COMMON LAW AND MODERN CODES IS7 



We may be pardoned a simple illustration showing how the Statute 

 of Westminster II worked out. Thus, before the statute, if A threw 

 a stick at B and it hit him, A was guilty of a trespass. But if A 

 simply threw a stick in the road and B fell over it and barked his 

 shins, A was not guilty of a trespass. The statute gave a remedy 

 in the second case as well as the first. And the new action was called 

 "Trespass on the Case"; and lies to recover damages for the indirect 

 or consequential result of the force applied. So out of this statute 

 grew up "Trespass on the Case on Promises," or "Assumpsit," as it 

 came to be called. 



A tramp strolling by a hay field saw the laborers there vainly 

 striving to get the hay under shelter against an approaching storm. 

 He jumped over the hedge and the hay by his help was safely housed. 

 He had not been asked. Could the tramp recover for his labor? 

 No — not before the Statute of Westminster.' Reflecting on the 

 justice and conscience of a plaintiil's cause, such as this, induced 

 Lord Mansfield to say that the action upon the case was in the nature 

 of a bill in equity, and, in effect, is so.' 



The act of 1833 delegated to the judges in England the same task 

 of reform which now seems committed to ours, and in pursuance 

 of that statute, though all was not done which was permitted, were 

 promulgated the celebrated Hilary Rules of 1834. Among other 

 reforms those rules still further abbreviated the pleadings, and greatly 

 narrowed the scope of the general issue in pleas, substituting allega- 

 tions better adapted to ascertaining with definiteness the subject of 

 dispute.^ 



There is to be perceived here in this imperfect sketch of the growth 

 of the procedural law of England, sometimes retarded, sometimes 

 aided by legislation, a tendency over all to leave it to those "learned 

 in the law," to the judges, to work out that better maxim, "No right 

 without a writ," "No wrong without a remedy," which finally became 

 the boast of its jurisprudence. Pity it was, perhaps, that in the 

 process the courts of the common law did not work out that remedy 

 so as to make it "plain, adequate and complete" for all the altercations 



» Keene's Cases on PI. p. 144. 



■"Bird V. Randall," 3 Bur. p. 1345. » 4 Min. Inst. p. 609. 



