SIXTEENTH CENTURY CONTRACT LAW: SLADE'S CASE IN CONTEXT

DAVID IBBETSON*

For many years Slade's Case has been seen as the watershed of , the case where the new action of finally triumphed over the old-fashioned and limited of debt after a period of almost one hundred years when the relationship between the two actions was in doubt. Many other

consequences have been attributed to it, but Dr Baker's work has shown that such Downloaded from attributions are misplaced: all that Slade's Case was concerned with was the relationship between the action of debt and the emergent action of assumpsit.l In recent years a number of writers have offered interpretations of the case;2 but only Dr Baker's 1971 study has attempted to ground analysis of the case on the best available evidence, the mass of imprinted law reports and Plea Rolls of the late http://ojls.oxfordjournals.org/ sixteenth century. Since 1971 a considerable amount of new material has emerged, and a reappraisal of the case itself and the wider issue of the relationship between assumpsit and debt in the second half of the sixteenth century is perhaps now in order. It was beyond question that the action of assumpsit covered situations which we should regard as 'contractual', but for which no other action was available.3 The main point of Slade's Case was whether assumpsit should be available in

cases already covered by another action, the action of debt, given the established at Cambridge University on May 5, 2015 rule that an action on the case would not lie if another form of action lay on the same .4 Within this there were three sub-points: whether it was right to give the plaintiff the option of bringing an action which forced the defendant to trial by jury instead of an action where the defendant could wage his law; whether it was necessary in the action of assumpsit, which was based on a promise, to prove that an express promise had been made; and whether as a general principle it was permissible to allow two different forms of action to grow out of the same cause of action. It is the purpose of the present paper to examine

• Fellow of Magdalen College, Oxford. 1 Baker, 'New Light on Slade's Case' [1971] Camb LJ 51, 213. Suggestions that the case wu concerned with the actionability of mutual promises or the liability of executors have been exploded; but it is worth reasserting that it had nothing to do with the general 'Indebitatut' count {contra, Simpson, History 0} Contract 308). 2 Lucke, 'Slade's Case and the Origin of the Common Counts', 81 Law Q Rev 422, 539 (1965), 82 Law Q Rev 81 (1966); Baker, 'New Light on Slade's Case' [1971] Camb LJ 51, 213; Simpson, Hittory of Contract 281-99; Stoljar, History of Contract 76-82; Baker, 2nd. ed Introduction to Legal History 282-7. 3 These circumstances are best analysed by Baker, The Reports of Sir John Spelman (vol 2) (94 Seld Soc) 266-81. 4 On this point earlier in the century, see Ibbetson, 'Assumpsit and Debt in the Sixteenth Century: the Origins of the Indebitatus count' [1982] Camb LJ 142, 145-51.

295

Oxford Journal of Logil Studies VoL 4, No. 3 296 SIXTEENTH CENTURY CONTRACT LAW: SLADE'S CASE IN CONTEXT the development of the rules relating to the relationship between debt and astumptit in the second half of the sixteenth century, to evaluate the arguments raised in Slack's Case, and to see how far the fears expressed by those who opposed the development signalled by Slade's Case were justified.5

THE OVERLAP BETWEEN ASSUMPSIT AND DEBT From about 1540 it had been clear that a creditor could sue his debtor in assumpsit, notwithstanding the rule that forbade the overlapping of remedies, by counting upon a promise made subsequent to the contract on which liability was 6 based. This was apparently settled without any great controversy: it leaves no Downloaded from ripple in the admittedly scanty reports of the 15408 and 1550s. Two forms of count are found. In the more common the plaintiff lays the contract in the pluperfect tense with the promise to perform it in the perfect:7 Whereas the defendant ... in consideration that the plaintiff at the special instance and request of the defendant had sold and delivered to the said plaintiff to the use of the http://ojls.oxfordjournals.org/ plaintiff three cows at a price of £13. 13s. 8d. . . . assumed and then and there faithfully promised that he the said defendant would well and truly pay to the said plaintiff £13. 13s. 8d. Alternatively, the precedent debt could be put in an 'indebitatus' clause:8 'Whereas the defendant was indebted to the plaintiff in the sum of £11, the same defendant then and there assumed and faithfully promised that he the said defendant would well and truly pay to the said plaintiff £11.' The rationale behind at Cambridge University on May 5, 2015 counting in this form was that the action of assumpsit was brought on the subsequent promise on which no action of debt would have lain: by stressing the separation between the promise and the underlying contract the formal rules could be avoided.9 The more difficult problem was whether any proof of this subsequent promise should be required. Talk of actions on implied promises is found in the reports from the 1560s; the first reference we know of is in the opinion of Dyer CJ in the Common Pleas in Lord Grey's Case:10 On a promise implied in law no action on the case lies, but there must be an assumpsit in fact; thus if I am indebted to you here is an implied promise that I will pay you, and in the King's Bench an action on the case is allowed on this. But without alleging a promise in fact, such as a subsequent promise to pay, no action on the case lies.

5 The arguments in Slade't Cote and its context are examined in greater detail in my PhD thesis, The Development of the Action of Attumpsit, 1540-1620 (Cambridge 1980) 189-303. 6 Supra n 4, 142. 7 Houghton v Wood (1388) KB 27/1304 m 196 (translated). 8 Dent v Byllett (i$S&) KB 27/130410 137 (translated). 9 Brooke, Abridgment, Accion tur le Cote, 5; Anon (1572) Dal 84. 10 (1567) CULMS Ii 5.15 f 3c CIMichellv Dantden (1595) CULMS Ii 5.24 f 50, per Daniel Sjt: The opinion of Lord Dyer was that if the debtor made an actual promise to pay it, then an action on the case would lie against him, but not on the implied promise on the debt only.' DAVID IBBETSON 297 The Chief Justice contrasts the approaches of the Common Pleas and the King's Bench. The former, under Dyer's leadership, adopted the logical view that if the cause of action was a subsequent promise to pay the debt it was essential for the plaintiff to prove that the defendant had made such a subsequent promise. Against this, the approach of the Ring's Bench was that so long as the creditor was able to show the existence of a contract, no further proof of the subsequent promise was necessary: an action would be allowed on a fictitious promise implied by law. Some five years later the difference was drawn in much the same terms in a note of the reporter of the only case in the printed reports expressly to deal with the subject, Edwards v Burre.n Assumpsit was brought on a promise to pay a debt

arising out of a contract of loan, the promise having been made after the time of Downloaded from the contract; Wray J directed the jury that if they were satisfied that the plaintiff had made the loan then they should give a verdict in his favour, the debt being an 'implied asiumptit'. The reporter appends that this was so only in the King's Bench:12 '. . . for in the Common Bench he must prove the assumption, and it is not sufficient to prove only the debt, for on the debt he should have an action of http://ojls.oxfordjournals.org/ debt and not an action on the case . . .'. In the early 1570s, then, in both the Common Pleas and the King's Bench, if asrumpsit was brought to recover a debt arising out of a contract, it was necessary to count on a promise made subsequent to the contract. In the King's Bench this was purely a point of , for the plaintiff had to prove no more than that the underlying debt existed; according to the doctrine of the Common Pleas it was a point of substance, for the subsequent promise had to be proved.

This polarization of views led to a certain woolliness of thinking on the part of at Cambridge University on May 5, 2015 the lawyers of the 1570s. By focusing their attention on the question whether or not there had been an express promise, they gradually stopped asking themselves whether there had been a subsequent promise, and by the 15808 both the King's Bench and the Common Pleas had moved away from the requirement that the promise be subsequent. No change in forms of pleading was involved; it was merely that the existing forms began to be interpreted as showing that the promise was contemporaneous with the contract13 and no objection of principle was taken to this.

11 (1573) Dal 104. 12 Dal 104. Cf CUL MS Dd 5.22 f 13 (perhaps another report of Edwards v Burre): 'If the defendant appears to be indebted to the plaintiff an action on the case lies without any promise to pay it, for the law will imply it...'. 13 When the count was in the normal pluperfect-perfect form, the consideration and promise were often linked by the phrase 'adtunc et ibidem' ('then and there"). In the 1560s and 1570s this had been interpreted as meaning 'immediately afterwards'; in the 1580s and 1590s the King's Bench stressed that the phrase showed that the promise and the consideration were simultaneous: Marth v Ramsford(1587) Harv LS MS 1058 f 24c, per Egerton; Sheffield v Rite (1594) Moo 367 pi 505; Reynolds vPntAoro* (1595) CUL MS Gg 3.25 f 34,per Gawdy J; Lyne v Nea/e (1596) LI MS Mayn 55 f 2388c, ITMSBarr 13 f 162c, KB 27/1331 01263. 298 SIXTEENTH CENTURY CONTRACT LAW: SLADE'S CASE IN CONTEXT

The shift of emphasis was relatively alight in the King's Bench where the subsequent promise had never been more than a pleading device, but in the Common Pleas the development was more marked, since for them it was a matter of substance. The shift can be seen in Potts v Milltoorth14 in 1586. The plaintiff counted that the defendant, for £20 paid, promised to deliver to him thirty quarters of malt; after a verdict for the plaintiff it was argued in arrest of judgment by Walm&ley that the action should not be allowed, since the plaintiff could have brought an action of debt for the corn. The whole court was against him, being prepared to give judgment for the plaintiff so long as there had been an express promise:19'. . . on an implied assumpsit where a man may have an action

of debt, he may not also have an action on the case on assumpsit; it is otherwise of Downloaded from an express assumpsit.' The view of the court was made even more clear in an anonymous case two years later:16 'A man borrows money and promises to repay it on a certain day, and on this the creditor brings an action of assumpsit. And now Snagge Sjt. asked in court whether this action would lie or not.... And the opinion of the court was that the action well lay if there was an express promise.' http://ojls.oxfordjournals.org/ If all that was required now was that the promise be express, what of the rule against overlapping remedies, the principle that two forms of action could not be based on the same cause of action? The King's Bench were not worried; they made no attempt to avoid the argument that assumpsit should not lie because debt was available, but rather questioned the premise that no two forms of action could flow from the same cause of action. Their approach is well illustrated by remarks of Coke in argument in an anonymous case of 1587:17'. . . by the

one could not have an action on the case if he could have another action, but now at Cambridge University on May 5, 2015 this old law is altered ...'. The judges of the Common Pleas were not so cavalier. They were clearly worried by the problem, but preferred to side-step the issue. In Potts v Milltoorth, for example, Rhodes J dwelt upon the possibility that the promisee had suffered some consequential loss so that debt was not an adequate remedy, whilst Anderson CJ went so far as to suggest that debt would lie for the value of the corn, cumulatively with the action on the case for failing to deliver it." By the mid-15808 the position was very precarious. The King's Bench view was self-consistent, but inconsistent with received learning about the boundaries of actions. The Common Pleas did not dispute this traditional learning, but had not made any attempt to come to terms with the contradiction between this and their

14 Harv LS MS 16 f 230, Yale MS GR 29.6 f 9, BL MS Lansd 1068 f 680. 15 Yale MS GR 29.6 f 9. 16 Anon (1588) LI MS Misc 361b f 123c 17 Anon Harv LS MS 16 f 401c. See too Atton't Case (1585) Dyer 250 in marg in the context of nuisance. 18 The anonymous reporter of Yale MS GR 29.6 queries this. There is no evidence that it ever represented the practice of the court; indeed, it would have been completely unworkable. DAVID IBBETSON 299 stance in Potts v Millworth; but if they were not sure of their own position, at least the judges of the Common Pleas were sure that that of the Ring's Bench was wrong. It is important to realize that the difference between the courts did not turn upon any question of pleading, but rather on the correct direction to the jury: a King's Bench supporter would direct that there was no need for the jury to be satisfied that there had been an express promise so long as they believed that there was a contract; a supporter of the Common Pleas would insist that the defendant was entitled to a verdict if the plaintiff had not proved the express promise. The creation of the statutory Court of Exchequer Chamber in 1585" had given the judges of the Common Pleas a theoretical supremacy, empowering them,

sitting together with the Barons of the Court of Exchequer who had been Downloaded from serjeants-at-law, to reverse judgments given in the King's Bench.20 For the time being this was no more than a theoretical supremacy: they could only reverse a King's Bench judgment if there was some error on the face of the record, and at this time the only matter in dispute between them was the proper direction to be given to the jury. http://ojls.oxfordjournals.org/ In the absence of direct coercive powers there is some evidence that they resorted to persuasion. In Turget v Becher Owen J referred to a conversation which he had had with Wray CJ, where he had pressed upon Wray the injustice of allowing assumpsit to be used in place of debt :21 Owen said that he had spoken with Wray C] (who was the chief supporter of this error) and had shown him the inconvenience which would follow if one bought goods from a merchant and paid him for them, and they continued to trade together for several years ... if afterwards the merchant brought assumpsit for all the contracts between them, now if at Cambridge University on May 5, 2015 the defendant was not admitted to wage his law he would not be able to prove that which had happened a long time before, and he would not be able to deny the contract. And on this Wray said that he would never again maintain this action, and indeed he never did so. We cannot be sure when Wray*8 change of mind occurred: it cannot have been before 1589, when we have the latest accurately dated mention of implied promises in the King's Bench before Wray's death in 1592". In any event, there is no evidence that the attitude of the other King's Bench judges was altered by any change which might have occurred in the mind of the Chief Justice; it could only have affected his conduct of cases at nisiprius, for it was only here that it would normally be clear whether or not there had been an express promise. It was not enough for a single judge of the King's Bench to be persuaded. It was only when the emphasis was removed from the implied promise that the

19 Stat 27 Elii c 8, amended by Stat 31 Elii c 1. On this court, see Holdsworth, 1 HEL 244. 20 All that was required was a simple majority in the Exchequer Chamber: Anon (1599) CUL MS Dd 8.48 p. 87; The Diary of John Mamingham (ed J. Bruce, Camden Society 1868) 98. This meant that so long as the Common Pleas judges were unanimous, their will would be reflected in the Exchequer Chamber. 21 (1596) Yale MS GR 29.9 f 197. 22 Ettrigge v Owlet (1589) 3 Leon 200, 4 Leon 3, LI MS Hill 123b f 891*. 3 SIXTEENTH CENTURY CONTRACT LAW: SLADE'S CASE IN CONTEXT

Common Pleas judges, sitting in the Exchequer Chamber, ceased to be powerless, for it was only then that the legitimacy of the action would depend on matters which appeared on the face of the record. The first step was taken in the early 1590s, at the instigation of Anderson CJ. In Streetfield v Hollinden13 the Common Pleas discussed the problem of implied promises in the context of an action of assumpsit against executors;24 Anderson drew the distinction between the cases where assumpsit might have been allowed and those where it would not:23 . .. there is a difference where a man makes a loan of £20 and afterwards the borrower at another day promises to repay this, here assumpsit lies against him ... for no other action lies, but on a promise at the time of the contract or implied in the contract, there the law grants debt and no other remedy. Downloaded from He, at least, had reverted to the position of the court in the early 1570s, but it took rather longer for the other Common Pleas judges to follow his lead. In Streetfield v Hollinden itself, Windham J accepted that according to the old law the action should not be allowed, but claimed that this had been abrogated by recent practice, and was sufficiently trenchant in his opposition to Anderson to prevent http://ojls.oxfordjournals.org/ judgment being entered against the plaintiff. Windham died in 1592, but still no stand was taken against the use of assumpsit. The Chief Justice reasserted his position in Michell v Dansden16 in 1595, and on this occasion he was able to carry his brethren with him. By this time it was clear that the judges of the Common Pleas were firmly set against the use of assumpsit in place of debt, so that litigants who had been defeated in assumpsit in the Ring's Bench began to see it as worthwhile to sue out a writ of error into the Exchequer Chamber.27 at Cambridge University on May 5, 2015 It was in this atmosphere that there arose the case of Slade v Morley. John Slade brought an action of assumpsit, counting that he had sown his land with wheat and rye in November 1594, which was growing well by May 1595; in consideration that he had bargained and sold all this growing corn to Morley, Morley promised and assumed to pay to him £16 on the next Feast of St. John the Baptist.28 Morley pleaded non assumpsit, and the case was heard at nisi prius in

23 (1591) CUL MS Ii 5.12 f 42, CUL MS Ff 5.16 f 28 in marg, BL MS Harl 4552 f 4c, BL MS Lansd 1068 f 680. 24 It was presumably accepted that assumpsit would lie against an executor on his testator's contract. For the difficulties caused by this situation, see AWB Simpson, Hittory of the Common Law of Contract, 561—72; Ibbetson, supra n 5, 317-29. 25 BL MS Lansd 1068 f 68c. 26 Yale MS GR 29.4 f 480, Yale MS GR 29.7 p 187, CUL MS Ii 5.24 f 50. 27 of errors were received in Turges v Becker (27 October 1595 and 25 January 1596), Myles v Smith (23 January 1596), Paramour v Payne (16 February 1596): J. H. Baker, 'New Light on Slade't Case' [1971] Camb LJ 213, 223-4. 28 The record of the case is printed accurately in 4 Co Rep 91a. A number of writers (e.g. Stoljar, Hittory of Contract 80, and Luckc 82 Law Q Rev 81-5 (1966) have asserted that this form of declaration was an innovatory and shrewd attempt to exploit some of the uncertainties of pleading in assumpsit. This is not so: all the apparent peculiarities of the count had been common form since the 1560s. DAVID IBBETSON 301

Exeter before the Justices of Assize on the Western Circuit, Walmsley and Fenner JJ. We may presume that in accordance with the normal practice of the later sixteenth century only one of the judges would have sat to hear the case." No doubt some question arose as to the correct direction for the jury; the problem was solved by obtaining a special verdict from the jury to the effect that the contract had been made in the way that Slade had counted, but that Morley had made no promise to pay apart from this.30 This answer raised precisely the issue which was in dispute between the Common Pleas and King's Bendi—whether or not a separate promise had to be proved—and, moreover, by putting it in the form of a special verdict it was a matter of record so that in the event of the King's

Bench giving judgment for the plaintiff the Exchequer Chamber could legitimately Downloaded from reverse it. It is not difficult to conclude that it was intended even at this stage that Slade's Case should test the conflict between the King's Bench and Common Pleas. The problem faced by the supporters of the Common Pleas line sitting in the

Exchequer Chamber was that the error, as they saw it, of the King's Bench would http://ojls.oxfordjournals.org/ not appear on the record. If the judge of Assize was a supporter of the Common Pleas line he could ensure that a special verdict of the sort given in Slade's Case was obtained, forcing the matter in dispute onto the face of the record; but this was not sufficient to cope with those cases where the judge at Assize did not take a special verdict but rather directed the jury to give a general verdict for the plaintiff whether or not they believed that a separate promise had been made. What was necessary, in order finally to ensure that the Common Pleas judges could make

use of the theoretical supremacy afforded to them by their presence in the at Cambridge University on May 5, 2015 Exchequer Chamber, was to formulate the difference between the courts in such a way that it inevitably appeared in the of the case. This step was taken in the Common Pleas in the Easter term of 1596. In Williams v Williams11 the plaintiff counted simply on a promise to repay a loan, and the defendant pleaded non assumpsit. This was clearly regarded as an important case, for the trial was held at the bar of Westminster Hall before the

29 Cockbum, History of English Assizes, 1558-1714 69, 312-13. Strictly speaking, the judges should have sat together for all cases, and as late as the 1560s it seems that this was the normal practice. By the 1580s it seems to have been customary for the judges to sit separately; on the Western Circuit in particular, it was argued, there was so much business that it would never have been completed had every case been heard by both judges. 30 That such a special verdict was obtained suggests that the case was heard by Walmsley J. It would have been in his interest, as a proponent of the Common Pleas position, to have revealed that there was no separate promise. Moreover, he is known to have favoured the use of special verdicts to narrow down issues in dispute: Anon (1598?) Yale MS GR 29.11 p 287. 31 The best report of this case is John Rylands Fr MS 118 f 182. See also Yale MS GR 29.4 f 52, CUL MS Ee 6.12 f 115, Bodl MS Rawl C 341 f 62, BL MS Harg 51 f 78. 302 SIXTEENTH CENTURY CONTRACT LAW: SLADE'S CASE IN CONTEXT

whole court, and not at nisi print as was the usual custom.32 Moreover, the issues of law were debated as soon as the defendant had joined issue, rather than after the jury had delivered their verdict as was the normal practice. The four judges gave their opinions seriatim, in order of seniority, all to the effect that assumpsit should not be allowed; the court directed the jury to give judgment for the defendant, but before they had done so the plaintiff elected to be nonsuited. The gist of the opinion of all of the judges was that assumpsit would not lie on a promise to pay a simple contract debt, whether or not there was an express promise, and whether or not it was alleged to have been made at the time of the promise or subsequently to it:33

... an action on the case is not maintainable where the plaintiff might have had a general Downloaded from action, and this is a plain loan of money for which debt lies, and the promise is of no value to alter the action since it is no more than that which the law implied; and although the assumption was alleged to have been after the time of the loan it is all the same, for the debt remains a debt as before and there is no consideration for a new promise, but only the

existing debt, for which the law has provided an action. http://ojls.oxfordjournals.org/

This was all that the Common Pleas judges sitting in the Exchequer Chamber needed. Now, for the first time, the difference between the two courts would be visible on the face of the record. If a debt was shown assumpsit would not lie, whether or not the promise was expressed as being subsequent to the contract Almost immediately, the Exchequer Chamber began to reverse judgments of the King's Bench.34

In the meantime, Slack's Case had been heard in the King's Bench. Little at Cambridge University on May 5, 2015 purpose would have been served by entering judgment for the plaintiff, for it would have been immediately reversed by the Exchequer Chamber. The only solution was to obtain some agreement between the courts, and to this end the case was adjourned in the King's Bench, to be discussed by all the judges of England in the old-fashioned Court of Exchequer Chamber. Slade's Case was argued on four occasions between 1596 and 1602, judgment

32 In theory, Middlesex trials should have been at Westminster, but not necessarily before the whole bench (Holdsworth, 1 HEL 284, Turner, 42 Sdd Soc lvi-tviii, bri, Maitland & Turner, 22 Seld Soc xxviii). A statute of 1576 (Stat 18 Elix cap 12) stipulated for a hearing before an incomplete bench, and this would probably have been the normal practice. Dr Hastings (The Court of Common Pitas in At Fifteenth Century 200) found no fifteenth century cases tried in bane; and by the seventeenth century, according to Hale, it was only cases of great weight and consequence that were tried before the full bench: The History of the Common Law of England (ed Gray) 161. 33 John Rylands Fr MS 118 f 182. 34 Turgts v Becher Moo 694 pi 962, Harv LS MS iosd f 62c, Yale MS GR 29.9 f 197, CUL MS Dd 10.51 f 38, BL MS Harl 1697 f 1070; Paramour v Payne Moo 703 pi 979, Harv LS MS iosd f 510, Harv LS MS 118b f 7, CUL MS Gg 6.29 f 133c CUL MS Dd 10.51 f 52; Glatcock v DuffieLi CULMS Gg 6.29 f 13417; Michetbornt v Burreil cited in CUL MS Gg 6.29 f 1340. DAVIDIBBETSON 303 finally being given in November 1602.33 Meanwhile the issues of principle remained unresolved, the initiative resting with the Common Pleas and the Exchequer Chamber. They continued to assert strongly that astumpsit was not a proper action to remedy breach of a simple contract when debt was available, giving a variety of reasons for their attitude,36 and in the Exchequer Chamber continued to reverse judgments of the King's Bench when assumpsit had been allowed.37 The appointment of Peter Warburton as a judge of the Common Pleas in 1600 introduced a strong dissentient voice,3* but even this did not weaken the resolve of the other members of the court. The King's Bench were powerless to press their own point of view; in some cases they refused to enter judgment for the

plaintiff in assumpsit on the grounds that the defendant would immediately bring Downloaded from his writ of error to the Exchequer Chamber;39 litigants soon took notice of this and there was a sharp decline of the number of cases in the records of the King's Bench where assumpsit was brought in place of debt.40 After six years of argument, Popham CJ finally gave judgment in Slade's Case

in November 1602, reaffirming the traditional King's Bench view that assumpsit http://ojls.oxfordjournals.org/ was a legitimate alternative to debt. Despite the impression given by the reports of the judgment that this was a unanimous opinion, it appears that it was in fact reached by a simple majority of six to five,41 and there was still a majority against 35 It was argued by Dodderidge and Coke in Michaelmas term 1597, by Bacon and Tanfield in Michaelmas term 1598, by Coke in Michaelmas term 1601, and by Bacon and Coke in Trinity term 1601: Baker, 'New Light on Slade's Case' [1971] Camb LJ 51. For a more complete list of MS reports see my Development of Assumpsit, 392—5. 36 Anon (1596) BL MS Harg 51 f 82, Duppav Jones (1602) Yale MS GR 29.16 f 151, BL MS Lansd at Cambridge University on May 5, 2015 1074 f 413, LI MS Mayn 87b f 309 (no deceit in not paying debt; D should be allowed to wage law); Anon (C1598) Yale MS GR 29.11 p 287 (King deprived of fees which would have got in proper action). See also the references infra n 37. 37 Mayland v Kester (1599) Moo 711 pi 999, KB 27/1350 m 280; Simcock v Payne (1601) Cro El 786, Harv LS MS 2076 f 131, BL MS Add 25201 f 180c, BL MS Add 25202 f 90, KB 27/1361 m 260c; Powell v Preston (1601) CUL MS Add 8080 f 115, IT MS Barr 6 f 126. 38 e.g. Simcock v Payne (1601) supra n 37. He also dissented on the question of past consideration: Dogget v Dowell (1602) Cro El 885, Yale Law School MS GR 29.16 f 128, CUL MS Ee 345 f 20; Pilletworth v Feake (1602) Yale Law School MS GR 29.14 f 275c, Bodl MS Rawl A 415 p 62, BL MS Add 25202 f 37. Ibbetson, Development of Assumpsit, 128—30. 39 Anon (1596) Bodl MS Rawl Qc 7 f 37; Anon (1601) Yale Law School MS GR 29.15 f 5; Burley v Wise (1601) Yale Law School MS GR 29.15 f 5c. 40 The records of the King's Bench by 1600 show a significant shift away from the use of assumpsit in place of debt Litigants may have been using the 'proper' action of debt; more probably they were framing their counts in such a way as to avoid the objection that debt lay, e.g. by alleging a forbearance consideration: Ibbetson, Development of Assumpsit, 426. 41 Wright v Swanerton (1604) BL MS Harg 29 f 94, per Walmsley ]:'... the case which is reported by the Attorney-General of Slade v Morley was not resolved on arguments with reasons delivered, but when all the judges were assembled each was asked his opinion, and it was thus ruled by the opinion of the majority.' Baker, 21 Am J Legal Hist 340. We may deduce from other cases that of the eleven judges and barons sitting in 1602 the use of assumpsit would have been opposed by Anderson CJ, Walmsley J, Kingsmill J, Periam CB, and Savile B (Ibbetson, Development of Assumpsit, 296—7). To gain a majority the remaining six (the four judges of the King's Bench, Warburton JCP, and Clark B) must have favoured assumpsit. 3°4 SIXTEENTH CENTURY CONTRACT LAW: SLADE'S CASE IN CONTEXT the use of astumpsit in the Common Pleas and Exchequer Chamber. Two years later, in Wright v Stvanerton,42 the Common Pleas refused to follow Slade's Case, Coke's report of which had just been printed, and Walmaley J claimed that the Exchequer Chamber was still reversing judgments of the King's Bench.43 The first case so far discovered in which the King's Bench view was upheld occurred in the Exchequer Chamber at the end of Trinity term 1605, in Protose v Tom.** The defendant promised to pay £20 to the plaintiff in consideration that the plaintiff promised to deliver to him a certain quantity of pilchards. Judgment was given for the plaintiff in the King's Bench; a writ of error was received to remove the case into the Exchequer Chamber in June 1603; and on 15th June e 1605, th Saturday before the end of Trinity term, the judgment was upheld. The Downloaded from simple fact that the count was framed in terms of mutual promises would not remove the objection that debt was the correct remedy,43 and the case would have raised squarely the problem of the overlap of the actions. The same thing happened in the next term, in Massey v Webster, again in the Exchequer 44

Chamber. The defendant, in consideration that the plaintiff had sold and http://ojls.oxfordjournals.org/ delivered to him a certain quantity of malt and rye, promised to pay the price of it. Judgment was given for the plaintiff in the King's Bench in 1598; a writ of error was received on 15th June 1598, but process was discontinued in 1604; a second writ of error was received in January 1605, and in Michaelmas term that year the judgment was upheld. Even after this, the judges of the Common Pleas continued to criticize the encroachment of the action on the case,47 but no cases have been found where they refused to give judgment incompatible with Slade's Case, and 4 the problem was said to have been resolved. * at Cambridge University on May 5, 2015 It can hardly be accidental that this change in the Common Pleas' attitude coincided with the death of Anderson CJ and his replacement by Francis Gawdy, one of the principal supporters of the King's Bench line. His death did not occur

42 (1604) Harv LS MS 2069 f 200, BL MS Harg 19 £46x1, BL MS Harg 29 f 94, BL MS Add 25204 f 14, CUL MS Pell Papers 7 (i) f 14. 43 BL MS Harg 29 f 94. I have found no trace of such actions in the King's Bench rolls, but it is of course possible that they arose out of actions enrolled several years previously. We cannot assume that the receipt of a writ of error, let alone judgment on it, would necessarily have been noted on the King's Bench roll. 44 KB 27/1374 m 168 (T 1602). The writ of error was received on 20 June 1603. There is a brief report of the case in BL MS Harg 34 f 134c. 45 Lucke assumes that it would do so: 'Slide's Case and the Origin of the Common Counts' 81 Law Q Rev 539—43(1965)- There is no reason why this should have been the case. In Powell v Pretton (1601) (tupra n 37) the Exchequer Chamber reversed a judgment which had been given for the plaintiff in such circumstances, on the grounds that debt was the proper action. 46 1605. The case was begun in 1598: KB 27/1347 m 521. 47 Brian v Salter (1608) CUL MS Gg 5.6 f 79c, LI MS Hill 122 f s+v; Dotont v Gedny (1610) Yak Law School MS GR 29.16 f 386; Isaac v Clark (1615) Moo 841 pi 1136, 2 Bulst 306. 48 The Case of the Marshalsea (Hall v Stanley) (1612) 10 Co Rep 68, Yale Law School MS GR 29.9 f 2851), CUL MS Ii 5.15 f 1810. DAVIDIBBETSON 305 until ist August,49 some six weeks after the decision in Prowte v Tom, but he is known to have been unwell during Trinity term,30 and it would not be surprising if he had absented himself from the discussion of the case. By this time one of the other strong supporters of the traditional line, William Periam, had died; his place as Chief Baron of the Exchequer had been taken by Thomas Fleming, who was not the man to give a firm lead.31 Kingsmill J, another follower of the orthodox Common Pleas position in Slade's Case, is reported to have changed his mind in 1604, and although Daniel J, appointed as fifth judge of the Court of Common Pleas in 1604, is said to have followed Anderson's lead,32 he waa hardly a vociferous supporter. By the time of Anderson's death, there had clearly already been some undermining of the strict approach of the court which characterized the Downloaded from late 1590s, and his replacement by Gawdy can only have consolidated this. Only Walmsley J remained as a strong opponent to change.33 Gawdy's appointment may have appeared to the traditionalists as a move by the King to ensure that the squabbling between the courts should end and that the more radical King's Bench

view should prevail; but it is unlikely that this was the King's motive. Gawdy was http://ojls.oxfordjournals.org/ the most obvious candidate; he had been a loyal servant of the Crown under both Elizabeth and James;34 he had been half-promised the post of Chief Baron of the Exchequer in 1604, and, when Fleming had been appointed instead, had been summoned to the King who explained that he was being saved for a better position;33 and he is said to have paid heavily for the promotion.36 The story which we might deduce from this could be of the Common Pleas and Exchequer Chamber united against the use of the action on the case at first, with the slow development of a current of dissatisfaction after the appointments of at Cambridge University on May 5, 2015 Warburton J (1600) and Fleming CB (1604) and the change of heart of Kingsmill J (1604), culminating in the final and sudden capitulation in 1605 with the death of Anderson and his replacement by Gawdy. This is too simple: in fact, as early as 1596 the traditionalist judges, including Anderson and Walmsley, had begun to give ground. Although they held very firmly to the principle that astumpsit could not be used in place of the action of debt on a contract, they were willing to conform to the King's Bench view in a number of cases which could not logically be distinguished from contractual debt.

49 Inquisition/*)!* mortem: C142/294 107. 50 In Picknorih v Damson (1605) IT MS Pet 516.8 p 252 it is reported that Anderson was absent 'propter egretudinem' and that his opinion was delivered on another day by Walmsley J. 51 Lord Campbell, Licet of the Chief Justices, 1.230-238 (a short biography bigoted even by the author's standards). 52 The views of KingamiH and Daniel may be seen in Bishop and Jordan v Viscountess Montague (1604) Cro El 824, Cro Jac 50, CUL MS Pell Papers 7 (i) f 5c. 53 Brian v Salter (1608) CUL MS Gg 5.6 f 790; Downe v Gedny (1610) Yale MS Gr 29.11 f 386. 54 He was among other things a judge in several state trials, and a member of the Court of High Commission. 55 BLMSEg2804f187.fi 89. 56 Foes, Judges, VI 159. 306 SIXTEENTH CENTURY CONTRACT LAW: SLADE'S CASE IN CONTEXT

If there was any additional consideration for the promise then assumpsit would be allowed without demur." Equally, if there was any reason why debt might not be a complete remedy, then assumpsit would be permitted. The most straightforward example of this was where the plaintiff had suffered some special damage so that he could not be wholly compensated by the action of debt,58 a justification which had been put forward for the use of the action on the case in these circumstances a century previously.59 Both of these situations could easily be justified on the principles which had been applied to the action of asrumpsit over the past decades. In some cases the Common Pleas judges went out of their way to hold that debt

did not lie on the facts of the case, hence justifying the use of asrumpsit. In Downloaded from Staunton v Suliard,60 in the Exchequer Chamber, the plaintiff sheriff brought an action of assumpsit based on a promise to pay to him certain fees. The Statute of Westminster I had forbidden sheriffs to take such fees, but this absolute prohibition had been removed by a statute of 1587." In reply to the argument that

the proper action for these fees was debt rather than assumpsit, it was said that http://ojls.oxfordjournals.org/ the statute of 1587 did not expressly grant an action, but merely abrogated the rule that a sheriff could not lawfully receive any fee for his services. This was true, but was hardly to the point; if the sheriff's performance of his services was good consideration, then equally it was quid pro quo.62 The court appears to be bending over backwards to avoid having to hold that debt was the proper remedy. A similar explanation has to be given of the decision of the Court of Common Pleas in Breton v Digbye,61 where a promise was .made to pay money in consideration of

past and future services. It was held that assumpsit would lie on this; debt would at Cambridge University on May 5, 2015 have lain if the promise had been simply to pay for future services, but since the

57 E.g. t forbearance to sue: Millet v Rainton (1600) Harv LS MS 2076 f 48, Haxv LS MS 118b f ii, CUL MS Add 8080 f 107. But the additional consideration had to be genuine: some doubt was raised in Millet v Rainton by the fact that the forbearance to commence suit was outside the law term, when the plaintiff might not have been able to purchase a writ anyway. In Friilatuft Cate (1596) BL MS Harg 51 f 66c a promise was made, in consideration of 3d, to deliver wheat for 2/ta per bushel; the argument that the 3d consideration was sufficient reason to take the case out of the sphere of debt was rejected by Beaumont and Walmsley JJ:'. . . debt lies and not [an action on] the case, for it is a contract and not assumpsit, and the 3d is not consideration but a bait to draw him into the bargain.' 58 Frisland't Cate (1596) BL MS Harg 51 f 66t>: non-delivery of wheat leading to starvation of children; Norman v Some (1594) CUL MS Ee 3.2 f 34: non-delivery of goods sold in a rising market (ted quaere whether in fact the damages in debt would not reflect such a price rise). 59 See [1982] CLJ 142, 147-8. 6° ('599) Moo 468 pi 669, Moo 699 pi 972, Cro El 654. 61 Stat 29 Elii cap 4. 62 The opinion had been expressed in 1594 that debt would not lie on this statute for fees (Gurney v Somet Cro El 335X but the argument would lead equally to the conclusion that attumptit should not lie. Later on, when there was no need to draw a strict line of demarcation between debt and assumpsit, it was accepted without demur that debt would lie: Probey and Lumley v Mitchell (I6I6)MOO853, ' R°4°4; Wcldenv Vetey (1626) Pop 173, 176. 63 (1600) Cro El 756, BLMSLansd 1065 f 47U, ITMSBarr 6f 14c. DAVIDIBBETSON 3O7

past services did not constitute quid pro quo no action of debt could lie for the whole amount. It is not easy to see how the past services could be good consideration for the promise if they were not good quid pro quo,64 but no explanation is offered of this. The court, it seems, preferred to ignore this difficulty.63 Where the debt arose otherwise than out of a pure contract, in some cases the Common Pleas judges appear to have been willing to allow the plaintiff to elect between debt and an action on the case. Two situations are found. In Hertford v Gernon66 and Evans v Williams,6'1 both cases in the Common Pleas, it was held that an action on the case lay at the suit of a creditor against a sheriff who

permitted an imprisoned debtor to escape, notwithstanding that it was well Downloaded from established that debt would lie in such circumstances. In Tresham's Case68 in 1598 it was suggested in argument by Walmsley J that where a father promised to pay money in consideration that the promisee was to marry his daughter (a situation where there were again many precedents of debt being allowed),69

assumpsit might be brought: although the father was liable in debt there was no http://ojls.oxfordjournals.org/ contract. In 1600, in Whitehead v Allmgbridge,10 this view was upheld by the court of Exchequer Chamber, apparently without any argument being raised that debt was the proper action. The period from 1596 can therefore be seen as one of patchy retreat by the Common Pleas judges. Despite their firm assertions that the action on the case should not be allowed to supplant the action of debt, and their repeated refusals to countenance the use of assumpsit on simple contracts, they raised little objection

to the slow undermining of their position so long as this involved no direct at Cambridge University on May 5, 2015 admission that assumpsit could be used in place of debt on simple contracts.

THE ARGUMENTS IN SLADE'S CASE The most widespread attitude of commentators on Slade's Case has been that right was on the side of the Common Pleas: their view of the law was correct, and they had a firmer grasp of the policies which underlay it.71 A close analysis of the

64 There would be no difficulty if consideration meant 'motive', rather than 'something given in exchange', as Simpson argues. But, as I have argued elsewhere, such an analysis of consideration is unacceptable: [1982] Camb Ljf 142, 153—5. 65 The same point was put in Pilletworth v Feake (1602) Yale Law School MS GR 29.14 f 275c, per Tanfield in argument. 66 (1600) Cro El 767. 67 (1602) Moo 641 pi 882, CUL MS Ee 345 f 1. 68 (1598) Yale Law School MS GR 29.12 (unfoliated) Mich 1598 pi 14. 69 Simpson, History of Contract, 156-8, 418—9. 70 (1600) KB 27/1359 m 285, cited in Millet v Rainton CUL MS Add 8080 f 107. The case was beard at the Yorkshire Assizes in Lent 1600 before Savile B and Yetverton J, judgment entered for the plaintiff in Easter term, the writ of error received on 28 May, and judgment affirmed in the Exchequer Chamber on 22 November of the same year. 71 Baker, 'New Light on Slade's Case' [1971] CLJ 213, 222, 227-8. 308 SIXTEENTH CENTURY CONTRACT LAW: SLADE'S CASE IN CONTEXT arguments advanced in Slade's Case suggests that the picture was not so dear. Without doubt tradition was on the side of the Common Pleas, but it was only the position of the King's Bench which was coherent; that of the Common Pleas was badly flawed.

The arguments of law Dr Baker has already examined the arguments in Slade's Case, and it is unnecessary to repeat them in detail.72 There were three main strands to the Common Pleas objections: that the nature of the action on the case required an express promise; that it was improper to give the plaintiff the power to choose an

action in which the defendant's right to wage his law was removed; and that it Downloaded from was improper to allow the use of an action on the case when an older, formed, action was found in the Register to fit the case. The first of these points was very weak. It was never denied by even the most conservative of the Common Pleas judges that a promise could be inferred from 73 the fact of entering into a contract. The promise was just as real as if the debtor http://ojls.oxfordjournals.org/ had said, 'I promise'. There was no magic in the words used. In effect this was conceded by John Dodderidge at the first argument of the case in 1597, and nothing subsequently hinged upon it.74 The second argument, that it was impermissible as a matter of law to give the plaintiff the option of bringing an action in which the defendant was not permitted to wage his law,73 was less tenuous, but depended on a view of legal liability which was possibly outmoded by 1600. It had to be shown that the right to wage law was a substantive feature qualifying the underlying liability, rather than a at Cambridge University on May 5, 2015 procedural feature of the form of action used.76 But there were similar circumstances where the plaintiff could so arrange matters as to alter the action from one where the defendant could wage his law to one where he could not. The most obvious of these was by suing for a debt in the Court of Exchequer by means of the Quominus fiction,77 where wager of law was not available. Analogously, when a debt was assigned to the Crown as a result of the outlawry of a private creditor, the debtor could not wage his law in an action brought to recover this, notwithstanding that he would have been able to do so had he been sued by the

72 Ibid 51, 213. 73 Although the Common Pleas bad consistently refused to allow actions on implied promises not even Walmsley J in his most venomous attack on the King's Bench doctrine in Streetfield v Hollinden (1591) (supra n 23) denied that a promise could be inferred from the circumstances of a contract. Once it was accepted that the promise did exist, it was very difficult to argue that no action could lie on it 74 BL MS Harl 6809 f 45. The point was touched on only briefly in subsequent arguments of Slade's Case. 75 This must be distinguished from the possibly stronger argument that as a matter of legal policy the defendant should be given a chance to wage his law. 76 For arguments of this form earlier in the century, see [1982] CLJ 142, 157—61. 77 Baker 2nd ed Introduction to Legal History 45. DAVID IBBETSON 3O9

original creditor.78 The premise of the Common Pleas argument was thus removed: wager of law was a feature of the form of action used, not of the liability which lay behind it. The defendant could hardly have been said to have been ousted from his right: he had no right unless the plaintiff chose to sue him in debt. It was only the third point which contained any real scope for argument; Coke tells us that it was 'the great matter and sole doubt of the case'.79 The precedents which were cited in the arguments were largely in favour of the Common Pleas line, but they were invariably old precedents;80 against them could be balanced the practice of the courts (in particular of the King's Bench) over the previous fifty or sixty years.81 Little headway could be made by arguing over these points, and it

was more useful to argue from principle. The initial position taken by Dodderidge Downloaded from in arguing the Common Pleas line was that no two forms of action could be based on the same cause of action,82 stipulating that two causes of action were the same if they covered the same damnum and the same iniuria. But the damna in assumpsit and debt were not identical: in debt the creditor would recover only the

amount of the debt plus a small arbitrary amount described as damages for the http://ojls.oxfordjournals.org/ detention of the money, damna detencionis, whereas in assumpsit the damages were at large at the discretion of the jury, and in theory were assessed on the basis of the actual loss suffered by the creditor by the debtor's failure to pay.83 It had to

78 YB H49EdwIIIf4pl8; YB P 16 Edw IV f 4 pi 9; Anon (1567) Dyer 262; Staunford, Plees del Corone, 137-8. The authorities are not absolutely conclusive. 79 In argument in Michaelmas term 1601: BL MS Add 25203 f 391. 80 See in particular YB M 21 Hen VII f 30 pi 5; YB p 14 Hen VIII f 31 pi 8; Orwell v Mortofi

(1505) YB T 20 Hen VII f 8 pi 18, Keil 69, Keil 77; Lord Mounteagle v Countest of Worcester at Cambridge University on May 5, 2015 (1555) Dyer 121. In addition, Coke cited a wealth of irrelevant precedents, including one from what must have been a manuscript year book of 12 Ric II. 81 In 1598, Tanfield cited some thirty precedents of this. Coke was less restrained: 'In respect of infinite precedents (which George Kemp, Esq. Secondary of the Prothonotaries of the King's Bench shewd me) as well in the Court of Common Pleas as in the Court of King's Bench, in the reigns of King H 6, E 4, H 7 and H 8, by which it appears that the defendants, in consideration of a sale to them of certain goods, promised to pay so much money, etc. in which cases the plaintiffs had judgment' (4 Co Rep 91, 930-*). Nobody has yet succeeding in finding any of these precedents; the most charitable conclusion is that Coke was exaggerating. The practice of the court had been to bypass the rule forbidding overlapping remedies, not to ignore it. 82 The argument was stated to depend on the nature of the Register of Writs, which outlawed overlapping remedies (See Baker, [1971] Camb LJ 214, 217). Underlying this, though, was the theory that there was an exact correspondence between the writs in the Register and the forms of action: no two writs in the Register could be based on the same cause of action, so no two forms of action could be based on the same cause. 83 This was stressed by Tanfield in 1598:'... in the action of debt the debt itself is to be recovered, but in the action on the case only damages. And it may be that the jury would give less damages than the sum to which the debt amounts . . . Wherefore the actions reduce several things in judgment.' [1971] Camb LJ 51, 56. Damages in debt were a liquidated sum, which could be awarded by the court in the event of judgment going for the plaintiff by default; damages in assumpsit were unliquidated, and always had to be assessed by a jury. In practice damages in debt were generally less than those awarded in atsumpsit. On damages in general, see my Development of Assumpsit 353-66. 3IO SIXTEENTH CENTURY CONTRACT LAW: SLADE'S CASE IN CONTEXT be argued, therefore, that even where damna differed, an action on the case could not be used in place of a formed action if the two actions derived from the same wrong, the same iniuria. Such a theory could be posited on the basis that the action on the case was historically a residuary remedy, dating back to the Statute of Westminster II, cap 24." But even this attenuated version of the argument met problems: it was a part of Common Pleas orthodoxy that a creditor who had suffered extraordinary damage as a result of the non-performance of a contract could bring an action of astumptit,s> and here it could not be denied the iniuria was the same in both cases.8* Had the Common Pleas judges been willing to give up this ground their position might have been tenable; but they had taken their

stand solely on the point that attumpsit could not be used to recover a debt due on Downloaded from a simple contract, and this was unsupportable. The initial argument of Dodderidge in 1597 had been superficially attractive, agreeing with the common opinion of the legal profession throughout the fourteenth and fifteenth centuries, and most of the sixteenth. The desire to expand

the action on the case, sanctioned by the King's Bench in the first decades of the http://ojls.oxfordjournals.org/ sixteenth century, had resulted in the creation of a set of principles for the action of astumpsit which were fundamentally inconsistent. Certain ideas had become entrenched, in particular that assumpsit lay on a contract if there had been some extraordinary loss suffered, from which the conclusion in Slade's Case followed inexorably. Had the logical implications of these principles been explored at the beginning, assumpsit could have been fitted satisfactorily into the framework of the previous centimes, essentially the system expounded by Dodderidge. Instead, the hard cases—those where there was no additional matter to justify the use of at Cambridge University on May 5, 2015 assumpsit in place of debt—were avoided, first by the standard form allegations of deceit and consequential loss, and then by the count on the subsequent promise.87 By the time that the problem was faced in Slade's Case it was too late; the whole system of assumpsit was inconsistent with the principles on which it was ostensibly based.

The arguments of policy The legal arguments were fairly well balanced between the King's Bench and Common Pleas lines, with the King's Bench getting slightly the better of them. 84 Such was the accepted explanation by the end of the sixteenth century: Baker 'New Light on Slade'g Case' [1971] CLJ 214, 217. It was put forward in Slade's Case in 1598: CUL MS Dd 8 48f33,[i97i]CLJsi,6o. 85 Supra n 58. 86 There were other such si tuitions: if A injured B, B could choose between an action on the case and an appeal of mayhem (YB H 48 Edw III f 6 pi 11 (the record shows that the actual facts of the case were slightly different: A. Kiralfy, The Action on the Case 225)); the same facts might ground an action on the case or an action of rescous (Coke, citing what was presumably a variant report of the then imprinted YB 12 Ric II (AF) p 7); there might perhaps have been some power to elect between an action on the case and an assize of nuisance (comparing YB M 48 Edw III f 27 pi 13 with YB Pi4Hen Vlllf 31 pi 8). None of these situations was free of uncertainty. 87 Supra 296; [1982] CambLJui, 150-1. DAVID IBBETSON 311 The criticisms of Slade's Case on the grounds that it was completely unjustified in law are unfounded. But its opponents have also characterized it as having been an undesirable solution to the problem; are these criticisms any more justified? At the root of the debate we may see two arguments: whether it was proper to allow any overlapping of remedies, since this would 'confound the Register'; and whether in the circumstances it was desirable to allow the plaintiff to choose an action in which the defendant was not allowed to wage his law. Within the formalized structure of the writ system the first argument was a strong one: a single cause of action should give rise to only one possible remedy. But this strict framework had been slowly breaking down for many years, and it

was undeniable that there already existed many situations in which the plaintiff Downloaded from was given a choice of remedy.8* A stronger case could be made out for saying that the scope of the action on the case should be restricted, because of its flexibility and limitless potential to supersede the established forms of action; but even this argument is seriously weakened if the traditional emphasis on the need to

maintain strict forms of action is removed. Why, in principle, should a plaintiff be http://ojls.oxfordjournals.org/ forced to frame his claim in a particular way?89 If we can escape from this obsession with the forms of action the policy argument is in favour of the King's Bench view, for it was clearly undesirable to have one form of action for certain types of agreement and another, atiumpsit, for the remainder; all the more so because the conceptual bases and procedural rules of the two forms of actions were different. Much of the dispute between the King's Bench and Common Pleas was

underpinned by the question whether it was proper to give a supposed creditor the at Cambridge University on May 5, 2015 option of bringing an action against his alleged debtor in which the defendant had no power to contest the action by wager of law. In most actions of debt on a contract the defendant had the right to wage his law: the right to bar the plaintiffs action by swearing that he did not owe the sum claimed and producing eleven supporters who would testify to his good character and truthfulness.90 The judges of the King's Bench regarded this as unjust and anachronistic, preferring trial by jury, while their counterparts in the Common Pleas regarded it as a useful safeguard against fraudulent claims.

88 The examples given by Coke in argument in Sladt't Case in 1601 were: a disseisin could give rise to an assize of novel disseisin, a writ of entry, or a writ of right; mayhem could lead to an appeal or a writ of trespass; taking goods detinue or replevin; failing to reddiver bailed money an action of account or of debt. 89 There was some justification for this when causes of action were precisely defined by the writs used; but this had broken down with the rise of such standardized forms of action as debt and trespass, where the plaintiffs claim was hardly revealed by his pleadings. This was all the more true in the King's Bench in the sixteenth century, when nearly all actions were brought by bill rather than writ. 90 The best account of wager of law is in Thomas Powell's Tht Attorney't Academy (1623) 130-4; see also the treatment of it in a short tract on the action of debt in BL MS Add 25232, f 10. By the sixteenth century, the defendant's oath helpers would often in practice be provided by the court itself: Baker, 'New Light on Slade's Case' [1971] CLJ 213, 228. 312 SIXTEENTH CENTURY CONTRACT LAW: SLADE'S CASE IN CONTEXT

Obviously such a procedure could be, and no doubt was, used by dishonest debtors to avoid their just debts, although its defects were perhaps not so great as its critics have alleged." Some of its potential disadvantages were avoided by procedural rules: the court would examine the conscience of the debtor and warn him of the consequences of perjury before admitting him to wage his law;92 the defendant had to come to Westminster Hall in person to do his law—his attorney could not do it on his behalf;93 and after successfully waging his law he was not able to recover his costs from the plaintiff.94 But all this was hardly satisfactory. The danger of the procedure was that it could be used by the dishonest debtor, while the safeguards which hedged wager of law served more to put off the defendant who did not in fact owe the sum claimed and who was confident of Downloaded from obtaining a jury verdict in his favour. It is easy to agree with the King's Bench in contrasting this anachronistic and irrational mode of trial with the fair and rational trial by jury; but jury trial was not necessarily any better. Trials were brisk,93 the parties could not themselves

give evidence, and it was all too easy for a party with influence in the county to http://ojls.oxfordjournals.org/ ensure that the jury was packed with his supporters.96 The only real advantage possessed by jury trial was that it had the appearance of being honest and uncorrupt. In theory, the principal justification of wager of law was that it protected honest people from fraudulent claims. This was the reason said to have been advanced by Roger Owen to Wray CJ in an attempt to persuade him of the unde sir ability of allowing assumpsit to supersede debt on a contract.97 In practice, though, wager of

law was already moribund; very few defendants in actions of debt on a contract at Cambridge University on May 5, 2015 took advantage of the right to wage their law,98 and there is certainly no evidence

91 H C Lea, Superstition and Force 61-81. The practice is defended by Baker, 2nd ed Introduction to Legal History 289. In at least one case, the court of Common Pleas insisted that the defendant make his law, for the benefit of the plaintiff, so that he could have his judgment immediately rather than having to wait until the next term: Hawder's Case (1599) BL MS Add 25223 f 93r. 92 Baker, 'New Light on Slade'a Case' [1971] Camb LJ 213, 230 n 94. 93 Anon (i5i5)Keil. 180. 94 BL MS Add 25232 f ioc. 95 Cockbum, History of English Assixts 1558-1714 137-8, estimates that the length of a trial at nisiprius could rarely have been more than twenty minutes. 96 Infra n 100. Cf Peter's Case (1609) BL MS Harg 52 f 10, where it was held slanderous to say of one, Thou art a juryman, and hast been the overthrow of 100 men by thy subtle and false means.' For derogatory remarks about the jury in the work of Ben Jonson and Thomas Middleton, see Johansson, Law and Lawyers in Elizabethan England, 19—20. It must also be remembered just how limited the rules of evidence were at this time; it is hard to be confident that the jury would normally have sufficient information before them to enable them to reach a rational verdict. 97 Supra n 21. 98 Hastings, Court of Common Pleas in the Fifteenth Century, 197-8; Baker, 94 Seld Soc 116; Milsom, 'Sale of Goods in the Fifteenth Century' (1961) 77 Law Q Rev 257, 266. Of the fifty two actions of debt on a contract in the King's Bench roll for Hilary term 1588, in only five did the defendant wage his law, and of these only one made it successfully. DAVIDIBBETSON 313 of hordes of debtors perjuring themselves in Westminster Hall as Edward Coke seems to suggest." The reason for the unpopularity of wager of law is clear: in the eyes of one's neighbours, to wage one's law was tantamount to admitting liability and refusing to pay the debt due. A gentleman would not, dared not, wage his law even when confronted with a packed jury or an obviously unfounded claim.100 Although in theory, therefore, wager of law was a valuable protection against fraud, in practice it served no useful purpose. The removal of the defendant's right to wage his law by giving the plaintiff the option of bringing astumpsit instead of debt was completely insignificant. The problem of fraudulent claims remained. It was too easy for an unscrupulous man to bring an action claiming that he was owed money and to produce Downloaded from witnesses to give evidence on his behalf. The defendant, unable to wage his law, would be forced to pay the pretended debt unless he could produce witnesses who could testify convincingly that he did not owe the amount claimed. Towards the end of the seventeenth century Hale CJ pointed to this as a significant problem,101 but it appears to have been a relatively recent one. In the earlier part of the http://ojls.oxfordjournals.org/ century the remedies against perjury in the Star Chamber and under the Statute of Perjury of 1563 were perhaps efficient enough to guard against it.102 In any event, the solution to a problem caused by the perjury of witnesses was hardly to be found in giving an opportunity for the defendant to perjure himself. There was one situation in which the problem of fraudulent claims was thought to be particularly acute: when a merchant brought an action for money claimed to be due on contracts entered into some time previously, and produced his account books as proof. Here the difficulty was caused by the imbalance of evidence: the at Cambridge University on May 5, 2015 plaintiff had his written records, which it would be almost impossible for the

99 In argument in Slade's Case: 4 Co Rep 91, 95a, BL MS Add 25203 f 391. 100 In 1582 a correspondent of Bassingbourn Gawdy complained of a judgment in debt which had been obtained against him by false evidence: 'Being a man he cannot wage his law.' (Historical Manuscripts Commission, Gawdy MSS (10th Report, Appendix, Part 2) 17.) In the House of Commons Debate on the Shop Books Bill (infra n 103) in 1601 a similar story was told by Hugh Beeston: a mercer gave a piece of velvet in return for some favour which had been done to him, and died sixteen yean later. His executor went through his books and found an entry relating to this without any counter-entry of payment, and brought an action of debt for the price. "The gentleman advised with counsel what to do; They told him. No Remedy but to Wage his Law. The manner thereof being told him, rather than he would have bis credit drawn into question, he paid it' (Townsend, Historical Collections (1680) 271.) 101 Baker, 2nd edn Introduction to Legal History 289. 102 The Star Chamber provided the principal forum for disputes arising out of the abuse of legal process: by the 1620s allegations of offences against the course of justice are found in about one quarter of the cases in the Court: T Barnes, 'Star Chamber and the Sophistication of the Criminal Law' [1977] Crim L R 316, 324; 'Star Chamber Litigants and their Counsel' in J H Baker ed, Legal Records and the Historian 7, 19-20. On the Statute of 1563, which provided for a penal action for £20 against a perjurer, see M D Gordon, The Invention of a Common Law Crime: Perjury and the Elizabethan Courts' (1980) 24 Am J Legal Hist 145. Cf Damport v Simpson (1596) Cro El 520, denying the existence of an action on the case for damage caused by perjury. 314 SIXTEENTH CENTURY CONTRACT LAW: SLADE'S CASE IN CONTEXT

defendant to resist, for he could not give evidence on his own behalf, and would only rarely be able to produce witnesses who could challenge the merchant's books. This was finally alleviated by redressing the imbalance: by the Shop Books Act of 1610 the merchant's account books were made inadmissible as evidence in any action for money due or goods to be delivered arising out of a contract made more than one year previously, subject to the interesting proviso, redolent more of the twentieth century than the seventeenth, that this exclusion should not apply in actions between merchant and merchant 'for any thing directly falling within the Circuit or Compasse of their mutuall Trades and Marchandizes'.103 The problems which, according to the arguments in Slade's Cate, would follow

from the removal of the debtor's power to wage his law were thus more apparent Downloaded from than real. The true solution to the underlying difficulties was not to preserve wager of law, but to raise the standard of evidence available to the jury. More satisfactory than the Shop Books Act would have been to allow a party to give evidence on his own behalf, but this solution was not reached until 1851.104 http://ojls.oxfordjournals.org/ 103 Stat 7 Jac c 12. When this bill was first introduced into Parliament in 1597, it provided simply that no merchant or other person who kept shop books could bring an action of debt or other action in respect of a contract of sale or a contract for services more than one year after the debt fell due. The proviso, excluding agreements between merchant and merchant from the restrictions, was added by the House of Commons committee in 1597. Parliament was dissolved without its becoming law, and the bill was reintroduced in substantially the same form in 1601. At the third reading, it was amended so as to be limited to actions brought upon shop books or where the shop book was required as evidence (as in the final form of the Statute); after a prolonged discussion, the House sitting almost two hours later than its normal rising time of

eleven o'clock it was passed, but again it failed to become law before Parliament was dissolved. at Cambridge University on May 5, 2015 Introduced for a third time in 1605, it did not get beyond the committee stage in the House of Commons. Finally, it was introduced yet again in 1610, passed successfully through both Houses, and received the Royal Assent. (The parliamentary history can be traced through the Journals of the House of Commons, Journals of the House of Lords, Simonds D'Ewes' Journals of the Parliaments of Elisabeth I, and Haywarde Townsend's Historical Collections. See especially Townsend 271, 279, 282-4 C^80 m D'Ewes, 666-7). Copies of the bills of 1597 and 1601 (the second with its amendment interlined) are printed in Hist MSS Com, Manuscripts of the House of Lords (NS), Vol XI, Addenda 1514-1714,51,63). It is valuable to compare the statute with continental practice. The classical Roman Law rule was that written evidence could only be proffered against its maker, not in his favour. The mediaeval doctors, building on the post-classical C.4.1.1.3., were unclear as to the precise status of such writings; some held that they were fully admissible so long as they were prima facie in due form, some that they were semi-proof but required corroboration either by witnesses or by the plaintiffs oath, and some that were not proof at all. In many jurisdictions this had been superseded by statutes which provided that the books should be admissible, usually within a time limit (which could be u long as five years) or subject to a maximum value of debt claimed. On this see A. Pertile, Storia del Diritto Italiano (2nd edn 1900), 420-5; E. Bonnier, Traiti des Preuves (1852) 639-46; 5 Wigmore on Evidence 427 (1974), para 1518; D. Murray, The Mediaeval Law and Practice in regard to Accounts' 5 J. Comp & Jnt L 63, 71-2 (1923). It may be that the original bill of 1597 was based on these models, although the proviso excluding agreements between merchants from the statutory limitations appears not to be found elsewhere. 104 Evidence Act 1851; Stat 14& 15 Viet cap 99. DAVID IBBET8ON 315 The decision in Slade's Case and its acceptance by the more traditionalist judges some three years later can therefore be seen as having placed the action of assumpsit on a more coherent footing. It is impossible to regard it as wrong as a matter of law, however questionable it was in terms of the principles thought to have been current in the previous centuries. Nor can we fairly accept the criticisms directed at it on the level of legal policy.

THE AFTERMATH OF SLADE'S CASE Before Slade's Case the problems caused by the overlap between assumpsit and debt on a contract had been met by counting on a separate, subsequent, promise; Downloaded from at least in the King's Bench no proof of this promise was needed. There were considerable logical difficulties with this, as is evidenced by the continued refusal of the Court of Common Pleas to accept it as a legitimate device. The approach of Slade's Case avoided these difficulties. The acceptance by the Common Pleas' judges of the decision involved the recognition that an action of assumpsit could be brought on an implied promise, http://ojls.oxfordjournals.org/ not merely on an express one. It had never really been doubted that a promise could be read into any contract; the significant point of Slade's Case was not that it allowed an action on an implied promise, but that it did not insist on a separation between the causes of action in debt and assumpsit.m The principle is clear: there was no magic in the use of the word 'promise' or 'assume', and any language, or conduct, from which a promise could be inferred was tantamount to an express promise. The reasoning in Slade's Case is coherent: by entering into at Cambridge University on May 5, 2015 the contract to purchase the corn Morley promised to pay the price agreed; on non-payment of this price Slade could elect between his action of debt on the contract and his action of assumpsit on the promise. So long as the promise at the root of the action of assumpsit was that which constituted part of the contract, the question of whether it could be implied was trivial. It is equally clear that the reasoning in Slade's Case would not apply if assumpsit was brought on a promise made subsequently to the contract At first sight, there was no reason at all to count on a subsequent promise: the need to separate the cause of action from that of the action of debt which precipitated the introduction of the practice of grounding the action on a subsequent promise in the 1540s no longer existed after the decision in Slade's Case and its acceptance by the Common Pleas. It soon became clear, however, that there was one situation where counting on a subsequent promise was essential: where a creditor wanted to bring a single action in respect of a number of debts. If the parties had actually accounted together for the outstanding balance debt (or assumpsit) would lie,10* but this was not the case if the debtor had not admitted the total indebtedness. The problem

105 Supra n 73. 106 The so-called 'ituimul computattent' count. See Milsom, 'Account Stated in the Action of Debt' 82 Late Q Rev 534 (1966). 316 SIXTEENTH CENTURY CONTRACT LAW: SLADE'S CASE IN CONTEXT

arose in 1606, in Baytes v Bowles.101 Assumpsit was brought on a promise, and it was found by special verdict that the defendant had bought goods from the plaintiff at two separate times, in respect of which he had brought a single action, referred to as 'Indebitatut assumpsit'. It was held by the King's Bench that there was no objection to counting on a single promise to pay several debts, so long as it was a real promise, supported by separate consideration: '. . . but here there are two implied assumpsits, for in every contract the law implies an assumpsit, on which there should be two actions or special declarations, according to the truth of the matter, for the assumpsit on the one contract is not an assumpsit on the other.' Since the action is found on the promise implied in the contract the same rule

applies as in the action of debt: it is improper to count on a single debt arising out Downloaded from of more than one contract,108 and equally improper to count on a single promise arising out of several contracts. Perhaps as a consequence of this inconvenience, the courts rapidly reverted to an analysis in terms of the subsequent promise. We find remarks in passing to this 109 effect as early as 1607, and in 1610 the legitimacy of this was ratified by the http://ojls.oxfordjournals.org/ Exchequer Chamber in Mary Andrewe'i Case:110 in consideration that the plaintiff had sold to him a certain thing, the defendant 'then and there' promised to pay £10. It was held in the King's Bench, and upheld in the Exchequer Chamber, that notwithstanding the use of 'then and there,' the use of the pluperfect tense in the consideration clause revealed that the sale was past; but the action was allowed none the less. Similarly in Hodge v Vavitourlu the King's Bench held that a declaration that the defendant was indebted to the plaintiff in

such a sum, in respect of goods sold, and had subsequently promised to pay this, at Cambridge University on May 5, 2015 was acceptable. The consideration was not past, for it was presumed to continue until the time of the promise."2 Nothing in Slade's Case derogated from the actionability of the subsequent promise; but nothing in it supported the implication of a subsequent promise to pay a due debt. Yet, very soon, Slade's Case was seen as the source of the latter rule. In The Case of the Marshalsea113 Coke referred to Slade's Case as having

107 BLMSAddn68if8. 108 YBM2oHenVlIf4pli3. 109 Gore vColthorp (1607) 1 Br & Goulds 13, CUL MS Ee 6.13 f 39c, CUL MS Gg 2.5 f 248c, LI MS Hill f 62c; Burre't Case (1607) Harv LS MS 1058 f 64, CUL MS Gg 2.23 f 125; Selman v King (i6o7)CroJac 183. no Ro Abi Action sur U Cast Q 13. Hare LS MS 2069 f 187x7, CULMS Gg 5.6 f 93c, CULMS Hh2.2f 21c, BLMSHarg52f45. in (1616)3 Bulst 222, 1 RoUe 413. 112 It was not merely that assumpsit was allowed on a subsequent promise so long aa it was express; at the same time as talking of the subsequent promise, the courts were treating it ai trite learning that the promise as such did not have to be proved: Anon (1615) BL MS Add 25228 f 27D; Health v Dauntley (1619) Cro Jac 544; Peryn v Haughton (162:) CUL MS Dd 6.57 f 2000. 113 (1612) 10 Co Rep 68, Yale Law School MS GR 29.9 f 285c, CUL MS Ii 5.25 f 181c. DAVID IBBETSON 2l7

settled the point, and the remarks of Dodderidge J in Peryn v Haughton11* seem to draw on it. If it appears far-fetched that the courts should so rapidly have shifted to such an obviously questionable device, it is worth remembering that it had happened before,113 and that the implied subsequent promise would be put to even more bizarre use in the quasi-contract cases of the 1670s.116 Within perhaps five years of the decision in Slade't Case, then, the logical base on which it was founded had been removed. But Coke's report of the case was by then in print, and nobody was to question the reasoning behind the assertion that 'every contract executory imported in itself a promise,' and that on this promise an action of assumpsit would lie. The result was convenient, but its foundations were very shaky. Downloaded from http://ojls.oxfordjournals.org/ at Cambridge University on May 5, 2015

114 (1621) CUL MS Dd 6.57 f 200c. 115 [1982] CLJ 142, 150-1; supra 296. 116 Baker, Introduction to Legal History, 307.