as at the Side Bar; and custom may qualify and modify the acts they do in both places. But still they are emanations of judicial power, and whether they have more or less weight, they are acts done by the judge in the same capacity and character in which he sits here; and whether he is swearing an affidavit out of court, or pronouncing a solemn opinion in court, the reason of resenting the indignity is the same, and ubi cadem est ratio ibi idem est jus. An attachment for a libel upon a judge for what he does at Chambers does not proceed upon any principle analogous to the case of a libel upon a bailiff, but falls directly upon the principle of libelling the court, which is imputing to the king a breach of that oath, which he takes at the coronation, to administer justice to his people;' and a judge at his Chambers is as much in the administration of that justice as when he is in court, though his acts have not the same efficacy as the acts of the whole court."

Chief Justice Wilmot, in the foregoing passages, clearly distinguishes between attacking a judge for acts done by lim in the course of his duty as judge, and attacking him in reference to matters not pertaining to his official duties. What, then, was the object of the strictures upon Mr. Justice Darling? Not any exercise of judicial duty, but an assumption of the rôle of press censor—and that not on account of anything which had been done or was threatened, but because of a mere apprehension in the judge's own mind. In Reg v. Castro (Skipworth's case) L.R. 9, Q.B. 230, Blackburn J. had this distinction in his mind when he said :-"The phrase 'Contempt of Court' often misleads persons not lawyers, and causes them to misapprehend its meaning, and to suppose that a proceeding for Contempt of Court amounts to some process taken for the purpose of vindicating the personal dignity of the judges, and protecting them from

personal insults as individuals. Very often it happens that contempt is committed by a personal attack on a judge or an insult offered to him ; but as far as their dignity as individuals is concerned, it is of very subordinate importancecompared with the vindication of the dignity of the Court: itself."

In a case which was the subject of a special reference from the Bahama Islands to the Privy Council, and is. reported [1893] A.C. 138, a satirical criticism had been published of the Chief Justice, for which the Editor was. committed. The Privy Council reported:-" That the letter signed 'Colonist' in the Nassau Guardian, though it might have been the subject of proceedings for libel, was not, in the circumstances, calculated to obstruct or interfere with the course of justice or the due administration of the law, and therefore did not constitute a contempt of Court." And in a more recent case, McLeod v. St. Aubyn [1899] A.C. 561, the Privy Council lays it down that “The power summarily to commit for contempt of Court is considered necessary for the proper administration of justice. It is not to be used for the vindication of the judge as a person. He must resort to action for libel or criminal information. Committal for contempt of Court is a weapon to be used sparingly, and always with reference to the interests of the administration of justice. Hence when a trial has taken place and the case is over, the judge or the jury are given over to criticism."

G. D. KEOGH.

478

VIII.-ASSUMPSIT FOR USE AND OCCUPATION.*

IN

N an essay on the History of Assumpsit in the current volume of this REVIEW it is stated (p. 310) that Indebitatus Assumpsit for use and occupation was not allowed upon a quasi-contract, for special reasons connected with the nature of rent. To set forth briefly these reasons

is the object of this excursus.

It is instructive to compare a lease for years, reserving a rent, with a sale of goods. In both cases, debt was originally the exclusive action for the recovery of the amount due. In neither case was the duty to pay conceived of as arising from a contract in the modern sense of the term. Debt for goods sold was a grant. Debt for rent was a reservation. About the middle of the sixteenth century Assumpsit was allowed upon an express promise to pay a precedent debt for goods sold; and in 1603 it was decided by Slade's case that the buyer's words of agreement, which had before operated only as a grant, imported also a promise, so that the seller might, without more, sue in debt or Assumpsit, at his option.t

Neither of these steps was taken by the courts in the case of rent. There is but one reported case of a successful Indebitatus Assumpsit for rent before the Statute II Geo. II. c. 19, § 14; and in that case the reporter adds: “Note, there was not any exception taken, that the assumpsit is to pay a sum for rent; which is a real and special duty, as strong as upon a speciality; and in such case this action lies not, without some other special cause of promise."‡ This note is confirmed by several cases in which the plaintiff failed upon such a count as well where there was a

*

Reprinted by permission from Vol. II. of the Harvard Law Review [1889.]

+ Supra, p. 149.

Slack v. Bowsal (B. R. 1623), Cro. Jac. 668.

subsequent express promise* as where there was no such promise.†

The chief motive for making Assumpsit concurrent with Debt for goods sold was the desire to evade the defendant's wager of law. This motive was wanting in the case of rent, for in debt for rent, wager of law was not permitted.‡ Again, although Assumpsit was the only remedy against the executor of a buyer or borrower, the executor of a lessee was chargeable in debt. These two facts seem amply to explain the refusal of the courts to allow an Indebitatus Assumpsit for rent.

But although the landlord was not permitted to proceed upon an Indebitatus Assumpsit, he acquired, after a time, the right to sue in certain cases, in special assumpsit, as well as in debt. This innovation originated in the King's Bench, which, having no jurisdiction by original writ in cases of debt, was naturally inclined to extend the scope of trespass on the case, of which Assumpsit was a branch. At first this court attempted to justify itself by construing certain agreements as not creating a rent. For example, in Symcock v. Payn,§ the plaintiff declared that "in consideration that the plaintiff had let to the defendant certain land, the defendant promised to pay pro firma prædicta terræ at the year's end, £20." "All the court (absente Popham) held that the action was maintainable; for it is not a rent, but a sum in gross; for which he making a promise to pay it in consideration of the lease the action lies." This judg

* Green v. Harrington (C. B. 1619), 1 Roll. Ab. 8, pl. 5, Hob. 24, Hutt. 34 Brownl. 14, S. C.; Munday v. Baily (B. R. 1647), Al. 29, Anon. Sty. 53, s. c. Ayre v. Sils (B. R. 1648), Sty. 131; Shuttleworth v. Garrett (B. R. 1688), Comb. 151, per Holt, C. J.

+ Reade v. Johnson (C. B. 1591), Cro. El, 242, 1 Leon. 155, S. C.; Neck v. Gubb (B. R. 1617), 1 Vin. Ab, 271, pl. 1, 2; Brett v. Read (B. R. 1634), Cro. Car. 343, W. Jones, 329, S. C.

Reade v. Johnson, I Leɔn. 155; London v. Wood, 12 Mod. 669, 681.
Cro. El. 756, Winch. 15, s. C. cited (1621).

|| See also Neck v. Gubb (1617), 1 Vin. Ab. 271, pl. 3; Dartnal e. Morgan (1620), Cro. Jac. 598.

ment was reversed in the Exchequer Chamber in accordance with earlier and later cases in the Common Bench.*

case.

In the reign of Charles I. the rule was established in the King's Bench that Assumpsit would lie concurrently with Debt, if, at the time of the lease, the lessee expressly promised to pay the rent. Acton v. Symonds † (1634) was the decisive The count was upon the defendant's promise to pay the rent in consideration that the plaintiff would demise a house to him for three years at a rent of £25 per annum. The court (except Croke, J.) agreed that if a lease for years be made rendering rent, an action on the case lies not upon the contract, as it would upon a personal contract for sale of a horse or other goods, but where there is an assumpsit in fact, besides the contract on the lease, an action on this assumpsit is maintainable. In the report in Rolle's Abridgment it is said: "The action lay, because it appeared that it was intended by the parties that a lease should be made and a rent reserved, and for better security of payment thereof that the lessor should have his remedy by action of debt upon the reservation, or action upon this collateral promise at his election, and this being the intent at the beginning, the making of the lease though real would not toll this collateral promise, as a man may covenant to accept a lease at a certain rent and to pay the rent according to the reservation, for they are two things, and so the promise of payment is a thing collateral to the reservation, which will continue though the lessee assign over." This doctrine was repeatedly recognised in the King's Bench; it was adopted in the * Clerk v. Palady (1598), Cro. El. 859; White v. Shorte (1614), 1 Roll Ab. 7, pl. 4; Ablain's Case (1621), Winch, 15.

+ W. Jones, 364, Cro. Car. 414, 1 Roll. Ab. 8, pl. 10, s. c.

Potter v. Fletcher (1633), 1 Roll. Ab. 8, pl. 7; Rowncevall v. Lane (1633), 1 Roll. Ab. 8, pl. 8; Luther v. Malyn (1638), 1 Roll. Ab. 9, pl. 11; Note (1653), Sty. 400; Lance v. Blackman (1655), Sty. 463; How v. Norton (1666), 1 Sid, 279; 2 Keb. 8, 1 Lev. 279, s. c、; Chapman v. Southwick (1667), 1 Lev. 204, 1 Sid. 323, 2 Keb. 182, S. C.; Freeman v. Bowman (1667), 2 Keb. 291;