¹ They may not be capable of strict proof, but only of being made more or less credible. It is, however, hoped that this article may remove some difficulties. The stories told by Ames in his Lectures on Legal History seem to the writer to have been there established in principle. For the others fuller references will be given.

² Ames, Lectures XIII and XIV (assumpsit and indebitatus assumpsit) and VII (trover).

³ 31 Col.L.R. 778; 52 L.Q.R. 220.

⁴ Stat. Westm. II, c. 24.

⁵ In one form or another this has been bandied about for some time: the first published indication was in Professor Plucknett Concise History of the Common Law, 4th ed., pp. 352–3. The version here outlined was formed, largely in discussions with Professor Hollond, when the writer was preparing lectures in 1949. He has not altered it since the publication of Dr. Kiralfy's book on The Action on the Case, and thinks that Dr. Kiralfy may agree with it as far as it goes.

⁶ Except, perhaps, as one more expression of the feeling that wrongs should not go unremedied.

⁷ See e.g., Y.B. 2 & 3 Ed. II (S.S.), 71; note 9 below. Professor Hamson drew attention to this instructive case in lectures in 1947.

⁸ Historically, Lord Raymond's suggestion in Reynolds v. Clarke, 1 Str. 634, may have been nearer the mark than has been thought.

⁹ Y.B. 2 & 3 Ed. II (S.S.), 71. See especially the beginning of the Note from the Record at p. 74. The record itself (C.P.40, no. 174, m.151d) shows that vi et armis, etc., were not, of course, alleged.

¹⁰ Y.B. 13 & 14 Ed. III (R.S.), 134. The plaintiff claimed a franchise of estray in the manor of M., and brought his action of trespass because the defendant had taken straying foals. Shareshull J., at p. 136, said: “… And I tell you that, if the [plaintiff] had brought a common writ of Trespass in respect of the taking of the foals, you would have had to answer to that.” It appears from the other report at p. 138 that Shareshull J. thought it might be sufficient for the plaintiff to rely on his seisin. The record (C.P.40, no. 320, m.334) shows that the writ both set out the special matter of the franchise and alleged vi et armis and contra pacem. Contrast the case in the preceding note.

¹¹ The cum clause, which might be very long.

¹² History and Sources of the Common Law, Chaps. 14 and 16.

¹³ Ibid., p. 333 and n. 12. In the historical introduction to Cheshire and Fifoot, Law of Contract, deceit is dismissed in a footnote; 3rd ed., p. 10, n. 4.

¹⁴ History and Sources of the Common Law, p. 337.

¹⁵ Y.B.Pasch. 42 Ed. III, f. 11, pl. 13; 42 Lib.Ass., f. 260b, pl. 17.

¹⁶ Y.B. 15 Ed. III (R.S.), 86.

¹⁷ The trouble may have been caused by headings and side notes in Year Books, Abridgments, the Register, etc.

¹⁸ Professor Thorne, in his recent lectures in Cambridge, emphasised that the early cases should be regarded as oddities, hard cases in which the normal contractual device of the conditioned bond had been omitted.

¹⁹ See e.g., Kiralfy, The Action on the Case, p. 94ff.

²⁰ History and Sources of the Common Law, Chap. 16.

²¹ 3 Q.B. 234.

²² Y.B.Trin. 5 Hy. VII, f. 41b, pl. 7.

²³ Ames noted the relevance of this rule; Lectures on Legal History, p. 145.

²⁴ Concise History of the Common Law, 4th ed., p. 344. But cf. p. 352.

²⁵ There is a sense in which the forms of trespass may almost be said to comprise the quare writs.

²⁶ The court was so called in the reign of Elizabeth I. See e.g., Stat. 27 Eliz. I, c. 8: “An Act for Redresse of erronious Judgementes in the Courte commonly called The Kinges Benche.”

²⁷ Dalison 104, pl. 45.

²⁸ 4 Co.Rep. 91.

²⁹ See Baxter and Read's Case, Dyer 272n. Cf. Y.B.Mich. 12 Hy. VIII, f. 11, pl. 3.

³⁰ Lectures on Legal History, pp. 150–1. The observations about grants should be accepted with some reserve. Cf. n. 24 above. See also Dalison 84, pl. 35.

³¹ Cf. Rastell's Entrees, 1574 ed., f. 4, sub. tit. Action sur le case in lieu de action de dett; also Coke's Entries, f. 1, Action sur le case 1 (Pinchon's Case).

³² 4 Co.Rep. 91 at 94b.

³³ Mr. Prichard and the present writer were each fortified by learning that the other had asked the same question and supplied the same answer. As always, the writer is indebted to Mr. Prichard for discussions.

³⁴ It is hoped that these doubts may be cleared up by the use of record evidence; a difficulty will be to discover what happened in cases where part of the story is blanketed by a fiction.

³⁵ Lectures on Legal History, Lecture VII, esp. at p. 84.

³⁶ The development was intricate and important; what was in question was the the idea of property in chattels. The writer hopes at a later date to give some account of it.

³⁷ Until the development was complete, one must beware of supposing the plaintiff to claim “my property.” Title deeds seem to have played an important part in the story.

³⁸ The distinction between the two kinds of liability is not confined to detinue, but appears also in debt; see e.g., Y.B.Hil. 21 Hy. VI, f. 23, pl. 5 (debt against abbot for the price of goods sold to his predecessor; can the defendant wage his law?). There is a distinction between debet and detinet, which cuts across the distinction between debt for fungibles and detinue for specific goods.

³⁹ Y.B.Pasch. 27 Hy. VIII, f. 13, pl. 35.

⁴⁰ This may mark the point at which the plaintiff can speak without more ado of “my property.”

⁴¹ See Y.B.Trin. 29 Ed. III, f. 38b. The defendant was one Alice Halyday, and it is a wild but not impossible conjecture that Littleton was referring to this case when he spoke of the “new found haliday”; Malpas's case, see next note.

⁴² See Y.B.Trin. 33 Hy. VI, f. 26b, pl. 12 (Malpas's Case). There is some doubt when and how long it was true that the plaintiff could allege a devenit ad manus generally, without saying how. See Y.B.Trin. 16 Ed. II, f. 490. In Y.B.Hil. 9 Hy. VI, f. 58, pl. 4, Paston said that the plaintiff need not say how the defendant had got the deed because he might have found it. This may have suggested the count in trover. Shortly after Malpas's Case it seems that the plaintiff again had to say how the defendant had got the thing, but to allege a trover would do; Y.B.Mich. 35 Hy. VI, f. 25b, pl. 33, at f. 27.

⁴³ Cf. Y.B.Trin. 29 Ed. III, f. 38b.

⁴⁴ Y.B.Pasch. 27 Hy. VIII, f. 13, pl. 35.

⁴⁵ Ames, Lectures in Legal History, Chap. 7, esp. at p. 84.

⁴⁶ The chronology of the matter is not clear. The count in trover was in use in the mid-sixteenth century; Bro.Ab., Action sur le Case 113; Dyer 121 and Benloe p. 41, pl. 73. A precedent is given in Rastell's Entrees, 1574 ed., (also 1566) f. 4b, 5, sub tit. Action sur le case in lieu de action de detinewe; the same title contains a precedent for use against a bailee of title deeds, but by the purchaser of the land and not the bailor himself. The doubt arises over how and when the bailee could at this time be made liable in case. See further note 49 below.

⁴⁷ Contra, Kiralfy, The Action on the Case, p. 113.

⁴⁸ Lectures on Legal History, p. 84.

⁴⁹ In Y.B.Hil. 18 Ed. IV, f. 23, pl. 5, Brian was against allowing the action against a bailee, but already there is talk of the property being altered. In Keilwey, 160 (2 Hy. VIII) the discussion was opened by Moore putting in terms the point made in the text above; Dr. Kiralfy (The Action on the Case, p. 111) says the Common Pleas held that case would lie against a bailee who sold the goods, but that was only the opinion of “divers des Justices.” There are other similar dicta, e.g., in Core's Case (28 Hy. VIII), Dyer 20 at 22b. In Bro.Ab., Action sur le Case 113 (4 Ed. VI) the count in trover was used fictitiously, and it was apparently a good plea that the plaintiff had pledged the thing to the defendant; the writer has found no evidence that the count was used when in fact there had been a bailment for some time after that, but it may have been. Rastell's only precedent which seems relevant is for use against a bailee who has been negligent, and it is based on an assumpsit; Entrees, 1574 ed., f. 9. As late as 1600, when a plaintiff actually counted a bailment and then a conversion, the defendant thought it worth while to take the point; it was overruled “for the conversion takes away the property from him,” but it is interesting that it was made; Gumbleton v. Grafton, Cro.Eliz. 781. Thereafter plaintiffs seem to have been generally careful to count in trover or on a decenit, so avoiding what was by then a formal difficulty.

⁵⁰ See Gumbleton v. Grafton, Cro.Eliz. 781; Isaack v. Clark, 2 Bulstrode 306, esp. per Dodderidge J. at p. 309.

⁵¹ Critics of Hollins v. Fowler, L.R. 7 H.L. 757 may think that there was something to be said for the law as ordered by detinue.

⁵² Chancellor of Oxford's Case, 10 Co.Rep. 53b at 56b, 57a; Isaack v. Clark, 2 Bulstrode 306.

⁵³ See Croke J. in Isaack v. Clark, 2 Bulstrode 306, at 311; Agar v. Lisle, Hobart 187, Hutton 10.

⁵⁴ See Mr. Fifoot's account of the matter, History and Sources of the Common Law, p. 110ff, and especially Ward v. Macauley, 4 T.R. 489 and Gordon v. Harper, 7 T.R. 9.

⁵⁵ [1931] 1 K.B. 148.

⁵⁶ History and Sources of the Common Law, at p. 398.

⁵⁷ Candler v. Crane Christmas & Co. [1951] 1 All E.R. 426.