these is the covenant to repair. It has already been observed that an easement of fencing may be annexed to land, and it was then asked what was the difference in kind between a right to have another person build such structures, and a right to have him repair structures already built. Evidence is not wanting to show that the likeness was perceived. Only, as such covenants are rarely, if ever, made, except in leases, there is always privity to the original parties. For the lease could not, and the reversion would not be likely to, go by disseisin.
The Dean of Windsor's Case decides that such a covenant binds an assignee of the term, although not named. It is reported in two books of the highest authority, one of the reporters being Lord Coke, the other Croke, who was also a judge. Croke gives the reason thus: "For a covenant which runs and rests with the land lies for or against the assignee at the common law, quia transit terra cum onere, although the assignees be not named in the covenant." /1/ This is the reason which governed easements, and the very phrase which was used to account for all possessors being bound by a covenant binding a parcel of land to warranty. Coke says, "For such covenant which extends to the support of the thing demised is quodammodo appurtenant to it, and goes with it." Again the language of easements. And to make this plainer, if need be, it is added, "If a man grants to one estovers to repair his house, it is appurtenant to his house." Estovers for [403] repair went with the land, like other rights of common, /1/ which, as Lord Coke has told us, passed even to disseisors.
In the next reign the converse proposition was decided, that an assignee of the reversion was entitled in like manner to the benefit of the covenant, because "it is a covenant which runs with the land." /2/ The same law was applied, with still clearer reason, to a covenant to leave fifteen acres unploughed for pasture, which was held to bind an assignee not named, /3/ and, it would seem, to a covenant to keep land properly manured. /4/
If the analogy which led to this class of decisions were followed out, a disseisor could sue or be sued upon such covenants, if the other facts were of such a kind as to raise the question. There is nothing but the novelty of the proposition which need prevent its being accepted. It has been mentioned above, that words of covenant may annex an easement to land, and that words of grant may import a covenant. It would be rather narrow to give a disseisor one remedy, and deny him another, where the right was one, and the same words made both the grant and the covenant. /5/
The language commonly used, however, throws doubt and darkness over this and every other question connected with the subject. It is a consequence, already referred to, of confounding covenants for title, and the class last discussed, [404] under the name of covenants running with the land. According to the general opinion there must be a privity of estate between the covenantor and covenantee in the latter class of cases in order to bind the assigns of the covenantor. Some have supposed this privity to be tenure; some, an interest of the covenantee in the land of the covenantor; and so on. /1/ The first notion is false, the second misleading, and the proposition to which they are applied is unfounded. Privity of estate, as used in connection with covenants at common law, does not mean tenure or easement; it means succession to a title. /2/ It is never necessary between covenantor and covenantee, or any other persons, except between the present owner and the original covenantee. And on principle it is only necessary between them in those cases—such as warranties, and probably covenants for title—where, the covenants being regarded wholly from the side of contract, the benefit goes by way of succession, and not with the land.
If now it should be again asked, at the end of this long discussion, where the line is to be drawn between these two classes of covenants, the answer is necessarily vague in view of the authorities. The following propositions may be of some service.
*A. With regard to covenants which go with the land:—
*(1.) Where either by tradition or good sense the burden of the obligation would be said, elliptically, to fall on the land of the covenantor, the creation of such a burden is in theory a grant or transfer of a partial interest in [405] that land to the covenantee. As the right of property so created can be asserted against every possessor of the land, it would not be extravagant or absurd to allow it to be asserted by the action of covenant.
*(2.) Where such a right is granted to the owner of a neighboring piece of land for the benefit of that land, the right will be attached to the land, and go with it into all hands. The action of covenant would be allowed to assigns not named, and it would not be absurd to give it to disseisors.
*(3.) There is one case of a service, the burden of which does not fall upon land even in theory, but the benefit of which might go at common law with land which it benefited. This is the case of singing and the like by a convent. It will be observed that the service, although not falling on land, is to be performed by a corporation permanently seated in the neighborhood. Similar cases are not likely to arise now.
*B. With regard to covenants which go only with the estate in the land:—
In general the benefit of covenants which cannot be likened to grants, and the burden of which does not fall on land, is confined to the covenantee and those who sustain his persona, namely, his executor or heir. In certain cases, of which the original and type was the ancient warranty, and of which the modern covenants for title are present examples, the sphere of succession was enlarged by the mention of assigns, and assigns are still allowed to represent the original covenantee for the purposes of that contract. But it is only by way of succession that any other person than the party to the contract can sue upon it. Hence the plaintiff must always be privy in estate with the covenantee.
[406] C. It is impossible, however, to tell by general reasoning what rights will be held in English law to belong to the former class, or where the line will be drawn between the two. The authorities must be consulted as an arbitrary fact. Although it might sometimes seem that the test of the first was whether the service was of a nature capable of grant, so that if it rested purely in covenant it would not follow the land, /1/ yet if this test were accepted, it has already been shown that, apart from tradition, some services which do follow the land could only be matter of covenant. The grant of light and air, a well- established easement, is called a covenant not to build on the servient land to the injury of the light, by Baron Parke. /2/ And although this might be doubted, /3/ it has been seen that at least one well-established easement, that of fencing, cannot be considered as a right granted out of the servient land with any more propriety than a hundred other services which would be only matter of contract if the law allowed them to be annexed to land in like manner. The duty to repair exists only by way of covenant, yet the reasoning of the leading cases is drawn from the law of easement. On the other hand, a covenant by a lessee to build a wall upon the leased premises was held, in Spencer's Case, not to bind assigns unless mentioned; /4/ but Lord Coke says that it would have bound them if it had purported to. The analogy of warranty makes its appearance, and throws a doubt on the fundamental principle of the case. We can only say that the application [407] of the law is limited by custom, and by the rule that new and unusual burdens cannot be imposed on land.
The general object of this Lecture is to discover the theory on which a man is allowed to enjoy a special right when the facts out of which the right arises are not true of him. The transfer of easements presented itself as one case to be explained, and that has now been analyzed, and its influence on the law has been traced. But the principle of such transfers is clearly anomalous, and does not affect the general doctrine of the law. The general doctrine is that which has been seen exemplified in prescription, warranty, and such covenants as followed the analogy mentioned Another illustration which has not yet been is to be found in the law of uses.
In old times a use was a chose in action,—that is, was considered very nearly from the point of view of contract, and it had a similar history to that which has been traced in other cases. At first it was doubted whether proof of such a secret trust ought to be allowed, even as against the heir. /1/ It was allowed, however, in the end, /2/ and then the principle of succession was extended to the assign. But it never went further. Only those who were privies in estate with the original feoffee to uses, were bound by the use. A disseisor was no more bound by the confidence reposed in his disseisee, than he was entitled to vouch his disseisee's warrantor. In the time of Henry VIII. it was said that "where a use shall be, it is requisite that there be two things, sc. confidence, and privity:... as I say, if there be not privity or confidence, [408] then there can be no use: and hence if the feoffees make a feoffment to one who has notice of the use, now the law will adjudge him seised to the first use, since there is sufficient privity between the first feoffor and him, for if he [i.e. the first feoflor] had warranted he [the last feoffee] should vouch as assign, which proves privity; and he is in in the per by the feoffees; but where one comes into the land in the post, as the lord by escheat or the disseisor, then the use is altered and changed, because privity is wanting." /1/
To this day it is said that a trust is annexed in privity to the person and to the estate /2/ (which means to the persona). It is not regarded as issuing out of the land like a rent, so that while a rent binds every one who has the land, no matter how, a disseisor is not bound by the trust. /3/ The case of the lord taking by escheat has been doubted, /4/ and it will be remembered that there is a difference between Bracton and later authors as to whether he comes in as quasi heres or as a stranger.
Then as to the benefit of the use. We are told that the right to sue the subpoena descended indeed to the heir, on the ground of heres eadem persona cum antecessore, but that it was not assets. /5/ The cestui que use was given power to sell by an early statute. /6/ But with regard to trusts, Lord Coke tells us that in the reign of Queen Elizabeth [409] all the judges in England held that a trust could not be assigned, "because it was a matter in privity between them, and was in the nature of a chose in action." /1/ Uses and trusts were both devisable, however, from an early day, /2/ and now trusts are as alienable as any form of property.
The history of early law everywhere shows that the difficulty of transferring a mere right was greatly felt when the situation of fact from which it sprung could not also be transferred. Analysis shows that the difficulty is real. The fiction which made such a transfer conceivable has now been explained, and its history has been followed until it has been seen to become a general mode of thought. It is now a matter of course that the buyer stands in the shoes of the seller, or, in the language of an old law-book, /3/ that "the assign is in a manner quasi successor to his assignor." Whatever peculiarities of our law rest on that assumption may now be understood.
FOOTNOTES
3 (return)
3/1 E.g. Ine, c. 74; Alfred, c. 42; Ethelred, IV. 4, Section 1. 3/2 Bract., fol. 144, 145; Fleta, I. c. 40, 41; Co. Lit. 126b; Hawkins, P.C., Bk. 2, ch. 23, Section 15.
3/3 Lib. I. c. 2, ad fin.
3 /4 Bract., fol. 144a, "assulto praemeditato."
4 (return)
4/1 Fol. 155; cf. 103b. 4/2 Y.B. 6 Ed. IV. 7, pl. 18.
4/3 Ibid., and 21 H. VII. 27, pl. 5.
4/4 D. 47. 9. 9.
7 (return)
7/1 xxi. 28. 7/2 [theta], ix. Jowett's Tr., Bk. IX. p. 437; Bohn's Tr., pp. 378, 379.
7/3 [theta], xv., Jowett, 449; Bohn, 397.
8 (return)
8/1 [iota alpha], xiv., Jowett, 509; Bohn, 495. 8/2 [theta], xii., Jowett, 443, 444; Bohn, 388.
8/3 [Greek words]. 244, 245.
8/4 l. 28 (11).
8/5 Solon.
8/6 "Si quadrupes pauperiem fecisse dicetur actio ex lege duodecim tabularum descendit; quae lex voluit, aut dari [id] quod nocuit, id ist, id animal, quod noxiam commisit; aut estimationem noxiae offerre." D. 9. 1. 1, pr.; Just. Inst. 4. 9; XII Tab., VIII. 6.
8/7 Gaii Inst. IV. Sections 75, 76; D. 9. 4. 2, Section 1. "Si servus furtum faxit noxiam ve noxit." XII Tab., XII.2. Cf. Just. Inst. 4.8, Section 7.
9 (return)
9/1 D. 39. 2. 7, Sections 1, 2; Gaii Inst. IV. Section 75. 9/2 "Noxa caput sequitur." D. 9. 1. 1, Section 12; Inst. 4.8, Section 5.
9/3 "Quia desinit dominus esse ubi fera evasit." D. 9. 1. 1, Section 10; Inst. 4. 9, pr. Compare May v. Burdett, 9 Q.B.101, 113.
10 (return)
10/1 D. 19. 5. 14, Section 3; Plin. Nat. Hist., XVIII. 3. 10/2 "In lege antiqua si servus sciente domino furtum fecit, vel aliam noxiam commisit, servi nomine actio est noxalis, nec dominus suo nomine tenetur." D. 9. 4. 2.
10/3 Gaius, Inst. IV. Section 77, says that a noxal action may change to a direct, and conversely, a direct action to a noxal. If a paterfamilias commits a tort, and then is adopted or becomes a slave, a noxal action now lies against his master in place of the direct one against himself as the wrong-doer. Just. Inst. 4. 8, Section 5.
11 (return)
11/1 LL. Alfred, c. 13; 1 Tylor, Primitive Culture, Am. ed., p. 285 et seq.; Bain, Mental and Moral Science, Bk. III. ch. 8, p. 261. 11/2 Florus, Epitome, II. 18. Cf. Livy, IX 1, 8, VIII. 39; Zonaras, VII. 26, ed. Niebuhr, vol. 43, pp. 98, 99.
12 (return)
12/1 Gaii Inst. IV. Section 81. I give the reading of Huschke: "Licere enim etiam, si fato is fuerit mortuus, mortuum dare; nam quamquam diximus, non etiam permissum reis esse, et mortuos homines dedere, tamen et si quis eum dederit, qui fato suo vita excesserit, aeque liberatur." Ulpian's statement, in D. 9. 1. 1, Section 13, that the action is gone if the animal dies ante litem contestatam, is directed only to the point that liability is founded on possession of the thing. 12/2 "Bello contra foedus suscepto."
12/3 Livy, VIII. 39: "Vir...haud dubie proximarum induciarum ruptor. De eo coacti referre praetores decretum fecerunt 'Ut Brutulus Papius Romanis dederetur."...Fetiales Romam, ut censuerunt, missi, et corpus Brutuli exanime: ipse morte voluntaria ignominiae se ac supplicio subtraxit. Placuit cum corpore bona quoque ejus dedi." Cf. Zonaras, VII. 26, ed. Niebuhr, vol. 43, p. 97: [Greek characters]. See further Livy, V. 36, "postulatumque ut pro jure gentium violato Fabii dederentur," and Ib. I. 32.
13 (return)
13/1 Livy, IX. 5, 8, 9, 10. "Nam quod deditione nostra negant exsolvi religione populum, id istos magis ne dedantur, quam quia ita se res habeat, dicere, quis adeo juris fetialium expers est, qui ignoret?" The formula of surrender was as follows: "Quandoque hisce homines injussu populi Romani Quiritium foedus ictum iri spoponderunt, atque ob eam rem noxam nocuerunt; ob eam rem, quo populus Romanus scelere impio sit solutus, hosce homines vobis dedo." Cf. Zonaras, VII. 26, ed. Niebuhr, vol. 43, pp. 98, 99. 13/2 De Orator. I. 40, and elsewhere. It is to be noticed that Florus, in his account, says deditione Mancini expiavit. Epitome, II. 18. It has already been observed that the cases mentioned by Livy seem to suggest that the object of the surrender was expiation, as much as they do that it was satisfaction of a contract. Zonaras says, Postumius and Calvinus [Greek characters]. (VII. 26, ed. Niebuhr, Vol. 43, pp. 98, 99.) Cf. ib. p. 97. Compare Serv. ad Virg. Eclog. IV. 43: "In legibus Numae cautum est, ut si quis imprudens occidisset hominem pro capite occisi et natis [agnatis? Huschke] ejus in concione offerret arietem." Id. Geor. III. 387, and Festus, Subici, Subigere. But cf. Wordsworth's Fragments and Specimens of Early Latin, note to XII Tab., XII. 2, p. 538.
14 (return)
14/1 D. 9. 4. 2 14/2 2 Tissot, Droit Penal, 615; 1 Ihering, Geist d. Roem. R., Section 14; 4 id. Section 63.
14/3 Aul. Gell. Noctes Attici, 20. 1; Quintil. Inst. Orat. 3. 6. 84; Tertull. Apol., c. 4.
14/4 Cf. Varro, De Lingua Latina, VI.: "Liber, qui suas operas in servitute pro pecunia, quam debeat, dum solveret Nexus vocatur."
15 (return)
15/1 D. 9. 1. 1, Section 9 But cf. 1 Hale, P.C. 420. 15/2 D. 9. 4. 2, Section 1.
15/3 D. 9. 1. 1, Sections 4, 5.
16 (return)
16/1 D. 4. 9. 1, Section 1; ib. 7, Section 4. 16/2 Gaius in D. 44. 7. 5, Section 6; Just. Inst. 4. 5, Section 3.
16/3 D. 4. 9. 7, pr.
17 (return)
17/1 See Austin, Jurisp. (3d ed.) 513; Doctor and Student, Dial. 2, ch. 42. 17/2 Cf. L. Burgund. XVIII.; L. Rip. XLVI. (al. 48).
17/3 See the word Lege, Merkel, Lex Salica, p. 103. Cf. Wilda, Strafrecht der Germanen, 660, n. 1. See further Lex Salica, XL.; Pactus pro tenore pacis Child. et Chloth., c. 5; Decretio Chlotharii, c. 5; Edictus Hilperichi, cc. 5, 7; and the observations of Sohm in his treatise on the Procedure of the Salic Law, Sections 20, 22, 27, French Tr. (Thevenin), pp. 83 n., 93, 94, 101-103, 130.
17/4 Wilda, Strafrecht, 590.
18 (return)
18/1 Cf. Wilda, Strafrecht, 660, n. 1; Merkel, Lex Salica, Gloss. Lege, p. 103. Lex Saxon. XI. Section 3: "Si servus perpetrato facinore fugerit, ita ut adomino ulterius inveniri non possit, nihil solvat." Cf. id. II. Section 5. Capp. Rip. c. 5: "Nemini liceat servum suum, propter damnum ab illo cuibet inlatum, dimittere; sed justa qualitatem damni dominus pro illo respondeat vel eum in compositione aut ad poenam petitori offeret. Si autem servus perpetrato scelere fugerit, ita ut a domino paenitus inveniri non possit, sacramento se dominus ejus excusare studeat, quod nec suae voluntatis nec conscientia fuisset, quod servus ejus tale facinus commisit." 18/2 L. Saxon. XI. Section 1.
18/3 Lex Angl. et Wer. XVI.: "Omne damnum quod servus fecerit dominus emendet."
19 (return)
19/1 C. 3; 1 Thorpe, Anc. Laws, pp. 27, 29. 19/2 C. 74; 1 Thorpe, p. 149; cf. p. 118, n. a. See LL. Hen. I., LXX. Section 5.
19/3 C. 24; 1 Thorpe, p. 79. Cf. Ine, c. 42; 1 Thorpe, p. 129.
19/4 C. 13; 1 Thorpe, p. 71.
19/5 1 Tylor, Primitive Culture, Am. ed., p. 286.
20 (return)
20/1 Cf. Record in Molloy, Book 2, ch. 3, Section 16, 24 Ed. III.: "Visum fuit curiae, quod unusquisque magister navis tenetur respondere de quacunque transgressione per servientes suos in navi sua facta." The Laws of Oleron were relied on in this case. Cf. Stat. of the Staple, Ed. III., Stat. 2, c. 19. Later, the influence of the Roman law is clear. 20/2 Quon. Attach., c. 48, pl. 10 et seq. Cf. The Forme and Maner of Baron Courts, c. 62 et seq.
21 (return)
21/1 Forme and Maner of Baron Courts, c. 63. 21/2 C. 64. This substantially follows the Quoniam Attachiamenta, c. 48, pl. 13, but is a little clearer. Contra, Fitzh. Abr. Corone, Pl. 389, 8 Ed. II.
22 (return)
22/1 Fitzh. Abr. Barre, pl. 290. 22/2 Mitchil v. Alestree, 1 Vent. 295; S.C. 2 Lev. 172; S.C. 3 Keb. 650. Cf. May b. Burdett, 9 Q.B.101, 113.
22/3 May v. Burdett, 9 Q.B.101.
22/4 Mason v. Keeling, 12 Mod. 332, 335; S.C. 1 Ld. Raym. 606, 608.
23 (return)
23/1 Williams, J. in Cox v. Burbidge, 13 C.B. N.S. 430, 438. Cf. Willes, J. in Read v. Edwards, 17 C.B. N.S. 245, 261. 23/2 Mason v. Keeling, 1 Ld. Raym. 606, 608.
23/3 In the laws of Ine, c. 42 (1 Thorpe, Anc. Laws, 129), personal liability seems to be imposed where there is a failure to fence. But if an animal breaks hedges the only remedy mentioned is to kill it, the owner to have the skin and flesh, and forfeit the rest. The defendant was held "because it was found that this was for default of guarding them,...for default of good guard," in 27 Ass., pl. 56, fol. 141, A.D. 1353 or 1354. It is much later that the reason is stated in the absolute form, "because I am bound by law to keep my beasts without doing wrong to any one." Mich. 12 Henry VII., Keilway, 3b, pl. 7. See, further, the distinctions as to a horse killing a man in Regiam Majestatem, IV, c. 24.
24 (return)
24/1 Fol. 128. 24/2 Cf. 1 Britton (Nich.), 6a, b, 16 (top paging 15, 39); Bract., fol. 136b; LL. Alfred, c. 13 (1 Thorpe, Anc. Laws, p. 71); Lex Saxon., Tit. XIII.; Leg Alamann., Tit. CIII. 24.
25 (return)
25/1 Fleta, I. 26, Section 10; Fitzh. Abr. Corone, pl. 416. See generally Staundforde, P.C., I. c. 2, fol. 20 et seq.; 1 Hale, P.C. 410 et seq. 25/2 Doctor and Student, Dial. 2, c. 51.
25/3 Plowd. 260.
25/4 Jacob, Law Dict. Deodand.
25/5 Y.B. 30 & 31 Ed. I., pp. 524, 525; cf. Bract., fol. 136b.
26 (return)
26/1 Fitzh. Abr. Corone, pl. 403. 26/2 Bract. 122; 1 Britton (Nich.), top p. 16; Fleta, Ic. 25, Section 9, fol. 37.
26/3 1 Hale, P.C. 423.
26/4 1 Rot. Parl. 372; 2 Rot. Parl. 345, 372a, b; 3 Rot. Parl. 94a, 120a, 121; 4 Rot. Parl. 12a, b, 492b, 493. But see 1 Hale, P.C. 423.
26/5 1 Black Book of the Admiralty, 242.
27 (return)
27/1 Cf. Ticonderoga, Swabey, 215, 217. 27/2 China, 7 Wall. 53.
28 (return)
28/1 Doctor and Student, Dial. 2, c. 51. 28/2 1 Roll. Abr. 530 (C) 1.
29 (return)
29/1 3 Black Book of Adm. 103. 29/2 Malek Adhel, 2 How. 210, 234.
30 (return)
30/1 3 Kent, 218; Customs of the Sea, cap. 27, 141, 182, in 3 Black Book of the Admiralty, 103, 243, 245.
31 (return)
31/1 3 Kent's Comm. 188. 31/2 Clay v. Snelgrave, 1 Ld. Raym. 576, 577; S.C. 1 Salk. 33. Cf. Molloy, p. 355, Book II. ch. 3, Section 8.
31/3 "Ans perdront lurs loers quant la nef est perdue." 2 Black Book, 213. This is from the Judgments of the Sea, which, according to the editor (II., pp. xliv., xlvii.), is the most ancient extant source of modern maritime law except the decisions of Trani. So Molloy, Book II. ch. 3, Section 7, p. 354: "If the ship perishes at sea they lose their wages." So 1 Siderfin, 236, pl. 2.
32 (return)
32/1 3 Black Book, pp. lix., lxxiv. 32/2 3 Black Book, 263. It should be added, however, that it is laid down in the same book that, if the vessel is detained in port by the local authorities, the master is not bound to give the mariners wages, "for he has earned no freight."
32/3 Lipson v. Harrison, 2 Weekly Rep. 10. Cf. Louisa Jane, 2 Lowell, 295.
32/4 3 Kent's Comm. (12th ed.), 218; ib. 138, n. 1.
32/5 3 Kent, 218.
32/6 Justin v. Ballam, 1 Salk. 34; S.C. 2 Ld. Raym. 805.
33 (return)
33/1 D. 20. 4. 5 & 6; cf. Livy, XXX. 38. 33/2 Pardessus, Droit. Comm., n. 961.
33/3 3 Keb. 112, 114, citing 1 Roll. Abr. 530.
34 (return)
34/1 Godbolt, 260. 34/2 3 Colquhoun, Roman Civil Law, Section 2196.
35 (return)
35/1 Lex Salica (Merkel), LXXVII.; Ed. Hilperich., Section 5.
36 (return)
36/1 See Lecture III., ad fin.
39 (return)
39/1 Cf. 2 Hawk. P.C. 303 et seq.; 27 Ass. 25.
40 (return)
40/1 2 Palgrave, Commonwealth, cxxx., cxxxi.
41 (return)
41/1 Butler, Sermons, VIII. Bentham, Theory of Legislation (Principles of Penal Code, Part 2, ch. 16), Hildreth's tr., p. 309. 41/2 General View of the Criminal Law of England, p. 99.
43 (return)
43/1 Wharton, Crim. Law, (8th ed.) Section 8, n. 1. 43/2 Ibid., Section 7.
43/3 Even the law recognizes that this is a sacrifice. Commonwealth v. Sawin, 2 Pick. (Mass.) 547, 549.
47 (return)
47/1 Cf. 1 East, P.C. 294; United States v. Holmes, 1 Wall. Jr. 1; 1 Bishop, Crim. Law, Sections 347-349, 845 (6th ed.); 4 Bl. Comm. 31.
51 (return)
51/1 Art. 223. 51/2 General View of the Criminal Law of England, p. 116.
53 (return)
53/1 Harris, Criminal Law, p. 13. 53/2 Steph. Dig. Crim. Law, Art. 223, Illustration (6), and n. 1.
56 (return)
56/1 4 Bl. Comm. 192.
57 (return)
57/1 Cf. 4 Bl. Comm. 197.
58 (return)
58/1 Reg. v. Hibbert, L.R. 1 C.C. 184.
59 (return)
59/1 Reg. v. Prince, L.R. 2 C.C. 154. 59/2 Commonwealth v. Hallett, 103 Mass. 452.
60 (return)
60/1 Stephen, Dig. Cr. Law, Art. 223, Illustr. (5); Foster, 294, 295. 60/2 Cf. Gray's case, cited 2 Strange, 774.
60/3 Steph. Dig., Art. 223, Illustr. (1).
60/4 Steph. Dig., Art. 223, Illustr. (8).
60/5 Rex v. Mastin, 6 C.&P. 396. Cf. Reg. v. Swindall, 2 C. & K. 230.
60/6 4 Bl. Comm. 192.
62 (return)
62/1 Steph. Dig. Cr. Law, Art. 225. 62/2 Rex v. Shaw, 6 C.&P. 372.
62/3 Rex v. Oneby, 2 Strange, 766, 773.
62/4 Rex v. Hayward, 6 C.&P. 157.
63 (return)
63/1 Commonwealth v. Walden, 3 Cush. (Mass.) 558. Cf. Steph. Gen. View of the Crim. Law, 84.
64 (return)
64/1 2 Bishop Crim. Law, Section 14 (6th ed.). 64/2 Glanv., Lib. XIV. c. 4.
64/3 Bract., fol. 146b.
64/4 Ibid.
64/5 2 East, P.C., c. 21, Sections 7, 8, pp. 1027, 1031.
66 (return)
66/1 1 Bishop, Crim. Law, Section 735 (6th ed.). 66/2 Reg. v. Dilworth, 2 Moo. & Rob. 531; Reg. v. Jones, 9 C.&P. 258. The statement that a man is presumed to intend the natural consequences of his acts is a mere fiction disguising the true theory. See Lecture IV.
67 (return)
67/1 Reg. v. Taylor, 1 F. & F. 511. 67/2 Reg. v. Roberts, 25 L. J. M. C. 17; S.C. Dearsly, C., C. 539.
68 (return)
68/1 Lewis v. The State, 35 Ala. 380.
69 (return)
69/1 See M'Pherson's Case, Dearsly & Bell, 197, 201, Bramwell, B. 69/2 Cf. 1 Bishop, Crim. Law, Sections 741-745 (6th ed.).
71 (return)
71/1 2 Bishop, Crim. Law, Section 758 (6th ed.).
73 (return)
73/1 Cf. Stephen, General View of Criminal Law of England, 49 et seq. 73/2 Cf. Stephen, General View, 49-52; 2 East, P.C. 553.
74 (return)
74/1 Rex v. Cabbage, Russ. & Ry. 292. 74/2 Cf. 4 Bl. Comm. 224; Steph. Dig. Crim. Law, Arts. 316, 319.
74/3 Cf. 4 Bl. Comm. 227, 228.
75 (return)
75/1 1 Starkie, Cr. Pl. 177. This doctrine goes further than my argument requires. For if burglary were dealt with only on the footing of an attempt, the whole crime would have to be complete at the moment of breaking into the house. Cf. Rex v. Furnival, Russ. & Ry. 445.
81 (return)
81/1 See Lecture VII.
82 (return)
82/1 Austin, Jurisprudence (3d ed.), 440 et seq., 474, 484, Lect. XX., XXIV., XXV.
84 (return)
84/1 Lib. I. c. 2, ad fin.
85 (return)
85/1 Hist. English Law, I. 113 (bis), n.a; Id., ed. Finlason, I. 178, n. 1. Fitzherbert (N.B. 85, F.) says that in the vicontiel writ of trespass, which is not returnable into the king's court, it shall not be said quare vi et armis. Cf. Ib. 86, H. 85/2 Milman v. Dolwell, 2 Camp. 378; Knapp v. Salsbury, 2 Camp. 500; Peafey v. Walter, 6 C.&P. 232; Hall v. Fearnley, 3 Q.B. 919.
85/3 Y.B. 6 Ed. IV. 7, pl. 18, A.D. 1466; cf. Ames, Cases in Tort, 69, for a translation, which has been followed for the most part.
87 (return)
87/1 Y.B. 21 Hen. VII. 27, pl. 5, A.D. 1506. 87/2 Cf. Bract., fol. 136 b. But cf. Stat. of Gloucester, 6 Ed. I. c. 9; Y.B. 2 Hen. IV. 18, pl. 8, by Thirning; Essays in Ang. Sax. Law, 276.
87/3 Hobart, 134, A.D. 1616.
87/4 Sir T. Jones, 205, A.D. 1682.
87/5 1 Strange, 596, A.D. 1723.
87/6 2 Keyes, 169, A.D. 1865.
88 (return)
88/1 Anonymous, Cro. Eliz. 10, A.D. 1582. 88/2 Sir T. Raym. 467, A.D. 1682.
88/3 Scott v. Shepherd, 2 Wm. B1. 892, A.D. 1773.
88/4 3 East, 593. See, further, Coleridge's note to 3 Bl. Comm. 123; Saunders, Negligence, ch. 1, Section I; argument in Fletcher v. Rylands, 3 H.&C. 774, 783; Lord Cranworth, in S.C., L.R. 3 H. L. 330, 341.
90 (return)
90/1 Ex. gr. Metropolitan Railway Co. v. Jackson, 3 App. Cas. 193. See M'Manus v. Crickett, 1 East, 106, 108.
91 (return)
91/1 1 Ld. Raym. 38; S.C. Salk. 637; 4 Mod. 404; A.D. 1695.
92 (return)
92/1 2 Wm. Bl. 892. Cf. Clark v. Chambers, 3 Q.B.D. 327, 330, 338. 92/2 7 Vt, 62.
93 (return)
93/1 Smith v. London & South-Western Railway Co., L.R. 6 C.P. 14, 21. Cf. S.C., 5 id. 98, 103, 106. 93/2 Sharp v. Powell, L.R. 7 C.P. 253. Cf. Clark v. Chambers, 3 Q.B.D. 327, 336-338. Many American cases could be cited which carry the doctrine further. But it is desired to lay down no proposition which admits of controversy, and it is enough for the present purposes that Si home fait un loyal act, que apres devint illoyal, ceo est damnum sine injuria. Latch, 13. I purposely omit any discussion of the true rule of damages where it is once settled that a wrong has been done. The text regards only the tests by which it is decided whether a wrong has been done.
94 (return)
94/1 Mitchil v. Alestree, 1 Ventris, 295; S.C., 3 Keb. 650; 2 Lev. 172. Compare Hammack v. White, 11 C.B. N.S. 588; infra, p. 158.
95 (return)
95/1 Harvey v. Dunlop, Hill & Denio, (Lalor,) 193. 95/2 See Lecture II. pp. 54, 55.
97 (return)
97/1 cf. Hobart v. Hagget, 3 Fairf. (Me.) 67.
98 (return)
98/1 See Bonomi v. Backhouse, El. Bl. & El. 622, Coleridge, J., at p. 640.
99 (return)
99/1 3 Levirtz, 87, A.D. 1681. 99/2 Compare the rule as to cattle in Y.B. 22 Edw. IV. 8, pl. 24, stated below, p. 118.
100 (return)
100/1 Disc. 123, pr.; 124, Sections 2, 3. As to the historical origin of the latter rule, compare Lecture V.
101 (return)
101/1 Lecture I, pp. 3, 4. 101/2 Lib. I. c. 2, ad. fin.
101/3 Fol. 155.
101/4 Bro. Trespass, pl. 119; Finch, 198; 3 Bl. Comm. 118, 119.
101/5 See Brunner, Schwurgerichte, p. 171.
101/6 An example of the year 1195 will be found in Mr. Bigelow's very interesting and valuable Placita Anglo-Normanica, p. 285, citing Rot. Cur. Regis, 38; S.C. ? Abbr. Plac., fol. 2, Ebor. rot. 5. The suit was by way of appeal; the cause of action, a felonious trespass. Cf. Bract., fol. 144 a.
102 (return)
102/1 An example may be seen in the Year Book, 30 & 31 Edward I. (Horwood), p. 106.
103 (return)
103/1 6 Ed. IV. 7, pl. 18. 103/2 Popham, 151; Latch, 13, 119, A.D. 1605.
104 (return)
104/1 Hobart, 134, A.D. 1616. 104/2 3 East, 593.
105 (return)
105/1 1 Bing. 213, A.D. 1823. 105/2 6 Cush. 292.
106 (return)
106/1 Morris v. Platt, 32 Conn. 75, 84 et seq., A.D. 1864. 106/2 Nitro-glycerine Case (Parrot v. Wells), 15 Wall. 524, 538.
106/3 Hill & Denio, (Lalor,) 193; Losee v. Buchanan, 51 N.Y. 476, 489.
107 (return)
107/1 Vincent v. Stinehour, 7 Vt. 62. See, further, Clayton, 22, pl. 38; Holt, C.J., in Cole v. Turner, 6 Mod. 149; Lord Hardwicke, in Williams v. Jones, Cas. temp. Hardw. 298; Hall v. Fearnley, 8 Q.B. 919; Martin, B., in Coward v. Baddeley, 4 H.&N. 478; Holmes v. Mather, L.R. 10 Ex. 261; Bizzell v. Booker, 16 Ark. 308; Brown v. Collins, 53 N.H. 442. 107/2 Blyth v. Birmingham Waterworks Co., 11 Exch. 781, 784; Smith v. London & South-Western Ry. Co., L.R. 5 C.P. 98, 102. Compare Campbell, Negligence, Section 1 (2d ed.), for Austin's point of view.
109 (return)
109/1 cf. Bro. Corone, pl. 6; Neal v. Gillett, 23 Conn. 437, 442; D. 9. 2. 5, Section 2; D. 48. 8. 12.
113 (return)
113/1 I Thorpe, p. 85; cf. LL. Hen. I., c. 88, Section 3. 113/2 Spofford v. Harlow, 3 Allen, 176.
114 (return)
114/1 See 27 Ass., pl. 56, fol. 141; Y.B. 43 Edw. III. 33, pl. 38. The plea in the latter case was that the defendant performed the cure as well as he knew how, without this that the horse died for default of his care. The inducement, at least, of this plea seems to deal with negligence as meaning the actual state of the party's mind.
115 (return)
115/1 Hobart, 134. 115/2 See Knight v. Jermin, Cro. Eliz. 134; Chambers v. Taylor, Cro. Eliz. 900.
115/3 32 Conn. 75, 89, 90.
116 (return)
116/1 Y.B. 12 Hen. VIII. 2 b, Pl. 2. 116/2 Keilway, 46 b.
116/3 L.R. 3 H.L. 330, 339; L.R. 1 Ex. 265, 279-282; 4 H.&C. 263; 3 id. 774.
117 (return)
117/1 See Card v. Case, 5 C.B. 622, 633, 634. 117/2 See Lecture I. p. 23 and n. 3.
117/3 Mitten v. Fandrye, Popham, 161; S.C., 1 Sir W. Jones, 136; S.C., nom. Millen v. Hawery, Latch, 13; id. 119. In the latter report, at p. 120, after reciting the opinion of the court in accordance with the text, it is said that judgment was given non obstant for the plaintiff; contrary to the earlier statement in the same book, and to Popham and Jones; but the principle was at all events admitted. For the limit, see Read v. Edwards, 17 C.B. N.S. 245.
118 (return)
118/1 Y.B. 22 Edw. IV. 8, pl. 24. 118/2 Popham, at p. 162; S.C., Latch, at p. 120; cf. Mason v. Keeling, 1 Ld. Raym. 606, 608. But cf. Y.B. 20 Edw. IV. 10, 11, pl. 10.
118/3 Latch, at p. 120. This is a further illustration of the very practical grounds on which the law of trespass was settled.
118/4 12 Mod. 332, 335; S.C., 1 Ld. Raym. 606, 608.
118/5 12 Mod. 335; Dyer, 25 b, pl. 162, and cas. in marg.; 4 Co. Rep. 18 b; Buxendin v. Sharp, 2 Salk. 662; S.C., 3 Salk. 169; S.C., nom. Bayntine v. Sharp, 1 Lutw. 90; Smith v. Pelah, 2 Strange, 264; May v. Burdett, 9 Q.B. 101; Card v. Case, 5 C.B. 622.
119 (return)
119/1 12 Mod. 335. See Andrew Baker's case, 1 Hale, P.C. 430. 119/2 Besozzi v. Harris, 1 F.&F. 92.
119/3 See Fletcher v. Rylands, L.R. I Ex. 265, 281, 282; Cox v. Burbridge, 13 C.B. N.S. 430, 441; Read v. Edwards, 17 C.B. N.S. 245, 260; Lee v. Riley, 18 C.B. N.S. 722; Ellis v. Loftus Iron Co., L.R. 10 C.P. 10; 27 Ass., pl. 56, fol. 141; Y.B. 20 Ed. IV. 11, pl. 10; 13 Hen. VII. 15, pl. 10; Keilway, 3 b, pl. 7. Cf. 4 Kent (12th ed.), 110, n. 1, ad fin.
120 (return)
120/1 2 Ld. Raym. 909; 13 Am. L.R. 609. 120/2 See Grill v. General Iron Screw Collier Co., L.R. 1 C.P. 600, 612, 614.
120/3 Railroad Co. v. Lockwood, 17 Wall. 357, 383.
121 (return)
121/1 L.R. 1 C.P. 300. 121/2 See Gorham v. Gross, 125 Mass. 232, 239, bottom.
121/3 Minor v. Sharon, 112 Mass. 477, 487.
122 (return)
122/1 See Winsmore v. Greenbank, Willes, 577, 583; Rex v. Oneby, 2 Strange, 766, 773; Lampleigh v. Brathwait, Hobart, 105, 107; Wigram, Disc., pl. 249; Evans on Pleading, 49, 138, 139, 143 et seq.; Id., Miller's ed., pp. 147, 149.
123 (return)
123/1 See Detroit & Milwaukee R. R. Co. v. Van Steinburg, 17 Mich. 99, 120. 123/2 In the small-pox case, Minor v. Sharon, 112 Mass. 477, while the court ruled with regard to the defendant's conduct as has been mentioned, it held that whether the plaintiff was guilty of contributory negligence in not having vaccinated his children was "a question of fact, and was properly left to the jury." p. 488.
124 (return)
124/1 Metropolitan Railway Co. v. Jackson, 3 App. Cas. 193, 197.
125 (return)
125/1 See Kearney v. London, Brighton & S. Coast Ry. Co., L.R. 5 Q.B. 411, 414, 417; S.C., 6 id. 759. 125/2 Byrne v. Boadle, 2 H. & C. 722.
125/3 See Skinnier v. Lodon, Brighton, & S. Coast Ry. Co., 5 Exch. 787. But cf. Hammack v. White, 11 C.B. N.S. 588, 594.
127 (return)
127/1 7 American Law Review, 654 et seq., July, 1873.
128 (return)
128/1 Callahan v. Bean, 9 Allen, 401. 128/2 Carter v. Towne, 98 Mass. 567.
128/3 Lovett v. Salem & South Danvers R. R. Co., 9 Allen, 557.
128/4 Back v. Stacey, 2 C.&P. 465.
128/5 Cf. Beadel v. Perry, L.R. 3 Eq. 465; City of London Brewery Co. v. Termant, L.R. 9 Ch. 212, 220; Hackett v. Baiss, L.R. 20 Eq. 494; Theed v. Debenham, 2 Ch. D. 165.
135 (return)
135/1 Williamson v. Allison, 2 East, 446.
136 (return)
136/1 Leather v. Simpson, L.R. 11 Eq. 398, 406. On the other hand, the extreme moral view is stated in Weir v. Bell, 3 Ex. D. 238, 243.
138 (return)
138/1 As to actual knowledge and intent, see Lecture II. p. 57.
141 (return)
141/1 Cf. Knight v. German, Cro. Eliz. 70; S.C., ib. 134. 141/2 Mitchell v. Jenkins, 5 B.&Ad. 588, 594; Turner v. Ambler, 10 Q.B. 252, 257, 261.
142 (return)
142/1 Redfield, C. J. in Barron v. Mason, 31 Vt. 189, 197. 142/2 Mitchell v. Jenkins, 5 B.&Ad. 588, 595.
143 (return)
143/1 See Burton v. Fulton, 49 Penn. St. 151.
144 (return)
144/1 Rolfe, B. in Fouldes v. Willoughby, 8 Meeson & Welsby, 540.
145 (return)
145/1 Supra, pp. 115 et seq.
147 (return)
147/1 See, e.g., Cooley, Torts, 164. 147/2 Rex v. Dixon, 3 Maule & Selwyn, 11, 15; Reg. v. Hicklin, L.R. 3 Q.B. 360; 5 C.&P. 266, n.
148 (return)
148/1 Aleyn, 35; Style, 72; A.D. 1648.
149 (return)
149/1 1 Kent (12th ed.), 467, n. 1; 6 Am. Law Rev. 723-725; 7 id. 652. 149/2 2 Wm. Bl. 892, A.D. 1773; supra, p. 92; Addison on Torts (4th ed.), 264, citing Y.B. 37 Hen. VI. 37, pl. 26, which hardly sustains the broad language of the text.
151 (return)
151/1 Compare Crouch v. London & N. W. R. Co., 14 C.B. 255, 283; Calye's Case, 8 Co. Rep. 32; Co. Lit. 89 a, n. 7; 1 Ch. Pl. (lst ed,), 219, (6th ed.), 216, 217; 7 Am. Law Rev. 656 et seq. 151/2 But cf. The Pawashick, 2 Lowell, 142.
151/3 Gibson v. Stevens, 8 How. 384, 398, 399; Barnett v. Brandao, 6 Man. & Gr. 630, 665; Hawkins v. Cardy, 1 Ld. Raym. 360.
151/4 Pickering v. Barkley, Style, 132; Wegerstoffe v. Keene, 1 Strange, 214, 216, 223; Smith v. Kendall, 6 T. R. 123, 124.
155 (return)
155/1 Card v. Case, 5 C.B. 622, 634. Cf. Austin (3d ed.), 513.
156 (return)
156/1 Rylands v. Fletcher, L.R. 3 H.L. 330; supra, p. 116. 156/2 See Marshall v. Welwood, 38 N.J. (9 Vroom), 339; 2 Thompson, Negligence, 1234, n. 3.
157 (return)
157/1 Gorham v. Gross, 125 Mass. 232; supra, p. 117.
158 (return)
158/1 Mitchil v. Alestree, 1 Vent. 295; S.C., 3 Keb. 650; 2 Lev. 172; supra, p. 94. 158/2 Hammack v. White, 11 C.B. N.S. 588.
166 (return)
166/1 Laband, Vermogensrechtlichen Klagen, Section 16, pp. 108 et seq.; Heusler, Gewere, 487, 492. These authors correct the earlier opinion of Bruns, R. d. Besitzes, Section 37, pp. 313 et seq., adopted by Sohm in his Proc. d. Lex Salica, Section 9. Cf. the discussion of sua in writs of trespass, &c. in the English law, at the end of Lecture VI. Those who wish short accounts in English may consult North Amer. Rev., CX. 210, and see Id., CXVIII. 416; Essays in Anglo-Saxon Law, pp. 212 et seq. Our knowledge as to the primitive form of action is somewhat meagre and dependent on inference. Some of the earliest texts are Ed. Liutpr. 131; Lex Baiw., XV. 4; L. Frision. Add. X.; L. Visig., V.5. I; L. Burg., XLIX. I, 2. The edict of Liutprand, dealing with housebreaking followed by theft of property left in charge of the householder, lays down that the owner shall look to the bailee alone, and the bailee shall hold the thief both for the housebreaking and for the stolen goods. Because, as it says, we cannot raise two claims out of one causa; somewhat as our law was unable to divide the severing a thing from the realty, and the conversion of it, into two different wrongs. Compare, further, Jones, Bailm. 112; Exodus xxii. 10-12; LL. Alfred, 28; I Thorpe, Anc. L., p. 51; Gaii Inst., III. Sections 202-207.
167 (return)
167/1 XXXI. 16.
168 (return)
168/1 "Peterit enim rem suam petere [civiliter] ut adiratam per testimonium proborum hominum, et sic consequi rem suam quamvia furatam. . . Et non refert utrum res que ita subtracta fuit extiterit illius appellantis propria vel alterius, dum tamen de custodia sua." Bract., fol. 150 b, 151; Britton (Nich. ed.), I. 59, 60 [23 b], De Larcyns; cf. ib. 67 [26 b]; Fleta, fol. 5i, L. I. c. 38, Section 1.
169 (return)
169/1 Y.B. 21 & 22 Ed. I. 466-468, noticed in North Amer. Rev., CXVIII. 421, n. (So Britton [26 b], "Si il puse averreer la perte.") This is not trover. The declaration in detinue per inventionem was called "un newfound Haliday" in Y.B. 33 Hen. VI. 26, 27; cf. 7 Hen. VI. 22, pl. 3; Isack v. Clarke, I Rolle, R. 126, 128. 169/2 Y.B. 2 Ed. IV. 4, 5, pl. 9; 21 Hen. VII. 39, pl. 49; Bro. Trespass, pl. 216, 295.
169/3 2 Wms. Saund. 47, n. 1. See above, p. 167.
170 (return)
170/1 Notes to Saunders, Wilbraham v. Snow, note (h). 170/2 Y.B. 11 Hen. IV. 23, 24. See, further, Y.B. 8 Ed. IV. 6, pl. 5; 9 Ed. IV. 34, pl. 9; 3 Hen. VII. 4, pl. 16; 20 Hen. VII. 1, pl. 1; 21 Hen. VII. 14 b, pl. 23; 13 Co. Rep. 69; 1 Roll. Abr. 4(I), pl. I; F. N. B. 86, n. a; supra, p. 167.
170/3 Fitz. Abr. Barre, pl. 130; Y.B. 9 Ed. IV. 34, pl. 9; 12 Am. Law Rev. 694.
171 (return)
171/1 2 Steph. Comm. (6th ed.), 83, cited Dicey, Parties, 353; 2 Bl. Comm. 453; 2 Kent, 585. As the bailee recovered the whole value of the goods, the old reason, that he was answerable over, has in some cases become a new rule, (seemingly based on a misunderstanding,) that the bailee is a trustee for the bailor as to the excess over his own damage. Cf. Lyle v. Barker, 5 Binn. 457, 460; 7 Cowen, 68l, n.; White v. Webb, 15 Conn. 302, 305; in the order cited. (Thence the new rule has been extended to insurance recovered by a bailee. 1 Hall, N. Y. 84, 91; 3 Kent's Comm. (12th ed.), 371, 376, n. 1 (a).) In this form it ceases to be a reason for allowing the action. 171/2 Y.B. 48 Ed. III. 20, pl. 8; Bro. Trespass, pl. 67. Cf. 1 Britton (Nich. ed.), 67 [26 b]; Y.B. 6 Hen. VI1. 12, pl. 9; 12 Ed. IV. 13, pl. 9; 12 Am. Law Rev. 694.
172 (return)
172/1 Y.B. 22 Ed. IV. 5, pl. 16. 172/2 2 Rolle, Abr. 569, Trespass, 5. Cf. Y.B. 20 Hen. VII. 5, pl. 15; 21 Hen. VII. 39, pl. 49; Clayton, 135, pl. 243; 2 Wms. Saund. 47 e (3d ed.).
172/3 Bro. Trespass, pl, 67 in marg.; cf. Ed. Liutpr. 131, cited supra, p. 166, n.
172/4 In one instance, where, against the opinion of Brian, the bailor was allowed to sue for damage to the chattel by a stranger, the action seems to have been case. Y.B. 12 Ed. IV. 13, pl. 9; cf. the margin of the report.
173 (return)
173/1 Gordon v. Harper, 7 T. R. 9; Lord v. Price, L. IL 9 Ex. 54; Muggridge v. Eveleth, 9 Met. 233. Cf. Clayton, 135, pl. 243. 173/2 Nicolls v. Bastard, 2 C. M. & R. 659, 660; Manders v. Williams, 4 Exch. 339, 343, 344; Morgan v. Ide, 8 Cush. 420; Strong v. Adams, 30 Vt. 221, 223; Little v. Fosseft, 34 Me. 545.
173/3 2 Camp. 464; cf. Mears v. London & South-Western Railway Co., 11 C.B. N.S. 849, 854.
173/4 Addison, Torts (4th ed.), 364.
174 (return)
174/1 Wms. Pers. Prop., 26 (5th ed.), 27 (7th ed.). 174/2 Booth v. Wilson, I B. & Ald. 59; Y.B. 48 Ed. III. 20, pl. 8; 11 Hen. IV. 17, pl. 39; 11 Hen. IV. 23, 24, pl. 46 (Tre. "ou d'apprompter"); 21 Hen. VII. 14b, pl. 23; Godbolt, 173, pl. 239; Sutton v. Buck, 2 Taunt. 302, 309; Burton v. Hughes, 2 Bing. 173; Nicolls v. Bastard, 2 C. M. & R. 659, 660; Manders v. Williams, 4 Exch. 339, 343, 344; 2 Wms. Saund., note to Wilbraham v. Snow; 2 Kent, 585, 568, 574; Moran v. Portland S. P. Co., 35 Me. 55. See, further, Lecture VI. ad fin.
175 (return)
175/1 Cf. Lord v. Price, L.R. 9 Ex. 54, 56, supra, p. 172. 175/2 Supra, p. 167.
175/3 Lib. X. c. 13; cf. I., c. 8.
175/4 "Is qui rem commodatam accepit, ad ipsam restituendam tenetur, vel ejus precium, si forte incendio, ruins, naufragio, ant latronum, vel hostium incursu, consumpta fuerit vel deperdita, substracts, vel ablata." Fol. 99 a, b. This has been thought a corrupt text (Guterbock, Bracton, by Coxe, p. 175; 2 Twiss, Bract. Int. xxviii.), but agrees with Glanvill, supra, and with Fleta, L. II. c. 56, Section 5.
175/5 Bract., fol. 62 b, c. 28, Section 2; Fleta, L. II. e. 59, Section 4, fol. 128. Cf. Just. Inst. 3. 24, Section 5; ib. 15, Section 2.
176 (return)
176/1 Y.B. 8 Ed. II. 275; Fitz. Detinue, pl. 59. 176/2 2 Ld. Raym. 909.
176/3 Y.B. 13 Ed. IV. 9, pl. 5. See Lecture VI.
176/4 29 Ass. 163, pl. 28.
176/5 Cf. Ratcliff v. Davis, Yelv. 178; Cro. Jac. 244; Noy, 137; 1 Bulstr. 29.
176/6 Y.B. 33 Hen. VI. 1, pl. 3. This case is cited and largely relied on in Woodlife's Case, infra; Southcote v. Bennett, infra; Pickering v. Barkley, Style, 132 (24 Car. I., covenant on a charter-party); and Morse v. Slue, infra; in short, in all the leading cases on bailment.
177 (return)
177/1 Cf. Abbreviatio Plaeitorum, p. 343, col. 2, rot. 87, 17 Ed. II.
178 (return)
178/1 Y.B. 9 Ed. IV. 34, pl. 9; 2 Ed. IV. 15, pl. 7. It is proper to add, that in the latter case Littleton does not seem to distinguish between servants and bailees. 178/2 Y.B. 9 Ed. IV, 40, pl. 22. So Brian, in 20 Ed. IV. 11, pl. 10, ad fin.
178/3 Y.B. 10 Hen. VII. 25, 26, pl. 3.
178/4 Cf. L. Baiw., XV. 5; Y.B. 33 Hen. VI. 1, pl. 3.
178/5 Y.B. 6 Hen. VII. 12, pl. 9; Bro. Detinue, pl. 37; 10 Hen. VI. 21, pl. 69.
178/6 Y.B. 3 Hen. VII. 4, pl. 16. Cf. 10 Hen. VI. 21, pl. 69.
178/7 Y.B. 11 Hen. IV. 23, 24; 6 Hen. VII. 12, pl. 9.
178/8 Cro. Eliz. 815; 4 Co. Rep. 83 b; Co. Lit. 89; 2 BI. Comm. 452.
180 (return)
180/1 Savile, 133, 134. Cf. Bro. Accion sur le Case, pl. 103; Dyer, 161 a, b. 180/2 Nugent v. Smith, 1 C.P. D. 19, Brett, J., at p. 28.
180/3 Nugent v. Smith, 1 C.P. D. 423, Cockburn, C. J., at p. 428.
181 (return)
181/1 Moore, 462; Owen, 57. 181/2 Dial. 2, ch. 38, A.D. 1530.
182 (return)
182/1 Keilway, 160, pl. 2 (2 Hen. VIII.); cf. ib. 77b (21 Hen. VII.). 182/2 Y.B. 33 Hen. VI. 1, pl. 3.
182/3 4 Co. Rep. 83 b; Cro. Eliz. 815.
183 (return)
183/1 Keilway, 160, pl. 2. 183/2 Y.B. 19 Hen. VI. 49, ad fin. Cf. Mulgrave v. Ogden, Cro. Eliz. 219; S.C., Owen, 141, 1 Leon. 224; with Isaack v. Clark, 2 Bulstr. 306, at p. 312, Coke, J.
183/3 See Lecture VII.
184 (return)
184/1 Paston, J., in Y.B. 19 Hen. VI. 49. See, also, Rogers v. Head, Cro. Jac. 262; Rich v. Kneeland, Cro. Jac. 330, which will be mentioned again. An innkeeper must be a common innkeeper, Y.B. 11 Hen. IV. 45. See further, 3 Bl. Comm. 165, where "the transition from status to contract" will be found to have taken place. 184/2 F. N. B. 94 D; infra, p. 203.
184/3 Y.B. 7 Hen. IV. 14; 12 Ed. IV. 13, pl. 9, 10; Dyer, 22 b.
184/4 The process may be traced by reading, in the following order, Y.B. 2 Hen. VII. 11; Keilway, 77 b, ad fin. (21 Hen. VII.); ib. 160, pl. 2 (2 Hen. VIII.); Drake v. Royman, Savile, 133, 134 (36 Eliz.); Mosley v. Fosset, Moore, 543 (40 Eliz.); 1 Roll. Abr. 4, F, pl. 5; Rich v. Kneeland, Cro. Jac. 330 (11 Jac. I.).
185 (return)
185/1 Cro. Jac. 262 (8 Jac. I.). Compare Maynard's argument in Williams v. Hide, Palmer, 548; Symons v. Darknoll, ib. 523, and other cases below; 1 Roll. Abr. 4, F, pl. 3. Mosley v, Fosset, Moore, 543 (40 Eliz.); an obscurely reported case, seems to have been assumpsit against an agistor, for a horse stolen while in his charge, and asserts obiter that "without such special assumpsit the action does not lie." This must have reference to the form of the action, as the judges who decided Southcote's Case took part in the decision. See, further, Evans v. Yeoman, Clayton, 33.
186 (return)
186/1 See Symons v. Darknoll, and the second count in Morse v. Slue infra. (The latter case shows the averment of negligence to have been mere form.) Cf. I Salk. 18, top.
187 (return)
187/1 Supra, p. 179. 187/2 Boson v. Sandford, Shower, 101; Coggs v. Bernard, infra.
187/3 Symons v. Darknoll, infra.
188 (return)
188/1 Reg. Brev. 92b, 95a, 98a, 100b, 104a; cf. Y.B. 19 Ed. II. 624; 30 Ed. III. 25, 26; 2 Hen. IV. 18, pl. 6; 22 Hen. VI. 21, pl. 38; 32 & 33 Ed. I., Int., xxxiii.; Brunner, Schwurgerichte, 177; id. Franzosische, Inhaberpapier, 9, n. 1. 188/2 12 Co. Rep. 64.
188/3 See, besides the following cases, the declaration in Chamberlain v. Cooke, 2 Ventris, 75 (1 W. & M.), and note especially the variations of statement in Morse v. Slue, set forth below, in the text.
189 (return)
189/1 Hobart, 17; Cro. Jac. 330. See also George v. Wiburn, 1 Roll. Abr. 6, pl. 4 (A.D. 1638).
190 (return)
190/1 The use which has been made of this case in later times shows the extreme difficulty in distinguishing between principles of substantive law and rules relating only to procedure, in the older books. 190/2 Y.B. 22 Hen. VI. 21, pl. 38; supra, p. 188, n. 1.
191 (return)
191/1 Palmer, 523. 191/2 Palmer, 548.
191/3 Aleyn, 93.
191/4 1 Sid. 36.
192 (return)
192/1 1 Sid. 244. Cf. Dalston v. Janson, 1 Ld. Raym. 58. 192/2 2 Keb. 866; 3 id. 72, 112, 135; 2 Lev. 69; I Vent. 190, 238; 1 Mod. 85; Sir T. Raym. 220.
193 (return)
193/1 2 Keb. 866. See 3 Keb. 74; 1 Mod. 85; Sir T. Raym. 220. 193/2 2 Keb. 72.
193/3 Y.B. 33 Hen. VI. 1; supra, p. 177.
193/4 3 Keble, 73. This is the main point mentioned by Sir T. Raymond and Levinz.
193/5 Cf. 1 Mod. 85.
194 (return)
194/1 1 Ventris, 238, citing Southcote's Case in the margin. Cf. 3 Keble, 135. 194/2 Aleyn, 93; supra, p. 191.
194/3 See also 1 Hale, P.C. 512, 513.
195 (return)
195/1 King v. Viscount Hertford, 2 Shower, 172, pl. 164; cf. Woodlife's Case, supra. 195/2 Boson v. Sandford, 1 Shower, 101 (2 W. & M.). See above, pp. 183,185; below, p. 197. Modern illustrations of the doctrine will be found in Fleming v. Manchester, Sheffield, & Lincolnshire Railway Co., 4 Q.B.D. 81, and cases cited. In Boorman v. Brown, 3 Q.B.511, 526, the reader the primitive assumpsit, which was the inducement to a declaration in tort, interpreted as meaning contract in the modern sense. It will be seen directly that Lord Holt took a different view. Note the mode of dealing with the Marshal's case, 33 Hen; VI. 1, in Aleyn, 27.
196 (return)
196/1 See Lovett v. Hobbs, 2 Shower, 127 (32 Car. II.); Chamberlain v. Cooke, 2 Ventris, 75 (1 W. & M.); Boson v. Sandford, 1 Shower, 101, citing Southcote's Case (2 W. & M.); Upshare v. Aidee, 1 Comyns, 25 (8 W. III.); Middleton v. Fowler, I Salk. 288 (10 W. III.). 196/2 12 Mod. 472.
196/3 2 Ld. Raym. 909.
197 (return)
197/1 Powtuary v. Walton, 1 Roll. Abr. 10, pl. 5 (39 Eliz.). Cf. Keilway, 160. 197/2 2 Ld. Raym. 919. See Lecture VII. How little Lord Holt meant to adopt the modern view, that delivery, being a detriment to the owner, was a consideration, may be further seen by examining the cases put and agreed to by him from the Year Books.
199 (return)
199/1 2 Kent, 598; 1 C.P. D. 429. 199/2 Palmer, 523. See too Keilway, 77 b, and 160, pl. 2, where the encroachment of case on detinue, and the corresponding confusion in principle, may be pretty clearly seen taking place. But see p. 175, supra.
200 (return)
200/1 2 Kent, 597; Forward v. Pittard, 1 T. R. 27. 200/2 Cf. Y.B. 7 Hen. IV. 14; 2 Hen. VII. 11; Keilway, 77 b, 160, pl. 2, and other cases already cited.
200/3 Y.B. 41 Ed. III. 3, pl. 8.
200/4 Y.B. 33 Hen. YI. 1, pl. 3.
200/5 Reg. Brev. 107 a, 108 a, 110 a, b; entries cited 1 T. R. 29.
200/6 See above, pp. 167, 175 et seq.; 12 Am. Law Rev. 692, 693; Y.B. 42 Ed. III. 11, pl. 13; 42 Ass., pl. 17.
201 (return)
201/1 1 Wilson, 282; cf. 2 Kent (12th ed.), 596, n. 1, b. 201/2 Y.B. 33 Hen. VI. 1, pl. 3.
202 (return)
202/1 Mouse's Case, 12 Co. Rep. 63. 202/2 Bird v. Astcock, 2 Bulstr. 280; cf. Dyer, 33 a, pl. 10; Keighley's Case, 10 Co. Rep. 139 b, 140.
202/3 Y.B. 40 Ed. III. 5, 6, pl. 11; see also Willams v. Hide, Palmer, 548; Shep. Touchst. 173.
203 (return)
203/1 See Safe Delcosit Company of Pittsburgh v. Pollock, 85 Penn. 391. 203/2 Paston, J., in Y.B. 21 Hen. VI. 55; Keilway, 50 a, pl. 4; Hardres, 163.
203/3 Lane v. Cotton, 1 Ld. Raym. 646, 654; 1 Salk. 18; 12 Mod. 484.
204 (return)
204/1 Forward v. Pittard, 1 T. R. 27, 83.
205 (return)
205/1 Printing and Numerical Registering Co. v. Sampson, L.R. 19 Eq. 462, 465.
207 (return)
207/1 Possession, Section 6, Eng. tr., pp. 27, 28. 207/2 R. d. Besitzes, 487.
208 (return)
208/1 R. d. Besitzes, 490, 491. 208/2 Bruns, R. d. Besitzes, 415; Windscheid, Pand. Section 148, n. 6. Further Hegelian discourse may be found in Dr. J. Hutchison Sterling's Lectures on the Philosophy of Law.
208/3 Institutionen, Sections 224, 226; Windscheid, Pand. Section 148, n. 6.
208/4 Windscheid, Pand. Section 148, n. 6.
208/5 Besitzklagen, 276, 279.
209 (return)
209/1 Bruns, R. d. Besitzes, 499. 209/2 Bruns, R. d. Besitzes, Section 2, pp. 5 et seq.; Puchta, Besitz, in Weiske, Rechtslex.; Windscheid, Pand. Section 154, pp. 461 et seq. (4th ed.).
209/3 D. 41.2.3, Section 20; 13.6.8 & 9. Cf. D. 41.1.9, Section 5.
210 (return)
210/1 But see Ihering, Geist d. Rom. R., Section 62, French tr., IV. p. 51. 210/2 Heusler thinks this merely a result of the English formalism and narrowness in their interpretation of the word suo in the writ (disseisivit de teuemento suo). Gewere, 429-432. But there was no such narrowness in dealing with catalla sua in trespass. See below, p. 242.
210/3 See, further, Bracton, fol. 413; Y.B. 6 Hen. VII. 9, pl. 4.
211 (return)
211/1 Infra, p. 243. 211/2 R. d. Besitzes, 494.
212 (return)
212/1 Rogers v. Spence, 13 M. & W. 579, 581. 212/2 Webb v. Fox, 7 T. R. 391, 397.
212/3 Fennings v. Lord Grenville, 1 Taunt. 241; Littledale v. Scaith, ib. 243, n. (a); cf. Hogarth v. Jackson, M. & M. 58; Skinner v. Chapman, ib. 59, n.
212/4 Swift v. Gifford, 2 Lowell, 110.
212/5 1 Taunt. 248.
213 (return)
213/1 Cf. Wake, Evolution of Morality, Part I. ch. 4, pp. 296 et seq.
215 (return)
215/1 Asher v. Whitlock, L.R. 1 Q.B.1. 215/2 People v. Shearer, 30 Cal. 645.
217 (return)
217/1 2 Kent's Comm. 349, citing Pierson v. Post, 3 Caines, (N. Y.) 175; Buster v. Newkirk, 20 Johnson, (N. Y.) 75. 217/2 Young v. Hichens, 6 Q.B.606.
217/3 2 Kent's Comm. 349, n. (d).
218 (return)
218/1 Inst. 2. 1, Section 13. 218/2 Swift v. Gifford, 2 Lowell, 110.
218/3 Savigny, R. d. Besitzes, Section 21.
218/4 II. 9, Section 4; III. 29, Section 2. Animus domini will be used here as shortly indicating the general nature of the intent required even by those who deny the fitness of the expression, and especially because Savigny's opinion is that which has been adopted by English writers.
219 (return)
219/1 Cf. Bruns, R. d. Besitzes, 413, and ib. 469, 474, 493, 494, 505; Windscheid, Pand. Section 149, n. 5 (p. 447, 4th ed.); Puchta, Inst. Section 226. 219/2 Supra, p. 207; 2 Puchta, Inst. Section 226 (5th ed.), pp. 545, 546.
221 (return)
221/1 15 Jur. 1079; 21 L. J. Q.B.75; 7 Eng. L. & Eq. 424.
222 (return)
222/1 11 Allen, 548.
223 (return)
223/1 Kincaid v. Eaton, 98 Mass. 139. 223/2 Barker v. Bates, 13 Pick. 255, 257, 261; Proctor v. Adams, 113 Mass. 376, 377; 1 Bl. Comm. 297, Sharsw. ed., n. 14. Cf. Blades v. Hiqgs, 13 C.B. N.S. 844, 847, 848, 850, 851; 11 H. L. C. 621; Smith v. Smith, Strange, 955.
223/3 Reg. v. Rowe, Bell, C.C. 93.
224 (return)
224/1 See, as to treasure hidden in another's land, D. 41. 2. 44, pr.; D. 10. 4. 15. Note the different opinions in D. 41.2. 3, Section 3. 224/2 3 Inst. 107; 1 Hale, P.C. 504, 505; 2 Bishop, Crim. Law, Sections 834, 860 (6th ed.).
224/3 Reg. v. Middleton, L.R. 2 C.C. 38, 55. Cf. Halliday v. Holgate, L.R. 3 Ex. 299, 302.
224/4 Cf. Y.B. 8 Ed. II. 275; Fitzh. Abr. Detinue, ph 59; Y.B. 13 Ed. IV. 9, pl. 5; Keilway, 160, pl. 2; Merry v. Green, 7 M. & W. 623, 630. It may not be necessary to go quite so far, however, and these cases are not relied on as establishing the theory. For wrong explanations, see 2 East, P.C. 696.
225 (return)
225/1 Durfee v. Jones, 11 R. I. 588. 225/2 Reg. v. Rowe, Bell, C.C. 93, stated above.
225/3 8 Ves. 405; 7 M. & W. 623; Stephen, Crim. Law, Art. 281, Ill. (4), p. 197. He says, "because [the owner of the safe] cannot be presumed to intend to act as the owner of it when he discovers it,"—a reason drawn from Savigny, but not fitted to the English law, as has been shown.
226 (return)
226/1 Y.B. 13 Ed. IV. 9, 10, pl. 5; 21 Hen. VII. 14, pl. 21. Cf. 3 Hen. VII. 12, pl. 9; Steph. Crim. Law, Art. 297, and App., note xvii. 226/2 Steph. Crtre. Law, Art. 297, and App., note xvii. p. 882. It may be doubted whether the old law would have sanctioned the rule in this form. F. N. B. 91 E; Y.B. 2 Ed. IV. 15, pl. 7.
226/3 Y.B. 21 Hen. VII. 14, pl. 21; 13 Co. Rep. 69.
227 (return)
227/1 They have been said to be a part of the family pro hac vice. Southcote v. Stanley, 1 H. & N. 247, 250. Cf. Y.B. 2 Hen. IV. 18, pl. 6. 227/2 Moore, 248, pl. 392; S.C., Owen, 52; F. N. B. 91 E; 2 B1. Comm. 396; 1 H. Bl. 81, 84; 1 Chitty, Pl. 170 (1st ed.); Dicey, Parties, 358; 9 Mass. 104; 7 Cowen, 294; 3 S. & R. 20; 13 Iredell, 18; 6 Barb. 362, and cases cited. Some of the American cases have been denied, on the ground that the custodian was not a servant. Cf. Holiday v. Hicks, Cro. Eliz. 638, 661, 746; Drope v. Theyar, Popham, 178, 179.
228 (return)
228/1 Bracton, fol. 6 a, Section 3, 12 a, 17 a, Cap. V. ad fin., 25 a, b, etc.; Pucbra, Inst. Section 228. 228/2 See also 7 Am. Law Rev. 62 et seq.; 10 Am. Law Rev. 431; 2 Kent, Comm. (12th ed.), 260, n. 1.
228/3 1 Comm. 427. Cf. Preface to Paley on Agency. Factors are always called servants in the old books, see, e. g., Woodlife's Case, Owen, 57; Holiday v. Hicks, Cro. Eliz. 638; Southcote's Case, 4 Co. Rep. 83 b, 84 a; Southern v. How, Cro. Jac. 468; St. 21 Jac. I., c. 16, Section 3; Morse v. Slue, 3 Keble, 72. As to bailiffs, see Bract. 26 b, "Reestituat domino, vel servienti," etc.; Y.B. 7 Hen. IV. 14, pl. 18.
229 (return)
229/1 Paley, Agency, c. 4, Section 1, citing Godbolt, 360. See, further, F. N. B. 120, G; Fitzh. Abr. Dette, pl. 3; Y.B. 8 Ed. IV. 11, pl. 9. These rules seem to be somewhat modern even as to servants. The liability of a master for debts contracted by his servant is very narrowly limited in the earlier Year Books.
230 (return)
230/1 I am inclined to think that this extension has been largely due to the influence of the Roman law. See Lecture I. p. 20, n. 1, and observe the part which the precedents as to fire (e. g., Y.B. 2 Hen. IV. 18, pl. 6) have played in shaping the modern doctrine of master and servant. Tuberville v. Stampe, I Ld. Raym. 264 (where Lord Holt's examples are from the Roman law); Brucker v. Fromont, 6 T. R. 659; M'Manus v. Crickett, 1 East, 106; Patten v. Rea, 2 C.B. N.S. 606. In Southern v. How, Popham, 143, Doctor and Student is referred to for the general principles of liability. Doctor and Student states Roman law. See, further, Boson v. Sandford, 1 Shower, 101, 102. 230/2 Bac. Ahr. Master and Servant, K; Smith, Master and Servant (3d ed.), 260, n. (t).
230/3 Clapp v. Kemp, 122 Mass. 481; Murray v. Currie, L.R. 6 C.P. 24, 28; Hill v. Morey, 26 Vt. 178.
230/4 See, e.g., Patten v. Rea, 2 C.B. N.S. 606; Bolingbroke v. Swindon Local Board, L.R. 9 C.P. 575.
230/5 Freeman v. Rosher, 13 Q.B.780, 785; Gauntlett v. King, 3 C. B. N.S. 59; Haseler v. Lemoyne, 28 L. J. C.P. 103; Collett v. Foster, 2 H. & N. 356; Barwick v. English Joint Stock Bank, L.R. 2 Ex. 259, 265, 266; Lucas v. Mason, L.R. 10 Ex. 251, 253, last paragraph; Mackay v. Commercial Bank of New Brunswick, L.R. 5 P.C. 394, 411, 412. So as to partners, 3 Kent's Comm. (12th ed.), 46, notes (d) & 1.
231 (return)
231/1 Bush v. Steinman, 1 B. & P. 404, 409. 231/2 6 M. & W. 358. Cf. Udell v. Atherton, 7 H. & N. 172, 184, for a comment like that in the text. Other grounds for the decision are immaterial here.
231/3 Mackay v. Commercial Bank of New Brunswick, L.R. 5 P.C. 394; Barwick v. English Joint Stock Bank, L.R. 2 Ex. 259; Western Bank of Scotland v. Addie, L.R. 1 H. L. Sc. 145; 2 Kent (12th ed.), 616, n. 1; Swift v. Jewsbury, L.R. 9 Q.B.301, overruling S.C. sub nom. Swift v. Winterbotham, L.R. 8 Q.B.244; Weir v. Bell, 3 Ex. D. 238, 244. The objections which Baron Bramwell mentions (L.R. 9 Q.B.815) to holding one man liable for the frauds of another, are objections to the peculiar consequences attaching to the relation of master and servant in general, and have been urged in that more general form by the same learned judge. 12 Am. Law Rev. 197, 200; 2 H. & N. 856, 361. See 7 Am. Law Rev. 61, 62.
231/3 7 Am. Law Rev. 63 (Oct. 1872).
232 (return)
232/1 D. 44. 2. 4, note 17, Elzevir ed. 232/2 Hunter's Roman Law, 431.
232/3 Ancient Hist. of Inst. 235.
232/4 Cf. Gillett v. Ball, 9 Penn. St. 13; Craig v. Gilbreth, 47 Me. 416; Nickolson v. Knowles, 5 Maddock, 47; Williams v. Port, L.R. 12 Eq. 149; Adams v. Jones, 12 Ad. & El. 455; Bracton, fol. 28 b, 42 b, 43. And compare with the passage cited above from Blackstone: "Possider, cujus riomine possidetur, procurator alienae possessioni praestat ministerium." D. 41. 2. 18, pr.
233 (return)
233/1 Ward v. Macaulay, 4 T. R. 489, 490. Cf. as to factors supra, p. 228. 233/2 Berndtson v. Strang, L.R. 3 Ch. 588, 590.
233/3 Blackburn, Sale, 33; Marvin v. Wallis, 6 El. & Bl. 726.
233/4 D. 41. 2. 18, pr. "Quod meo nomine possideo, possum alieno nomine possidere: nec enim muto mihi causam possessionis, sed desino possidere et alium possessorem ministerio meo facio. Nec idem est possidere et alieno nomine possidere: nam possidet, cujus nomine possidetur, procurator alienae possessioni praestat ministerium." Thus showing that the vendor changed possession by holding in the name of the purchaser, as his agent to possess. Cf. Bracton, fol. 28 b.
233/4 Windscheid, Pand. Section 155, n. 8 a; 2 Kent (12th ed.), 492, n. 1 (a). It should be kept in mind also that the Roman law denied possession to bailees.
234 (return)
234/1 See, e. g., Farina v. Home, 16 M. & W. 119, 123.
235 (return)
235/1 McGahey v. Moore, 3 Ired. (N. C.) 35. 235/2 Reader v. Moody, 3 Jones, (N. C.) 372. Cf. Basset v. Maynard, Cro. Eliz. 819, 820.
235/3 Browne v. Dawson, 12 A. & E. 624. Cf. D. 43. 16. 17; ib. 3, Section 9; D. 41. 2. 18, Section 3; Clayton, 147, pl. 268.
236 (return)
236/1 Cf. Bruns, R. d. Besitzes, 503.
237 (return)
237/1 Clark v. Maloney, 3 Harrington (Del.), 68. Bruns (R. d. Besitzes, 503, 507) comes to the same conclusion on practical grounds of convenience, although he utterly repudiates it on theory. I must refer to what I said above touching these conflicts between theory and convenience.
238 (return)
238/1 Bruns, R. d. Besitzes, Section 57, p. 486. A learned writer of more ancient date asks why a doctor has not a possessory action if you cease to employ him, and answers: "Sentio actionem non tenere, sed sentio tantum, nec si vel morte mineris, possum dicere quare. Tu lector, si sapis, rationes decidendi suggere." Hommel, Rhaps., qu. 489, cited, Bruns, 407.
239 (return)
239/1 Gardiner v. Thibodeau, 14 La. An. 732. 239/2 Bruns, 483.
240 (return)
240/1 2 Kent (12th ed.), 205, n. 1. Cf. Y.B. 21 Hen. VI. 8, 9, pl. 19; American note to Scott v. Shepherd, in 1 Sm. L. C. (Am. ed.). 240/2 Britton (Nich. ed.), I. 277 (cf. Bract., fol. 164 b; Fleta, fol. 214; Glanv., Lib. XIII. c. 37); Littleton, Sections 237-240, 588, 589; 3 Bl. Comm. 170; 3 Cruise, Dig., tit. xxviii., Rents, ch. 2, Section 34.
241 (return)
241/1 See Lecture XI. 241/2 Cf. Stockport Water Works v. Potter, 3 H. & C. 300, 318. The language in the seventh English edition of 1 Sm. L. C., 300, is rather too broad. If the law should protect a possessor of land in the enjoyment of water coming to it, it would do so because the use of the water was regarded as a part of the enjoyment of that land, and would by no means imply that it would do the same in the case just put of a way over land of another.
242 (return)
242/1 Jefferies v. Great Western Railway Co., 5 El. & B1. 802. Cf. Armory v. Delamirie, 1 Strange, 505, 1 Sm. L. C. 242/2 Co. Lit. 145 b.
242/3 2 Wms. Saund. 47 b, note 1, to Wilbraham v. Snow.
242/4 Bract., fol. 150 b, 151; supra, p. 168; Y.B. 22 Ed. I. 466-468.
242/5 Y.B. 48 Ed. III. 20; 11 Hen. IV. 17; 11 Hen. IV. 23, 24; 21 Hen. VII. 14. The meaning of sua is discussed in Y.B. 10 Ed. IV. 1, B, by Catesby. Compare Laband, Vermogensrechtlichen Klagen, 111; Heusler, Gewere, 492 et seq., correcting Bruns, R. d. Besitzes, 300 et seq.; Sohm, Proc. d. L. Sal., Section 6.
243 (return)
243/1 Y.B. 11 Hen. IV. 17, pl. 39. 243/2 Y.B. 21 Hen. VII. 14 b, pl. 23.
243/3 Godbolt, 173, pl. 239. Cf. 11 Hen. IV. 17, pl. 39.
243/4 Bro. Abr. Trespass, pl. 433, cit. Y.B. 13 Hen. VII. 10.
243/5 Kelyng, 89. See, further, Buller, N. P. 33.
243/6 Lecture V.; Y.B. 20 Hen. VII. 1, pl. 11.
243/7 Y.B. 21 lien. VII. 14 b, pl. 23.
243/8 1 Roll. Abr. 4, 5 (I), pl. 1. Cf. Arnold v. Jefferson, 1 Ld. Raym. 275.
244 (return)
244/1 29 Ass., fol. 163, pl. 28. 244/2 Southcote's Case, 4 Co. Rep. 83 b.
244/3 Mores v. Conham, Owen, 123. Cf. Ratcliff v. Davis, I Bulstr. 29.
244/4 Doe v. Dyball, Mood. & M. 346 and note; 2 Wms. Saund. 111, and later notes; I Ad. & El. 119; Asher v. Whitlock, L.R. 1 Q.B.1.
244/5 Graham v. Peat, 1 East, 244.
245 (return)
245/1 As to this period see Heusler, Gewere. Cf. Laveleye, Propriete, 166.
248 (return)
248/1 2 Hist. du Droit Franc., pp. 146 et seq, 152. 248/2 Anciens Poetes de la France, (Guessard,) p. 71.
248/3 Page 283; cf. 284, cxviii, et seq., 44, lxix.
249 (return)
249/1 Sohm, Proc. d. Lex. Sal., Sections 15, 23-25, tr. Thevenin, pp. 80, 105, 122. 249/2 Essays in A. S. Law, p. 292.
249/3 Cap. VIII., Merkel, p. 48.
249/4 Cap. LXXXIX. Section 3, Essays in A. S. Law, p. 291.
249/5 Chap. IV. Section 16.
250 (return)
250/1 Fitzh. Abr. Mainprise, pl. 12 (H. 33 Ed. III.); Staundforde, P.C. 65. 250/2 Abbr. Plac., p. 343, col 2, rot. 37, 17 Ed. II.
250/3 Jacob, L. D., "Bail." Cf. I Bulstr. 45; .Hawkins, P.C., II. ch. 15, Section 83; Abbr. Plac., p. 343, col. 2, rot. 37, 17 Ed. II.
250/4 Highmore, Bail, p. 199; Jacob, L. D., "Bail." Cf. 2 Laferriere, Hist. du Droit Franc., p. 148.
250/5 Highmore, p. 195.
250/6 Ibid., p. 200.
252 (return)
252/1 Vermoegensrechtlichen Klagen.
253 (return)
253/1 II. c. 60, Section 25. Glanvill's "justa debendi causa" (Lib. X. c. 4) seems remote from consideration.
254 (return)
254/1 Y.B. 3 Hen. VI. 36. 254/2 Y.B. 37 Hen. VI. 13, pl. 3.
254/3 Y.B. 37 Hen. VI. 8, pl. 33.
254/4 Glanv., Lib. X. c. 12; Bract, fol. 400b, Section 10; 22 Ass., pl. 70, fol. 101.
255 (return)
255/1 Essays in A. S. Law, 187.
256 (return)
256/1 I. 45; III. 10. 256/2 Lib. X. e. 17. Suit, secta, was the term applied to the persons whose oath the party tendered.
257 (return)
257/1 Lib. X. c. 12 (Beames, p. 262); c. 8 & c. 5 (Beames, pp. 256, 251); cf. IV. c. 6, where witnesses are tendered de visu et auditu. Cf. Bract., 315 b, Section 6 Fleta, II. c. 63, Section10, p. 137. It was no doubt true, as Glanvill says, Lib. X. c. 17, that the usual mode of proof was by a writing or by duel, and that the King's Court did not generally give protection to private agreements made anywhere except in the Court of the King (Lib. X. c. 8). But it can hardly be that debts were never established by witness in his time, in view of the continuous evidence from Bracton onwards. 257/2 But cf. Brunner, Schwurgerichte, 399. I do not go so far as to say that they were still a living institution. However that may be, tradition must at least have modelled itself on what had been the function of the former official body.
257/3 Bract., fol. 315 b, Section 6; Britt. (Nich.) I. p. 162; Magna Charta, c. 38; Y.B. 21 Ed. I. 456; 7 Ed. II. 242; 18 Ed. II. 582; 3 Bl. Comm. 295, 344. Cf. 17 Ed. III. 48 b.
257/4 Cf. Glanv., Lib. IV. c. 6.
258 (return)
258/1 Lib. X. c. 18. It is possible that this means no more than Glanvill's often repeated statement, that the King's Court did not, generally speaking, take cognizance of private agreements. The substantive law was, perhaps, still limited by traditions from the infancy of contract. See pp. 248, 251, 259, 260. The proposition in its broadest form may have been based on the inability to try such agreements in any way but those which have been specified. Cf. the requirement of aliam diracionationem and aliis probationibus, in Lib. X. c. 12. But cf. Ibid. with Essays in A. S. Law, pp. 189, 190.
259 (return)
259/1 Sharington v. Strotton, Plowden, 298, at p. 302, M. 7 & 8 Eliz. 259/2 Pillans v. Van Mierop, 3 Burrow, 1663, 1669.
260 (return)
260/1 1 Thorpe, Anc. Laws, 181, Oaths, 7, 8. 260/2 Glanv., Lib. X. c. 5 (Beames, p. 251); Y.B. 7 Ed. II. 242; Novae Narr. Dette-Vers plege, Rastell's Law Tracts, p. 253, D, 2 Finl. Reeves, 376.
261 (return)
261/1 Glanv., Lib. X. c. 22 (Beames, p. 263); Bract., fol. 398 b, Section 1. The favorite proof by duel was also allowed, but this disappeared. When the inquest became general, the execution of the deed was tried, like any other fact, by that means. 261/2 Bract., fol. 315 b, Section 6, 400 b; Coke, 2d Inst., 44, 45.
262 (return)
262/1 Glanv., Lib. X. c. 12 (Beames, p. 263); Bract., fol. 100 b, Section 9. 262/2 Glanv., Lib. X. c. 17 (Beames, p. 272).
262/3 Bract., fol. 400 b, Section 9.
262/4 Cf. Y.B. 20 Ed. I. 304, and 34 Ed. II., 150, 152; ib. 330, 332; 35 Ed. I. 546.
263 (return)
263/1 Bract., fol. 400 b, Section 8. 263/2 Cf. Y.B. 20 Ed. I. 304.
263/3 Cap. 28; 32 & 33 Ed. I. 516; 18 Ed. II. 582; Fleta, II. c, 63, Section 9; Coke, 2d Inst., 44; 3 Bl. Comm. 344.
263/4 Y.B. 18 Ed. II. 582; 17 Ed. III. 48 b, pl. 14.
264 (return)
264/1 Y.B. 29 Ed. III. 25, 26; cf. 48 Ed. III. 6, pl. 11; Fleta, II. c. 60, Section 25; Glanvill, Lib. X. c. 12. 264/2 Cf. Bro..Acc. sur le Case, pl. 5; S.C., 27 Hen. VIII. 24, 25, pl. 3.
264/3 Y.B. 18 Ed. III. 13, pl. 7.
264/4 Y.B. 44 Ed. III. 21, pl. 23.
264/5 F. N. B. 122, I, in margin. Cf. F. N. B. 122 K; Y.B. 43 Ed. III. 11, pl. 1; S.C., Bro. Pledges, pl. 3; 9 Hen. V. 14, pl. 23.
265 (return)
265/1 Y.B. 17 Ed. III. 48 b, pl. 14. Cf. Fortescue (Amos), 67, n.; 3 Bl. Comm. 295. 265/2 For limit, see Constit. of Clarendon, c. 15; Glanv., Lib. X. c. 8, 12; Y.B. 22 Ass., pl. 70, fol. 101; 45 Ed. III. 24, pl. 30; 19 R. II., Fitzh. Abr. Dett, pl. 166; 37 Hen. VI. 8, pl. 18; 14 Ed. IV. 6, pl. 3; 15 Ed. IV. 32, pl. 14; 19 Ed. IV. 10, pl. 18; 20 Ed. IV. 3, pl. 17.
266 (return)
266/1 See for an illustration 2 Kent's Comm. (12th ed.), 451, n. 1 (b). 266/2 Repromittatur, but cf. pro servitio tuo vel pro homagio, Fleta, II. c. 60, Section 25.
267 (return)
267/1 Y.B. 29 Ed. III. 25, 26. But cf. 48 Ed. III. 3, pl. 6. 267/2 19 R. II., Fitzh. Abr. Dett, pl. 166.
267/3 Y.B. 12 Hen. IV. 17, pl. 13, ad fin.
267/4 Y.B. 9 Hen. V. 14, pl. 23.
267/5 (Cf. 13 Ed. II. 403; 17 Ed. IIL 48, pl. 14; 29 Ed. III. 25, 26.) 41 Ed. III. 7, pl. 15; 46 Ed. III. 6, pl. 16; Fitzh. Abr. Dett, pl. 166.
267/6 Y.B. 3 Hen, VI. 36, pl. 33.
268 (return)
268/1 Y.B. 37 Hen. VI. 8, pl. 18. 268/2 E. g., Rolfe in Y.B. 3 Hen. VI. 36, pl. 23.
269 (return)
269/1 Y.B. 37 Hen. VI. 8, pl. 18. Cf. Bro. Feoffements al Uses, pl. 54; Plowden, 301. 269/2 Y.B. 15 Ed. IV. 32, pl. 14; (S.C., 14 Ed. IV. 6, pl. 3;) 17 Ed. 4, pl. 4.
269/3 Cf. Y.B. 37 Hen. VI. 8, pl. 18; 17 Ed. IV. 4, 5; Plowden, 305, 306.
269/4 Y.B. 3 Hen. VI. 36, pl. 33.
269/5 Y.B. 37 Hen. VI. 13.
269/6 As to requirement of certain sum, cf. Y.B. 12 Ed. II. 375; Fleta, II. c. 60, Section 24.
270 (return)
270/1 Y.B. 29 Ed. III. 25, 26; 40 Ed. III. 24, pl. 27; 43 Ed. II1. 2, pl. 5. 270/2 Y.B. 43 Ed. III. 2, pl. 5; 46 Ed. III. 25, pl. 10; 50 Ed. III. 5, pl. 11.
270/3 Cf. Glanv., Lib. X. c. 8; Fleta, II. c. 60, Section 25.
270/4 Y.B. 35 Ed. I. 454; 12 Ed. II. 375.
272 (return)
272/1 Ducange, "Sigilium"; Ingulph. 901. 272/2 Big. Pl. Ang. Norm. 177.
272/3 Big. Pl. Ant. Norm. 177; Bract., fol. 100 b, Section 9, "scriptura." But cf. Y.B. 30 Ed. I. 158; Fleta, II. c. 60, Section 25.
272/4 Y.B. 33 Ed. I. 354, 356; 35 Ed. I. 455, top; 41 Ed. III. 7, pl. 15; 44 Ed. III. 21, pl. 23. Cf. 39 Hen. VI. 34, pl. 46.
272/5 Y.B. 7 Ed. I. 242. Cf. 35 Ed. I. 452.
272/6 Cf. Bract., fol. 100 b, Section 9.
272/7 Cf. Glanv., Lib. X. c. 12; Dugdale, Antiq. Warwic. 673, cited Ducange, "Sigillum"; Bract., fol. 396 b, Section 3; I Britt. (Nich.)163, Section 17; Abbrev. Plac. 8 Joh., Berk. rot. 4, pp. 55, 56; ib. 19 Ed. I., Norf. & Surf. rot. 7, p. 284; ib. Index "Sigillum."
272/8 Y.B. 30 Ed. I. 158; Fleta, II. c. 60, Section 25, p. 130.
273 (return)
273/1 45 Ed. III. 24, pl. 30. 273/2 Bract., fol. 100 b, Section 9.
275 (return)
275/1 Cf. 5 Co. Rep. 13 b, 14 a, with 1 Roll. Rep. 126, 128; Y.B. 43 Ed. III 30, pl. 15. 275/2 Y.B. 46 Ed. III. 19, pl. 19; S.C. Bro. Acc. sur le Case, pl. 22.
275/3 Y.B. 22 Ass., pl. 4i, fol. 94.
276 (return)
276/1 Y.B. 43 Ed. III. 33, pl. 38.
277 (return)
277/1 Y.B. 11 Hen. IV. 33, pl. 60. 277/2 Y.B. 3 Hen. VI. 36, pl. 33.
277/3 Y.B. 2 Hen. IV. 3, pl. 9; 11 Hen. IV. 33, pl. 60. Cf. 3 Hen. VI. 36, 83.
279 (return)
279/1 Cf. 19 Hen. VI. 49, pl. 5 ad fin., Newton, C. J.
280 (return)
280/1 Cf. Y.B. 48 Ed. III. 6, pl. 11. 280/2 Cases supra; Y.B. 2 Hen. IV. 3, pl. 9; 11 Hen. IV. 33. Cf. 3 Hen. VI. 36, pl. 33; 20 Hen. VI. 34, pl. 4; 2 Hen. VII. 11, pl. 9.
281 (return)
281/1 Y.B. 48 Ed. III. 6, pl. 11. Cf. Fitzh. Abr. Acc. sur le case, pl. 37, 11 R. II; 14 Hen. VI. 18. But cf. 43 Ed. III. 33, pl. 38.
282 (return)
282/1 Cf. Candish's reasons for allowing wager of law with Y.B. 32 & 33 Ed. I., Preface, p. xxxvi., citing the old rules of pleading printed at the end of the tract entitled, Modus tenendi unum Hundredum sire Curiam de Recordo, in Rastell's Law Tracts, p. 410, E, F, G. 282/2 Y.B. 3 Hen. VI. 36, pl. 33.
282/3 Y.B. 2 Hen. IV. 3, pl. 9; 11 Hen. IV. 33, pl. 60; 3 Hen. VI. 36, pl. 33.
282/4 3 Hen. VI. 36, pl. 33.
283 (return)
283/1 Y.B. 14 Hen. VI. 18, pl. 58. 283/2 Ibid. Cf. 48 Ed. III 6, pl. 11.
283/3 Y.B. 19 Hen. VI. 49, pl. 5. See, further, Y.B. 20 Hen. VI. 25, pl. 11.
284 (return)
284/1 Cf. Y.B. 3 Hen. VI. 36, pl. 33. 284/2 Y.B. 2 Hen. VII. 11, pl. 9. Cf. 20 Hen. VI. 34, pl. 4.
284/3 Cf. Y.B. 14 Hen. VI. 18, pl. 58; 21 Hen. VII. 41, pl. 66, Fineux, C. J.
284/4 Keilway, 160, pl. 2 (2 Hen. VIII.); Powtuary v. Walton, 1 Roll. Abr. 10, pl. 5 (39 Eliz.); Coggs v. Bernard, 2 Ld. Raym. 909 (2 Anne, A.D. 1703). Supra, p. 195.
285 (return)
285/1 Sands v. Trevilian, Cro. Car. 193, 194 (Mich. 4 Car. I., A.D. 1629). 285/2 Bro. Acc. sur le Case, pl. 5; S.C., Y.B. 27 Hen. VIII. 24, 25, pl. 3; Sidenham v. Worlington, 2 Leon. 224, A.D. 1585.
285/3 Y.B. 21 Hen. VII. 30, pl. 5; ib. 41, pl. 66.
285/4 Y.B. 3 Hen. VI. 36, pl. 33.
286 (return)
286/1 Sharington v. Strotton, Plowden, 298 (Mich. 7 & 8 Eliz.); ib. 309, note on "the civil law." 286/2 Hunt v. Bate, 3 Dyer, 272 a (10 Eliz., A.D. 1568).
286/3 See Lecture VIII. Mr. Langdell, Contracts, Sections 92, 94, suggests the ingenious explanation for this doctrine, that it was then held that no promise could be implied in fact from the request. There may be evidence which I do not know, but the case cited (Bosden v. Thinne, Yelv. 40) for this statement was not decided until A.D. 1603, while the implication of Hunt v. Bate, supra, which was the authority followed by the cases to be explained, is all the other way.
286/4 Sidenham v. Worlington, 2 Leon. 224, A.D. 1585.
287 (return)
287/1 Read v. Baxter, 3 Dyer, 272 b, n. (26 & 27 Eliz.). Cf. Richards and Bartlet's Case, 1 Leon. 19 (26 Eliz.). 287/2 Bro. Acc. sur le Case, pl. 5; S.C., Y.B. 27 Hen. VIII. 24, 25, pl. 3; 3 Dyer, 272, n.
287/3 Marsh v. Rainsford, 3 Dyer, 272 b, n.; S.C., 2 Leon. 111, and Cro. Eliz. 59, sub. nom. Marsh v. Kavenford.
287/4 Smith and Smith's Case, 3 Leon. 88, A.D. 1583; Riches and Briggs, Yelv. 4, A.D. 1601; Pickas v. Guile, Yelv. 128, A.D. 1608.
288 (return)
288/1 Supra, p. 195. Lord Coke's caution not to rely on the abridgments is very necessary to the proper study of the history of consideration. The abridgments apply the doctrine to cases which make no mention of it, and which were decided before it was ever heard of.
290 (return)
290/1 Y.B. 46 Ed. III. 19, pl. 19; 19 Hen. VI. 49, pl. 5; Keilway, 160, pl. 2; Powtuary v. Walton, 1 Roll. Abr. 10, pl. 5; Coggs v. Bernaard, 2 Ld. Raym. 909. 290/2 Riches and Briggs, Yelv. 4, A.D. 1601; Pickas v. Guile, Yelv. 128.
291 (return)
291/1 Bainbridge v. Firmstone, 8 Ad. & El. 743, A.D. 1838. 291/2 Wilkinson v. Oliveira, 1 Bing. N. C. 490, A.D. 1835; Haigh v. Brooks, 10 Ad. & El. 309; lb. 323; Hart v. Miles, 4 C.B. N.S. 371, A.D. 1858.
291/3 Wheatley v. Low, Cro. Jac. 668, A.D. 1623. Cf. Byne and Playne's Case, 1 Leon. 220, 221 (32 & 33 Eliz.).
291/4 Wilkinson v. Oliveira, 1 Bing. N. C. 490; Haigh v. Brooks, 10 Ad. & El. 309; Hart v. Miles, 4 C.B. N.S. 371; 6 Am. Law Rev. 47, Oct. 1871.
292 (return)
292/1 Supra, pp. 196, 197. See also Lecture VII. 292/2 Byles, J., in Shadwell v. Shadwell, 30 L. J. C.P. 145, 149.
292/3 Shadwell v. Shadwell, ubi supra; Burr v. Wilcox, 13 Allen, 269, 272, 273.
292/4 Thomas v. Thomas, 2 Q.B.851.
293 (return)
293/1 Price v. Jenkins, 5 Ch. D. 619. Cf. Grabbe v. Moxey, 1 W. R. 226; Thomas v. Thomas, 2 Q.B.851; Monahan, Method of Law, 141 et seq.
294 (return)
294/1 Ellis v. Clark, 110 Mass. 389. 294/2 Fitch v. Snedaker, 38 N. Y. 248, criticising Williaws v. Carwardine, 4 Barn. & Ad. 621, where, however, it does not appear that the plaintiff did not know of the offer of a reward, but merely that the jury found that she was in fact actuated by other motives, a finding wholly beside the mark.
296 (return)
296/1 Y.B. 29 Ed. III. 25, 26. 296/2 19 R. II., Fitzh. Abr. Dett, pl. 166.
296/3 Hunt v. Bate, Dyer, 272, A.D. 1568.
297 (return)
297/1 See Barker v. Halifax, Cro. Eliz. 741; S.C. 3 Dyer, 272 a, n. 32. 297/2 Sidenham v. Worlington, 2 Leonard, 224; Bosden v. Thinne, Yelv. 40; Lampleigh v. Brathwait, Hobart, 105; Langdell, Cas. on Contr. (2d ed.), ch. 2, Section 11, Summary, Sections 90 et seq. See above, Lecture VII. p. 286.
297/3 Pollock, Contr. (lst ed.), p. 6.
298 (return)
298/1 Canham v. Barry, 15 C.B. 597, 619; Jones v. How, 9 C.B. 1, 9; Com. Dig. Condition, D. 2; I Roll. Abr. 420 (D), pl. 1; Y.B. 22 Ed. IV. 26, pl. 6.
301 (return)
301/1 Gee v. Lancashire & Yorkshire Railway Co., 6 H. & N. 211, 218, Bramwell, B. Cf. Hydraulic Engineering Co. v. McHaffie, 4 Q.B.D. 670, 674, 676. 301/2 British Columbia Saw-Mill Co. v. Nettleship, L.R. 3 C.P. 499, 509, Willes, J.; Horne v. Midland Railway Co., L.R. 7 C.P. 583, 591; S.C., L.R. 8 C.P. 131.
302 (return)
302/1 British Columbia Saw-Mill Co. v. Nettleship, L.R. 3 C.P. 499, 509.
304 (return)
304/1 Cheale v. Kenward, 3 DeG. & J. 27. 304/2 Langdell, Contr., Sections 89, 28.
305 (return)
305/1 Langdell, Contr., Section 57. 305/2 Ibid., Sections 14, 15.
306 (return)
306/1 But see Langdell, Contr., Sections 14, 15.
309 (return)
309/1 Raffles v. Wichelhaus, 2 H. & C. 906. Cf. Kyle v. Kavanagh, 103 Mass. 356, 357. 309/2 Cf. Cocker v. Crompton, 1 B. & C. 489.
310 (return)
310/1 Smith v. Hughes, L.R. 6 Q.B.597. 310/2 See Gardner v. Lane, 12 Allen, 39; S.C. 9 Allen, 492, 98 Mass. 517.
311 (return)
311/1 Goddard v. Monitor Ins. Co., 108 Mass. 56.
313 (return)
313/1 See Cundy v. Lindsay, 3 App. Cas. 459, 469. Cf. Reg. v. Middleton, L.R. 2 C.C. 38, 55 et seq., 62 et seq.; Reg. v. Davies, Dearsly, C.C. 640; Rex v. Mucklow, 1 Moody, O.C. 160; Reg. v. Jacobs, 12 Cox, 151. 313/2 "Praesentia corporis tollit errorem nominis." Cf. Byles, J., in Way v. Hearne, 32 L. J. N.S.C.P. 34, 40. But cf. the conflicting opinions in Reg. v. Middleton, L.R. 2 C.C. 38, 45, 57. It would seem that a proper name or other identification of an object or person as specific may have the same effect as an actual identification by the senses, because it refers to such an identification, although in a less direct way.
316 (return)
316/1 Brown v. Foster, 113 Mass. 136. 316/2 Leake, Dig. Contr. 13, 14, 637; Hunt v. Livermore, 5 Pick. 395, 397; Langd. Contr. (2d ed.), Section 36.
316/3 Leake, Dig. Contr. 638; Braunstein v. Accidental Death Ins. Co., 1 B. & S. 782.
316/4 But cf. Langd. Contr. (2d ed.), Section 29.
318 (return)
318/1 Langd. Contr. (2d ed.), Section 29. 318/2 Bullen & Leake, Prec. of Plead. (3d ed.), 147, "Conditions Precedent."
319 (return)
319/1 Cf. Cort v. Ambergate, Nottingham & Boston & Eastern Junction Railway Co., 17 Q.B.127.
320 (return)
320/1 Goodman v. Pocock, 15 Q.B.576 (1850).
325 (return)
325/1 Fisher v. Mellen, 103 Mass. 503. 325/2 Supra, p. 136.
327 (return)
327/1 Langd. Contr. (2d ed.), Section 33.
328 (return)
328/1 See the explanation of Dimech v. Corlett, 12 Moo. P.C. 199, in Behn v. Burness, 3 B. & S. 751, 760.
329 (return)
329/1 Behn v. Burness, 3 B. & S. 751. 329/2 Langd. Contr. (2d ed.), Section 28, p. 1000.
329/3 See Lecture VIII.
330 (return)
330/1 Kennedy v. Panama, &c. Mail Co., L.R. 2 Q.B.580, 588; Lyon v. Bertram, 20 How. 149, 153. Cf. Windscheid, Pand., Section 76, nn. 6, 9. 330/2 Windscheid, Pand., Section 76(4). See, generally, Ibid., nn. 6, 7; Section 78, pp. 206, 207; Section 82, pp. 216 et seq.
331 (return)
331/1 Cr. Ihering, Geist d. Roem. Rechts, Section 48, III. p. 116 (Fr. transl.). 331/2 See, however, the language of Crompton, J. in S.C., I B. & S. 877. Cf. Kent, Comm. (12th ed.), 479, n. 1, A (c).
331/3 Behn v. Burness, 3 B. & S. 751, 755, 756.
334 (return)
334/1 Cf. Anglo-Egyptian Navigation Co. v. Rennie, L.R. 10 C.P. 271. 334/2 Ellen v. Topp, 6 Exch. 424.
335 (return)
335/1 Contracts (2d Ed.), Section 106, and passim.
336 (return)
336/1 Chanter v. Hopkins, 4 M. & W. 399, 404. Possibly Behn v. Burness, stated above, might have been dealt with in this way. The ship tendered was not a ship which had been in the port of Amsterdam at the date of the contract. It was therefore not such a ship as the contract called for. 336/2 Heyworth v. Hutchinson, L.R. 2 Q.B.447, criticised in Benj. Sales (2d ed.), pp. 742 et seq.
336/3 See Thomas v. Cadwallader, Willes, 496; Langd. Contr. (2d ed.), Sections 116, 140. This is put as a case of equivalence by Mr. Langdell (Contr., Section 116); but the above explanation is believed to be the true one. It will be noticed that this is hardly a true case of condition, but merely a limitation of the scope of the tenant's promise. So a covenant to serve as apprentice in a trade, which the other party covenants to teach, can only be performed if the other will teach, and must therefore be limited to that event. Cf. Ellen v. Topp, 6 Exch. 424.
337 (return)
337/1 Langdell, Contracts (2d ed.), Section 127. Cf. Roberts v. Brett, 11 H. L. C. 337.
339 (return)
339/1 Graves v. Legg, 9 Exch. 709. Cf. Lang. Contr. (2d ed.), Section 33, p. 1004. Mr. Langdell says that a bought note, though part of a bilateral contract, is to be treated as unilateral, and that it may be presumed that the language of the contract relied on was that of a bought note, and thus a condition in favor of the defendant, who made it. I do not quite understand how this can be assumed when the declaration states a bilateral contract, and the question arose on demurrer to a plea, which also states that the plaintiff "was by the agreement bound to declare" the names. How remote the explanation is from the actual ground of decision will be seen.
341 (return)
341/1 Recht des Besitzes, Section 11, p. 184, n. 1 (7th ed.), Eng. tr. 124, n. t.
342 (return)
342/1 Inst. II. Section 157. 342/2 "In suis heredibus evidentius apparet continuationem dominii eo rem perdueere, ut nulla videatur hereditas fuisse, quasi olim hi domini essent, qui etiam vivo patre quodammodo domini existimantur, unde etiam filius familias appellatur sicut pater familias, sola nota hae adiecta, per quam distinguitur genitor ab eo qui genitus sit. itaque post mortem patris non hereditatem percipere videntur, sed magis liberam bonorum administrationem consequuntur hac ex causa licet non sint heredes instituti, domini sunt: nec obstat, quod licet eos exheredare, quod et occidere licebat." D. 28.2. 11. Cf. Plato, Laws, [Greek characters]
343 (return)
343/1 Laveleye, Propriety, 24, 202, 205, 211, n. 1, 232; Norton, L.C. Hindu Law of Inheritance, p. 193. 343/2 D. 50. 16. 208.
343/3 D. 41. 1. 34. Cf. D. 41. 3. 40; Bract., fol. 8 a, 44 a.
343/4 D. 43. 24. 13, Section 5.
344 (return)
344/1 Germania, c. 20.
345 (return)
345/1 Littleton, Section 337; Co. Lit. 209, a, b; Y.B. 8 Ed. IV. 5, 6, pl. 1; Keilway, 44 a (17 Hen. VII.); Lord North v. Butts, Dyer, 139 b, 140 a, top; Overton v. Sydall, Popham, 120, 121; Boyer v. Rivet, 3 Bulstr. 317, 321; Bain v. Cooper, 1 Dowl. Pr. Cas. N. s. 11, 14. 345/2 Y.B. 48 Ed. III. 2, pl. 4.
346 (return)
346/1 Vermoegensrechtlichen Klagen, 88, 89. 346/2 Proc. de la Lex Salica, tr. Thevenin, p. 72 and n. 1.
347 (return)
347/1 Ethelred, II. 9; Cnut, II. 73; Essays in Ang. Sax. Law, pp. 221 et seq. 347/2 1 Spence, Eq. 189, note, citing Hickes, Dissert. Epist., p. 57.
347/3 Glanv., Lib. VII. c. 2 (Beames, p. 150).
347/4 Ibid., c. 8 (Beames, p. 168).
347/5 Reg. Maj., Lib. II. c. 39.
348 (return)
348/1 Fol. 61 a. 348/2 Sachsensp., II. 60, Section 2, cited in Essays in Ang. Sax. Law, p. 221; Grand Cust. de Norm., c. 88.
348/3 Britt., fol. 64 b (Nich. ed. 163); Fleta, Lib. II. c. 62, Section 10. Cf. Bract., fol. 37 b, Section 10.
348/4 Bracton, fol. 61 a, b. "Item quaero an testator legare possit actiones suas? Et verum est quod non, de debitis quae in vita testatoris convicta non fuerunt nec recognita, sed hujusmodi actiones competunt haeredibus. Cum antera convicta sint et recognita, tune sunt quasi in bonis testatoris, et competunt executoribus in foro ecclesiastico. Si autem competant haeredibus, ut praedictum est, in foro seculari debent terminari, quia antequam communicantur et in foro debito, non pertinet ad executores, ut in foro ecclesiastico convincantur."
349 (return)
349/1 Bracton, fol. 62a. 349/2 Y.B. 20 & 21 Ed. I. 232; cf. ib. 312.
349/3 Oates v. Frith, Hob. 130. Cf. Y.B. 5 Hen. VII. 18, pl. 12; Popham, J., in Overton v. Sydall, Poph. 120, 121 (E. 39 El.); Boyer v. Rivet, 3 Bulstr. 317, 319-322; Brooker's Case, Godb. 376, 380 (P. 3 Car. I.).
349/4 Bain v. Cooper, 1 Dowl. Pract. Cas. N. s. 11, 14. Cf. Y.B. 14 Hen. VIII. pl. 5, at fol. 10.
350 (return)
350/1 Bract., fol. 66 b, 76 b, and passim; Y.B. 20 Ed. I. 226, 200; Littleton, Section 241. The same thing was said where there were several executors: "They are only in the place of one person." Y.B. 8 Ed. IV. 5,pl. 1. 350/2 Comm. 385.
350/3 Cf. Glanv., Lib. VII. c. 3; F. N. B. 21 L; Dyer, 4 b, 5 a.
351 (return)
351/1 Cf. Bract., fol. 80 b. 351/2 Charta Divis. Reg. Franc., Art. IX. & VIII. Cf. 3 Laferriere, Hist. du Droit Francais, 408, 409.
351/3 Glanv., Lib. IX. c. 1 (Beames, pp. 218, 220); Bract., fol. 79 b.
352 (return)
352/1 Brooker's Case, Godbolt, 376, 377, pl. 465. 352/2 Dyer, 1 b. Cf. Bain v. Cooper, 1 Dowl. Pr. C. N. s. 11, 12.
354 (return)
354/1 In the American Law Review for October, 1872, VII. 49, 50, I mentioned one or two indications of this fact. But I have since had the satisfaction of finding it worked out with such detail and learning in Ihering's Geist des Roemischen Rechts, Sections 10, 48, that I cannot do better than refer to that work, only adding that for my purposes it is not necessary to go so far as Ihering, and that he does not seem to have been led to the conclusions which it is my object to establish. See, further, Clark, Early Roman Law, 109, 110; Laferriere, Hist. du Droit Frang., I. 114 et seq.; D. 1.5. 4, Section 3; Gaii Inst. IV. Section 16; ib. II. Section 69.
356 (return)
356/1 Erbvertraege, I. 15 et seq. 356/2 Hist. du Droit Franc., IV. 500.
356/3 "Quantum dare voluerit aut totam furtunam eui voluerit dare . . . nec minus nec majus nisi quantum ei creditum est." Lex Sal. (Merkel), XLVI.
356/4 Lex Sal. (Merkel), Cap. XLVI., De adfathamire; Sohm, Frank. Reichs- u. Gerichtsverfassung, 69.
356/6 Beseler, Erbvertraege, I. 101, 102, 105.
357 (return)
357/1 "Omnem facultatem suam. . . seu cuicunque libet de proximis vel extraneis, adoptare in hereditatem vel in adfatimi vel per scripturarum seriem seu per traditionem." L. Rib. Cap. L. (al. XLVIII.); cf. L. Thuring. XIII. So Capp. Rib. Section 7: "Qui filios non habuerit et aliurn quemlibet heredem facere sibi voluerit coram rege . . . traditionem faclat." 357/2 Ed. Roth., cap. 174, 157; cf. lb. 369, 388; Liutpr. III. 16 (al. 2), VI. 155 (al. 102). Cf. Beseler, Erbvertraege, I. 108 et seq., esp. 116-118. Compare the charter of A.D. 713, "Offero . . . S. P. ecclesia quam mihi heredem constitui." (Mem. di Lucca V. b. No. 4.) Troya III. No. 394, cited Heusler, Gewere, 45, 46. Cf. ib. 484. This, no doubt, was due to Roman influence, but it recalls what Sir Henry Maine quotes from Elphinstone's History of India (I. 126), as to sale by a member of one of the village communities: "The purchaser steps exactly into his place, and takes up all his obligations." Ancient Law, ch. 8, pp. 263, 264.
357/3 (Merkel) Cap. LVIII., De chrenecruda. Sohm, Frank. R. u. G. Verf., 117.
358 (return)
358/1 A.D. 679: "Sicuti tibi donata est ira tene et posteri tui." Kemble, Cod. Dip., I. 21, No. xvi. Uhtred, A.D. 767: "Quam is semper possideat et post se cui voluerit heredum relinquat." Ib. I. 144, cxvxi. ("Cuilibet heredi voluerit relinquat" is very common in the later charters; ib. V. 155, MLXXXIL; lb. VI. 1, MCCXVIIL; it). 31, MCCXXX.; lb. 38, MCCXXXIV.; and passim. This may be broader than cui voluerit herealum.) Offa, A.D. 779: "Ut se viverite habe . . . deat. et post se suoe propinquitatis homini cui ipse vo . . . possidendum libera utens potestate relinquat." Ib. I. 164, 165, CXXXVII. Aethilbald, A.D. 736: "Ita ut quamdiu vixerit potestatem habeat tenendi ac possidendi cuicumque voluerit vel eo vivo vel certe post obitum suum relinquendi." Ib. I. 96, LXXX.; cf. ib. V. 53, MXIV. Cuthred of Kent, A.D. 805: "Cuicumque hominum voluerit in aeternam libertatem derelinquat." Ib. I. 232, CXC. "Ut habeat libertatem commutandi vel donandi in vita sua et post ejus obiturn teneat facultatem relinquendi cuicumque volueris." Ib. I. 233, 234, CXCI.; cf. ib. V. 70, MXXXI. Wiglaf of Mercia, Aug. 28, A.D. 831: "Seu vendendum ant commutandum i cuicumque ei herede placuerit dereliaquendum." Ib. I. 294, CCXXVII.
359 (return)
359/1 "W. et heredibus suis, videlicet quos heredes constituerit." Memorials of Hexham, Surtees Soc. Pub., 1864, II. 88. 359/2 Cf. Y.B. 27 Ass., fol. 135, pl. 25. Under the Welsh laws the champion in a cause decided by combat acquired the rights of the next of kin, the next of kin being the proper champion. Lea, Superstition and Force (3d Ed.), 165. Cf. ib. 161, n. 1; ib. 17.
361 (return)
361/1 D. 38. 8. 1, pr. 361/2 "Cum is, qui ex edicto bonorum possessionem petiit, ficto se herede agit." Gaii Inst. IV. Section 34. Cf. Ulp. Fragm. XXVIII. Section 12; D. 37. 1. 2. So the fidei commissarius, who was a praetorian successor (D. 41. 4. 2, Section 19; 10. 2. 24), "in similitudinem heredis consistit." Nov. 1. 1, Section 1. Cf. Just. Inst. 2. 24, pr., and then Gaius, II. Sections 251, 252.
361/3 Gaii Inst. II. Sections 102 et seq. Cf. ib. Sections 252, 35.
361/4 Gaii Inst. IV Section 35: "Similiter et bonorum emptor ficto se herede agit." Cf. ib. Sections 144, 145. Keller, Roemische Civilprocess, Section 85, III. But cf. Scheurl, Lehrb. der Inst., Section 218, p. 407 (6th ed.).
361/5 Paulus in D. 50. 17. 128.
362 (return)
362/1 "In re legata in accessione temporis quo testator possedit, legatarius quodammodo quasi heres est." D. 41. 3. 14, Section 1. 362/2 D. 41.1.62; 43. 3. 1, Section 6; Gaii Inst. II. Section 97; Just. Inst. 2. 10, Section 11.
363 (return)
363/1 "[Accessiones possessionum] plane tribuuntur his qui in locum aliorum succedunt sive ex contractu sive voluntate: heredibus enum et his, qui successorum loco habentur, datur accessio testatoris. Itaque si mihi vendideris servum utar accesssione tua." D. 44.3.14, Sections 1, 2. 363/2 "Ab eo . . . in cujus locum hereditate vel emptione aliove quo iure successi." D. 43. 19. 3, Section 2.
363/3 D. 50. 4. 1, Section 4. Cf. Cic. de Off. 3. 19. 76; Gaii Inst. IV. Section 34.
363/4 C. 2. 3. 21; C. 6. 16. 2; cf. D. 38. 8. 1, pr.
364 (return)
364/1 "In locum successisse accipimus sive per universitatem sive in rem sit successum." D. 43. 3. 1, Section 13. Cf. D. 21.3.3, Section 1; D. 12.2.7&8;D. 39. 2. 24, Section 1. 364/2 D. 41.2. 13, Sections 1, 11. Other cases put by Ulpian may stand on a different fiction. After the termination of a precarium, for instance, fingitur fundus nunquam fuisse possessus ab ipso detentore. Gothofred, note 14 (Elz. ed.). But cf. Puchta, in Weiske, R. L., art. Besitz, p. 50, and D. 41.2.13, Section7.
364/3 Inst. 2. 6, Sections 12, 13. Cf. D. 44. 3. 9. See, for a fuller statement, 11 Am. Law Rev. 644, 645.
365 (return)
365/1 Recht des Besitzes, Section11 (7th ed.), p. 184, n. 1, Eng. tr. 124, n. t. 365/2 Paulus, D. 8. 6. 18, Section 1. This seems to be written of a rural servitude (aqua) which was lost by mere disuse, without adverse user by the servient owner.
365/3 Hermogenianus, D. 21. 3. 3; Exe. rei jud., D. 44. 2. 9, Section 2; ib. 28; ib. 11, Sections 3, 9; D. 10. 2. 25, Section 8; D. 46. 8. 16, Section I; Keller, Roem. Civilproc., Section 73. Cf. Bracton, fol. 24 b, Section 1 ad fin.
365/4 "Recte a me via uti prohibetur et interdictum ei inutile est, quia a me videtur vi vel clam vel precario possidere, qui ab auctore meo vitiose possidet. nam et Pedius scribit, si vi aut clam aut precario ab co sit usus, in cuius locum hereditate vel emptione aliove quo lure suceessi, idem esse dicendum: cum enim successerit quis in locum eorum, aequum non est nos noceri hoc, quod adversus eum non nocuit, in cuius locum successimus." D. 43. 19. 3, Section 2. The variation actore, argued for by Savigny, is condemned by Mommsen, in his edition of the Digest, —it seems rightly.
365/5 D. 12. 2. 7 & 8.
366 (return)
366/1 Ulpian, D. 39. 2. 24, Section1. Cf. D. 8. 5.7; D. 39. 2. 17, Section 3, n. 79 (Elzevir ed.); Paulus, D. 2. 14. 17, Section 5. 366/2 "Cum quis in alii locum successerit non est aequum ei nocere hoc, quod adversus eum non nocuit, in cujus locum successit. Plerumque emptoris eadem causa esse debet circa petendum ac defendendum, quae fuit auctoris." Ulp. D. 50. 17. 156, Sections 2, 3. "Qui in ius dominiumve alterius succedit, iure ejus uti debet." Paulus, D. 50. 17. 177. "Non debeo melioris condieionis esse, quam auctor meus, a quo ius in me transit." Paulus, D. 50. 17. 175, Section 1. "Quod ipsis qui contraxerunt obstat, et successoribus eoturn obstabit." Ulp. D. 50. 17. 143. "Nemo plus iuris ad alium transferre potest, quam ipse haberet." Ulp. D. 50. 17. 54; Bract., fol. 31 b. Cf. Decret. Greg. Lib. II. Tit. XIII. c. 18, De rest. spoliat.: "Cum spoliatori quasi succedat in vitium." Bruns, R. d. Besitzes, p. 179. Windscheid, Pand., Section 162 a, n. 10.
366/3 "Ne vitiosae quidam possessioni ulla potest accedere: sed nec vitiosa ei, quse vitiosa non est." D. 41. 2. 13, Section 13.
367 (return)
367/1 Hill v. Ellard, 3 Salk. 279. Cf. Withers v. Iseham, Dyer, 70 a, 70 b, 71 a; Gateward's Case, 6 Co. Rep. 59b, 60b; Y.B. 20 & 21 Ed. I 426; 205; 12 Hen. IV. 7.
368 (return)
368/1 Doe v. Barnard, 13 Q.B.945, 952, 953, per Cur., Patteson, J. Cf. Asher v. Whitlock, L.R. 1 Q.B.1, 3, 6, 7. 368/2 See, further, Sawyer v. Kendall, 10 Cush. 241; 2 Bl. Comm. 263 et seq.; 3 Ch. Pl. 1119 (6th Am. ed.); 3 Kent, 444, 445; Angell, Limitations, ch. 31, Section 413. Of course if a right had already been acquired before the disseisin different considerations would apply. If the right claimed is one of those which are regarded as incident to land, as explained in the following Lecture, the disseisor will have it. Jenk. Cent. 12, First Cent. Case 21.
370 (return)
370/1 Ared v. Watkin, Cro. Eliz. 637; S.C., ib. 651. Cf. Y.B. 5 Hen. VII. 18, pl. 12; Dyer, 4 b, n. (4). 370/2 Roe v. Hayley, 12 East, 464, 470 (1810).
371 (return)
371/1 Boyer v. Rivet, 3 Bulstr. 317, 321.
372 (return)
372/1 Essays in A. S. Law, 219. 372/2 "Per medium," Bracton, fol. 37b, Section10 ad fin.
374 (return)
374/1 Bract., fol. 17 b. Cf. Fleta, III. c. 14, Section 6. 374/2 See, further, Middlemore v. Goodale, Cro. Car. 503, stated infra, p. 379.
374/3 See also Bract., fol. 380 b, 381. "Et quod de haeredibus dicitur, idem dici poterit de assignatis .... Et quod assignatis fieri debet warrantia per modum donationis: probatur in itinere W. de Ralegh in Com. Warr. circa finem rotuli, et hoc maxime, si primus dominus capitalis, et primus feoffator, ceperit homagium et servitium assignati." Cf. Fleta, VI. Section 6; Moore, 93, pl. 230; Sheph. Touchst. 199, 200. As to the reason which led to the mention of assigns, cf. Bract., fol. 20 b, Section 1; 1 Britt. (Nich.), 223, 312.
375 (return)
375/1 I do not stop to inquire whether this was due to the statute of Quia Emptores, by which the assign was made to hold directly of the first grantor, or whether some other explanation must be found. Cf. Bract., fol. 37 b; c. 14, Sections 6, 11; VI. c. 28, Section 4; 1 Britton (Nich.), 256, [100 b]. 375/2 Fleta, III. c. 14, Section 6, fol. 197; 1 Britton (Nich.), 223, 233, 244, 255, 312; Co. Lit. 384 b; Y.B. 20 Ed. I. 232; Abbr. Placit., fol. 308, 2d col., Dunelm, rot. 43; Y.B. 14 Hen. IV. 5, 6.
377 (return)
377/1 Fol. 67 a; cf. 54 a. 377/2 Fol. 381; supra, p. 874, n. 3.
378 (return)
378/1 Cf. Pincombe v. Rudge, Hobart, 3; Bro. Warrantia Carte, pl. 8; S.C., Y.B. 2 Hen. IV. 14, pl. 5. 378/2 Y.B. 50 Ed. III. 12b & 13.
378/3 Y.B. 42 Ed. III. 3, pl. 14, per Belknap, arguendo.
378/4 Noke v. Awder, Cro. Eliz. 373; S.C., ib. 436. Cf. Lewis v. Campbell, 8 Taunt. 715; S.C., 3 J. B. Moore, 35.
379 (return)
379/1 Middlemore v. Goodale, Cro. Car. 503; S.C., ib. 505, Sir William Jones, 406. 379/2 Harper v. Bird, T. Jones, 102 (Pasch. 30 Car. II.). These cases show an order of development parallel to the history of the assignment of other contracts not negotiable.
380 (return)
380/1 Andrew v. Pearce, 4 Bos. & Pul. 158 (1805).
383 (return)
383/1 Austin, Jurisprudence, II. p. 842 (3d ed.). 383/2 "Quoniam non personae, sed praedia deberent, neque adquiri libertas neque remitti servitus per partem poterit." D. 8. 3. 34, pr.
383/3 "Qui fundum alienum bona fide emit, itinere quod ei fundo debetur usus est: retinetur id ius itineris: atque etiam, si precario aut vi deiecto domino possidet: fundus enim qualiter se habens ita, cum in suo habitu possessus est, ius non deperit, neque refert, iuste nec ne possideat qui talem eum possidet." D. 8. 6. 12.
383/4 Elzevir ed., n. 51, ad loc. cit.; Cicero de L. Agr. 3. 2. 9.
383/5 D. 50. 16, 86. Cf. Ulpian, D. 41. 1. 20, Section 1; D. 8. 3. 23, Section 2.
383/6 Inst. 2. 3, Section 1.
384 (return)
384/1 D. 8. 1. 14, pr. Cf. Elzevir ed., n. 58, "Et sic jura . . . accessiones ease possunt corporum." 384/2 "Cum fundus fundo servit." D. 8. 4. 12. Cf. D. 8. 5. 20, Section 1; D. 41. 1. 2O, Section 1.
384/3 Jurisprudence, II. p. 847 (3d ed.).
384/4 Cf. Windscheid, Pand., Section 57, n. 10 (4th ed.), p. 150.
385 (return)
385/1 Fol. 10b, Section 3. 385/2 Fol. 220b, Section 1.
386 (return)
386/1 Fol. 221. 386/2 Fol. 219a, b.
386/3 Fol. 102a, b.
386/4 Fol. 226 b, Section 13. All these passages assume that a right has been acquired and inheres in the land.
387 (return)
387/1 Fol. 53 a; cf. 59 b, ad fin., 242 b. 387/2 "Nihil praescribitur nisi quod possidetur," cited from Hale de Jur. Maris, p. 32, in Blundell v. Catterall, 5 B. & Ald. 268, 277.
388 (return)
388/1 Bract., fol. 46b; cf. 17b, 18, 47 b, 48. 388/2 Fol. 81, 81 b, 79 b, 80 b.
388/3 Fol. 24 b, 26, 35 b, 86, 208 b, &c. Cf. F. N. B. 123, E; Laveleye, Propriete, 67, 68, 116.
388/4 Abbr. Plac. 110; rot. 22, Devon. (Hen. III.}.
388/5 Stockwell v. Hunter, 11 Met. (Mass.) 448.
389 (return)
389/1 Keilway, 130 b, pl. 104. 389/2 Keilway, 113 a, pl. 45; Dyer, 2b.
389/3 Keilway, 113a, pl. 45. Cf. Y.B. 33-35 Ed. I. 70; 45 Ed. III. 11, 12.
389/4 Litt. Section 589.
389/5 Keilway, 2 a, pl. 2 ad fin. (12 Hen. VII.). But cf. Y.B. 6 Hen. VII. 14, pl. 2 ad fin.
389/6 4 Laferriere, Hist. du Droit. Franc. 442; Bracton, fol. 53a.
390 (return)
390/1 Cf. Co. Lit. 322 b, et seq.; Y.B. 6 Hen. VII. 14, pl. 2 ad fin. 390/2 Daintry v. Brocklehurst, 3 Exch. 207.
390/3 Y.B. 5 Hen. VII. 18, pl. 12.
391 (return)
391/1 Y.B. 9 Hen. VI. 16, pl. 7. 391/2 Y.B. 14 Hen. VI. 26, pl. 77.
391/3 Y.B. 5 Hen. VII. 18, pl. 12.
391/4 Cf. Theloall, Dig. I. c. 21, pl. 9.
391/5 Buskin v. Edmunds, Cro. Eliz. 636.
391/6 Harper v. Bird, T. Jones, 102 (30 Car. II.).
391/7 Bolles v. Nyseham, Dyer, 254 b; Porter v. Swetnam, Style, 406; S.C., ib. 431.
391/8 3 Bl. Comm. 231, 232.
392 (return)
392/1 Yielding v. Fay, Cro. Eliz. 569. 392/2 Pakenham's Case, Y.B. 42 Ed. III. 3, pl. 14; Prior of Woburn's Case, 22 Hen. VI. 46, pl. 36; Williams's Case, 5 Co. Rep. 72 b, 73 a; Slipper v. Mason, Nelson's Lutwyche, 43, 45 (top).
392/3 F. N. B. 127; Nowel v. Smith, Cro. Eliz. 709; Star v. Rookesby, 1 Salk. 335, 336; Lawrence v. Jenkins, L.R. 8 Q.B.274.
392/4 Dyer, 24 a, pl. 149; F. N. B. 180 N.
393 (return)
393/1 F. N. B. 128 D, E; Co. Lit. 96 b. It is assumed that, when an obligation is spoken of as falling upon the land, it is understood to be only a figure of speech. Of course rights and obligations are confined to human beings. 393/2 Keilway, 145 b, 146, pl. 15; Sir Henry Nevil's Case, Plowd. 377, 381; Chudleigh's Case, 1 Co. Rep. 119 b, 122 b.
393/3 F. N. B. 180 N.; Co. Lit. 385 a; Spencer's Case, 5 Co. Rep. 16 a, 17 b; Pakenham's Case, Y.B. 42 Ed. III. 3, pl. 14; Keilway, 145 b, 146, pl. 15; Comyns's Digest, Covenant (B, 3).
394 (return)
394/1 Holms v. Seller, 3 Lev. 305; Rowbotham v. Wilson, 8 H. L. C. 348; Bronson v. Coffin, 108 Mass. 175, 180. Cf. Bro. Covenant, pl. 2. 394/2 Y.B. 21 Ed. III. 2, pl. 5; F. N. B. 180 N.
394/3 The action is case in the Prior of Woburn's Case, Y.B. 22 Hen. VI. 46, pl. 36. In F. N. B. 128 E, n. (a), it is said that a curia claudenda only lay upon a prescriptive right, and that if the duty to fence was by indenture the plaintiff was put to his writ of covenant. But see below, pp. 396, 400.
394/4 Y.B. 32 & 33 Ed. I. 430.
395 (return)
395/1 Y.B. 20 Ed. I. 360. 395/2 Y.B. 32 & 33 Ed. I. 516.
395/3 "Quia res cum homine [obviously a misprint for onere] transit ad quemcunque." Fol. 382, 382 b.
395/4 Lib. VI. c. 23, Section 17.
395/5 Pakenham's Case, Y.B. 42 Ed. III. 3, pl. 14.
395/6 Sugd. V. & P. (14th ed.), 587; Rawle, Covenants for Title (4th ed.), p. 314. Cf. Vyvyan v. Arthur, 1 B. & C. 410; Sharp v. Waterhouse, 7 El. & Bl. 816, 823.
396 (return)
396/1 Co. Lit. 385 a. 396/2 Cf. Finchden as to rent in Y. B, 45 Ed. III. 11, 12.
396/3 Cf. Y.B. 50 Ed. III. 12, 13, pl. 2.
397 (return)
397/1 Covenant, pl. 17. 397/2 There is a colon here in both editions of the Year Books, marking the beginning of a new argument.
397/3 Pakenham's Case, Y.B. 42 Ed. III. 3, pl. 14.
398 (return)
398/1 Bro. Covenant, pl. 5. Cf. Spencer's Case, 5 Co. Rep. 16 a, 17 b, 18 a. 398/2 Horne's Case, Y.B. 2 Hen. IV. 6, pl. 25.
399 (return)
399/1 "Quod conceditur." Cf. Spencer's Case, 5 Co. Rep. 16 a, 18 a. 399/2 It was quite possible that two liabilities should exist side by side. Bro. Covenant, pl. 32; Brett v. Cumberland, Cro. Jac. 521, 523.
399/3 1 Co. Rep. 122 b; S.C., sub nom. Dillon v. Fraine, Popham, 70, 71.
400 (return)
400/1 Essays in Ang. Sax. Law, 248. 400/2 Y.B. 22 Ed. I. 494, 496.
400/3 Y.B. 4 Ed. III. 57, pl. 71; S.C., 7 Ed. III. 65, pl. 67.
401 (return)
401/1 Bract., fol. 17 b, 37 b; Fleta, III. c. 14, Section 6; 1 Britton (Nich.), 223, 233, 244, 255, 312; Abbrev. Plac. p. 308, col 2, Dunelm, rot. 43 (33 I.); Y. B, 20 Ed. I. 232; Co. Lit. 384 b. 401/2 Hyde v. Dean of Windsor, Cro. Eliz. 552.
401/3 Spencer's Case, 5 Co. Rep. 16 a. Cf. Minshill v. Oakes, 2 H. & N. 793, 807.
402 (return)
402/1 Hyde v. Dean of Windsor, Cro. Eliz. 552, 553; S.C., ib. 457. Cf. Bally v. Wells, 3 Wilson, 25, 29. 402/2 Dean of Windsor's Case, 5 Co. Rep. 24 a; S.C., Moore, 399. Cf. Bro. Covenant, pl. 32. Cf. further, Conan v. Kemise, W. Jones, 245 (7 Car. I.).
403 (return)
403/1 F. N. B. 181 N; Sir Henry Nevil's Case, Plowden, 377, 381. 403/2 Ewre v. Strickland, Cro. Jac. 240. Cf. Brett v. Cumberland, 1 Roll R. 359, 360 "al comen ley"; S.C., Cro. Jac. 399, 521.
403/3 Cockson v. Cock, Cro. Jac. 125.
403/4 Sale v. Kitchingham, 10 Hod. 158 (E. 12 Anne).
403/5 Supra, pp. 396, 398, 400. Cf., however, Lord Wensleydale, in Rowbotham v. Wilson, 8 H. L. C. 348, 362, and see above, p. 391, as to rents.
404 (return)
404/1 4 Kent (12th ed.), 480, n. 1. 404/2 It is used in a somewhat different sense is describing the relation between a tenant for life or years and a reversioner. Privity between them follows as an accidental consequence of their being as one tenant, and sustaining a single persona between them.
406 (return)
406/1 Rowbotham v. Wilson, 8 H. L. C. 348, 362 (Lord Wensleydale). 406/2 Harbidge v. Warwick, 3 Exch. 552, 556.
406/3 Rowbotham v. Wilson, 8 El. & Bl. 123, 143, 144.
404/4 5 Co. Rep. 16, a.
407 (return)
407/1 Y.B. 8 Ed. IV. 5, 6, pl. 1; 22 Ed. IV. 6, pl. 18. Cf. 5 Ed. IV. 7, pl. 16. 407/2 Cf. Keilway, 42 b, 46 b; 2 Bl. Comm. 329.
408 (return)
408/1 Y.B. 14 Hen. VIII. 6, pl. 5. Cf. Chudleigh's Case, 1 Co. Rep. 120a, 122 b; S.C., nom. Dillon v. Fraine, Popham, 70-72. 408/2 Lewin, Trusts, Ch. I. (7th ed.), pp. 16, 15.
408/3 4 Inst. 85; Gilb. Uses (Sugd.), 429, n. (6); Lewin, Trusts (7th ed.), pp. 15, 228.
408/4 Burgess v. Wheate, 1 Eden, 177, 203, 246.
408/5 Lewin, Trusts, Introd. (7th ed.), p. 3.
408/6 1 Rich. III. c. 1. Cf. Rex v. Holland, Aleyn, 14, Maynard's arg.; Bro. Feoffements al Uses, pl. 44; Gilb. Uses, 26* (Sugd. ed., 50).
409 (return)
409/1 4th Inst. 85; S.C., Dyer, 869, pl. 50; Jenk. Cent. 6, c. 30. Cf. Gilb. Uses, 198* (Sugd. ed. 399). 409/2 Gilb. Uses, 35* (Sugd. ed. 70).
409/3 Theloall's Dig., I. 16, pl. 1.
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