estate for the life of himself or another, or of some greater estate, in land in the united kingdom of the yearly value of not less than two hundred pounds; or

(c) He shall be the heir apparent of some person who is in possession for his own benefit of such an estate as above mentioned; or

(d) He shall be possessed or entitled, at law or in equity, in possession for his own benefit, for the life of himself or another, or for some greater interest, of or to a clear yearly income arising from personal estate within the united kingdom of not less amount than the yearly value of an estate in land above mentioned; and the clear yearly income arising from any such personal estate shall be admitted in whole or in part of a qualification arising from the possession of an estate in land.

The clerk of general meetings of Lieutenancy causes to be published in the London Gazette the names of the persons. appointed Deputy-Lieutenants with the dates of their commissions. If any person acts as Deputy-Lieutenant without being duly qualified, he is liable to forfeit the sum of £200, but his acts shall nevertheless be deemed valid. LordsLieutenant and Deputy-Lieutenants when acting in the execution of the Militia Acts are protected with regard to notice of action, venue, tender of amends, and payment into court, and other matters, as if they were justices of the、 peace.

It will be observed that owing to the above-mentioned Act of 1871, the position, duty, and responsibility of a LordLieutenant, and by inference of his Deputy-Lieutenants, has been so considerably altered that the office is little more than honorary. The Lord-Lieutenant is generally appointed the Custos Rotulorum of the county, but of course the duties and appointments are wholly distinct; the latter being the first civil officer of the county, while the Lord-Lieutenant is the first military officer of the county. County magistrates are

usually made on the recommendation of the Lord-Lieutenant, but this is merely a matter of courtesy. There is a LordLieutenant for each of the Ridings of the county of York. The City of London has a commission of Lieutenancy, and is a separate county for purposes of the Militia, and the Commissioners of Lieutenancy are the Lieutenant of the county of the City of London. The qualifications above mentioned with regard to Deputy-Lieutenants do not apply to the City of London. The Lord Mayor is the head of the city

lieutenancy.

The appointment of Lord-Lieutenant is rarely bestowed upon any but a supporter of the Minister of the day, and the office is held during pleasure. Yet it is not the practice to change Lords-Lieutenant with every change of ministry; nevertheless, there have been instances in which what was deemed unwarrantable political opposition to an administration on the part of a Lord-Lieutenant has led to his dismissal.

The office of Lord-Lieutenant is presumably the highest in each county; and, therefore, he takes precedence of the Sheriff, although this is a point on which at times there is a good deal of controversy. The question of precedence as between the Lord-Lieutenant and Sheriff was dealt with at great length, and in a most able manner by Mr. Davenport, under-sheriff of Oxford, in a paper which was printed in the appendix to the Report of the Select Committee on Sheriffs which sat in 1888. The following extract from the Report will be of interest to our readers :

"It may be interesting to refer to the social status of the HighSheriff. Ancient learned text-writers, including Blackstone, have asserted not only that the Sheriff as keeper of the Queen's peace, both by common law and special commission, is the first man in the county,' but also that he is superior in rank to any nobleman therein.' From this it has frequently been presumed that the HighSheriff gained precedence within his own county over dukes and all ranks of the peerage, including the Lord-Lieutenant of the county.

General favour was accredited for such a view of the Sheriff's precedence by the late Mr. Disraeli, afterwards Earl of Beaconsfield, having stated in his book Lothair, 'There is no doubt that, in the county, the High-Sheriff takes precedence of every one, even the Lord-Lieutenant' (vol. ii. p. 78). But with all deference to such an authority as the late Prime Minister, it is an established fact, recognized by the late Garter King at Arms, Sir Charles Young, that the Lord-Lieutenant, as locum tenens of the Sovereign, has precedence of every one in the county, and that the High-Sheriff does not, under any circumstances, precede the Lord-Lieutenant, nor socially take precedence of any peer. The fact that the Sheriff presides at a county meeting involves no question of precedence, because the Sheriff having convened the freeholders of his county, who owe suit and service at his County Court, necessarily presides over them. Sir Bernard Burke also says (Reminiscences, 1884), 'Neither the LordLieutenant of a county nor the High-Sheriff is assigned any place in the scale of precedence, and, consequently, neither derives any social precedence from the office he holds. A particular place on the scale of precedence is an honour derived from the Crown, or Parliament, or confirmed by authorized usage, and can no more be interfered with than the right to the dignity of a peerage which a royal patent has conferred. Between the two, the Lord-Lieutenant of a county, and the High-Sheriff, the higher local position appertains, I think, to the Lord-Lieutenant of a county.'

"The meaning of the quotation from Blackstone depends upon the construction of the word 'nobleman.' The view favouring the Sheriff's precedence was derived from the dictum of Chief Justice Coke, in the case of Chune v. Pyot (Sheriff of London), Rolle's Report, i. 237, in which the Chief Justice said: 'Anciently it was the Earls who exercised this office of sheriff, and then they held the office as long as they wished; but afterwards, when estates for life and of inheritance were granted, shrievalties were granted, and sheriffs have the same power the ancient earls had, of which dignity there were some relics to that day, for instance, the "White Wand;" and the patent of the grant of this office is in these words, Commisimus vobis custodiam comitatus; and the sheriff takes precedence of every nobleman during office (il prist le lieu de chescun noble home durant l'office). But the truth is, that the expression noble home, when used by the Chief Justice in James the First's reign (1616), implied nothing more than that the sheriff was the head of the

commonalty of the county; because, at that time, the term 'nobleman' was not confined to the peerage, but applied to knights and gentlemen below the peerage. This is proved by the following sentence in Camden's History of Elizabeth (3rd edition, page 29), under the date of 1559: 'Cuthbert Scot, of Chester, Richard Pate, of Worcester, and Thomas Goldwell, of St. Asaph, voluntarily departed the land, and also certain nuns, as did likewise afterwards some noblemen; of whom those of better note were Henry Lord Morley, Sir Francis Inglefield, Sir Robert Peckham, Sir Thomas Shelley, and Sir John Gage.' And it is further proved by Coke's own interpretation of the word 'nobleman' in his note (2nd Institute, page 583), upon a passage in the Statute 35, Edward I., in which note Coke says: Knights of the Shire and other gentlemen of the House of Commons are included under these words, aliorum nobilium; for Nobilitas est duplex, superior et inferior. Superior belongeth to the Lords of Parliament, and inferior to knights and gentlemen of name and blood, who are in this Act termed nobiles."

6

Atkinson, in his work on Sheriffs, observes that "he still retains a great part of his primary dignity, as may be seen partly from this, namely, that he has a right of precedence within his county of every nobleman during the time that he is in office." Churchill, on the same subject, says, "The Sheriff occupied very much the position of the king's steward in his own county, and at this day the Sheriff takes precedence of every nobleman in the county during his tenure of office and is a grand conservator of the peace."

Nevertheless, on the authorities so fully set out by Mr. Davenport, it would seem that the Lord-Lieutenant and not the Sheriff is the first man in the county.

SHERSTON BAKER.

290

IV. THE HISTORY OF ASSUMPSIT.*

NOT

(Continued from p. 153.)

II. IMPLIED ASSUMPSIT.

OTHING impresses the student of the Common Law more than its extraordinary conservatism. The reader will easily call to mind numerous rules in the law of Real Property and Pleading which illustrate the persistency of archaic reverence for form and of scholastic methods of interpretation. But these same characteristics will be found in almost any branch of the law by one who carries his investigations as far back as the beginning of the seventeenth century. The history of Assumpsit, for example, although the fact seems to have escaped general observation, furnishes a convincing illustration of the vitality of medieval conceptions.

We have had occasion, in the preceding part of this paper, to see that an express assumpsit was for a long time essential in the actions of tort against surgeons or carpenters, and bailees. It also appeared that in the action of tort for a false warranty, the vendor's affirmation as to quality or title was not admissible, before the time of Lord Holt, as a substitute for an express undertaking. We are quite prepared, therefore, to find that the action of Assumpsit proper was, for generations, maintainable only upon an express promise. Furthermore, Assumpsit would not lie in certain cases, even though there were an express promise. For example, a defendant who promised to pay a sum certain in exchange for a quid pro quo was, before Slade's case,† chargeable only in Debt unless he made a second promise to pay the debt.

* Reprinted by permission from vol. ii. of the Harvard Law Review [1888]. The author has enlarged the notes in a few instances. These additions are

enclosed in brackets.

† 4 Rep. 92 a.