Slade's Case
Encyclopedia
Slade's Case was a case in English contract law
English contract law
English contract law is a body of law regulating contracts in England and Wales. With its roots in the lex mercatoria and the activism of the judiciary during the industrial revolution, it shares a heritage with countries across the Commonwealth , and the United States...

 that ran from 1596 to 1602. Under the medieval common law, claims seeking the repayment of a debt or other matters could only be pursued through a writ of debt in the Court of Common Pleas
Court of Common Pleas (England)
The Court of Common Pleas, or Common Bench, was a common law court in the English legal system that covered "common pleas"; actions between subject and subject, which did not concern the king. Created in the late 12th to early 13th century after splitting from the Exchequer of Pleas, the Common...

, a problematic and archaic process. By 1558 the lawyers had succeeded in creating another method, enforced by the Court of King's Bench
Court of King's Bench (England)
The Court of King's Bench , formally known as The Court of the King Before the King Himself, was an English court of common law in the English legal system...

, through the action of assumpsit
Assumpsit
Assumpsit is a form of action at common law for the recovery of damages caused by the breach or non-performance of a simple contract, either express or implied, and whether made orally or in writing....

, which was technically for deceit. The legal fiction
Legal fiction
A legal fiction is a fact assumed or created by courts which is then used in order to apply a legal rule which was not necessarily designed to be used in that way...

 used was that by failing to pay after promising to do so, a defendant had committed deceit, and was liable to the plaintiff. The conservative Common Pleas, through the appellate court
Appellate court
An appellate court, commonly called an appeals court or court of appeals or appeal court , is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal...

 the Court of Exchequer Chamber, began to overrule decisions made by the King's Bench on assumpsit, causing friction between the courts.

In Slade's Case, a case under assumpsit, which was brought between judges of the Common Pleas and King's Bench, was transferred to the Exchequer Chamber where the King's Bench judges were allowed to vote. The case dragged on for five years, with the judgment finally being delivered in 1602 by the Chief Justice of the King's Bench, John Popham. Popham ruled that assumpsit claims were valid, a decision called a "watershed" moment in English law, with archaic and outdated principles being overwritten by the modern and effective assumpsit, which soon became the main course of action in contract cases. This is also seen as an example of judicial legislation, with the courts making a revolutionary decision Parliament had failed to make.

Background

Under the medieval common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

, there was only one way to resolve a dispute seeking the repayment of money or other contract matters; a writ of debt, which only the Court of Common Pleas
Court of Common Pleas (England)
The Court of Common Pleas, or Common Bench, was a common law court in the English legal system that covered "common pleas"; actions between subject and subject, which did not concern the king. Created in the late 12th to early 13th century after splitting from the Exchequer of Pleas, the Common...

 could hear. This was archaic, did not work against the executors of a will and involved precise pleading; a minor flaw in the documents put to the court could see the case thrown out. By the middle of the 16th century lawyers had attempted to devise an alternative using the action of assumpsit
Assumpsit
Assumpsit is a form of action at common law for the recovery of damages caused by the breach or non-performance of a simple contract, either express or implied, and whether made orally or in writing....

, which was technically a type of trespass due to deceit. The argument was based on the idea that there was an inherent promise in a contract to pay the money, and that by failing to pay the defendant had deceived the plaintiff. By 1558 the lawyers had succeeded, with the Court of King's Bench
Court of King's Bench (England)
The Court of King's Bench , formally known as The Court of the King Before the King Himself, was an English court of common law in the English legal system...

 agreeing to hear cases under this piece of legal fiction. The judges of the Common Pleas, however, a more traditional group, rejected this argument and only accepted cases where an actual promise had been made in addition to the contract.

The action of assumpsit had several advantages over a writ of debt; the plaintiff could count on always having a jury, while in writs of debt the defendant could rely on wager of law, where he produced twelve people to swear he did not owe the plaintiff money and had the case dismissed. In addition, it worked for executory agreements
Executory contract
An executory contract is a contract which has not yet been performed or executed. Although material, an obligation to pay money does not usually make a contract executory. An obligation is material if a breach of contract would result from the failure to satisfy the obligation...

, not just normal contracts. In 1585 a new form of the Court of Exchequer Chamber was set up, an appellate court
Appellate court
An appellate court, commonly called an appeals court or court of appeals or appeal court , is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal...

 where the Common Pleas judges held a majority, and regularly began to reverse King's Bench judgments which were based on assumpsit. This, and the conflict between the King's Bench and the Common Pleas as a whole, was problematic; a plaintiff at Assizes could not be sure which sort of judge his case would come before, lending uncertainty to the law. Boyer suggests that, in this environment, the Chief Justice of the King's Bench John Popham deliberately provoked the Common Pleas to resolve the matter, and did so through Slade's Case.

Case

John Slade was a grain merchant, who claimed that Humphrey Morley had agreed to buy a crop of wheat and rye from him, paying £16, and had reneged on the agreement. He brought the case before the Assizes in 1596, where it was heard by two judges; one of the Common Pleas, and one of the King's Bench. It was heard under assumpsit, and the jury found that Morely indeed owed Slade money. Before a judgment could be issued, Popham had the case transferred to an older version of the Court of Exchequer Chamber, which, sitting in Serjeant's Inn
Serjeant's Inn
Serjeant's Inn was one of the two inns of the Serjeants-at-Law in London. The Fleet Street inn dated from 1443 and the Chancery Lane inn dated from 1416. Both buildings were destroyed in the World War II 1941 bombing raids....

, allowed the King's Bench judges to sit.

Edward Coke
Edward Coke
Sir Edward Coke SL PC was an English barrister, judge and politician considered to be the greatest jurist of the Elizabethan and Jacobean eras. Born into a middle class family, Coke was educated at Trinity College, Cambridge before leaving to study at the Inner Temple, where he was called to the...

 was counsel for Slade, arguing that the King's Bench had the power to hear assumpsit actions, along with Laurence Tanfield
Lawrence Tanfield
Sir Lawrence Tanfield was an English lawyer, politician and Lord Chief Baron of the Exchequer.He was the eldest son of Robert Tanfield of Burford by his wife Wilgiford Fitzherbert and educated at Eton College and the Inner Temple...

, while Francis Bacon
Francis Bacon
Francis Bacon, 1st Viscount St Albans, KC was an English philosopher, statesman, scientist, lawyer, jurist, author and pioneer of the scientific method. He served both as Attorney General and Lord Chancellor of England...

 and John Doddridge
John Doddridge
Sir John Doddridge was an English lawyer, judge and Member of Parliament, known also as an antiquarian and writer...

 represented Morely. The quality of legal argument was high; Bacon was a "skillful, subtle intelect" capable of distinguishing the precedent brought up by Coke, while Doddridge, a member of the Society of Antiquaries
Society of Antiquaries
Society of Antiquaries can refer to:*Society of Antiquaries of London*Society of Antiquaries of Scotland*Society of Antiquaries of Newcastle upon Tyne*Royal Society of Antiquaries of Ireland...

, knew the records even better than Coke did. Coke, rather than directly confronting opposing counsel, made a twofold argument; firstly, that the fact that the King's Bench had been allowed to hear assumpsit actions for so long meant that it was acceptable, based on institutional inertia, and second that, on the subject of assumpsit being used for breaches of promise, that the original agreement included an implied promise to make payment.

The case continued for five years; at one point, the judges let the matter continue for three years because they could not reach a decision. Eventually, in November 1602, Popham issued a judgment on behalf of the court which stated "Firstly, that every contract executory implies in itself a promise or asumpsit. Secondly, that although upon such a contract an action of debt lies, the plaintiff may well have an action in the case upon the assumpsit." Coke, in his report of the case (published in 1604) reports that the judgment was unanimous, while more modern commentators such as Boyer assert that it was narrow, most likely 6 to 5, with the dividing line being between the King's Bench judges and Common Pleas.

Impact

The impact of the case was immediate and overwhelming. Ibbetson considers Slade's Case to be a "watershed" moment, in which the archaic and conservative form of law was overwritten by a modern, more efficient method. Assumpsit became the dominant form of contract cases, with the door "opened wide" to plaintiffs; Boyer suggests this was perhaps "too wide", and that the 1677 Statute of Frauds
Statute of frauds
The statute of frauds refers to the requirement that certain kinds of contracts be memorialized in a signed writing with sufficient content to evidence the contract....

 was partially designed to limit Slade's impact. The case is particularly notable as an example of judicial legislation, with the judges significantly modernising the law and moving it forward in a way Parliament had not considered. As a side impact, Coke's arguments were the first to define consideration. The conservative outlook of the Common Pleas soon changed; after the death of Edmund Anderson, the more activist Francis Gawdy
Francis Gawdy
Sir Francis Gawdy QS was a British judge. He was the third son of Thomas Gawdy, and was baptised Thomas Gawdy, as were his two older half-brothers. Francis then had his name changed at his Confirmation, establishing legal precedent that a name given at baptism could be changed at confirmation...

 became Chief Justice of the Common Pleas
Chief Justice of the Common Pleas
The Court of Common Pleas, also known as the Common Bench or Common Place, was the second highest common law court in the English legal system until 1880, when it was dissolved. As such, the Chief Justice of the Common Pleas was one of the highest judicial officials in England, behind only the Lord...

, and other Common Pleas judges, many of whom were uncertain but had followed Anderson's lead in the case, changed their mind.
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