QUESTION -

Sir Robert Rede argues that the case sounds in covenant, not in trespass on the case. Is Rede correct? Explain

1.Johnson v. Baker, Common Pleas, 1493 (This case although authentic in origin, has been abridged and changed.)

[Clerk's summary] Oxfordshire. John Baker, late of Henley on Thames in the aforesaid county, innholder, was summoned to answer Edward Johnson in a plea why, whereas the same John had undertaken at Henley, for a certain sum of money paid beforehand to the same John, safely and surely to carry sixty-five quarters of Edward's malt from the vill of Henley on Thames, in a certain barge belonging to John, by the River Thames to the City of London, and there to deliver them to Edward. The same John so negligently and improvidently steered the barge that the barge and malt were wholly submerged through the fault of John, to the damage of him the said Edward fourteen pounds, etc.

[Count] And thereupon Edward, by attorney Thomas Aylove, says that, whereas the aforesaid John, on the 10^th Day of December [1490] in the fifth year of the reign of the present lord king, had undertaken at Henley, for a certain sum of money paid beforehand to the same John, namely twenty-one shillings and eight pence, safely and surely to carry sixty-five quarters of the same Edward's malt from the aforesaid vill of Henley on Thames, in a certain barge belonging to John, by the River Thames to the City of London and there to deliver them to Edward. John so negligently and improvidently steered the barge that the barge and malt were at Burnham in the county of Buckingham, wholly submerged though the fault of the selfsame John, to the damage of Edward the aforesaid fourteen pounds etc. And thereof he produced suit etc.

[Answer] And John, by William Denne his attorney, comes; and he denies the force of wrong etc. And he said that he did not take it upon himself to carry the aforesaid malt in the manner and form in which the aforesaid Edward above supposes by his writ and declaration aforesaid. And of this he puts himself upon the country; and the aforesaid Edward likewise.

[Clerk] Therefore, the Sheriff is ordered to cause to come here on the morrow of All Souls, twelve etc. At which day the parties came here etc., but the Sheriff did not send the writ. Therefore, the Sheriff is ordered as before to make twelve etc. in the octaves of St. Hilary, to make recognition in form aforesaid etc.

Arguments in Court

[John Kingsmill, serjeant at law for Edward Johnson addressing the Court] Kingsmill came to the bar and argued that if a common farrier misdrives a nail in shoeing my horse, so that it is lamed, does not an action on the case lie? So did the defendant when, through his bad steering, the ship perished.

[Sir Robert Rede, serjeant at law for John Baker addressing the Court] Rede came to the bar and argued that someone sued an action on the case on the grounds that the plaintiff, on a certain day at Dale in the county of Sale, had delivered certain quarters of grain to the defendant to be safely carried from thence to by sea to a certain place in another county, and the defendant took upon himself to do accordingly, and that at a certain place in another county it was all destroyed for want of good keeping. The facts were found for the plaintiff. Sir, I think you will not give judgment, for an action on the case does not lie on the facts, because these facts sound entirely in covenant. An action on the case lies only where a thing is done badly, by an actual act. Likewise, here, the defendant undertook to carry the grain to a vill in a different county, and did not do so, and for this nonfeasance the plaintiff may have a writ of covenant, but not an action on the case. Even if the grain was destroyed in transit through the fault of the defendant, still no actual act is assigned him, and consequently there can be no action on the case.