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• To the Honourable Oliver Wendell Holmes, Junr., a Justice of the Supreme Judicial Court of the Commonwealth of Massachusetts.
• Advertisement to the Fourth Edition.
• Addenda.
• Year Books Cited.
• The Law of Torts.
• Book I.—: General Part.
• Chapter I.: The Nature of Tort In General.
• Chapter II.: Principles of Liability.
• Chapter III.: Persons Affected By Torts.
• Chapter IV.: General Exceptions.
• Chapter V.: Of Remedies For Torts.
• Book II.: Specific Wrongs.
• Chapter VI.: Personal Wrongs.
• Chapter VII.: Defamation.
• Chapter VIII.: Wrongs of Fraud and Malice.
• Chapter IX.: Wrongs to Possession and Property.
• Chapter X.: Nuisance.
• Chapter XI.: Negligence ( a ) .
• Chapter XII.: Duties of Insuring Safety.
• Chapter XIII.: Special Relations of Contract and Tort.
• Appendix
• Appendix A. Historical Note On the Classification of the Forms of Personal Action.
• Appendix B. Employers’ Liability Act, 1880.
• Appendix C. Statutes of Limitation.
• Appendix D. Contributory Negligence In Roman Law.
• Draft of a Civil Wrongs Bill, Prepared For the Government of India.

APPENDIX A.

HISTORICAL NOTE ON THE CLASSIFICATION OF THE FORMS OF PERSONAL ACTION.

(By Mr. F. W. Maitland.)

The history of the attempt to classify the English personal actions under the two heads of Contract and Tort will hardly be understood unless two preliminary considerations are had in mind.

(1.) Between the various forms of action there were in old time many procedural differences of serious practical importance. A few of these would have been brought out by such questions as the following:—

• (a) What is the mesne process proper to this action? Does one begin with summons or with attachment? Is there a capias ad respondendum, or, again, is there land to be seized into the king’s hand?
• (b) What is the general issue? Is it, e.g., Nil debet, or Non assumpsit, or Not guilty?
• (c) What mode of proof is open to the defendant? Is this one of the actions in which he can still wage his law?
• (d) What is the final process? Can one proceed to outlawry?
• (e) How will the defendant be punished if the case goes against him? Will he be merely amerced or will he be imprisoned until he makes fine with the king?

In course of time, partly by statutes, partly under cover of fictions, the procedure in the various personal actions was made more uniform; but the memory of these old differences endured, and therefore classification was a difficult task.

(2.) The list of original writs was not the reasoned scheme of a provident legislator calmly devising apt remedies for all conceivable wrongs; rather it was the outcome of the long and complicated struggle whereby the English king at various times and under various pretexts drew into his own court (and so drew away from other courts communal, seignorial, ecclesiastical), almost all the litigation of the realm. Then, in the thirteenth century, the growth of Parliament prevented for the future any facile invention of new remedies. To restrain the king’s writ-making power had been a main object with those who strove for Parliaments(a) . The completeness of the parliamentary victory is marked by the wellknown clause in the Statute of Westminster II.(b) which allows the Chancery to vary the old forms so as to suit new cases, but only new cases which fall under old law. A use of this permission, which we are apt to think a tardy and over-cautious use, but which may well have been all that Parliament would have suffered, gave us in course of time one new form of action, namely, trespass upon the special case, and this again threw out branches which came to be considered as distinct forms of action, namely, assumpsit and trover. Equity, again, met some of the new wants of new times, but others had to be met by a stretching and twisting of the old forms which were made to serve many purposes for which they were not originally intended.

Now to Bracton writing in the middle of the thirteenth century, while the king in his chancery and his court still exercised a considerable power of making and sanctioning new writs(c) , it may have seemed very possible that the personal actions might be neatly fitted into the scheme that he found provided in the Roman books; they must be (1) ex contractu vel quasi, (2) ex maleficio vel quasi(d) . Personal actions in the king’s court were by no means very common; such actions still went to the local courts. Perhaps it is for this reason that he says very little about them; perhaps his work is unfinished; at any rate, he just states this classification but makes hardly any use of it. The same may be said of his epitomators Britton(e) and Fleta(f) . Throughout the middle ages the theory that personal actions may be arranged under these headings seems to remain a sterile, alien theory. It does not determine the arrangement of the practical books, of the Register, the Old Natura Brevium, Fitzherbert’s Natura Brevium, the Novae Narrationes. Even Hale, when in his Analysis he mapped out the field of English law, did not make it an important outline.

The truth seems to be that the most natural classification of writs was quite different. It would give us as its two main headings—(a) Praecipe; (b) Si te fecerit securum.

(a) In one class we have writs beginning with Praecipe quod reddat—faciat—permittat. The sheriff is to bid the defendant render (do, permit) something, and only if this command be ineffectual will the action proceed. To this class belong the writ of right and other proprietary real actions, also debt(g) , detinue account, and covenant.

(b) In the other class the writ supposes that there is already a completed wrong and a perfect cause of action in the king’s court. If the plaintiff finds pledges to prosecute, then the defendant must appear and answer. To this class belong the possessory assizes, trespass and all the forms developed out of trespass, viz. case, assumpsit, trover.

Much is made of this classification in a book which once was of good repute, a book to which Blackstone owed much, Sir Henry Finch’s Discourse on Law(h) . The historical basis seems this: the king’s own court takes cognizance of a cause either because the king’s lawful precept has been disobeyed, or because the king’s peace has been broken.

But in order to assure ourselves that the line between breaches of contractual obligation and other causes of action cannot have been regarded as an elementary outline of the law by our mediæval lawyers, we have only to recall the history of assumpsit. We are obliged to say either that at some moment assumpsit ceased to be an action ex maleficio and became an action ex contractu, or (and this seems historically the better way of putting it) that it was an action founded not on contract, but on the tort done by breach of some contractual or other duty voluntarily assumed. It must have been difficult to hold that the forms of personal action could be aptly distributed between tort and contract, when in the Register actions founded on non-performance of an assumpsit occurred, not even under the title of Case (for there was no such title) but under the title of Trespass mixed up with assaults and asportations, far away from debt and covenant(i) .

The same point may be illustrated by the difficulty which has been felt in modern times of deciding whether detinue was ex contractu or ex delicto. Bracton, fixing our terminology for all time, had said(k) that there was no actio in rem for the recovery of movables because the judgment gave the defendant the option of paying the value instead of delivering the chattel. The dilemma therefore of contract or tort was offered to claims to which, according to Roman notions, it was inapplicable. But whether detinue was founded on contract or founded on tort, was often debated and never well settled. During the last and the earlier part of the present century the fact that in detinue one might declare on a loss and finding (detinue sur trover) was taken to prove that there was not necessarily any contract between the parties(l) . Opinion was swayed to the other side by the close relation between detinue and debt(m) , a relation so close as to be almost that of identity, especially when debt was brought, not in the debet and detinet, but in the detinet only(n) . A middle opinion was offered by the learned Serjeant Manning(o) that detinue sur bailment was ex contractu, and detinue sur trover was ex delicto; this would have allowed the question to turn on the choice made by the plaintiff’s pleader between two untraversable fictions. A recent decision of the Court of Appeal(p) shows that the difficulty cannot occur in its old form. We are no longer, even if once we were, compelled to say that all claims for delivery of a chattel must be ex contractu or all must be ex delicto, though even the theory that every such claim is either ex contractu or ex delicto has difficulties of its own, which might have been avoided were we free to say that such a claim may be actio in rem.

Because of the wager of law assumpsit supplanted debt; so also for a long while the work of detinue was done by trover. That trover was in form ex delicto seems not to have been doubted, still it often had to serve the purpose of a vindicatio. As Lord Mansfield said(q) , “Trover is in form a tort, but in substance an action to try property. . . . . An action of trover is not now ex maleficio, though it is so in form; but it is founded on property.”

For these among other reasons the attempt to force the English forms into the Roman scheme was not likely to prosper. Nevertheless the theory that the personal actions can be grouped under contract and tort made way as the procedural differences between the various forms were, in one way and another, obliterated. Blackstone states the theory(r) , but does not work it into detail; following the plan which he inherited from Hale, he treats debt, covenant, and assumpsit as remedies for injuries affecting property, injuries affecting choses in action(s) . In later books of practice the various forms are enumerated under the two headings; detinue appears sometimes on one side of the line, sometimes on the other(t) .

Apart from the statutes which will be mentioned presently, little of practical importance has really depended on the drawing of this line. The classification of the personal actions has been discussed by the Courts chiefly in three contexts.

1. As to the joinder of actions. We find it said at a comparatively early day that “causes upon contract which are in the right and causes upon a tort cannot be joined”(u) . But the rules regulating this matter were complicated, and could not be reduced to this simple principle. In the main they turned upon those procedural differences which have been noticed above. Thus it was said that the actions to be joined must be such as have the same mesne process and the same general issue, also that an action in which, apart from statute(x) , the defendant was liable to fine, could not be joined with one in which he could only be amerced. Assumpsit could not be joined with debt; on the other hand debt could be joined with detinue(y) . This matter once very fertile of disputes has become altogether obsolete.

2. As to the survival of actions (a) against and (b) for personal representatives. Here again it may be doubted whether the line of practical importance has ever been that between contract and tort, though the latter has often been mentioned in this context.

(a) If we look back far enough we find that it was only by slow degrees that the executor came to represent the testator in at all a general way(z) . It was, for instance, a rule that the executor could not be sued in debt if the testator could have waged his law. At one time and before the development of assumpsit, this must have meant that the executor could hardly ever be sued for money due upon a simple contract. In Coke’s day it was still arguable that assumpsit would not lie against the executor(a) , and not until the contrary had been decided was it possible to regard the executor as bearing in a general way the contractual liabilities of the testator. On the other hand it seems to have been quite as early established that the executor could be made to answer for some causes of action which were not breaches of contract, i.e., where the estate had been increased by the proceeds of the testator’s wrong-doing(b) . But so long as the forms of action existed they were here of importance. Thus the executor could not have been sued in trespass or trover though the facts of the case were such that he could have been sued in assumpsit for money had and received(c) . Trespass, it may be remembered, had but very gradually become a purely civil action; to start with it was at least in part a criminal proceeding: so late as 1694 the defendant was, in theory, liable to fine and imprisonment(d) ; criminal proceedings founded on the testator’s misconduct could not be taken against the executor.

(b) As regards the other question, what actions survive for an executor or administrator, we find it early said that at common law actions in contract do survive while actions in tort do not(e) ; but already in 1330 a statute, which was very liberally construed, had given the executor some actions which undoubtedly were the outcome of tort(f) . On the other hand it has been held even of late years that (apart from all question as to real estate) an action for breach of contract does not necessarily survive for or against the personal representative; the cause of action given by a breach of promise to marry is not as a general rule one for which representatives can sue or be sued(g) . But the present state of the law as to the survival of actions is discussed above(h) .

3. Several discussions as to the line between contract and tort were occasioned by the rule that while joint contractors must be sued jointly the liability of joint tort-feasors is joint and several(i) . The earliest authority draws the distinction between “praecipe quod reddat” and debt on the one hand, and “trespass et huiusmodi” on the other(k) . But the antithesis of contract and tort crops up in the seventeenth century(l) . A decision(m) of Lord Mansfield in 1770, that the objection to non-joinder of all joint contractors as defendants can only be taken by plea in abatement deprived this matter of much of its importance. Still the question whether there has been breach of a joint contract, or a tort for which several are liable severally as well as jointly, is of course a question which may still arise and be difficult to answer(n) .

Lastly we come to the statutory adoption of the theory that every personal action must be founded either upon contract or upon tort. The first statute which recognized this doctrine was seemingly the County Courts Act, 1846(o) . Here, in a section dealing with costs, the antithesis is “founded on contract,” “founded on tort.” The County Courts Act of 1850(p) fell back on an enumeration of the forms of action, placing covenant, debt, detinue, and assumpsit in one class, and trespass, trover, and case in another class. The Common Law Procedure Act, 1852(q) , assumes in its schedule of forms that actions are either “on contracts,” or “for wrongs independent of contract;” but sect. 74 admits that “certain causes of action may be considered to partake of the character both of breaches of contract and of wrongs;” some very needless litigation might have been saved had a similar admission been made in other statutes.

By the County Courts Act of 1856(r) , costs in a certain event were made to depend upon the question whether the action was “an action of contract.” By the Common Law Procedure Act of 1860(s) , costs in a certain event were made to depend on the question whether the action was “for an alleged wrong.”

A section of the County Courts Act, 1867(t) , drew a distinction as to costs between actions “founded on contract,” and actions “founded on tort.”

Lastly the County Courts Act of 1888 in several of its sections draws a distinction between “an action of contract” and “an action of tort”(u) , while elsewhere(x) it contrasts an action “founded on contract” with one “founded on tort.”

The practical upshot, if any, of these antiquarian remarks is that the courts of the present day are very free to consider the classification of causes of action without paying much regard to an attempt to classify the now obsolete forms of action, an attempt which was never very important or very successful; an attempt which, as we may now think, was foredoomed to failure.

[(a) ]See a complaint by the bishops in 1257, Mat. Par. Chron. Maj. (ed. Luard) vol. vi. p. 363. New writs contrary to law are made in the Chancery without the consent of the council of the realm. So under the provisions of Oxford (1258) the Chancellor is to swear that he will seal no writs save writs of course, without the order of the king and of the council established by the provisions. See Stubbs, Select Charters, Part 6, No. 4.

[(b) ]Stat. 13 Edw. I. (1285) c. 24.

[(c) ]His doctrine as to the making of new writs will be found on fols. 413—414 b. See fol. 438 b for a writ invented by William of Raleigh. In several other cases Bracton notices that the writ has been lately devised by resolution of the Court (de consilio curiae), e. g. the Quare Ejecit, fol. 220.

[(d) ]Fol. 102.

[(e) ]Vol. i. p. 156. Britton’s equivalent for maleficium is trespass.

[(f) ]Fol. 120.

[(g) ]The writ of debt in Glanvill, lib. 10, cap. 2, is just the writ of right with the variation that a certain sum of money due is substituted for a certain quantity of land. There may be trial by battle in Debt; see lib. 10, cap. 5.

[(h) ]Editions in 1613, 1636, 1678, and 1759. In the last of these see pp. 257, 261, 284, 296. Blackstone notices this classification in Comment. vol. iii. p. 274.

[(i) ]Registrum, fol. 109 b; writs for not cutting down trees and not erecting a stone cross as promised, are followed immediately by a writ for entering a warren and carrying off goods by force and arms.

[(k) ]Fol. 102 b.

[(l) ]Kettle v. Bromsall (1738) Willes 118; Mills v. Graham (1804) 1 B. & P. N. R. 140, 8 R. R. 767; Gledstane v. Hewitt (1831) 1 Tyr. 445; Broadbent v. Ledward (1839) 11 A. & E. 209; Clements v. Flight (1846) 16 M. & W. 42, 16 L. J. Ex. 11.

[(m) ]Walker v. Needham (1841) 4 Sc. N. R. 222; 3 Man. & Gr. 557; Danby v. Lamb (1861) 11 C. B. N. S. 423, 31 L. J. C. P. 17.

[(n) ]“And indeed a writ of debt in the detinet only, is neither more nor less than a mere writ of detinue.” Blackst. Comm. iii. 156.

[(o) ]3 Man. & Gr. 561, note.

[(p) ]Bryant v. Herbert (1878) 3 C. P. Div. 389, reversing S. C. ibid. 189, 47 L. J. C. P. 670.

[(q) ]Hambly v. Trott (1776) 1 Cowp. 371, 373, 374.

[(r) ]“Personal actions are such whereby a man claims a debt, or personal duty, or damages in lieu thereof; and likewise whereby a man claims a satisfaction in damages for some injury done to his person or property. The former are said to be founded on contracts, the latter upon torts or wrongs.” Comm. iii. 117.

[(s) ]Ibid. 153.

[(t) ]Thus in Tidd’s Practice (chap. i.) detinue is treated as ex delicto; in Chitty’s Pleading (chap. ii.) it is classed as ex contractu, but hesitatingly.

[(u) ]Denison v. Ralphson (1682) 1 Vent. 365, 366.

[(x) ]5 & 6 W. & M. c. 12, abolishing the capiatur pro fine.

[(y) ]The learning on this topic will be found in the notes to Coryton v. Lithebye, 2 Wms. Saund. 117 d. See also the observations of Bramwell, L. J. in Bryant v. Herbert, 3 C. P. Div. 389—391.

[(z) ]See Bracton, fol. 407 b.

[(a) ]Pinchon’s Case (1611) 9 Rep. 86 b. By this time the province within which wager of law was permitted had been so much narrowed by judicial decision that it had become possible to regard as merely procedural the rule as to debt against executors stated above.

[(b) ]Sir Henry Sherrington’s Case (temp. Eliz.) Sav. 40. See remarks on this case and generally on this piece of history by Bowen L. J. in Phillips v. Homfray, 24 Ch. Div. 439, 457, 52 L. J. Ch. 833.

[(c) ]Hambly v. Trott, 1 Cowper 371; Phillips v. Homfray, ubi sup.

[(d) ]Stat. 5 & 6 W. & M. c. 12. The penal character of the writ of trespass is well shown by the clause of the Statutum Walliae introducing that writ into Wales. “Justitiarius . . . . si invenerit reum culpabilem, castiget eum per prisonam vel per redemptionem vel per misericordiam, et per dampna laeso restituenda secundum qualitatem et quantitatem delicti, ita quod castigatio illa sit aliis in exemplum, et timorem praebeat delinquendi.”

[(e) ]Le Mason v. Dixon (1627) W. Jones, 173.

[(f) ]Stat. 4 Edw. III. c. 7. De bonis asportatis in vita testatoris.

[(g) ]Chamberlain v. Williamson (1814) 2 M. & S. 408, 15 R. R. 295; Finlay v. Chirney, 20 Q. B. Div. 494, 57 L. J. Q. B. 247.

[(h) ]P. 59.

[(i) ]See notes to Cabell v. Vaughan, 1 Wms. Saund. 291.

[(k) ]Br. Abr. Responder, 54.

[(l) ]Boson v. Sandford, 3 Salk. 203; 1 Shower 101; Rich v. Pilkington, Carth. 171; Child v. Sands, Carth. 294; Bastard v. Hancock, Carth. 361.

[(m) ]Rice v. Shute, 5 Burr. 2611.

[(n) ]As to the possibility of the same act or default answering both descriptions, see the last chapter of the text.

[(o) ]9 & 10 Vict. c. 95, s. 129.

[(p) ]13 & 14 Vict. c. 61, s. 11.

[(q) ]15 & 16 Vict. c. 76.

[(r) ]19 & 20 Vict. c. 108, s. 30.

[(s) ]23 & 24 Vict. c. 126, s. 34.

[(t) ]30 & 31 Vict. c. 142, s. 5. Recent decisions are Bryant v. Herbert, 3 C. P. D. 189, 389, 47 L. J. C. P. 670; Pontifex v. Midland R. Co. 3 Q. B. D. 23; Fleming v. Manchester, &c. R. Co. 4 Q. B. Div. 81.

[(u) ]51 & 52 Vict. c. 43, ss. 62, 65, 66.

[(x) ]51 & 52 Vict. c. 43, s. 116.