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Slade's Case Essay

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Were the effects of Slade's Case positive or negative?
Slade's Case has been described by Baker as a 'battle'1 between the King's Bench and the Court of Common Pleas, in the arena of the Exchequer Chamber, which was waged to determine whether a plaintiff might resort to an action on the case when he already 'had a proper action framed in the Register'. Historically, the debate concerned the propriety of using assumpsit to recover debt. The action of debt upon a simple contract had been considered unsatisfactory because it involved precise pleading, besides being hampered by the archaic wager of law, and it did not lie against executors. The two main issues which were discussed in Slade's Case were: firstly, whether such a promise could be inferred from the mere entry into contract, since it was rare for parties to use express words of promise and secondly, whether a contract and a contemporaneous promise to perform it could give rise simultaneously to two distinct forms of action to achieve the same end. The facts of Slade's Case will be briefly outlined for completeness. In 1595 Slade brought an action on the case against Morley, and counted he had sold a certain sum of corn to Morley in consideration for the PS16 that Morley assumed to pay to him. Morley pleaded non assumpsit and the jury found that the facts were true; Morley had indeed bought the said corn for PS16 and had agreed to pay the sum at the next Feast of St. John. The judgment of the court was given in 1602 by Popham CJ who declared that the issues had been 'resolved'. The judges had 'agreed' that 'every contract executory implies in itself and promise or assumpsit' and, 'although upon such a contract an action of debt lies to recover the duty, the plaintiff may well have an action on the case upon the assumpsit'. This effectively abolished wager of law. In order to identify the effects Slade's Case it is necessary to consider the jurisprudence and events leading upon that decision. The judges of the King's Bench adhered to the view that actions on the case could be properly used to recover debts (and avoid wager of law) and did not insist of juries finding an express promise to pay the debt before giving judgment for the plaintiff. Their approach was that so long as the creditor was able to show the existence of a contract, no further proof of the subsequent promise was necessary: an action would be allowed on a fictitious promise implied by law. To the contrary, the Common Pleas objected to the indiscriminate use of action on the case because they were intended to be special remedies, brought into operation only in cases where the general writs of the Register were inappropriate. In his speech Dodderidge, acting for the defendant, justified this view by reliance on the Statute of Westminster II, c.24. He also relied on the argument that a parol undertaking was only of legal force if some recompense were given in exchange for it. In other words, if the cause of action was a subsequent promise to pay the debt it was essential for the plaintiff to prove that the defendant had made such a subsequent promise. The polarity of opinion is overt in Edwards v Burre (1573). In that case Wray J directed the jury that if they were satisfied that the plaintiff had made the loan then they should give a verdict in his favour because the debt constituted an 'implied assumpsit'. However, the reporter highlights that this only the method of the King's Bench: 'in the Common Bench he must prove the assumption, and it is not sufficient to prove only the debt, for on the debt he should have an action of debt and not an action on the case'. Ibbetson suggests that the tension between King's Bench and Common Pleas which came to a head in Slade's Case has been exaggerated - the two approaches might not have been as polarised as asserted by historians in the past. He asserts that, perhaps as early as 1596, the traditionalist judges of the Common Pleas, such as Anderson and Walmsley, had 'begun to give ground' and 'were willing to conform to the King's Bench view in a number of cases which could not logically be distinguished from contractual debt' 2. In fact in several cases, 1 2

'New Light on Slade's Case' by Baker [1971] CLJ 51 '16th Century Contract Law - Slade's Case in Context' by Ibbetson [1984] OJIL 295 1

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