ensue. As "debt" was the appropriate action in which to recover a sum of money upon contract where the amount was already reduced to a certainty, as "covenant" was confined to the claim for damages upon the breach of a sealed agreement, as "trespass" was used for the recovery of damages resulting from acts of violence done to the person or property of the plaintiff (vi et armis), and as "detinue" was a proceeding for the recovery of specific goods and chattels wrongfully detained from the owner, it was an easy matter to find the forms of writs suited to facts and circumstances which plainly fell within some one of these four remedies. If the debt was certain in amount, if the writing was sealed, if the wrong had been done by force, or if the specified thing of the plaintiff was withheld from his possession, the form of proceeding in which to obtain relief was well known, determinate, and fixed. But when events happened, when circumstances occurred quite different from the essential features which characterized any one of the four remedial forms thus described, and a wrong was thereby done to an individual, it was by no means certain that he could obtain any redress. These four actions were known, and no others. "All breaches of contract unwritten, or unsealed if written, were remediless, unless they created an absolute and stipulated debt. All obligations arising from the mere acts of parties, more frequently called implied contracts, which form so large a part of the rights that courts enforce at the present day, and which spring from the plainest principles of justice and equity, were unrecognized." Undoubtedly the officers of the Chancery were permitted and expected to frame writs to meet new cases which did not depart too widely from the existing precedents; but it is known historically that these officials were reluctant to use such an authority, and the common-law judges were reluctant to yield to it when used. To say that all rights and duties resulting from fraud, deceit, negligence, verbal defamation, and other wrongful practices not forcible, were ignored and unprotected, would perhaps be too sweeping; there are faint indications that the action of trespass was sometimes resorted to in cases of negligence, fraud, and slander, but the instances were extremely few, and for this large class of private wrongs there was substantially no private remedy.

1 Pomeroy's Introd. to Munic. Law, § 199.

§ 20. At this point the legislature interposed in aid of the courts, and during the reign of Edward I. (13 Edw. I. ch. 24, A.D. 1284) Parliament enacted that "Whenever from henceforth it shall fortune in 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 chancery shall agree in making the writs." Thus was opened the way for new actions and remedies to apply to all the new circumstances which could arise, and the judges were not slow to avail themselves of the privilege, because it afforded an opportunity not only to do prompt and substantial justice between parties, but also to enlarge in an unlimited manner their own jurisdiction. The modifications and additions were made in the action of trespass, which in its original conception was applicable only to wrongs accompanied or caused by violence. New writs were framed by which the action was extended to cases where the injury is consequential and indi

At first the improvement was confined to instances of malfeasance when a person has done something that he ought not to have done. Between this beginning and the instances of misfeasance, or doing in a wrongful manner what ought to have been well done, the division line was shadowy, the step was short and was soon taken. Hence arose an additional class of actions known as "trespass on the case," or simply "case," which enabled the court to grant the relief of damage for fraud, deceit, negligence, want of skill, defamation oral or written, and all other injurious acts to person or property which are not done by direct force. In the process of time a second additional action, as an offshoot or species of " case was invented, but was confined in its operation to a particular kind of delict; namely, the unlawful detention of goods and chattels from their owner, and their conversion to his own use by the wrong-doer. It was called "trover," from the French verb trouver, to find, which invariably occurred in a fictitious allegation of the pleading charging that the plaintiff had lost the chattel, and that the defendant had found the same, and had converted it to his own use. yet there was no remedy for the breach of those contracts which could not be enforced by the actions of debt or of covenant. To supply this want, the courts, still retaining the idea of the wrong done by the defendant, so as to preserve the theoretical connection with the primitive action of trespass, extended the new form

As

of proceeding so as to include all instances of nonfeasance, or those in which a person has failed or refused to do what he had actually or impliedly promised to do. This step in advance produced the action of "assumpsit," which grew to be the most common and important judicial method of enforcing legal rights. Although in its origin ranked with the ex delicto actions, it has long been regarded as belonging entirely to the class of those ex contractu. By its means a very large portion of the mercantile and commercial law has been added to the jurisprudence of England and of America. It is eminently an equitable proceeding, free from arbitrary and artificial rules and requirements.

§ 21. The ancient real actions being excessively technical, and entirely unfitted for an age of activity, progress, and enlightenment, gradually passed out of use, and their objects were accomplished by means of the modified “ ejectment" enlarged in its scope and adapted to the trial of titles by the fictions which have been already described. As the result of this inventive function of the courts, we find in England and in the United States, prior to the recent amendatory legislation, the following common-law forms of action by which civil remedies were administered: trespass, to recover damages for a wrongful act of violence to person or property; case, to recover damages for a wrong to person or property, unaccompanied by violence, or when the injury is consequential; trover, to recover damages for the unlawful detention and conversion of chattels. These were ex delicto. The actions ex contractu were, covenant, to recover damages for the breach of a sealed agreement; debt, to recover a fixed certain sum owed by the defendant, not as damages; assumpsit, to recover damages for the breach of a contract not sealed, whether written or verbal, express in its terms or implied by law. The following bore a logical resemblance to real actions, the vindications of the Roman law ejectment, to recover possession of land, and to try the title thereto; detinue and replevin, to recover possession of specific chattels. Replevin, which was confined to certain special cases in England, had been generally adopted throughout the United States in the place of detinue.

22. By the side of this ordinary procedure of the commonlaw courts there grew up the extraordinary jurisdiction of the Court of Chancery. In the most ancient times a suitor who could not obtain relief from the courts of law, had no other alter

native than an application to the king himself. These appeals were entertained by the king and his council, and for a while an imperfect kind of justice was thus administered according to the notions of right held by the monarch and his advisers. As the number of these applications increased beyond the ability of the king to devote to them his personal attention, the practice arose of referring them to the chancellor, who, in his high official character of confidential adviser to the Crown and chief dignitary of the state, seemed to be the most appropriate person to relieve the king of these judicial duties. In the 22d year of the reign of Edward III. (A.D. 1348–49) a general order was made referring all such matters for examination and decision to the chancellor; and from that epoch the Court of Chancery dates its commencement as a special tribunal, possessing an exalted jurisdiction distinct from that of the courts of law. The earliest records of the court show that occasionally cases were brought before it which clearly belonged to the ordinary jurisdiction of the common-law judges, even cases of personal wrong and violence, which were properly redressed by the action of trespass. These instances, however, were very exceptional and quickly disappeared. The judicial functions of the chancellor soon became well defined. The procedure in equity was free from the trammels of rigid forms and of actions constructed upon an arbitrary model, and admitting only specified kinds of relief; the final remedies in equity could not only be based upon motives of abstract justice, but could be adapted to the special facts in each particular case and to the rights and relations of all the parties to each other. In other words, the chancellor was not obliged to render a given form of judgment or none; he was not restricted to granting the relief of a sum of money or of the possession of a given tract of land or of a given chattel; he might and did vary his decrees in every possible manner, and determine the rights of the litigant parties completely and finally.

§ 23. The parallel which I have already mentioned between the ordinary or legal jurisdiction of the Roman prætor and his extraordinary or equitable jurisdiction on the one side, and the English common-law courts and their methods, and the Court of Chancery and its methods, on the other side, is perfect. This parallelism has lately been carried still further by the recent action of the British Parliament. The equitable jurisdiction of the

Roman magistrates not only reacted upon the ordinary legal jurisdiction, introducing more and more the influence of abstract right and justice, and sweeping away the ancient arbitrariness and devotion to external forms; but it gradually grew in magnitude until it became by far the more important of the two. Exactly the same process has gone on for centuries in England. The modes and the notions of equity gradually penetrated the common-law tribunals; equitable principles were invoked in the decision of legal actions; the common law has become scarcely distinguishable, in the underlying juridical forces which govern its movements, from the mass of doctrines which, taken together, are called equity jurisprudence; and this equity jurisprudence itself has grown to be vastly superior, in magnitude and importance, to the legal division of the double system which forms the entire law of England. Finally, by a statute (constitution) of the Emperor Diocletian, the ordinary legal jurisdiction was abolished, and the extraordinary or equitable methods became universal. Here, too, the parallel continues. By a statute of Parliament, passed in 1873, and which goes into effect on the 1st of November, 1875, the superior courts of law the Queen's Bench, the Common Bench and the Exchequer, and the Court of Chancery, and the Courts of Admiralty and of Probate and Divorce, and of Bankruptcy-are combined into one grand tribunal, to be called the Supreme Court; the distinctions between legal and equitable procedure are removed; and one form of action is to be used in the administration of justice between private suitors, and in granting all civil remedies which may be obtained by litigant parties. This great change, now about to be made in England, had been effected twenty-five years before in New York, and is in full and successful operation in more than half the commonwealths of this country. Whether law and equity, whether the legal and the equitable methods and remedies, can be completely, united and consolidated in one homogeneous system, similar to that which prevailed in Rome during the