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Slade’s Case. - Sir Edward Coke, Selected Writings of Sir Edward Coke, vol. I 
The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003). Vol. 1.
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(1602) Trinity Term, 44 Elizabeth I In the Court of King’s Bench.
First Published in the Reports, volume 4, page 92b.*
Ed.: John Slade entered a contract with Humphrey Morley. Slade sold the grains he was growing on eight acres, and Humphrey promised to pay £16. The day for payment came and went with no sign of the money from Humphrey, and Slade sued in assumpsit, a form of contract enforcement action that was then still controversial if an action in debt was available, by bringing an action on the case, which is a special form of pleading that allowed the recovery of special damages (or actual damages that included not only money directly lost by the conduct of the defendantbutalsomoney indirectly lost as a result of the defendant’s conduct). Thus Slade could seek not only compensation for the damages he suffered but the money lost on the whole debt. Humphrey was represented by Dodderidge and Bacon. Coke represented Slade. The courts were initially divided over whether the action could be maintained, but when the argument was brought before the whole bench of all the courts of England, the King’s Bench found that a person harmed by another’s breach on a contract could seek an action, and the other benches appear to have acquiesced. Assumpsit and action on the case were allowed, even though the plaintiff could have sued in debt.
John Slade brought an Action upon the Case in the Kings Bench against Humphrey Morley, (which plea began Hill. 38 Eliz. Rot. 305.) And declared, that where as the Plaintiff 10 Nov. 36 Eliz. was possessed of a Close of land in Halberton in the County of Devon called Rack Park, containing by estimation eight acres for term of divers years then and yet to come, and so possessed, the Plaintiff the said 10 Nov. the said Close beforesaid sowed with Wheat and Rie, which Wheat and Rie 8 Maii, 37 Eliz. were grown into blades: The Defendant in consideration that the Plaintiff at the special instance & request of the said Humphrey. bargained and sold to him the said blades of Wheat and Rie growing upon the said Close (the tithes due to the Parson, &c. excepted) did assume and promise to the Plaintiff to pay him 16l. at the Feast of S. John the Baptist then next to come; and for not-payment thereof at the said Feast of S. John Baptist, the Plaintiff brought the Action; The Defendant pleaded Non assumpsit modo et forma;1 and on trial of this issue the Jurors gave a special Verdict, Scil. That the Defendant bought of the Plaintiff the Wheat and Rie in blades growing upon the said Close as aforesaid, prout2 in the Declaration is alleged. And further found, that between the Plaintiff and Defendant, there was no other promise or assumption but onely the said bargain; And against the maintenance of this Action divers Objections were made by John Doderidge of Counsel with the Defendant.
1. That the Plaintiff upon this bargain may have ordinary remedy by Action of Debt which is an Action formed in the Register, and therefore he shall not have an Action upon the Case which is an extraordinary Action, and not limited within any certain form in the Register; for ubi cessat remedium ordinarium, ibi decurritur ad extraordinarium, et nunquam decurritur ad extraordinarium ubi valet ordinarium,3 as it appeareth by all our Books; et nullus debet agere actionem de dolo, ubi alia actio subest.4
The second Objection was that the |[93 a] maintenance of this Action doth take away the Defendants benefit of Wager of Law, and so bereaveth him of the benefit which the Law hath given him as his birthright. For peradventure the Defendant hath paid or satisfied the Plaintiff in private betwixt them, of which paiment or satisfaction he hath not any witness, and therefore it should be mischievous if he shall not wage his Law in such Case. And that was the cause (as was said) that debts by simple contract shall not be forfeited to the King by outlawry or attainder, becausethatthen by the Kings Prerogative the Subject would be ousted of his wager of Law, which is his birthright as it is holden in 49 Edw. 3. 5a. 50 Ass. 1. 16 Edw. 4. 4 & 9 Eliz. Dyer 262. And if the King shall lose the forefeiture and the debt in such Case, and the debtor by Judgment of the Law shall be rather discharged of his debt, before he shall be deprived of the benefit which the Law hath given to him for his discharge, although that in truth the debt were due and payable; a fortiori5 in the case at Barre, the Defendant shall not be charged in an Action in which he shall be ousted of his Law when he may charge him in an Action of debt, in which he may have the benefit thereof.
And as to these Objections, the Courts of King’s Bench and Common Pleas were divided; for the Justices of the King’s Bench held that the Action (notwithstanding such Objections) was maintainable; And the Court of Common Pleas held the contrary. And for the honour of the Law, and the quiet of the Subject in the appeasing of such diversity of opinions (Quia nil in lege intolerabilius est eandem rem diverso jure censeri)6 the case was openly argued before all the Justices of England, and Barons of the Exchequer, Scil. Sir John Popham Knight Chief Justice of England, Sir Edmund Anderson Knight Chief Justice of the Common Pleas, Sir William Periam Chief Baron of the Exchequer, Clark, Gawdy, Walmesley, Fenner, Kingsmill, Savile, Warberton, and Yelverton, in the Exchequer Chamber, by the Queens Attorney for the Plaintiff, and John Dodderidge for the Defendant; and at another time the Case was argued at Serjeants Inn before all the said Justices and Barons, by the Attorney General for the Plaintiff, and by Francis Bacon for the Defendant; and after many conferences between the Justices and Barons, it was resolved, that the Action was maintainable, and that the Plaintiff should have Judgment. And in this Case these Points were resolved.
1. That although an Action of debt lieth upon the contract, yet the bargainor may have his Action of debt, or Action upon the Case at his election, and that for three reasons or causes. 1. In respect of infinite precedents, (which George Kempe, Esquire Secondary of the Prothonotaries of the King’s Bench shewed to me) as well in the Court of Comon Pleas as in the Court of King’s Bench, in the reigns of King Hen. 6. Edw. 4. Hen. 7 & Hen. 8. by which it appeareth, That the Plaintiffs declared that the Defendants in consideration of a sale to them made of certain goods, did promise to pay so much money, &c. in which |[93 b] Cases the Plaintiffs had Judgment. To which precedents and Judgments being of so great number, in so many successions of ages, and in the several times of so many reverend Judges, the Justices in this Case gave great regard; and so the Justices in ancient times, and from time to time did as well in matters of form, as in deciding of doubts and questions as well at the Common Law, as in construction of Acts of Parliament: And therefore in 11 Edw. 2. Formedon 32. it is holden, That the ancient forms and manner of precedents are to be maintained and kept; and in 34 Ass. 7. that which hath not been according to usage shall not be suffered, [and in 2 Edw. 3. 29. the ancient form and order is to be observed.]7 In 39 H. 6. 30. the opinion of Prisot’ et tot’ Cur’8 was, That in a Writ of mesn9 the Plaintiff ought to surmise the tenure between the Lord paramount and the mesn, as well as between the mesn and the tenant, and shew there divers reasons and causes of their opinions; But when the Justices were informed by the Prothonotaries, that the Book called les Tales, contained the form that had always in such Cases been used; the Book saith, That the Justices resolved, that they would not change the usage, notwithstanding that their opinion was to the contrary; and according to the precedent they awarded the Declaration good: 4 Edw. 4. 44. In a Writ of Error brought by John Paston to reverse an outlawry against him, he did not surmise in the Writ at whose suit he was outlawed, and all the Justices said, it was a strange Writ, and no certainty supposed thereby; for by the Writ it did not appear whether he was outlawed at the suit of the party, or at the King’s suit, or in what suit, or for what thing; and it might be that he was outlawed for felony, debt, trespass, account or fine to the King; But when the Court was informed that the ancient form was such, then they changed their opinions and awarded the Writ good. And resolved, that common course maketh a Law, although that now as there it was said, perhaps reason willeth the contrary: But there the Justices said, We cannot change the Law now, for that shall be inconvenient. And therewith agreeth L. 5 Edw. 4. 1. where it is said, That the course of a Court maketh a Law: vide Mich. 2 & 3 Phil. & M. 120. the statute of West. 2. cap. 12, quod justic’ coram quib’ format’ erit’ appellum et terminat10 shall enquire of damages where the Defendant is acquitted, yet precedents expound the Law against the express letter, Scil. That Justices of Nisi Prius (before whom the appeal was not began) shall do it; And many others to this effect are in our Books: But for as much as precedents are not always allowable, for in our Books: the Judges reject some precedents, see a notable Case in L. 5 Edw. 4. 110. for certain rules and differences in this matter; there it is agreed, That where a question was of a retorn of an Assise, and two or three precedents were shewed, which agreed with the said retorn; and the Justices said, that two or three retorns or precedents doe not make a Law or custome, especially when there are here in Court 40 and more precedents to the contrary; but if there were no precedent to the contrary it were another |[94 a] matter, if not that the Court doe adjudge it against reason, and then it shall be amended, for perhaps the precedents passed without challenge of the party, or debate of the Justices, as then (as it is there recited) of late it was in a Writ of Error for reversing an outlawry in the County of Lancaster, and the Error was because the Sheriff retorned, That ad com’ Lancastriae tent’ ibid’, &c.11 where it should be, ad com’ Lancastriae tent’ apud Lancastr’,12 or other certain place to which this word ibidem shall have relation; and although that there were shewed 100 precedents according to the said retorn, yet the outlawry was reversed: So that in divers Cases precedents do not make a Law; and therefore it was said by the Justices to the parties, That he who would have advantage of precedents ought to search for them at his peril, and for his speed, for the Court would not search for them; for if none, or no usual precedents are not shewn, the Court ought to adjudge according to Law and reason.
Out of which Book, 1. It is to be observed, that two or three or such small number of precedents, doe not make a Law against the generality of precedents in such Case.
2. That the retorn of Sheriffs or Entries of Clerks without challenge of the party, or consideration of the Court being against Common Law and reason, are not allowable: But when the precedents are Judicial, Scil. where the Justices by divers succession of ages have given in Actions there brought, it shall be intended that some of the Counsel with the Defendant, or some of the Justices before whom the Action was tried, and the Record read would have excepted against it, if in their judgment the Action was not maintainable: but in Case of return of an Outlawry, or entries of Clarks, the Records pass in silence, and without exception of the parties, and therefore are not so authentical as Judgments upon demurrers or verdicts; and therefore in such Cases Multitudo errantium non parit errori patrocinium,13 if such retorns or entries of Clerks and Officers be clearly in the opinion of the Justices against Law and reason: So that in the Case at Barre it was resolved, That the multitude of the said Judicial precedents in so many successions of ages well prove that in the Case at Barre the Action was maintainable.
The second cause of their Resolutions was divers Judgments and Cases resolved in our Books where such Actions upon the Case upon Assumpsit hath been maintainable, when the party might have had an Action of debt, 21 Hen. 6. 55 b. 12 Edw. 4. 13. 13 Hen. 7. 26. 20 Hen. 7. 4 b. & 20 Hen. 7. 8 b. which Case was adjudged as Fitz James citeth it, 22 Hen. 8. Dier 22 b. 27 Hen. 8. 24 & 25 in Tatams case, Norwood and Read’s case adjudged Plowdens Comm. 180.
3. It was resolved, That every contract executory importeth in it self an Assumpsit,14 for when one agreeth to pay money, or to deliver anything, thereby he promiseth to pay, or deliver it; and therefore when one selleth any goods to another, and agreeth to deliver them at a day to come, and the other in consideration |[94 b] thereof promiseth to pay so much money to the other, in this Case both parties may have an Action of debt, or an Action upon the Case on Assumpsit, for the mutual executory agreement of both parties importeth in it self reciprocal Action upon the Case, as well as Action of debt, and therewith agreeth the Judgment in Reade and Norwoods Case Plow Comm. 128.
4. It was resolved, That the Plaintiff in this Action upon the Case upon Assumpsit shall not recover onely damages for the special loss (if any be) which he hath, but also for the whole debt, so that recovery or barre in this Action shall be a good barre in an Action of debt brought upon the same contract; so vice versa, a recovery or barre in an Action of debt is a good barre in an Action upon the Case upon Assumpsit. Vide 12 Edw. 4. 13 a. 2 Rich. 3. 14. (2) 33 Hen. 8. Action sur le Case. Br. 105.
5. In some Cases it shall be mischievous, if an Action of debt shall be only brought, and not an Action upon the Case, as in the Case (inter) (Redman and Peck) 2 & 3 Phil. & Mar. Dyer 113. They bargained together that for a certain consideration Redman should deliver to Peck 20 Quarters of Barley yearly during his life, and for not delivery in one year it is adjudged that an Action well lieth, for otherwise it shall be mischievous to Peck, for if he should be driven to his Action of debt, then he himself shall never have it, but his Executors or Administrators, for debt doth not lie in such Case till all the days be incurred, and that shall be contrary to the bargain and intent of the parties, for Peck doth provide it yearly for his necessary use: So (5 Ma. Br. Action sur le Case 108.) that if a sum be given in marriage to be paid at several days, an Action upon the Case lieth for non-payment at the first day, but no Action of debt lieth in such case till all the days are past. Also it is good in these days in as many Cases as may be done by the Law, to oust the Defendant of his Law, and to try the same by the Country, for otherwise it shall be a great occasion of Perjury.
6. It was said, That an Action on the Case on Assumpsit is as well a formed Action and contained in the Register, as an Action of debt, for there is its form. Also it appeareth in divers other Cases in the Register, That an Action on the Case will lie, although the Plaintiff may have another formed Action in the Register; F. N. B. 94 g. & Register 103 b. If a man hath a mannor within any Honour, and has a Leet within his mannor of his Tenants, if he or his tenants are distrained by the Lord of the Honour to come to the Leet of the Honour, he who is so distrained may have a general Action of Trespass, or a special Writ upon his Case: So if any Officer take toll of him who ought to be quit of toll, he shall have a general Action of trespass, or an Action upon his Case, as appeareth by Fitz. ibid. 94. And if a Prior or other Prelate be riding in his journey, and one distrainth his horse upon which |[95 a] he rideth when he may distrain other goods. he may have a general Action of Trespass or an Action upon his Case, as appeareth in the Register (100 b. and F. N. B. 93. H.), If the Sheriff suffer one in Execution upon a Statute Merchant to escape, the conusee may have an Action of debt, or an Action upon the case (H), as appeareth by the Register, 98 b. and F. N. B. 93. B. C. So if a man put the Executors of lessee for years out of their term, they may have a special Writ upon their Case, as appeareth F. N. B. 92. G. & Register 97. and yet he may have Ejectione firmae,15 or Trespass. And therefore it was concluded that in all cases when the Register hath two Writs for one case, it is in the parties election to take which Writ he will: But the Register hath two several Actions, Action upon the Case upon Assumpsit, andalsoan Actionofdebt, and therefore the party may elect the one or the other.
And as to the Objection which hath been made, that it shall be mischievous to the Defendant that he shall not wage his Law, forasmuch as he might pay it in secret: To that it was answered, That it shall be accounted his folly that he took not sufficient witnesses to prove the paiment he made; But the mischief shall be rather on the other part, for now experience proves that mens consciences grow so large, that the respect of their private commodity induceth men (and chiefly those who have declining estates) to perjury; for jurare in propria causa (as one saith) est saepenumero hoc seculo praecipitium diaboli ad detrudendas miserorum animas ad infernum.16 And therefore in debt, or any Action where Wager of Law is admitted, the Judges doe not admit him to it without good warning, and due examination of the party. And as to the Case which was cited, That debts or duties due by single contract where the party may wage his Law shall not be forfeit by outlawry, because the debtor thereby should be ousted of his Law; To that it was answered by the Attorney General, that in such Cases by Law debts or duties shall be forfeit to the King, and so are the better opinions of the Books scil 3 Edw. 3. Corone 343. 19 Edw. 2. Avowry 223. If the tenant of a Prior alien is amerced for want of suit at a Court-Baron, and the King seiseth the temporalties of the Prior alien, yet in an action of debt brought for the same by the prior alien, he shall wage his Law, as it was adjudged 6 Edw. 6. in Serjeant Bendloes Reports, 28 Edw. 3. 92. in Accompt, and Stamford Pleas of the Crown 188. and infinite precedents in all ages in the Exchequer which I have seen approve it. And so it was of late resolved in the Exchequer, and so was holden in this Case by Popham, Anderson and all the other Justices with whom I have conferred, against the sudden opinions in 49 Edw. 3. 5. 50 Ass. 1. 16 Edw. 4. 4. & 9 Eliz. 262. and so you have |[95 b] a doubt in our Books well resolved.
And note Reader, that in every quo minus17 brought by the King’s debtor in the Exchequer against one who is indebted to him upon a simple contract, the Defendant shall not have his Law, for the benefit of the King, as appeareth in 8 Hen. 5. Ley 66. 20 Edw. 3. Ley. 52. 10 Hen. 7. 6. and yet there the King is not party, a fortiori18 when such debt or duty is forfeit to the King, and the King is the sole and immediate party: And note, Reader, this Resolution as to this point with the Judicial Law of God, upon which our Law is in this point grounded, for it appeareth by the 22 Chapter of Exodus, ver. 7. Si quis commendaverit amico pecuniam, &c. et ver. 10. Si quis commendaverit proximo suo asinum, bovem, ovem, et omne jumentum ad custodiam, et mortuum fuer’, aut debilitatum aut captum ab hostibus, nullusque hoc viderit, jusjurandum erit in medio quod non extenderit manum ad rem proximi sui, suscipietque Dominus juramentum et ille reddere non cogetur;19 By which it appeareth; that it is in the election of the party, either to charge the Defendant by witnesses if he will and to oust him of his Law, or to referre it to the Defendants oath. And the Text saith, Nullusque hoc viderit, scil.20 if there be no witnesses. So by our Law in the same Case put in the Text, the owner hath his election either to bring his Action upon the Case in which the Defendant cannot wage his Law, or an Action of detinue21 in which he may, Et jusjurandum in hoc casu est finis;22 for the Plaintiff is bound thereby, and it is the end of all controversie. And I wonder in these days so little consideration is had of an oath, as I daily observe; cum jurare per Deum actus religionis sit, quo Deus testis adhibetur tanquam is qui sit omnium rerum maximus, &c.23
Part Five of the Reports
The Fifth Part of Coke’s Reports was published in 1605. It was originally entitled Quinta pars Relationum Edwardi Coke Equitis aurati, Regii Attornati Generalis. De variis Resolutionibus & Judiciis, magnâ & maturâ deliberatione in rebus permagni momenti & ponderis, â reverendis Judicibus & Juris-consultissimis latis; unà cum Resolutionum & indiciorum Rationibus & Causis. In lucem aedita anno foelicissimi & florentissimi regni Regis Jacobi, Angliae Franciae & Hiberniae, 3. Scotiae verò 39. augustissimaeq. Majestati eius, justitiae fonti, & legem animae, subiectissima observantiae ergò meritò dedicata & consecrata. In English, The Fifth part of the reports of Sr. Edward Coke, Knight, the Kings Attorney Generall. Of divers Resolutions and Judgments given upon great deliberation, in matters of great importance & consequence by the reverend Judges and Sages of the Law; together with the reasons and causes of their Resolutions and Judgements. Published in the yeare of the most happie and prosperous raigne of King James, of England, France and Ireland the 3. and of Scotland the 39. and in all humblenesse, of right, dedicated to his most excellent Majestie, being the fountaine of Justice, and the life of the Law. The cases in this part are concerned, first, with the administration of law over church matters, particularly the regulation of the clergy and church lands by ecclesiastical and law courts. There are substantial collections of cases on the following: covenants in land, contracts, and leases, including waste and rights to a shipwreck; usury and lending; executions on a debt; the regulation and removal of officeholders; the by-laws and ordinances of cities; city, commercial, and manorial customs; and officials’ powers of search and arrest.
Epigram from the title page:
Tul. Tusc. quest. Lib. 3.
Quid enim laboro, nisi ut veritas in omni questione explicetur; verum dicentibus facile cedam.1
[* ][See the pleadings at Hil. 38 Eliz. Rot. 305.]
[1. ][Ed.: He did not undertake, in the manner and form [alleged].]
[2. ][Ed.: as.]
[3. ][Ed.: where the ordinary remedy ceases, one shall have recourse to the extraordinary; but one shall never turn to the extraordinary where the ordinary is available,]
[4. ][Ed.: and no one should bring an action for a wrong where another action exists.]
[5. ][Ed.: so much the more so.]
[6. ][Ed.: (Nothing is more intolerable in law than to decide the same matter in different ways).]
[7. ][Ed.: Bracketted text omitted from the 1658 edition.]
[8. ][Ed.: and the whole court.]
[9. ][Ed.: An intermediary writ, filed after the initial writ and prior to judgement.]
[10. ][Ed.: that the justices before whom the appeal shall be formulated and determined.]
[11. ][Ed.: at the county of Lancaster held there, etc.]
[12. ][Ed.: at the county of Lancaster held at Lancaster,]
[13. ][Ed.: The multitude of those in error is no defence of the error,]
[14. ][Ed.: Undertaking (An action to enforce a contract not under seal; the plaintiff alleges the defendant undertook an obligation that the law should enforce.)]
[15. ][Ed.: Writ to recover for trespass, literally to throw off of the land,]
[16. ][Ed.: Swearing in one’s own cause is often in these times the devil’s trapdoor for dragging the souls of the wretched down to Hell.]
[17. ][Ed.: Writ to recover waste brought by one with a right to house-bote or hay-bote in another’s woods,]
[18. ][Ed.: so much the more so.]
[19. ][Ed.: If someone hands over money to his friend etc., and verse 10, if someone hands over to his neighbour an ass, an ox, or any beast, to look after, and it dies or becomes feeble, or is seized by enemies, and no one else sees this, there shall be a solemn oath between them that he has not laid hands on his neighbour’s goods, and the owner shall take an oath that he will not compel him to return them. [Exodus, xxii.] (This passage in English in some editions.)]
[20. ][Ed.: And no one sees this.]
[21. ][Ed.: Writ to recover goods in kind or, in the alternative, damages.]
[22. ][Ed.: The oath in this case makes an end of it.]
[23. ][Ed.: since to swear by God is a religious act, whereby God is called to witness, as He who is the greatest of all things etc.]
[1. ][Ed.: For why do I labor, if not that the truth in every question be unraveled; to the speakers of Truth, I gladly yield, (Cicero, Tusculan Disputations, 3.46 & 3.51).]