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New Light on Slade's Case

Published online by Cambridge University Press:  16 January 2009

J. H. Baker
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Extract

Slade's Case is of such significance in the history of the common law that it has, quite properly, been the subject of more scrutiny and discussion in recent years than any other case of the same age. The foundation of all this discussion has been Coke's report, which is the only full report in print. The accuracy and completeness of Coke's version have hardly been challenged, and the discussions have assumed that it contains almost all there is to know about the case. This assumption must be discarded if we are to understand the contemporary significance of the case.

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The Cambridge Law Journal , Volume 29 , Issue 1 , April 1971 , pp. 51 - 67
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Copyright © Cambridge Law Journal and Contributors 1971

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References

1 See Simpson, A. W. B., “The Place of Slade's Case in the History of Contract” (1958) 74 L.Q.R. 381Google Scholar; Lücke, H. K., “Slade's Case and the Origin of the Common Counts” (1966) 81 L.Q.R. 422Google Scholar, 539; 82 L.Q.R. 81; Milsom, S. F. C., Historical Foundations of the Common Law (1969), pp. 292–308.Google Scholar

2 4 Rep. 91; 76 E.R. 1072.

3 Cf. Hall, G. D. G., “An Assize Book of the 17th Century” (1963) 7 American Journal of Legal History 228CrossRefGoogle Scholar, 229, to the same effect.

4 The first problem will be that of classification and listing. A valuable start has been made by Dr. L. W. Abbott, of the University of Guelph, in his Lawyers and Law Reporting in the Sixteenth Century (London Ph.D. Thesis: 1969)Google Scholar, which is being prepared for the press.

5 “A Memorial Touching the Amendment of Laws” (c. 1614) J. Spedding, Letters and Life of Bacon (1869), Vol. V, p. 86. Cf. Lord Ellesmere on the same theme: ibid., Vol. VI, p. 87.

6 MS.Harl. 6686 (700 ff.). It is in the same hand as MS.Harl. 6687, which contains Coke's annotations of Littleton. The volume is discribed vaguely in the Catalogus Librorum Bibliothecae Harleianae (1808), Vol. III, p. 384, and this probably accounts for its unfortunate obscurity. It comes from Coke's library: see A Catalogue of the Library of Sir Edward Coke (ed. Hassall, W. O., 1950), p. 22Google Scholar, no. 293.

7 The period in which Coke was Attorney-General. The volume is inscribed Liber Primus, but on f. 1 there is a reference to a case in Easter Term 33 Eliz. “devant.”

8 “The Genesis of Coke's Reports” (1942) 27 Cornell Law Quarterly 190.Google Scholar

9 Plucknett must therefore be wrong in saying (op. cit., p. 200) that “the set of reports as a whole does not come from a chronologically arranged register like Plowden's and does not reproduce a single series of cases noted down as they occurred.”

10 e.g. the report of Finch v. Throgmorton (1598) at ff. 226v–229: see Baker, J. H., “The Common Lawyers and the Chancery” (1969) 4 Irish Jurist (N.S.) 368. 371–372.Google Scholar

11 The report is MS.Harl. 6686, ff. 526–530v. The interval before publication was less than two years.

12 Moo. 667; Yel. 21. Dr. Lücke chides Coke for “serious omissions” on the strength of these notes (op. cit., 81 L.Q.R. at p. 557; 82 L.Q.R. at p. 85). His criticisms are not supported by the MS. reports.

13 MS.Hargrave 5 is identified by Edward Umfreville (at f. 1) as the work of Chief Baron Walter (1563–1630). Walter was called to the bar in 1590 and might well have reported Slade's Case; but there is no internal evidence to confirm his authorship. The volume is a bound collection of scattered papers in different hands.

14 Brit.Mus.MS.Add. 25203 (695 ff.). The volume formerly belonged to St. John C.J. Partial copies exist in other collections: Brit.Mus.MS.Stowe 398 (part of Mich. 1598), Lincoln's Inn MS.Misc. 492 (1600–1604), MS.Hargrave 13 (Mich. 1600–Trin. 1601). It deserves close study and contains, inter alia, a lengthy report of the Case of Monopolies: MS.Add. 25203, ff. 543–548, 558–559v, 576v–588, 678v.

15 Professor Dawson has reached a similar conclusion from the internal evidence of Coke's report itself: The Oracles of the Law (1968), pp. 69–71Google Scholar. But his interpretation of the word “executory,” upon which his conclusion is partly based, is unacceptable. See also Plucknett, T. F. T., Concise History of the Common Law (1956), pp. 280–281.Google Scholar

16 This is by far the best report of Dodderidge's argument, and preserves the pristine eloquence of the original speech. Unlike all the other reports listed here, it is in English.

17 Printed below, in translation, at pp. 54–59.

18 Printed below, in translation, at pp. 59–60.

19 This is the only MS. which has previously been noticed in print: see Simpson, op. cit., 74 L.Q.R. at pp. 390n., 393–394. The argument was not, as Mr. Simpson states, in banc.

20 Printed below, in translation, at pp. 60–66.

21 Printed below, in translation, at pp. 66–67.

22 H, collated with H1.

23 This was Dodderidge's third reason in 1597. “First, as hath beene said, accons are grounded uppon wronges and iniuries; but yncluded, ymplied or imaginitive wrongs are no cause of accon. They must be actuall, reall and expresse … Secondlie, there is nothinge founde but the contract—but the bare stipulacion, as Bracton borowinge the worde out of the Civill lawe calleth it—that is, I agree you shall have my wares and you agree that I shall have your money, this is nothinge but the verye contract yt self out of which resulteth properlye the accion of debt, which is the only legittimate son of that marriage.…” (G). He also argued that the declaration was grounded on a deceit by the plaintiff relying on a promise, “which must be an actuall promise whearunto yow gave creadict.” (G). The same argument is thus reported in A: “There must be an express promise to maintain an action on the case on an indebitatus assumpsit, and not solely a promise implied by the contract. For whereas action of debt is created by the contract, et inde oritur debitum, so the original and basis of the action on the case is the promise. For this is ipsum stipulacio, without which the action cannot be maintained.… Also the promise must be actual, so that the other may give confidence and trust to it, for thus is the count.…”

24 From I.

25 Lord Dudley v. Lord Powles (1489) M. 5 Hen. 7, 1, pl. 1.

26 H1 (Content la apt parolls….) This seems preferable to H (Coment les auters parolls).

27 Cf. Coke in 1597: “When the plaintiff said ‘You shall have my corn' and the other said ‘You shall have so much money for your corn,’ these are express promises. And these words assumpsit, promisit and agreeavit are all synonymous and of one signification. Would you have every plain man use the proper words ‘I assume’ and ‘I take upon myself’? It is not necessary. If he says ‘I promise’ or ‘I agree’ it is as much as and all one. And if you will deny that there was any promise here, there is no contract either, for in every contract there is a reciprocal agreement: actus contra actum.” (A). “Here is an express promise, for this is my case and I shall have an action upon it. Here it is said ‘You shall have my money.’ This is a promise, for put it in writing and covenant lies upon it. Promise and agreement are all one, for every agreement executory is a promise.” (B). For Bacon's argument to the contrary, see below, p. 61.

28 Abbot of Ramsey v. Prior of Anglesey (1506) H. 21 Hen. 7, 12, pl. 13.

29 This summarises the second limb of Dodderidge's first argument: “In the accion of the case he shall recover all the damages, which shall be no more then the valewe of the debt and damages for the deteyner. There is no more wrought by the one then by the other. In vaine then is it to have libertie of choyse whear there is no choosinge for the better. Therefore wheare the home made and free born will serve the turne, lett the straunger and late made denizen be excluded.” (G). The cases cited were P. 41 Edw. 3, 10, pl. 5; P. 42 Edw. 3, 9, pl. 7; M. 37 Hen. 6, 8, pl. 18; M. 2 Ric. 3, 14, pl. 39; Broker's Case (1490) M. 6 Hen. 7, 7, pl. 14; Core v. Woddye (1537) Dyer 20.

30 According to Coke (in 1601) this was the main point, on which all the doubt in the case depended: J. K. Coke's subsequent argument was more elaborate than Tanfield's: see 4 Rep. 94–95. In addition to the cases set out there, Coke cited Stratton v. Swanlond (1375) H. 48 Edw. 3, 6, pl. 11 (see Kiralfy, A. K. R., Source Book of English Law (1957), p. 185)Google Scholar; T. 12 Ric. 2 (Ames Foundation), 7, pl. 5; Hunt v. Bate (1568) Dyer 272.

31 Cf. note 69, infra. This had been Dodderidge's first reason. He relied on Orwell v. Mortoft (1505) M. 20 Hen. 7, 8, pl 18 (infra); P. 14 Hen. 8, 31, pl. 8; Lord Mounteagle v. Countess of Worcester (1555) Dyer 121.

32 p. 4 Edw. 4, 2, pl. 2, per Moyle et alios JJ.

33 M. 21 Hen. 7, 30, pl. 5.

34 Orwell v. Mortoft (1505) M. 20 Hen. 7, 8, pl. 18.

35 Dyer 20, 22: “adjudged maintainable.”

36 From I. As to John Carrill and his reports, see Simpson, A. W. B., “Keilwey's Reports” (1957) 73 L.Q.R. 89.Google Scholar The printed report of the 1505 case in Keil. 69, 77, supports the Year Book account; but it was not printed until 1602, and the printed case would not be cited as from Carrill. The variant Year Books in Brit.Mus.MS.Harg. 105, ff. 233, 236, and Brit.Mus.MS.Add. 35938, f. 195v, both confirm that Frowicke C.J.'s opinion was opposed to that of Kingsmill, Fisher and Vavisour JJ. Professor Kiralfy examined the record (C.P.40/972, m. 123), but could find no judgment entered: Source Book of English Law (1957), p. 150.Google Scholar

37 This was the first reported case in point. Dodderidge had “insisted much on 20 Hen. 7, 8, where it is argued by four justices against Frowicke that where I sell you twenty quarters of barley to be delivered such a day, that if I do not deliver them, action of debt lies and not action on the case.” (E).

38 R. Brooke, La Graunde Abridgement (1586), f. 7 v, Accion sur le case, pl. 105.

38 (1555) Dyer 113.

40 From I.

41 Coke made a great deal of the precedents (4 Rep. 93) and asserted that there were 6,000 in his favour: E. Professor Kiralfy could not trace any precedents of the kind supposed to have been found for Coke by Secondary Kemp: see The Action on the Case (1951), pp. 165–166.Google Scholar Those here cited by Tanfield are not of the same kind either, but they are cases where assumpsit was brought instead of debt.

42 Thomas Blanke v. Cassanus Spinuia (1520) K.B. 27/1036, m. 75 (London, Rooper). The Plaintiff declared that he had delivered £100 English money to the defendant in exchange for £150 Flemish money, and that the defendant adtunc et ibidem super se assumpsisset ac profato Thome fideliter promisisset quod idem Cassanus solueret et deliberaret aut solui et deliberari faceret to the plaintiff, or to his factor at Antwerp, the £150 Flemish money: and that the defendant had failed to perform his promise machinans defraudare the plaintiff of the Flemish money. Damages of £104 were recovered.

43 John Turnor v. Nicholas Nelethropp (1531) K.B. 27/1078, m. 66 (London, Rooper). The plaintiff sued for the price of poultry and his salary and costs in providing poultry for the defendant. The plaintiff did not declare expressly of a sale, but that the defendant pro quadam pecunie summa inter predictis J.T. et N.N. prius concordata tunc et ibidemsuper se assump's quod idem N.N. fideliter satisfaceret predicto J.T. pro omnimodo pultryware per ipsum eidem J.T. extunc imposterum deliberandum secundum verum valorem eorundem, and that he would pay his salary and costs. He showed divers sums owing and not paid, whereby he lost credit and the profits he might have had in trading if the assumption had been performed. The defendant pleaded non assumpsit.

44 John Whitehed v. John Elderton (1530) K.B. 27/1076, m. 64 (London, Rooper). This is an early indebitatus assumpsit action, to recover the price of a brewer's vat. No sale is expressly alleged, but the plaintiff declared that ubi dictus J.E. pro uno vase ligneo vocato a coole fate per predictum J.E. de prefato J.W. prius habito et recepto indebitatus fuit prefati J.W. in quatuor marcis sterling, predictus J.E. postea … pro quadam pecunie summa inter dictum J.W. et prefatum J.E. prius concordata tunc et ibidemsuper se assump's ad solvendum prefato J.W. dictas quatuor marcas cum inde requisitus fuisset. He then showed the non-payment of the four marks and the consequent loss of profits and of days of payment with his own creditors.

45 See further 4 Rep. 93. Other cases cited by Coke in 1601 (J) were Paston v. Genney (1471) T. 11 Edw. 4, 3, pl. 4, per Genney sjt.: The Chief Baron's Question (1484) M. 2 Ric. 3, 7, pl. 13; Digby v. Mountford (1575) Dyer 342.

46 Clement Paston's Case (1579) cited Yelv. 42.

47 From I. Likewise Coke in 1597: “In eiectione firme a man could not recover possession until 14 Hen. 7, but now it is allowed without any question inasmuch that there are many precedents in the point.” (B). This is an allusion to Fitz.N.B. 220H. As to the date, cf. T. F. T. Plucknett, Concise History of the Common Law (1956 ed.), pp. 373, 574.

48 L. v. M. (1302) A. Fitzherbert, La Graunde Abridgement (1565), f. 206a, Voucher, pl, 289.

49 Epistle to the Hebrews, vi, 16.

50 H. 33 Hen. 6, 8, pl. 23, per Nadham sjt. Dodderidge had also cited M. 9 Hen. 3, Fitz.Abr., Ley, pl. 78. (G).

51 This is better explained by Dodderidge: “If a man doe bringe an accon of debt uppon a contract, the defendant shall not travers the contract for that he maye wage his lawe. But in those accons of debt, detynew, or accoumpt in which he cannot wage his lawe, he shall not answer to the poynte of the wrytt (for that he is ousted of his benefitt by ley gadger) but shall travers the conveyance, which otherwise is not traversable. For the lawe taketh from hym no benefitt but geveth hym as good.” (G). He cited M. 12 Edw. 4, 11, pl. 2; M. 13 Edw. 4, 4, pl. 9; M. 21 Edw. 4, 55, pl. 27.

52 M. 8 Hen. 6, 5, pl. 13.

53 See P. 22 Edw. 4, 2, pl. 8; ibid., 7, pl. 20.

54 H. 49 Edw. 3, 5, pl. 8, per Hanymer and Holt sjts.

55 Anon. (1569) Dyer 262, pl. 31 (Star Chamber).

56 Presumably a mistake for 13 Edw. 1, c. 24, in consimiti casu.

57 From I.

58 M collated with M1.

59 W.B. v. Waskins (1425) H. 3 Hen. 6, 36, pl. 33.

60 The Carpenter's Case (1409) M. 11 Hen. 4, 33, pl. 60; (f. 186 in the 1575 edition).

61 Evidently a mistake. M1 says 45 Edw. 3, but this was probably an extempore correction by the transcriber. The most likely case is M. 20 Edw. 4, 10, pl. 9, where in prohibition to Court Christian the defendant pleaded that he was not suing for debt on a contract, but for the breach of faith in not paying as promised. Brian C.J. held the plea bad, since the faith was pledged upona temporal matter.

62 M. 21 Hen. 7, 41, pl. 66, per Fineux C.J. His words were “ieo aver accion sur mon case et ne besoigne suer sub pena, etc.”

63 Coke replied: “It is clear enough that subpena does not lie in the one case or the other, nor in any case where there is some remedy by the common law.” (M).

64 Orwell v. Mortoft, notes 34–36, supra.

65 Likewise Dodderidge: “20 Hen. 7, 9, it is said by Frowicke that in a case where debt lies yet action on the case may lie for the misdereanour or deceit. But here is no deceit, but solely a detainer.” (B). Coke replied to Bacon's argument: “It is clear that when a man contracts with another to pay money or to do anything, and does not perform it, this is a deceit,” (M). Dodderidge apparently conceded that the non-delivery of goods was a “secondary fraud” (D), but the reporter commented that this was no different from the non-payment of money.

66 Tailboys v. Sherman (1443) T. 21 Hen. 6, 55, pl. 12.

67 Norwood v. Read (1558) Plowd. 180.

68 Coke answered thus: “Without question it is not the place or the distraction of days which makes the deceit, but the non-performance of the contract. And if action on the case will lie where the money is to be paid at twenty several days, for the same reason it will lie if it be to be paid at six days, and for a like reason if it be payable at four or two days. And what diversity can be put as to the maintenance of this action, whether the money be payable at two days or one? For this conceit being pursued will be reduced to non quantum.” (M).

69 Cf. Dodderidge: “Wheare there is a readie framed wrytt of forme in the Register, sufficiently able to deduce to judgment the wronge and the damage and throughlie to punish the one and to satisfie the other, there shall the partie plaintiff never have recourse to the wrytt without forme to satisfie the same damage and punishe the same wronge. But heare is a readie framed wrytt in the Register, the accon of debt: the naturall remedye, the wrytt of forme. Theirfore here is no place for the accon uppon the case, the wrytt without form, the usurped remedie.” (G). “Yf the accon uppon the case have thus incroached uppon the accon of dett, why shoulde it not incroache hearafter uppon other accons of forme and so make a confusion of the Regester, which is said in the Comentaries [Plo. 77, 228] to be for such matters of wryttes the foundacion and groundes of the lawe?” (G). Dodderidge expatiated on the history of writs, said the Register was complied for Edward I (“the English Justinian”), and that the action on the case was a new-found action (B, D, G). But Coke replied that there were manyt actions in the Register of later date, including assumpsit.

70 Popham v. Prior of Bremour (1410) T. 11 Hen. 4, 82, pl. 28; (ff. 235–236 in the 1575 edition).

71 Right's Case (1455) T. 33 Hen. 6, 26, pl. 10.

72 Coke replied: “It seems that the writ of debt is of a higher nature than action on the case, for by it the duty itself is to be recovered, and by the other nothing except damages for the breach of promise.” (M).

73 Note 49, supra.

74 So argued Coke: “At this day wager of law is too common, and the consciences of men exceeding bad and hasty to commit perjury for profit. And by allowing this action you will lead their souls away from such devilish perils.” (L). Cf. 4 Rep. 95.

75 H. 49 Edw. 3, 5, pl. 8, per Hanymer and Holt sjts.

76 B. v. T. (1476) P. 16 Edw. 4, 4, pl. 9, semble, per Brian C.J., reporter's note.

77 Anon. (1569) Dyer 262, pl. 31 (Star Chamber).

78 See the further authorities collected at 4 Rep. 95, where Coke asserts that Anderson C.J., C.P., was of the same opinion as Popham C.J. The three cases cited by Bacon are there dismissed as “sudden opinions.”

79 M. 33 Hen. 6, 32, pl. 6, per Littleton sjt.

80 Dodderidge attached special significance to the number twelve: “Wager of law is one of the trials appionted by the law, and it is a twelve-handed trial … which trial has resemblance to the trial by jury and the trial by demurrer. For C.L.J.—3 whereas the law is tried by twelve reverend judges and matters in fact by twelve jurors, so the trial by wager of law is duodecima manu, by the party himself and eleven others.” (A). The magical quality of twelve as a topic of jurisprudence is exhausted by Coke in Co.Litt. 155.

81 Coke had already made the point that this argument was petitio principii: “for if the action on the case lies by law, then this does not deprive the defendant of any benefit.” (B).

82 Professor Kiralfy cites two entries of this date in actions of assumpsit to deliver seisin: The Action on the Case (1951), p. 182.Google Scholar

83 Notes 43 and 44, supra.

84 N. Cf. Moo. 667, Yelv. 21.