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(2): The Personal Actions. - Sir Frederick Pollock, The History of English Law before the Time of Edward I, vol. 2 [1898]

Edition used:

The History of English Law before the Time of Edward I. Reprint of 2nd edition, with a Select Bibliography and Notes by Professor S.F. Milsom. (Indianapolis: Liberty Fund, 2010). Vol. 2.

Part of: The History of English Law before the Time of Edward I, 2 vols.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


(2)

The Personal Actions.

General Accounts.

Maitland’s account in this book is supplemented by his posthumously published lectures on The Forms of Action at Common Law (first published with his lectures on Equity, Cambridge Univ. Press, 1909; published separately, Cambridge Univ. Press, 1936). Besides the general books, especially W. S. Holdsworth, History of English Law (already cited), vol. 3, and T. F. T. Plucknett, Concise History of the Common Law (already cited), the principal accounts since published are: C. H. S. Fifoot, History and Sources of the Common Law: Tort and Contract (Stevens, 1949); J. B. Ames, Lectures in Legal History (Harvard Univ. Press, 1913). Some of the material in the last-named was known to Maitland; and this is true also of much of the work gathered in Select Essays in Anglo-American Legal History (Little, Brown, 1907-1909), 3 vols.

Personal Actions in Local Courts.

Since the essay stresses the importance of what was happening in local courts, so largely neglected since Maitland’s day, it is right to draw attention to his own introduction to the rolls of the Bishop of Ely’s court at Littleport in The Court Baron (Seld. Soc., vol. 4 for 1890), pp. 107 ff., esp. at pp. 115-118. He did not himself have time to follow up the thoughts there set out; and it is possible that the posthumous publication of The Forms of Action did something to obscure his own thought by giving too definitive a form to an exercise in simplification. So far as contract is concerned, the only general attempt since to consider what was happening in local courts is R. L. Henry, Contracts in the Local Courts of Medieval England (Longmans, Green, 1926). Much valuable material is collected in the two volumes of Borough Customs, ed. Mary Bateson (Seld. Soc., vols. 18 for 1904 and 21 for 1906), and in the first volume of Select Cases Concerning the Law Merchant, ed. C. Gross (Seld. Soc., vol. 23 for 1908). Particularly illuminating also are the London materials in Calendar of Early Mayor’s Rolls of the City of London, 1298-1307, ed. A. H. Thomas (Cambridge Univ. Press, 1924) and in the successive Calendars of Plea and Memoranda Rolls of the City of London from 1323 on, the volumes for the years to 1437 being edited by A. H. Thomas, for subsequent years by P. E. Jones (Cambridge Univ. Press, 1926-1961).

Contract in Royal Courts.

Work on contract in the royal courts has mostly been concerned with the later story of the development of assumpsit, and the earlier actions have been subjected to little new scrutiny. The main exception is the action of account, not discussed in the essay. On this see T. F. T. Plucknett, The Medieval Bailiff (Creighton Lecture for 1953, Athlone Press, 1954), and Legislation of Edward I (Ford Lectures for 1947, Oxford Univ. Press, 1949), pp. 150 ff. A recent discussion with references to other literature is S. J. Stoljar, “The Transformations of Account,” Law Quarterly Review, 80 (1964), p. 203. Account and debt are both treated in R. M. Jackson, The History of Quasi-Contract (Cambridge Univ. Press, 1936). A survey of the early actions in general form the first part of W. T. Barbour, The History of Contract in Early English Equity (vol. 4 of Oxford Studies in Social and Legal History, Oxford Univ. Press, 1914). The early writs are treated in R. C. van Caenegem, Royal Writs in England (already cited), pp. 254ff. for debt, pp. 345 ff. for account. Although mainly concerned with later periods, there are relevant matters in A. W. B. Simpson, “The Penal Bond with Conditional Defeasance,” Law Quarterly Review, 82 (1966), p. 392; S. F. C. Milsom, “Sale of Goods in the Fifteenth Century,” ibid. 77 (1961), p. 257, and “Account Stated in the Action of Debt,” ibid. 82 (1966), p. 534. The language and concepts of both covenant and trespass are considered in S. F. C. Milsom, “Reason in the Development of the Common Law,” Law Quarterly Review, 81 (1965), p. 496.

Trespass.

On the origins and development of trespass and case, which on the view taken in the essay should be considered together, there is a substantial literature: G. E. Woodbine, “The Origins of the Action of Trespass,” Yale Law Journal, 33 (1924), p. 799, and ibid. 34 (1925), p. 343; T. F. T. Plucknett, “Case and the Statute of Westminster II,” Columbia Law Review, 31 (1931), p. 778, commented upon by W. S. Holds-worth in Law Quarterly Review, 47 (1931), p. 334; P. A. Landon, “Action on the Case and the Statute of Westminster II,” ibid. 52 (1936), p. 68; T. F. T. Plucknett, “Case and Westminster II,” ibid. 52 (1936), p. 220; E. J. Dix, “Origins of Trespass on the Case,” Yale Law Journal, 46 (1937), p. 1142; Select Cases of Procedure without Writ, ed. H. G. Richardson and G. O. Sayles (already cited), pp. cviii ff.; A. K. R. Kiralfy, The Action on the Case (Sweet and Maxwell, 1951); S. F. C. Milsom, “Not Doing Is No Trespass,” [1954] Cambridge Law Journal, p. 105; Select Cases in the Court of King’s Bench, ed. G. O. Sayles, vol. 4 (Seld. Soc., vol. 74 for 1955), pp. xxxvi ff., p. lxxi, n.; T. F. T. Plucknett, Concise History of the Common Law (5th ed. already cited), pp. 369 ff.; G. D. G. Hall, “Some Early Writs of ‘Trespass,’” Law Quarterly Review, 73 (1957), p. 65; S. F. C. Milsom, “Trespass from Henry III to Edward III,” ibid. 74 (1958), pp. 195, 407, 561. These discussions will not be summarized, but the principal issues raised are as follows: Assuming that trespass vi et armis was always a distinct entity, did it come from appeals of felony, novel disseisin, or from procedures in local courts, and did Roman law play any part in its development? Assuming that case was an entity derived from trespass vi et armis, was it through the in consimili casu clause of the Statute of Westminster II or in some other way? In either case, what part was played by proceedings by bill? And, lastly, was either trespass or case the entity supposed?