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Historical Foundations of the Common Law - 1st Edition - ISBN: 9780406625007, 9781483182551

Historical Foundations of the Common Law

1st Edition

Author: S. F. C. Milsom
eBook ISBN: 9781483182551
Imprint: Butterworth-Heinemann
Published Date: 1st January 1969
Page Count: 480
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Historical Foundations of the Common Law provides a general overview of the development of the common law. The book is comprised of 14 chapters that are organized into four parts. The first part deals with the institutional background and covers the centralization of justice; the institutions of the common law; and the rise of equity. The second part deals with land properties, while the third part talks about legal obligations. The last part details criminal administration and law. The text will be of great use to individuals who have an interest in the development of the common law.

Table of Contents


I. Institutional Background

1—The Centralization of Justice

Local and Customary Laws

County Courts

Hundred and Franchise Courts

Records of Local Courts

Feudal Jurisdictions

Jurisdiction of the Church

The Pattern of Centralization

The Eyre System

Rise of the Central Courts

The Writ System

2—The Institutions of the Common Law in Its First Formative Period

Write and Their Learning

Ancient Pattern of Law-Suit



The Year Books

The Trial

The End of Oral Pleading

Business Done on Circuit

The King's Bench

Jurisdiction in Error

3—The Institutions of the Common Law in Its Second Formative Period

The Nature of the Change

Fictions concerning Jurisdiction

The Increase of Business

Replacement of Old Actions by New

Changing Pattern of Law-Suit


Special Verdict

Other Mechanisms of Discussion in Bank

Discussion of Facts Coming out at the Trial

Discussion after Trial of Matters Raised by Pleadings

Substantive Result of Procedural Changes

4—The Rise of Equity

Procedural Bearings of Early Equity

Theoretical Relationship between Law and Equity

Conflict between Law and Equity

The Regularization of Equity

II. Property in Land


Lordship and Ownership

Agricultural Tenures

Military Tenures

Heritability and the Ownership of Land

The Incidents of Tenure

Services and Incidents

Mortmain and Quia Emptores

Consequences of Quia Emptores and of the Incidents

6—Early Actions

Seisin and Right

The Writ of Right

The Assize of Mort d'Ancestor

The Assize of Novel Disseisin

Writs of Entry

The Change in Underlying Ideas

7—Later Actions

Protection of the Term of Years

Actions concerning Freehold in the Fourteenth and Fifteenth Centuries

Use of Ejectment by Freeholders


8—Settlement of Land at Law

The Heritable Fee and the Rise of the Entail

Later History of Entails

Working of Warranties

Barring of Entails by Warranties

Fines and Recoveries

Contemporary Attitudes to Entails and Their Barring

Settlement and Resettlement


Contingent Remainders

9—Uses and Trusts Land

The Problem of Origins

Situations in which One might Hold for the Benefit of Another

Grant and Regrant

Relationship with Devise

The Feudal Incidents

Uses as an Institution

The Mischiefs of Uses

The Statute of Uses

The Statute of Wills

Uses at Law

Uses and Conveyancing

Legal Executory Interests


Rise of the Trust

III. Obligations

10—Old Persona Actions

The Beginnings


Debt on an Obligation

Covenant and Conditional Bonds

Debt and Detinue

Debt on a Contract

Detinue for Goods Bought

Detinue on a Bailment

Detinue against Persons Other than Bailees


11—The Rise of Trespass and Case

The Beginnings

Trespass vi et armis and Its Extension

Liability in Trespass vi et armis

Actions on the Case

The Relationship between Trespass and Case

12—Growth of the Modern Law of Contract

Assumpsit for Misfeasance

Actions on Warranties

Assumpsit for Nonfeasance

The Early Nonfeasance Cases

Disablement and Deceit

Pure Nonfeasance

Assumpsit for Money: the Background

Assumpsit for Money: the Kinds of Claim

Consequences of Slade's Case


13—Rise of Modern Law of Torts





IV. Crime

14—Criminal Administration and Law

Pleas of the Crown

The Initiation of Proceedings

Mode of Trial

Organization of Criminal Courts

Vehicles of Change in Criminal Law

Substantive Development of Criminal Law


Tables of Cases

Table of Laws and Statutes



No. of pages:
© Butterworth-Heinemann 2013
1st January 1969
eBook ISBN:

About the Author

S. F. C. Milsom

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