most ancient definition-that of the Mirror *-appears to us the best-i. e. "THE LAWFUL DEMAND OF ONE'S RIGHT"- -or as Bracton and Fleta express it, in the words of Justinian, † "jus prosequendi in judicio, quod alicui debetur." Of these actions there are three grand classes, called REAL, PERSONAL, and MIXED, following, as the words import, the well-known division of property into real and personal. In early times, our ancestors recognised no other distinctions of property than that into 'tenements and hereditaments,' and 'goods and chattels;' and the account given by Mr. Williams, in the excellent work already referred to,‡ of the substitution of the terms 'real and personal property,' for those formerly in use, is interesting and satisfactory. After the abolition of feudal tenures in the reign of Charles II., it became obvious that the essential difference between lands and goods was to be found in the remedies for the deprivation of either that land could always be restored, but goods could not that as to the former, the real land itself could be recovered, but as to the other, proceedings must be had against the person who had taken them away. The two great classes of property accordingly began to acquire two other names more characteristic of their difference. The remedies for the recovery of land had long been called "real actions ;" and the remedies for loss of goods, "personal actions:" but it was not until the feudal system had lost its hold, that lands and tenements were called "real property," and goods and chattels "personal property." The Legislature, courts of justice, lawyers, and the owners of property, gave themselves, in the early times : Ch. ii. § 1; 3 Bla. Comm. 116. + Instit. 4. b. pr. Williams's Principles of the Law of Real Property, pp. 6, 7. referred to, small concern about moveable or personal property-which was regarded as of a very limited and insignificant character. This consideration serves to explain the great number of comparatively trivial offences which were, in former times, attended with the forfeiture of all the culprit's goods and chattels. During the early feudal times, when no profession was deemed honourable except that of arms; when a separate jurisdiction and a petty tyrant were to be found in every manor, and the Court at which the injured trader must have sought redress from the oppression of a powerful baron, was presided over by that very baron, or his deputy, it is obvious that there could be little safety-little room for commerce; and we find, accordingly, that it was almost totally neglected. Most of that which did contrive to struggle into existence, was in the hands of Jews, and foreigners; the former of whom were the inventors, or at least the first to make use, in this country, of bills of exchange,* as were the latter, of policies of insurance. The native traders were to be found nowhere but in the cities and free towns-whose municipal privileges enabled them to afford security to the persons and properties of their inmates, against the grasp of feudal oppression: and which, though in latter times these exclusive rights may have acted disadvantageously on commerce, were, in those early and distracted times, its nurseries and safeguards.† Thus it comes to pass, that the higher we go in our old law books, the less we hear of the subject-matter of personal, the more of real, The first case concerning bills of exchange to be found in our law books, occurs no earlier than the year 1608-9, i. e. in the sixth year of James I. It is the case of Martin v. Bourne, Croke. Jac. 6; and the action was upon a foreign bill of exchange. + Smith's Merc. Law, Introd. pp. 9, 10 (3d ed.). actions. Of the former, indeed, there were only four or five-e. g. Account, Debt, Detinue, Trespass, and Covenant-which, of a remote and undefined antiquity, had provided for the most obvious kinds of wrong.* Towards the close of the thirteenth century, however, it was found that a multitude of cases had arisen, of injuries new in their circumstances, but to which the old forms of action were inapplicable; and that either from timidity, or indolence, the officers of the Court of Chancery were very reluctant to frame new writs adapted to the special circumstances of particular cases; which, it would seem, they were bound to do, by the Common Law. The officers in question were the clerks in Chancery; who, on the authority of Fleta, are declared by Sir Edward Coke † to have been " grave, wise, and circumspect men, sworn to the King, and of profound knowledge in the laws and customs of England." The new writs which they thus only occasionally drew, in difficult cases, bore the name of "Brevia Magistralia:" these clerks being called, on account of their great knowledge, "Magistri Cancellariæ." It would certainly therefore appear, that the mere circumstance of there being no form of writ to be found in the ancient Registrum Brevium, fitting the precise circumstances of the plaintiff's case, did not disentitle him to proceed upon an action on the case, at Common Law. § It is indeed an established maxim, that wherever the Common Law gives a right, or prohibits an injury, it also gives a remedy by action, || and, * Stephen on Plead. p. 6 (3d ed.). + Webb's Case, 8 Co. 49. All forms of writs once issued were entered, from time to time, in the Court of Chancery, in a book under this name, first printed and published in the reign of Henry VIII. 4 Reeves, 426-432. § Per Blackstone, J., in Kinlyside v. Thornton, 2 W. Bl. 1113. Per Holt, C. J., in Ashby v. White, 1 Salk. 21; Hunt v. Dorman, Cro. G G therefore, wherever a new injury is done, a new method of remedy must be pursued. To put an end, however, to the doubts, and "to quicken the diligence"* of the clerks in Chancery, the Legislature interfered: and in the year 1285 it was thus enacted, by stat. 13 Edw. I. c. 24:— "Whensoever henceforth it shall fortune in the Chancery, that in one case a writ is found, and in LIKE CASE, falling under like law, and requiring like remedy, is found none, the clerks of the Chancery shall agree in making a writ, or shall adjourn the plaintiffs until the next Parliament, and the cases shall be written in which they cannot agree, and be referred until the next Parliament: and by consent of men learned in the law, a writ shall be made; that it may not hereafter happen that the King's Court should fail in ministering justice unto complainants." This enactment, characterised by equal conciseness, boldness, and caution, affords a striking instance of the wisdom by which the councils of that great monarch Edward I. were directed. It is "a provision," observes Mr. Justice Blackstone (3 Comm. 52), "which, with a little liberality in the judges, by extending, rather than narrowing the remedial effects of the writ, might have effectually answered all the purposes of a court of equity; except that of obtaining a discovery by the oath of the defendant. The principle sanctioned by this statute, was the framing new writs "in consimili casu"-upon the analogy of actions previously existing. In casting their eyes at the old family of actions, that of trespass seemed best calculated for Jac. 478; 3 Bla. Comm. 109, 123. "Unless it be shown by authority," said Mr. Justice Le Blanc, in Birkley v. Presgrave, 1 East, 229, "that the action does not lie, we must PRESUME THAT IT DOES: upon the common principle of justice, that where the law gives a right, it also gives a remedy." 3 Bla. Com. 51. theexercise of the new powers given to the clerks in Chancery, as affording the most extensive analogies: and in a short time they had devised a great number of new writs, which came at length to be denominated Writs of "Trespass UPON THE CASE" (brevia "de transgressione super casum"); and the injuries which were the subjects of such writs were called, not "trespasses," but "torts, wrongs, and grievances:" and the length to which this system has been carried, may be understood from the fact, that for centuries, the breach of any contract, whether express or implied, provided it be not by deed, constitutes one of these wrongs," and is remediable by means of one of the actions of trespass on the case, called Assumpsit-of which we shall hear more presently. All these actions, real, personal or mixed, were, and (with the exception of personal actions) continue to be, commenced by means of an ORIGINAL WRIT (Breve Originale). The maxim "Non potest quis sine BREVI agere,”* was, says Blackstone,† introduced by the Normans; who held that it was unfit that proceedings in common pleas should be heard before the king's justices, who, being only the substitutes of the crown, ought to take cognizance of nothing but what was thus expressly referred to their judgment. Hence the BREVE ORIGINALE, or "original writ," was the foundation of the jurisdiction of the court; and is defined to be a mandatory letter issuing out of the Court of Chancery, under the great seal, and in the king's name, directed to the sheriff of the county where the injury was alleged to have been committed, containing a summary statement of the cause of complaint, and requiring the sheriff to command the defendant to satisfy the claim: if he refused, + 3 Bla. Comm. 273. * Bracton, 413 b. |