USQ Law Society Law Review
Sep Yazdanshenas
Winter 2021
another in the face (assault) that would be considered trespass against a person. Conversely, the action of trespass required a breach of the King’s peace (‘the protection guaranteed by the monarch to certain people, as those employed on royal business, travelling on the highway, etc’8), as well as force of arms (the use of force including weapons). Therefore, a person could bring an action of trespass, only if it breaches the king’s peace.9 But what if someone failed to carry out their promise or had done it poorly and caused injury or damage? In the 14th century, the common law courts introduced ‘trespass on the case’.9 This new type of trespass did not require an alleged breach of the King’s peace or force of arms.11 This is an important recognition by the royal courts as this was the first action that brought a new sense of liability and negligence, giving protection to people, their goods and property from people who failed to carry out their promise or when they have carried out their promise poorly.10 By the 15th century, pleadings for the action of trespass on the case included the expression ‘super se assumpsit et fideliter promisit’, meaning ‘took upon himself and faithfully promised’.11 In other words, assumpsit could give damages, or offer recovery for the damages done, where the defendant failed to or poorly carried out ‘his undertaking (assumpsit) or promise to the plaintiff’.12 This was an important development for three reasons. First, trespass no longer required a written deed and could also include cases where there might have been an implied promise. Secondly, the action covered nonfeasance, that is, not doing something. Thirdly, the action also included misfeasance — a wrongful act — such as a veterinary surgeon negligently killing a horse.13
III
THE CASE
In 1348, John de Bukton (the plaintiff) filed a bill of complaint alleging trespass against Nicholas atte Tounesende (the defendant) in the King’s Bench when it came to York on circuit. In November 1346, the defendant had undertaken (assumpsit) to safely ferry the plaintiff’s mare across the River Humber in Yorkshire. A significant tidal estuary located on the east coast of Northern England, the Humber defines the boundary between the counties of Yorkshire and Lincolnshire. The defendant, against the plaintiff’s ‘will’,14 ‘overloaded his boat with other horses’ causing the plaintiff’s mare to ‘perish’.15 8 Oxford English Dictionary Online (online at 12 May 2021) ‘Peace’ (def 9). 9 Donahue Jr (n 3) 21. 9 AWB Simpson, A History of the Common Law of Contract: The Rise of the Action of Assumpsit, (Oxford University Press, 1975) 215. See also John Baker, Introduction to English Legal History (Oxford University Press, 5th ed, 2019) 199-200 (‘Simpson’) 11 Donahue Jr (n 3) 13-14. 10 Ibid. 11 Simpson (n 10) 350–1. See also John Baker, Introduction to English Legal History (Oxford University Press, 5th ed, 2019) (‘Baker’) 350–1. 12 Vines (n 5). 13 Baker (n 13) 350, 351. 14 Albert Kiralfy, ‘The Humber Ferryman and the Action on the Case’ (1953) 11(3) Cambridge Law Journal 422. 15 Boston University School of Law, ‘Legal History: The Year Books’ (Record Details Bukton v Tounesende 1348).
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