Lex Mercatoria-Assumpsit applied to Bills of Exchange, &c. 247

defendant may give evidence of all reasonable allowances which ought to be made to him out of the sum demanded, without pleading the circumstances specially, or giving notice of set-off (a).

It is under the action of assumpsit that the modern Law Merchant has been incorporated into the Common Law. In the time of Edward III. we discover that, in the ordinary transactions amongst merchants, that is, members of the trading community, a distinct law prevailed, of a more liberal nature than the general law, and that it was more summarily and expeditiously exercised. This was called the lex mercatoria; it had, in all probability, silently prevailed in London, and other commercial towns, in some shape, throughout the whole of the Anglo-Saxon times. By the statute 27 Edward III. (stat. 2,) in each town where the staple was ordained, a mayor was to be chosen, skilled in the law merchant, to do right to every man according to that law (b). The lex mercatoria is expressly mentioned by Fortescue (c). In common societies of merchants, and in mutual contracts, says Selden (d), Equity and good conscience, rather than strict law is required; and he mentions a case in the time of Edward II., where, following up this principle, the defendant in an action of debt brought, secundum legem mercatoriam, for some corn sold, was not permitted to wage his law, though he might have done so in an ordinary action of debt. It would seem, too, that merchants had always been specially favored, by having a more summary process in the King's Court (e).

[*248]

*As regards the Modern law merchant.-In the reign of James I. it was held, that if a merchant direct a bill of exchange to another merchant, payable to A. or order, and the other accept it; by the law merchant a promise was to be implied in the acceptor to pay it (f): afterwards an action of assumpsit was given to every indorsee to whom the bill was assigned. So every indorser who assigned such bill was held liable to an assumpsit by every subsequent indorsee; and if the merchant to whom it was directed refused it, the director (drawer) was liable to every indorsee (g)—and so the law continues. A comprehensive and rational system of law on the subject of Bills of Exchange and Promissory Notes has, with some help from the legislature, been established by the judicial decisions of Lord Mansfield and his colleagues and their distinguished successors (h).

(a) Dale v. Sallet, 4 Burr. 2133; Com. Dig. 4th ed. p. 176. The common law doctrine on this subject is fully explained, Chitty on Plead. 595-6. As to the corresponding rule in actions bonæ fidei, v. supra, p. 218, and Dr. Tigerström de Judicibus ap. Roman. 127. 129. How this was brought about will be explained in treating of the Court of Chancery. Now under the general rules issued in Hilary Term, in the 4th year of Will. IV. claims for mutual credit and set-off generally must be pleaded; the former practice of giving notice of set-off is abolished, Chitty on Plead. 601, &c.

(b) 4 Inst. 237. Lord Coke says that these courts were far more ancient; Bracton mentions Pie poudre Courts to which

248 Distinctions between Actions in Assumpsit, and in Tort or Case.

Through the medium of the action of assumpsit, also, under the auspices of Lord Mansfield, the law of Insurance was formed into a system, which has been found to be adapted to all the exigencies of society indeed, the whole of the modern system of commercial law may be said to have almost originated with the same eminent Judge (a). This system, which is admitted to exhibit a comprehensive and enlightened spirit of jurisprudence, is based upon very different reasons and principles from those which govern real property law, and is derived from a variety of sources and authorities-from international law-the different maritime codes of ancient Europe, but far above and beyond all from the Imperial Code of Rome (b).

The action of assumpsit has departed from its prototype, the action of trespass, not only in the omission of the terms vi et armis and contra pacem, but also in the form of the general issue, that is, the plea, which is used by the defendant when he desires simply to put the plaintiff to proof of his case. In assumpsit, the general issue is "Non assumpsit," for that is the gist of the action (c)-in case, the original form of the general issue in trespass is adhered to, namely, "Not guilty." (d).

*It may here be observed, that the Courts of Common Law [*249] have assumed a summary equitable jurisdiction over proceedings in their own respective courts. Thus the courts will stay an action brought against good faith. So they will set aside warrants of attorney and other securities, judgments, and executions, and indeed all sorts of formally regular proceedings, if obtained or taken against good faith (e).

In the construction of the action of trespass on the case, the distinction between obligations arising ex contractu, or quasi ex contractu, and those which arose ex delicto, or quasi ex delicto, though to some extent disregarded, was never wholly lost sight of; that distinction is now fully established as a governing principle as to the kind of action on the case which is to be resorted to. Injuries arising ex delicto, which are the subject of the action on the case, are now called torts; when the term "case" is used, an action for a tort, in form ex delicto, is generally intended (f). When the action is for the recovery of damages for the non-performance of an express contract not under seal, or of record, or under a contract implied by law (ex contractu or quasi ex contractu), such action, though really an action on the case, generally speaking, is de

is also the general issue in trover, ibid. 180. By the new rules (Reg. Gen. Hil. T. 4 Will. IV.) the general issue, non assumpsit, puts in issue "not only the receipt by the defendant of the money claimed by the plaintiff, but also the existence of all those facts which make his receipt of it a receipt to the use of the plaintiff."

(e) Warren, 314, 315. A summary and equitable jurisdiction, has also been conferred upon them in certain cases by statute (ibid.); but this subject will be again brought under notice hereafter.

(f) Chitty on Plead. 111.

Distinctions between Assumpsit and Case, continued.

249

signated as an action of assumpsit, or on promises (ex contractu, or quasi ex contractu).

This distinction between actions in case, and in assumpsit, is one of great nicety, as it is of great importance. "The Courts," it is said by an experienced modern writer, "are inflexible in requiring the boundaries of the different forms of actions to be preserved" (a). Misfeazance is peculiarly the subject of an action ex delicto, or "in case ;" and nonfeazance is, in some cases, considered as amounting to misfeazance (b);-negligence in a man in the execution of his office, is of this description (c). But beyond this the line of distinction between cases which come within the description of ex delicto vel quasi ex delicto, and of ex contractu vel quasi ex contractu, does not appear to be yet definitely marked out. In a late number of a periodical *publication (d), (from which, as well as its cotemporary The Jurist, I have [*250] derived much information on these subjects,) the distinction, as arising on the decided cases, is put thus:-"Where from the position of the parties, or the circumstances of the particular case, a promise is implied by law sufficient to maintain an action of assumpsit; there also an action in form ex delicto, or in tort, founded on the breach of that duty from which the law so implies a promise, may be maintained;" as in the instance of surgeons, attorneys, common carriers, or the like; but where the obligation, a breach whereof is complained of, arises from an agreement independent of the obligation implied by the law, then the remedy cannot be sought by an action ex delicto, or in tort. A passage in Mr. Justice Littledale's judgment in a late case (e), set out in the same publication, seems to support that distinction: it is this "Where there is an express promise, and a legal obligation results from it, then the plaintiff's cause of action is most accurately described in assumpsit, in which the promise is stated as the gist of the action. But where from a given state of facts the law raises a legal obligation to do a particular act, and there is a breach of that obligation, and a consequential damage, there, although assumpsit may be maintainable upon a promise implied by law to do the act, still an action on the case founded in tort is the more proper form of action;" though an express contract may be of such a nature as to create a duty, the neglect of which will amount to a tort (f). This distinction, involved as it is in doubt and difficulty (g), is of great importance in several respects. It is obviously so where the case is such as that an action can only be brought either ex delicto, or in assumpsit, according as the one or the other is pointed out (or when the action is brought shall be held to have been pointed out) by the law. It

(a) Warren, Law Studies, p. 470.

(b) In Comyn's Digest there is a title headed "Action on the Case for Misfeazance;" besides direct cases of misfeazance, many cases of nonfeazance implying culpable negligence, are included as being cases of misfeazance; thus where a person culpably neglects to safely keep goods intrusted to him (A. 3), particularly where goods intrusted to a carrier are lost by his default, ibid.

(c) Com. Dig. "Action on the Case for Negligence" (A.2), &c.

(d) Law Magazine, N. S. i. p. 192. (e) Bennett v. Lynch, 5 Barn. & Cr. 609. (f) Lord Chief Justice Tyndal's judgment in the late case of Boorman v. Brown, in error, 3 Q. B. Rep. 511; this case is observed upon in the article from which I have been quoting.

(g) There is often equal difficulty in distinguishing between what cases are proper for trespass, and what for trespass on the case, Smith's Lead. Ca. i. 218, note to Scott v. Shepherd.

250

Nisi Prius Record compared with Roman Formulæ.

is perhaps equally important in reference to those cases where the plaintiff has the option to proceed ex delicto or ex contractu, that is, in tort, or assumpsit (a); it being of course an essential preliminary to ascertain whether the facts are of such a nature as that, by law, either action may be adopted (b). And again, if a man having two causes of [*251] action, and with a view to comply with the rule that he should unite all his causes of action of the same class in one action, and not proceed by separate actions (c), should unite a cause of action ex delicto with one ex contractu, he fails in his action (d).

The defendant, it may be observed, may be materially affected in other respects by the form of action in which he is sued. Thus, if a plaintiff recover in tort against two defendants, and levy the whole of the damages against one, that one cannot recover a moiety against the other for his contribution; though he may in assumpsit (e).

It is to be observed, that, according to the English system (at least from the time to which our records extend), in cases where there was an issue of fact, the pleadings were not moulded and entered on the record, as they were in the Roman formula, in such manner as to point out to the judges the very issue they were to try; but they were entered on the record as they were propounded, at first, as before observed, orally, afterwards in writing. This record then, as now, was transmitted to the judge who had to try the case; and it was for him to select what were the points or issues of fact on which the jury were to give their verdict (f). The record also differs from the formula in this, that the law itself points out whether, as in the action of assumpsit, equitable circumstances may be taken into consideration; or whether, as in debt or covenant, the action is to be treated as stricti juris; whereas when the delegated judges were to decide ex bono et aquo, it seems to have been pointed out in the formula (g); and in such cases interest (usura) might be given on the one hand, and any just deduction (compensatio) allowed on the other (h). The judices or recuperatores might refer a

(a) “In all cases where the Register has two writs for the same case, the plaintiff may have the one or the other," Com. Dig. Action (M. 1), p. 148-9, where many instances are given; and see Chitty on Plead.

122.231.

(b) One is rather struck with such passages as the following, in a work describing the course to be adopted in seeking justice: "By a judicious choice of the remedy, the defendant may be frequently precluded from availing himself of a defence he might other wise establish," Chitty on Plead. 231. There are other passages of similar import, v. int. al. 233 and 162. "If a set-off be apprehended," &c. The corresponding course of procedure amongst the Romans afforded the means of taking similar advantages, see Cic. Orat. pro. Qu. Roscio; Tigerström de Judic. p. 101, &c. Justinian put an end to this as well as other distinctions of a like nature.

(c) See Chitty on Plead. 221, 223, 231.

(d) Com. Dig. Action (G.), p. 140. Corbett v. Packman, 6 Barn. & Cr. 268, may serve as an illustration; the action was against a carrier, one count of the declaration was for negligence, which as before noticed is equivalent to misfeazance, and therefore a tort; the other count was for not re-delivering on request, according to the agreement between the parties, which could only found an action ex contractu (assump sit). Judgment was arrested. So that the rule applies in respect of the same transac tion, as well as different transactions between the parties.

(e) Smith's Lead. Ca. ii. 297, et seq; Merryweather v. Nixon, 8 T. R. 186. This doc trine, as regards co-defendants in actions ex delicto, was imported from the Roman law, Dig. iv. 3. 36.

(f) See Stephen on Plead. 84. 88. (g) Tigerström de Judic. p. 51, and Cicero there cited, note (16), et v. ib. 114. (h) V. supra, 247, n. (a).

Means taken for correcting the system of Pleading in England. 251 doubtful point of law to the Prætor (a); *so a judge at nisi prius may make a similar reference to the whole court in which the action is brought.

[*252]

Technical niceties and perversions, quite as subversive of the ends of justice as those which prompted Constantius radically to extirpate the mode of proceeding by writ, grew up under the English system, particularly as regards the system of pleading. "I regret to say," said Lord Brougham, in that memorable speech which has produced under our own eyes such important effects, "the last century and a half has witnessed great and prejudicial alterations in the original plan which governed the system of pleading; so that the record, in the great majority of cases, instead of exhibiting a plain view of what each party is prepared to prove, contains an endless multitude of words, from which, if the real matter in dispute can be gathered at all, it is only by guess work, or by communications out of the record relating to things of which it gives not even a hint." "Generally speaking," continued Lord Brougham, "it may be said, that if the plaintiff tell us nothing in his declaration, the defendant in return tells us little in his plea" (b).

The Constantius of our day, however, did not seek to abolish proceeding by writ, but only to have its abuses corrected, and to have the lessons of experience applied to the correction of its rules. A commission was issued by the Crown in 1828, to inquire into the entire system of the administration of justice in the courts of Common Law. Reports were made by the Commissioners, from time to time, in which many important alterations in the system were recommended. Some of these being of a kind which required the authority of Parliament, the statutes 11 Geo. IV. & 1 Will. IV. c. 70; 1 Will. IV. c. 3, c. 7, c. 21, c. 22; 1 & 2 Will. IV. c. 58; 2 & 3 Will. IV. c. 39; and 3 & 4 Will. IV. c. 42, were passed to carry these recommendations into effect. Amongst the rest, the distinction which formerly existed in the jurisdiction of the different courts was abolished, and concurrent jurisdiction in all personal actions was given to the Court of King's Bench, the Court of Common Pleas, and the Court of Exchequer. All real actions, with the exception of those before referred to, were abolished, and the use of original writs in personal actions was superseded. *But with regard to such of

the recommendations of the Commissioners as related to pleading, [*253] and entering pleadings, the task of reform (I am following Mr. Serjeant Stephen) was delegated to the judges, who were directed by the 3 & 4 Will. IV. c. 42, § 1, to make such alterations on these subjects as they thought expedient, and to submit them when made to both houses of Parliament. The judges afterwards promulgated the Regula generales of Hilary term, 1834: some, in virtue of the authority conferred upon them by the legislature; the rest (namely, those relating to practice),

(a) Dig. de Judiciis (79, § 1); Tigerström de Judic. p. 86, note (22).

(b) Speech of H. Brougham, p. 70 to 75, and see p. 81. Instances are given as regards the declaration, in assumpsit for money paid and expended, &c. p. 70; and instances as regards pleas are given, p. 73, et seq. The whole speech tends to show

the extreme difficulty of so regulating a strict system of pleading, in which no questions can be asked; as that each party shall have the power of proving his case, and shall also give sufficient notice to his adversary as to the case which he is to come prepared to meet.