requires and justifies such detainer. And, … it is declared
by 1 W. and M. St. 2, c. 2, that excessive bail ought not be
required."
W. Blackstone,
Commentaries, I., 135.
J. Kent,
Commentaries,
part 4, lecture 24.
For the text of the Habeas Corpus Act of 1679
See ENGLAND: A. D. 1679 (MAY).
A. D. 1683-1771.
Subsequent Birth of a Child revokes a Will.
"The first case that recognized the rule that the subsequent
birth of a child was a revocation of a will of personal
property, was decided by the court of delegates, upon appeal,
in the reign of Charles II.; and it was grounded upon the law
of the civilians [Overbury v. Overbury, 2 Show Rep., 253]. …
The rule was applied in chancery to a devise of real estate,
in Brown v. Thompson [I Ld. Raym. 441]; but it was received
with doubt by Lord Hardwicke and Lord Northington. The
distinction between a will of real and personal estate could
not well be supported; and Lord Mansfield declared, that he
saw no ground for a distinction. The great point was finally
and solemnly settled, in 1771, by the court of exchequer, in
Christopher v. Christopher [Dicken's Rep. 445], that marriage
and a child, were a revocation of a will of land."
J. Kent,
Commentaries,
part 6, lecture 68.
{1971}
COMMON LAW: A. D. 1688.
Dividing Line between Old and New Law.
The dividing line between the ancient and the modern English
reports may, for the sake of convenient arrangement, be placed
at the revolution in the year 1688. "The distinction between
the old and new law seems then to be more distinctly marked.
The cumbersome and oppressive appendages of the feudal tenures
were abolished in the reign of Charles II., and the spirit of
modern improvement, … began then to be more sensibly felt,
and more actively diffused. The appointment of that great and
honest lawyer, Lord Holt, to the station of chief justice of
the King's Bench, gave a new tone and impulse to the vigour of
the common law."
J. Kent,
Commentaries,
part 3, lecture 21.
COMMON LAW: A. D. 1689.
First instance of an Action sustained for Damages for a Breach
of Promise to Account.
"It is worthy of observation that while the obligation to
account is created by law, yet the privity without which such
an obligation cannot exist is, as a rule, created by the
parties to the obligation. … Such then being the facts from
which the law will raise an obligation to account, the next
question is, How can such an obligation be enforced, or, what
is the remedy upon such an obligation? It is obvious that the
only adequate remedy is specific performance, or at least
specific reparation. An action on the case to recover damages
for a breach of the obligation, even if such an action would
lie, would be clearly inadequate, as it would involve the
necessity of investigating all the items of the account for
the purpose of ascertaining the amount of the damages, and
that a jury is not competent to do. In truth, however, such an
action will not lie. If, indeed, there be an actual promise to
account, either an express or implied in fact, an action will
lie for the breach of that promise; but as such a promise is
entirely collateral to the obligation to account, and as
therefore a recovery on the promise would be no bar to an
action on the obligation, it would seem that nominal damages
only could be recovered in an action on the promise, or at the
most only such special damages as the plaintiff had suffered
by the breach of the promise. Besides the first instance in
which an action on such a promise was sustained was as late as
the time of Lord Holt [Wilkyns v. Wilkyns, Carth. 89], while
the obligation to account has existed and been recognized from
early times."
C. C. Langdell,
A Brief Survey of Equity Jurisdiction
(Harvard Law Review,
volume 2, pages 250-251).
COMMON LAW: A. D. 1689-1710.
Lord Holt and the Law of Bailments.
"The most celebrated case which he decided in this department
was that of Coggs v. Bernard, in which the question arose,
'whether, if a person promises without reward to take care of
goods, he is answerable if they are lost or damaged by his
negligence?' In a short compass he expounded with admirable
clearness and accuracy the whole law of bailment, or the
liability of the person to whom goods are delivered for
different purposes on behalf of the owner; availing himself of
his knowledge of the Roman civil Jaw, of which most English
lawyers were as ignorant as of the Institutes of Menu. … He
then elaborately goes over the six sorts of bailment, showing
the exact degree of care required on the part of the bailee in
each, with the corresponding degree of negligence, which will
give a right of action to the bailor. In the last he shows
that, in consideration of the trust, there is an implied
promise to take ordinary care; so that, although there be no
reward, for a loss arising from gross negligence the bailee is
liable to the bailor for the value of the goods. Sir William
Jones is contented that his own masterly 'Essay on the Law of
Bailment' shall be considered merely as a commentary upon this
judgment; and Professor Story, in his 'Commentaries on the Law
of Bailments,' represents it as 'a prodigious effort to
arrange the principles by which the subject is regulated in a
scientific order.'"
Lord Campbell,
Lives of the Chief Justices,
volume 2, pages 113-114.
COMMON LAW: A. D. 1703.
Implied Promises recognized.
"The value of the discovery of the implied promise in fact was
exemplified … in the case of a parol submission to an award.
If the arbitrators awarded the payment of a sum of money, the
money was recoverable in debt, since an award, after the
analogy of a judgment, created a debt. But if the award was
for the performance of a collateral act, … there was,
originally, no mode of compelling compliance with the award,
unless the parties expressly promised to abide by the decision
of the arbitrators. Tilford v. French (1663) is a case in
point. So, also, seven years later, 'it was said by Twisden,
J., [Anon., 1 Vent. 69], that if two submit to an award, this
contains not a reciprocal promise to perform; but there must
be an express promise to ground an action upon it.' This
doctrine was abandoned by the time of Lord Holt, who, …
said: 'But the contrary has been held since; for if two men
submit to the award of a third person, they do also thereby
promise expressly to abide by his determination, for agreeing
to refer is a promise in itself.'"
J. B. Ames,
History of Assumpsit
(Harvard Law Review,
volume 2, page 62).
COMMON LAW: A. D. 1706.
Dilatory Pleas.
"Pleas to the jurisdiction, to the disability, or in
abatement, were formerly very often used as mere dilatory
pleas, without any foundation of truth, and calculated only
for delay; but now by statute 4 and 5 Ann., c. 16, no dilatory
plea is to be admitted, without affidavit made of the truth
thereof, or some probable matter shown to the court to induce
them to believe it true."
W. Blackstone,
Commentaries,
book 3, page 302.
COMMON LAW: A. D. 1710.
Joint Stock Companies: Bubble Act.
"The most complicated, as well as the most modern, branch of
the law of artificial persons relates to those which are
formed for purposes of trade. They are a natural accompaniment
of the extension of commerce. An ordinary partnership lacks
the coherence which is required for great undertakings. Its
partners may withdraw from it, taking their capital with them,
and the 'firm' having as such no legal recognition, a contract
made with it could be sued upon, according to the common law
of England, only in an action in which the whole list of
partners were made plaintiffs or defendants. In order to
remedy the first of these inconveniences, partnerships were
formed upon the principle of a joint-stock, the capital
invested in which must remain at a fixed amount, although the
shares into which it is divided may pass from hand to hand.
This device did not however obviate the difficulty in suing,
nor did it relieve the partners, past and present, from
liability for debts in excess of their, past or present,
shares in the concern.
{1972}
In the interest not only of the share-partners, but also of
the public with which they had dealings, it was desirable to
discourage the formation of such associations; and the
formation of joint-stock partnerships, except such as were
incorporated by royal charter, was accordingly, for a time,
prohibited in England by the 'Bubble Act,' 6 Geo. I, c. 18. An
incorporated trading company, in accordance with the ordinary
principles regulating artificial persons, consists of a
definite amount of capital to which alone creditors of the
company can look for the satisfaction of their demands,
divided into shares held by a number of individuals who,
though they participate in the profits of the concern, in
proportion to the number of shares held by each, incur no
personal liability in respect of its losses. An artificial
person of this sort is now recognized under most systems of
law. It can be formed, as a rule, only with the consent of the
sovereign power, and is described as a 'societe,' or
'compagnie,' 'anonyme,' an 'Actiengesellschaft,' or
'joint-stock company limited.' A less pure form of such a
corporation is a company the shareholders in which incur an
unlimited personal liability. There is also a form resembling
a partnership 'en commandite,' in which the liability of some
of the shareholders is limited by their shares, while that of
others is unlimited. Subject to some exceptions, any seven
partners in a trading concern may, and partners whose number
exceeds twenty must, according to English law, become
incorporated by registration under the Companies Acts, with
either limited or unlimited liability as they may determine at
the time of incorporation."
Thomas Erskine Holland,
Elements of Jurisprudence, 5th edition,
page 298.
COMMON LAW: A. D. 1711.
Voluntary Restraint of Trade.
"The judicial construction of Magna Charta is illustrated in
the great case of Mitchell v. Reynolds (1 P. W., 181), still
the leading authority upon the doctrine of voluntary restraint
of trade, though decided in 1711, when modern mercantile law
was in its infancy. The Court (Chief Justice Parker),
distinguishing between voluntary and involuntary restraints of
trade, says as to involuntary restraints: 'The first reason
why such of these, as are created by grant and charter from
the crown and by-laws generally are void, is drawn from the
encouragement which the law gives to trade and honest
industry, and that they are contrary to the liberty of the
subject. Second, another reason is drawn from Magna Charta,
which is infringed by these acts of power. That statute says:
Nullus liber homo, etc., disseizetur de libero tenemento, vel
libertatibus vel liberis consuetudinibus suis, etc.; and these
words have been always taken to extend to freedom of trade.'"
Frederick N. Judson,
14 American Bar Association Report,
page 236.
COMMON LAW: A. D. 1730.
Special Juries.
"The first statutory recognition of their existence occurs so
late as in the Act 3 Geo. II., ch. 25. But the principle seems
to have been admitted in early times. We find in the year 1450
(29 Hen. VI.) a petition for a special jury. … The statute
of George II. speaks of special juries as already well known,
and it declares and enacts that the courts at Westminster
shall, upon motion made by any plaintiff, prosecutor, or
defendant, order and appoint a jury to be struck before the
proper officer of the court where the cause is depending, 'in
such manner as special juries have been and are usually struck
in such courts respectively upon trials at bar had in the said
courts.'"
W. Forsyth,
Trial by Jury,
pages 143-144.
COMMON LAW: A. D. 1730.
Written Pleadings to be in English.
"There was one great improvement in law proceedings which,
while he [Lord King] held the Great Seal, he at last
accomplished. From very ancient times the written pleadings,
both in criminal and civil suits, were, or rather professed to
be, in the Latin tongue, and while the jargon employed would
have been very perplexing to a Roman of the Augustan Age, it
was wholly unintelligible to the persons whose life, property,
and fame were at stake. This absurdity had been corrected in
the time of the Commonwealth, but along with many others so
corrected, had been reintroduced at the Restoration, and had
prevailed during five succeeding reigns. The attention of the
public was now attracted to it by a petition from the
magistracy of the North Riding of the county of York,
representing the evils of the old law language being retained
in legal process and proceedings, and praying for the
substitution of the native tongue. The bill, by the
Chancellor's direction, was introduced in the House of
Commons, and it passed there without much difficulty. In the
Lords it was fully explained and ably supported by the Lord
Chancellor, but it experienced considerable opposition. …
Amidst heavy forebodings of future mischief the bill passed,
and mankind are now astonished that so obvious a reform should
have been so long deferred."
Lord Campbell,
Lives of the Chancellors,
volume 4, page 504.
COMMON LAW: A. D. 1739-1744.
Oath according to one's Religion.
"Lord Hardwick established the rule that persons, though not
Christians, if they believe in a divinity, may be sworn
according to the ceremonies of their religion, and that the
evidence given by them so sworn is admissible in courts of
justice, as if, being Christians, they had been sworn upon the
Evangelists. This subject first came before him in
Ramkissenseat v. Barker, where, in a suit for an account
against the representatives of an East India Governor, the
plea being overruled that the plaintiff was an alien infidel,
a cross bill was filed, and an objection being made that he
could only be sworn in the usual form, a motion was made that
the words in the commission, 'on the holy Evangelists,' should
be omitted, and that the commissioners should be directed to
administer an oath to him in the manner most binding on his
conscience. … The point was afterwards finally settled in
the great case of Omychund v. Barker, where a similar
commission to examine witnesses having issued, the
Commissioners certified 'That they had sworn the witnesses
examined under it in the presence of Brahmin or priest of the
Gentoo religion, and that each witness touched the hand of the
Brahmin,—this being the most solemn form in which oaths are
administered to witnesses professing the Gentoo religion.'
Objection was made that the deposition so taken could not be
read in evidence; and on account of the magnitude of the
question, the Lord Chancellor called in the assistance of the
three chiefs of the common law Courts.—After a very long,
learned, and ingenious argument, which may be perused with
pleasure, they concurred in the opinion that the depositions
were admissible."
Lord Campbell,
Lives of the Chancellors,
volume 5, pages 69-70.
{1973}
COMMON LAW: A. D. 1750.
Dale v. Hall, I Wits., 281, understood to be the first
reported case of an action of special assumpsit sustained
against a common carrier, on his implied contract.
"Assumpsit, … was allowed, in the time of Charles I., in
competition with Detinue and Case against a bailee for
custody. At a later period Lord Holt suggested that one might
'turn an action against a common carrier into a special
assumpsit (which the law implies) in respect of his hire.'
Dale v. Hall (1750) is understood to have been the first
reported case in which that suggestion was followed."
J. B. Ames,
History of Assumpsit
(Harvard Law Review,
volume 2, page 63).
COMMON LAW: A. D. 1750-1800.
Demurrer to Evidence.
"Near the end of the last century demurrers upon evidence were
rendered useless in England, by the decision in the case of
Gibson v. Hunter (carrying down with it another great case,
that of Lickbarrow v. Mason, which, like the former, had come
up to the Lords upon this sort of demurrer), that the party
demurring must specify upon the record the facts which he
admits. That the rule was a new one is fairly plain from the
case of Cocksedge v. Fanshawe, ten years earlier. It was not
always followed in this country, but the fact that it was
really a novelty was sometimes not understood."
J. B. Thayer,
Law and Fact in Jury Trials
(Harvard Law Review,
volume 4, page 147).
ALSO IN:
J. B. Thayer,
Select Cases on Evidence,
page 149.
COMMON LAW: A. D. 1756-1788.
Lord Mansfield and Commercial Law.
"In the reign of Geo. II., England had grown into the greatest
manufacturing and commercial country in the world, while her
jurisprudence had by no means been expanded or developed in
the same proportion. … Hence, when questions necessarily
arose respecting the buying and selling of goods,—respecting
the affreightment of ships,—respecting marine
insurances,—and respecting bills of exchange and promissory
notes, no one knew how they were to be determined. …
Mercantile questions were so ignorantly treated when they came
into Westminster Hall, that they were usually settled by
private arbitration among the merchants themselves. If an
action turning upon a mercantile question was brought in a
court of law, the judge submitted it to the jury, who
determined it according to their own notions of what was fair,
and no general rule was laid down which could afterwards be
referred to for the purpose of settling similar disputes. …
When he [Lord Mansfield] had ceased to preside in the Court of
King's Bench, and had retired to enjoy the retrospect of his
labors, he read the following just eulogy bestowed upon them
by Mr. Justice Buller, in giving judgment in the important
case of Lickbarrow v. Mason, respecting the effect of the
indorsement of a bill of lading:—'Within these thirty years
the commercial law of this country has taken a very different
turn from what it did before. Lord Hardwicke himself was
proceeding with great caution; not establishing any general
principle, but decreeing on all the circumstances put
together. Before that period we find that, in courts of law,
all the evidence in mercantile cases was thrown together; they
were left generally to a jury; and they produced no general
principle. From that time, we all know, the great study has
been to find some certain general principle, which shall be
known to all mankind, not only to rule the particular case
then under consideration, but to serve as a guide for the
future. Most of us have heard these principles stated,
reasoned upon, enlarged, and explained, till we have been lost
in admiration at the strength and stretch of the
understanding. And I should be very sorry to find myself under
a necessity of differing from any case upon this subject which
has been decided by Lord Mansfield, who may be truly said to
be the founder of the commercial law of this country.' …
With regard to bills of exchange and promissory notes, Lord
Mansfield first promulgated many rules that now appear to us
to be as certain as those which guide the planets in their
orbits. For example, it was till then uncertain whether the
second indorser of a bill of exchange could sue his immediate
indorser without having previously demanded payment from the
drawer. … He goes on to explain [in Heylyn v. Adamson, 2
Burr., 669], … that the maker of a promissory note is in the
same situation as the acceptor of a bill of exchange, and that
in suing the indorser of the note it is necessary to allege
and to prove a demand on the maker. … Lord Mansfield had
likewise to determine that the indorser of a bill of exchange
is discharged if he receives no notice of there having been a
refusal to accept by the drawee (Blesard v. Herst, 6 Burr.,
2670); and that reasonable time for giving notice of the
dishonor of a bill or note is to be determined by the Court as
matter of law, and is not to be left to the jury as matter of
fact, they being governed by the circumstances of each
particular case. (Tindal v. Brown, 1 Term. Rep., 167.) It
seems strange to us how the world could go on when such
questions of hourly occurrence, were unsettled. … There is
another contract of infinite importance to a maritime people.
… I mean that between ship-owners and merchants for the
hiring of ships and carriage of goods. … Till his time, the
rights and liabilities of these parties had remained undecided
upon the contingency, not unlikely to arise, of the ship being
wrecked during the voyage, and the goods being saved and
delivered to the consignee at an intermediate port. Lord
Mansfield settled that freight is due pro rata itineris—in
proportion to the part of the voyage performed. … Lord
Mansfield's familiarity with the general principles of ethics,
… availed him on all occasions when he had to determine on
the proper construction and just fulfilment of contracts. The
question having arisen, for the first time, whether the seller
of goods by auction, with the declared condition that they
shall be sold to 'the highest bidder,' may employ a
'puffer,'—an agent to raise the price by bidding,—he thus
expressed himself: [Bexwell v. Christie, Cowp., 395] '… The
basis of all dealings ought to be good faith; so more
especially in these transactions, where the public are brought
together upon a confidence that the articles set up to sale
will be disposed of to the highest real bidder. That can never
be the case if the owner may secretly enhance the price by a
person employed for that purpose. … I cannot listen to the
argument that it is a common practice, … the owner violates
his contract with the public if, by himself or his agent, he
bids upon his goods, and no subsequent bidder is bound to take
the goods at the price at which they are knocked down to
him.'"
Lord Campbell,
Lives of the Chief Justices,
volume 2, pages 308-314.
{1974}
COMMON LAW: A. D. 1760.
Judicial Independence.
"A glance into the pages of the Judges of England, by
Foss, will show with what ruthless vigour the Stuarts
exercised their prerogative of dismissing Judges whose
decisions were displeasing to the court. Even after the
Revolution, the prerogative of dismissal, which was supposed
to keep the Judges dependent on the Crown, was jealously
defended. When in 1692 a Bill passed both Houses of
Parliament, establishing the independence of Judges by law,
and confirming their salaries, William III. withheld his Royal
assent. Bishop Burnet says, with reference to this exercise of
the Veto, that it was represented to the King by some of the
Judges themselves, that it was not fit that they should be out
of all dependence on the Court. When the Act of Settlement
secured that no Judge should be dismissed from office, except
in consequence of a conviction for some offence, or the
address of both Houses of Parliament, the Royal jealousy of
the measure is seen by the promise under which that
arrangement was not to take effect till the deaths of William
III. and of Anne, and the failure of their issue respectively,
in other words, till the accession of the House of Hanover. It
was not till the reign of George III. that the Commissions of
the Judges ceased to be void on the demise of the Crown."
J. G. S. MacNeill,
Law Magazine and Review, 4th series,
volume 16 (1890-91), page 202.
COMMON LAW: A. D. 1760.
Stolen Bank Notes the Property of a Bona Fide Purchaser.
"The law of bills of exchange owes much of its scientific and
liberal character to the wisdom of the great jurist, Lord
Mansfield. Sixteen years before the American Revolution, he
held that bank notes, though stolen, become the property of
the person to whom they are bona fide delivered for value
without knowledge of the larceny. This principle is later
affirmed again and again as necessary to the preservation of
the circulation of all the paper in the country, and with it
all its commerce. Later there was a departure from this
principle in the noted English case of Gill v. Cubitt, in
which it was held that if the holder for value took it under
circumstances which ought to have excited the suspicion of a
prudent and careful man, he could not recover. This case
annoyed courts and innocent holders for years, until it was
sat upon, kicked, cuffed, and overruled, and the old doctrine
of 1760 re-established, which is now the undisputed and
settled law of England and this country."
Wm. A. McClean,
Negotiable Paper
(The Green Bag, volume 5, page 86).
COMMON LAW: A. D. 1768.
Only one Business Corporation Chartered in this Country before
the Declaration of Independence.
"Pennsylvania is entitled to the honor of having chartered the
first business corporation in this country, 'The Philadelphia
Contributionship for Insuring Houses from Loss by Fire.' It
was a mutual insurance company, first organized in 1752, but
not chartered until 1768. It was the only business corporation
whose charter antedated the Declaration of Independence. The
next in order of time were: 'The Bank of North America,'
chartered by Congress in 1781 and, the original charter having
been repealed in 1785, by Pennsylvania in 1787; 'The
Massachusetts Bank,' chartered in 1784; 'The Proprietors of
Charles River Bridge,' in 1785; 'The Mutual Assurance Company'
(Philadelphia), in 1786; 'The Associated Manufacturing Iron
Co.' (N. Y.), in 1786. These were the only joint-stock
business corporations chartered in America before 1787. After
that time the number rapidly increased, especially in
Massachusetts. Before the close of the century there were
created in that State about fifty such bodies, at least half
of them turn-pike and bridge companies. In the remaining
States combined, there were perhaps as many more. There was no
great variety in the purposes for which these early companies
were formed. Insurance, banking, turn-pike roads,
toll-bridges, canals, and, to a limited extent, manufacturing
were the enterprises which they carried on."
S. Williston,
History of the Law of Business Corporations before 1800
(Harvard Law Review,
volume 2, pp. 165-166).
A. D. 1776.
Ultimate property in land.
"When, by the Revolution, the Colony of New York became
separated from the Crown of Great Britain, and a republican
government was formed, The People succeeded the King in the
ownership of all lands within the State which had not already
been granted away, and they became from thenceforth the source
of all private titles."
Judge Comstock,
People v. Rector, etc., of Trinity Church,
22 N. Y., 44-46.
"It is held that only such parts of the common law as, with
the acts of the colony in force on April 19, 1775, formed part
of the law of the Colony on that day, were adopted by the
State; and only such parts of the common and statute law of
England were brought by the colonists with them as suited
their condition, or were applicable to their situation. Such
general laws thereupon became the laws of the Colony until
altered by common consent, or by legislative enactment. The
principles and rules of the common law as applicable to this
country are held subject to modification and change, according
to the circumstances and condition of the people and
government here. … By the English common law, the King was
the paramount proprietor and source of all title to all land
within his dominion, and it was considered to be held
mediately or immediately of him. After the independence of the
United States, the title to land formerly possessed by the
English Crown in this country passed to the People of the
different States where the land lay, by virtue of the change
of nationality and of the treaties made. The allegiance
formerly due, also, from the people of this country to Great
Britain was transferred, by the Revolution, to the governments
of the States."
James Gerard,
Titles to Real Estate (3rd edition),
pages 26 and 5.
"Hence the rule naturally follows, that no person can, by any
possible arrangement, become invested with the absolute
ownership of land. But as that ownership must be vested
somewhere, or great confusion, if not disturbance, might
result, it has, therefore, become an accepted rule of public
law that the absolute and ultimate right of property shall be
regarded as vested in the sovereign or corporate power of the
State where the land lies. This corporate power has been
naturally and appropriately selected for that purpose, because
it is the only one which is certain to survive the generations
of men as they pass away. Wherever that sovereign power is
represented by an individual, as in England, there the
absolute right of property to all land in the kingdom is
vested in that individual whoever succeeds to the sovereignty,
succeeds to that right of property and holds it in trust for
the nation.
{1975}
In this country, where the only sovereignty recognized in
regard to real property, is represented by the State in its
corporate capacity, that absolute right of property is vested
in the State."
Anson Bingham,
Law of Real Property,
page 3.
COMMON LAW: A. D. 1778.
First Instance of Assumpsit upon a Vendor's Warranty.
"A vendor who gives a false warranty may be charged to-day, of
course, in contract; but the conception of such a warranty, as
a contract is quite modern. Stuart v. Wilkens [3 Doug., 18],
decided in 1778, is said to have been the first instance of an
action of assumpsit upon a vendor's warranty."
J. B. Ames,
History of Assumpsit
(Harvard Law Review,
volume 2, page 8).
COMMON LAW: A. D. 1783.
Lord Mansfield laid foundation of Law of Trade-Marks.
"The symbolism of commerce, conventionally called
'trade-marks,' is, according to Mr. Browne, in his excellent
work on trade-marks, as old as commerce itself. The Egyptians,
the Chinese, the Babylonians, the Greeks, the Romans, all used
various marks or signs to distinguish their goods and
handiwork. The right to protection in such marks has come to
be recognized throughout the civilized world. It is, however,
during the last seventy or eighty years that the present
system of jurisprudence has been built up. In 1742 Lord
Hardwick refused an injunction to restrain the use of the
Great Mogul stamp on cards. In 1783 Lord Mansfield laid the
foundation of the law of trade-marks as at present developed,
and in 1816, in the case of Day v. Day, the defendant was
enjoined from infringing the plaintiff's blacking label. From
that time to the present day there have arisen a multitude of
cases, and the theory of the law of trade-marks proper may be
considered as pretty clearly expounded. In 1875 the
Trade-marks Registration Act provided for the registration of
trade-marks, and defined what could in future properly be a
trade-mark. In this country the Act of 1870, corrected by the
Act of 1881, provided for the registration of trade-marks. The
underlying principle of the law of trade-marks is that of
preventing one man from acquiring the reputation of another by
fraudulent means, and of preventing fraud upon the public; in
other words, the application of the broad principles of
equity."
Grafton D. Cushing,
Cases Analogous to Trade-marks
(Harvard Law Review,
volume 4, page 321).
COMMON LAW: A. D. 1790.
Stoppage in Transitu, and Rights of Third Person
under a Bill of Lading.
"Lord Loughborough's most elaborate common law judgment was in
the case of Lichbarrow v. Mason, when he presided in the court
of Exchequer Chamber, on a writ of error from the Court of
King's Bench. The question was one of infinite importance to
commerce—'Whether the right of the unpaid seller of goods to
stop them while they are on their way to a purchaser who has
become insolvent, is divested by an intermediate sale to a
third person, through the indorsement of the bill of lading,
for a valuable consideration?' He concluded by saying:—'From
a review of all the cases it does not appear that there has
ever been a decision against the legal right of the consignor
to stop the goods in transitu before the case which we have
here to consider. The rule which we are now to lay down will
not disturb but settle the notions of the commercial port of
this country on a point of very great importance, as it
regards the security and good faith of their transactions. For
these reasons we think the judgment of the Court of King's Bench
ought to be reversed.' But a writ of error being brought in
the House of Lords, this reversal was reversed, and the right
of the intermediate purchaser as against the original seller,
has ever since been established."
Lord Campbell,
Lives of the Chancellors,
volume 6, pages 138-139.
COMMON LAW: A. D. 1792.
Best-Evidence rule.
"In Grant v. Gould, 2 H. Bl. p. 104 (1792), Lord Loughborough
said: 'That all common law courts ought to proceed upon the
general rule, namely, the best evidence that the nature of the
case will admit, I perfectly agree.' But by this time it was
becoming obvious that this 'general rule' was misapplied and
over-emphasized. Blackstone, indeed, repeating Gilbert, had
said in 1770, in the first editions of his Commentaries (III.
368) as it was said in all the later ones: 'The one general
rule that runs through all the doctrine of trials is this,
that the best evidence the nature of the case will admit of
shall always be required, if possible to be had; but, if not
possible, then the best evidence that can be had shall be
allowed. For if it be found that there is any better evidence
existing than is produced, the very not producing it is a
presumption that it would have detected some falsehood that at
present is concealed.' But in 1794, the acute and learned
Christian, in editing the twelfth edition, pointed out the
difficulties of the situation: 'No rule of law,' he said, 'is
more frequently cited, and more generally misconceived, than
this. It is certainly true when rightly understood; but it is
very limited in its extent and application. It signifies
nothing more than that, if the best legal evidence cannot
possibly be produced, the next best legal evidence shall be
admitted.'"
J. B. Thayer,
Select Cases on Evidence,
page 732.
COMMON LAW: A. D. 1794.
First Trial by Jury in United States Supreme Court.
"In the first trial by jury at the bar of the Supreme Court of
the United States, in 1794, Chief-Justice Jay, after remarking
to the jury that fact was, for the jury and law for the court,
went on to say: 'You have, nevertheless, a right to take upon
yourselves to judge of both, and to determine the law as well
as the fact in controversy.' But I am disposed to think that
the common-law power of the jury in criminal cases does not
indicate any right on their part; it is rather one of those
manifold illogical and yet rational results, which the good
sense of the English people brought about, in all parts of
their public affairs, by way of easing up the rigor of a
strict application of rules."
J. B. Thayer,
Law and Fact in Jury Trials
(Harvard Law Review,
volume 4, page 171).
ALSO IN:
J. B. Thayer,
Select Cases on Evidence,
page 153.
COMMON LAW: A. D. 1813-1843.
Insolvents placed under Jurisdiction of a Court, and able to
claim Protection by a Surrender of Goods.
"It was not until 1813 that insolvents were placed under the
jurisdiction of a court, and entitled to seek their discharge
on rendering a true account of all their debts and property. A
distinction was at length recognized between poverty and crime.
This great remedial law restored liberty to crowds of wretched
debtors. In the next thirteen years upwards of 50,000 were set
free. Thirty years later, its beneficent principles were
further extended, when debtors were not only released from
confinement, but able to claim protection to their liberty, on
giving up all their goods."
T. E. May,
Constitutional History of England
(Widdleton's edition)
volume 2, page 271.
See, also, DEBT, LAWS CONCERNING.
{1976}
COMMON LAW: A. D. 1819.
The Dartmouth College Case.
"The framers of the Constitution of the United States, moved
chiefly by the mischiefs created by the preceding legislation
of the States, which had made serious encroachments on the
rights of property, inserted a clause in that instrument which
declared that 'no State shall pass any ex post-facto law, or
law impairing the obligation of contracts.' The first branch
of this clause had always been understood to relate to
criminal legislation, the second to legislation affecting
civil rights. But, before the case of Dartmouth College v.
Woodward occurred, there had been no judicial decisions
respecting the meaning and scope of the restraint in regard to
contracts. … The State court of New Hampshire, in deciding
this case, had assumed that the college was a public
corporation, and on that basis had rested their judgment;
which was, that between the State and its public corporations
there is no contract which the State cannot regulate, alter,
or annul at pleasure. Mr. Webster had to overthrow this
fundamental position. If he could show that this college was a
private eleemosynary corporation, and that the grant of the
right to be a corporation of this nature is a contract between
the sovereign power and those who devote their funds to the
charity, and take the incorporation for its better management,
he could bring the legislative interference within the
prohibition of the Federal Constitution. … Its important
positions, … were these: 1. That Dr. Wheelock was the
founder of this college, and as such entitled by law to be
visitor, and that he had assigned all the visitatorial powers
to the trustees. 2. That the charter created a private and not
a pubic corporation, to administer a charity, in the
administration of which the trustees had a property, which the
law recognizes as such. 3. That the grant of such a charter is
a contract between the sovereign power and its successors and
those to whom it is granted and their successors. 4. That the
legislation which took away from the trustees the right to
exercise the powers of superintendence, visitation, and
government, and transferred them to another set of trustees,
impaired the obligation of that contract. … On the
conclusion of the argument, the Chief Justice intimated that a
decision was not to be expected until the next term. It was
made in February, 1819, fully confirming the grounds on which
Mr. Webster had placed the cause. From this decision, the
principle in our constitutional jurisprudence, which regards a
charter of a private corporation as a contract, and places it
under the protection of the Constitution of the United States,
takes its date. To Mr. Webster belongs the honor of having
produced its judicial establishment."
G. T. Curtis,
Life of Daniel Webster,
volume 1, pages 165-169 (5th edition).
COMMON LAW: A. D. 1823.
Indian Right of Occupancy.
"The first case of importance that came before the court of
last resort with regard to the Indian question had to do with
their title to land. This was the case of Johnson v. McIntosh,
8 Wheaton, 543. In this case, Chief Justice Marshall delivered
the opinion of the court and held that discovery gave title to
the country by whose subjects or by whose authority it was
made, as against all persons but the Indians as occupants;
that this title gave a power to grant the soil and to convey a
title to the grantees, subject only to the Indian right of
occupancy; and that the Indians could grant no title to the
lands occupied by them, their right being simply that of
occupancy and not of ownership. The Chief Justice says: 'It
has never been doubted that either the United States or the
several States had a clear title to all the lands within the
boundary lines described in the treaty (of peace between
England and United States) subject only to the Indians' right
of occupancy, and that the exclusive power to extinguish that
right was vested in that government which might
constitutionally exercise it. … The United States, then,
have unequivocally acceded to that great and broad rule by
which its civilized inhabitants now hold this country. They
hold and assert in themselves the title by which it was
acquired. They maintain, as all others have maintained, that
discovery gave an exclusive right to extinguish the Indian
title of occupancy, either by purchase or by conquest; and
gave also a right to such a degree of sovereignty as the
circumstances of the people would allow them to exercise. The
power now possessed by the government of the United States to
grant lands resided, while we were colonies, in the crown or
its grantees. The validity of the title given by either has
never been questioned in our courts. It has been exercised
uniformly over territory in possession of the Indians. The
existence of this power must negative the existence of any
right which may conflict with and control it. An absolute
title to lands cannot exist, at the same time, in different
persons, or in different governments. An absolute must be an
exclusive title, or at least a title which excludes all others
not compatible with it. All our institutions recognize the
absolute title of the crown, subject only to the Indian right
of occupancy, and recognize the absolute title of the crown to
extinguish that right. This is incompatible with an absolute
and complete title in the Indians.'"
William B. Hornblower,
14 American Bar Association Report 264-265.
COMMON LAW: A. D. 1826
Jurors from the Body of the County.
"In the time of Fortescue, who was lord chancellor in the
reign of Henry VI. [1422-61], with the exception of the
requirement of personal knowledge in the jurors derived from
near neighborhood of residence, the jury system had become in
all its essential functions similar to what now exists. …
The jury were still required to come from the neighborhood
where the fact they had to try was supposed to have happened;
and this explains the origin of the venire (vicinetum), which
appears in all indictments and declarations at the present
day. It points out the place from which the jury must be
summoned. … Now, by 6 George IV., ch. 50, the jurors need
only be good and lawful men of the body of the county."
W. Forsyth,
Trial by Jury,
chapter 7, section 3.
{1977}
COMMON LAW: A. D. 1828.
Lord Tenterden's Act.
"Be it therefore enacted … , That in Actions of Debt or upon
the Case grounded upon any Simple Contract or Acknowledgement
or Promise by Words only shall be deemed sufficient Evidence
of a new or continuing Contract, … unless such
Acknowledgement or Promise shall be made or contained by or in
some Writing to be signed by the Party chargeable thereby."
Statutes at Large,
volume 68, 9 George IV., c. 14.
COMMON LAW: A. D. 1833.
Wager of Law abolished, and Effect upon Detinue.
"This form of action (detinue) was also formerly subject (as
were some other of our legal remedies), to the incident of
'wager of law' ('vadiatio legis'),—a proceeding which
consisted in the defendant's discharging himself from the
claim on his own oath, bringing with him at the same time into
court eleven of his neighbors, to swear that they believed his
denial to be true. This relic of a very ancient and general
institution, which we find established not only among the
Saxons and Normans, but among almost all the northern nations
that broke in upon the Roman empire, continued to subsist
among us even till the last reign, when it was at length
abolished by 3 and 4 Will, IV. c. 42, s. 13: and as the wager
of law used to expose plaintiffs in detinue to great
disadvantage, it had the effect of throwing that action almost
entirely out of use, and introducing in its stead the action
of trover and conversion."
Stephens,
Commentaries,
volume 3, pages 442-443 (8th edition).
COMMON LAW: A. D. 1834.
Real Actions abolished.
"The statutes of 32 H. VIII., c. 2, and 21 Jac. I., c. 16 (so
far as the latter applied to actions for the recovery of land)
were superseded by 3 & 4 Wm. IV, c. 27. The latter statute
abolished the ancient real actions, made ejectment (with few
exceptions) the sole remedy for the recovery of land, and, for
the first time, limited directly the period within which an
ejectment might be brought. It also changed the meaning of
'right of entry,' making it signify simply the right of an
owner to the possession of land of which another person has
the actual possession, whether the owner's estate is devested
or not. In a word, it made a right of entry and a right to
maintain ejectment synonymous terms, and provided that
whenever the one ceased the other should cease also; i. e., it
provided that whenever the statute began to run against the
one right, it should begin to run against the other also, and
that, when it had run twenty years without interruption, both
rights should cease; and it also provided that the statute
should begin to run against each right the moment that the
right began to exist, i. e., the moment that the actual
possession and the right of possession became separated. The
statute, therefore, not only ignored the fact that ejectment
(notwithstanding its origin) is in substance purely in rem
(the damages recovered being only nominal), and assumed that
it was, on the contrary, in substance purely in personam, i.
e., founded upon tort, but it also assumed that every actual
possession of land, without a right of possession, is a tort."
C. C. Langdell,
Summary of Equity Pleading,
pages 144-145.
COMMON LAW: A. D. 1836.
Exemption Laws.
"Our State legislatures commenced years ago to pass laws
exempting from execution necessary household goods and
personal apparel, the horses and implements of the farmer, the
tools and instruments of the artisan, etc. Gradually the
beneficent policy of such laws has been extended. In 1828, Mr.
Benton warmly advocated in the Senate of the United States the
policy of a national homestead law. The Republic of Texas
passed the first Homestead Act, in 1836. It was the great gift
of the infant Republic of Texas to the world. In 1849, Vermont
followed; and this policy has since been adopted in all but
eight States of the Union. By these laws a homestead (under
various restrictions as to value) for the shelter and
protection of the family is now exempt from execution or
judicial sale for debt, unless both the husband and the wife
shall expressly join in mortgaging it or otherwise expressly
subjecting it to the claims of creditors."
J. F. Dillon,
Laws and Jurisprudence of England and America,
page 360.
COMMON LAW: A. D. 1837.
Employer's liability.
"No legal principle, with a growth of less than half a
century, has become more firmly fixed in the common law of
to-day, than the rule that an employer, if himself without
fault, is not liable to an employee injured through the
negligence of a fellow-employee engaged in the same general
employment. This exception to the well known doctrine of
'respondeat superior,' although sometimes considered an old
one, was before the courts for the first time in 1837, in the
celebrated case of Priestly v. Fowler, 3 M. & W. 1, which it
is said, has changed the current of decisions more radically
than any other reported case. … The American law, though in
harmony with the English, seems to have had an origin of its
own. In 1841 Murray v. The South Carolina Railroad Company, 1
Mc. & M. 385, decided that a railroad company was not liable
to one servant injured through the negligence of another
servant in the same employ. Although this decision came a few
years after Priestly v. Fowler, the latter case was cited by
neither counsel nor court. It is probable, therefore, that the
American Court arrived at its conclusion entirely independent
of the earlier English case,—a fact often lost sight of by
those who in criticising the rule, assert that it all sprang
from an ill-considered opinion by Lord Abinger in Priestly v.
Fowler. The leading American case, however, is Farwell v.
Boston and Worcester Railroad Company, 4 Met. 49, which,
following the South Carolina case, settled the rule in the
United States. It has been followed in nearly every
jurisdiction, both State and Federal."
Marland C. Hobbs,
Statutory Changes in Employers Liability
(Harvard Law Review,
volume 2, pages 212-213).
COMMON LAW: A. D. 1838.
Arrests on Mesne Process for Debt abolished, and Debtor's
Lands, for first time, taken in Satisfaction of Debt.
"The law of debtor and creditor, until a comparatively recent
period, was a scandal to a civilized country. For the smallest
claim, any man was liable to be arrested on mesne process,
before legal proof of the debt. … Many of these arrests were
wanton and vexatious; and writs were issued with a facility
and looseness which paced the liberty of every man—suddenly
and without notice—at the mercy of any one who claimed
payment of a debt. A debtor, however honest and solvent, was
liable to arrest. The demand might even be false and
fraudulent: but the pretended creditor, on making oath of the
debt, was armed with this terrible process of the law. The
wretched defendant might lie in prison for several months
before his cause was heard; when, even if the action was
discontinued or the debt disproved, he could not obtain his
discharge without further proceedings, often too costly for a
poor debtor, already deprived of his livelihood by
imprisonment.
{1978}
No longer even a debtor,—he could not shake off his bonds.
… The total abolition of arrests on mesne process was
frequently advocated, but it was not until 1888 that it was at
length accomplished. Provision was made for securing
absconding debtors; but the old process for the recovery of a
debt in ordinary cases, which had wrought so many acts of
oppression, was abolished. While this vindictive remedy was
denied, the debtor's lands were, for the first time, allowed
to be taken in satisfaction of a debt; and extended facilities
were afterwards afforded for the recovery of small claims, by
the establishment of county courts."
T. E. May,
Constitutional History of England (Widdleton's edition),
volume 2, pages 267-268.
See, also, DEBT: LAWS CONCERNING.
COMMON LAW: A. D. 1839-1848.
Emancipation of Women.
"According to the old English theory, a woman was a chattel,
all of whose property belonged to her husband. He could beat
her as he might a beast of burden, and, provided he was not
guilty of what would be cruelty to animals, the law gave no
redress. In the emancipation of women Mississippi led off, in
1839, New York following with its Married Women's Act of 1848,
which has been since so enlarged and extended, and so
generally adopted by the other states, that, for all purposes
of business, ownership of property, and claim to her
individual earnings, a married woman is to-day, in America, as
independent as a man."
D. Campbell,
The Puritan in Holland, England and America,
volume 1, page 71.
COMMON LAW: A. D. 1842.
One who takes Commercial Paper as Collateral is a Holder for
Value.
"Take the subject of the transfer of such paper as collateral
security for, or even in the payment of, a pre-existing
indebtedness. We find some of the courts holding that one who
takes such paper as collateral security for such a debt is a
holder for value; others, that he is not, unless he extends
the time for the payment of the secured debt or surrenders
something of value, gives some new consideration; while still
others hold that one so receiving such paper cannot be a
holder for value; and some few hold that even receiving the
note in payment and extinguishment of a pre-existing debt does
not constitute one a holder for value. The question, as is
known to all lawyers, was first presented to the Supreme Court
of the United States in Swift vs. Tyson (16 Peters, 1). There,
however, the note had been taken in payment of the debt. It
was argued in that case that the highest court in New York had
decided that one so taking a note was not a holder for value,
and it was insisted in argument that the contract, being made
in New York, was to be governed by its law; but the court,
through Justice Story—Justice Catron alone
dissenting—distinctly and emphatically repudiated the
doctrine that the Federal court was to be governed on such