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me at a certain day, or to keep safe for me; Or another deliver money to him by the command of a third person to my use, and it be not payd me, I may have this Action." Under the title, "Account," this abridger also reiterates the now trite law. 34

The names given by the pleader in the seventeenth century to distinguish the two varieties of the action on the case, have reference to the different principles of substantive law underlying each respectively and these technical terms must be clearly distinguished before an attempt is made to trace the actions brought by the beneficiary during the seventeenth and following centuries. If a seventeenth century pleader sought to enforce an accountability or debt created for the benefit of the plaintiff by an action on the case he took for his guidance the rule in Slade's case, and in his declaration set forth first, that there was a debt and, second, that the defendant thereupon promised to pay it. The familiar Latin words of the declaration, describing how the defendant, being a debtor (indebitatus), thereupon subsequently made a promise (assumpsit) furnished a short and appropriate nickname for this species of the action of the caseindebitatus assumpsit, often for brevity reduced to the colloquial, indebitatus. Thus the pleader's slang pointed out that the substantive law of the contract of debt underlaid the contract, which he sought to enforce by the machinery of an action on the case. With equal deference to substantive law the writ of case, when employed to enforce a simple contract other than a debt, retained, in the seventeenth century, the long familiar name of assumpsit. Sometimes this latter species of the Action on the Case is called "Action on the Case upon a special promise," and sometimes "Special Assumpsit."

Sir Matthew Hale was born in 1609-seven years after Slade's case was decided, and he died the year the Statute of Frauds was passed. His decision in 1669 that debt will not lie by the indorsee against the acceptor of a bill 35 is most

33

Sheppard's Abridgment Title Debt, 531.

24

Ib. Title Accompt, 13, citing Clark's case, Godbolt, 210. "Milton's Case, Hardres, 485 (1669).

instructive. Two years later he delivered an opinion "that the bare acceptance of a Bill of Exchange makes no Debtor; but if B receives money of A and A draws a Bill on him to C in this case Indebitatus lieth by A or C not on the Bill of Exchange but on the other circumstances of coming to his use for the plaintiff." "The court conceived an Indebitatus will not lie on a Bill of Exchange unless money be delivered to pay over, for then the Indebitatus is grounded on the lending, not on the Bill of Exchange.36

At the close of the seventeenth century three distinct forms of contractual liability were recognized in the English law of simple contracts-Debt, Accountability and Assumpsit. All depended upon consent, but actual privity of the plaintiff was not essential in the case of Accountability and Debt.

There were many legitimate children of the action of Debt and they were all called Indebitatus Assumpsits.

There is a legitimate child of every Indebitatus Assumpsit and each is known as a common count. Professor Ames has clearly set forth this pedigree in general,37 and nothing remains to be done but to note the descent of the right of action of the beneficiary.

A common count, therefore, based on an Accountability and Debt arising from the transfer of money to the defendant by the hand of another for the plaintiff's benefit with the duty of paying him a sum certain, is not a bastard.

Nor should a common count based upon an Accountability and Debt arising from the transfer of chattels or realty to the defendant by the hand of another for the plaintiff's benefit bear to-day in English courts a bar sinister.

Both these counts are the legitimate grandchildren of Debt and not nameless foundlings discovered on the steps. of Westminster Hall.

"Brown v. London, 2 Keble, 695, 713, 758, 822; S. C., 1 Vent. 152. In the latter report of the case Ventris says: "But they said, if A delivers money to B to pay to C and gives C a Bill of Exchange upon B, and B accepts the Bill and doth not pay it, C may bring an indebitatus assumpsit against B as having received money to his use."

"II H. L. R, 57, 58

THE COURTS FROM THE REVOLUTION TO THE

REVISION OF THE CIVIL CODE.

The Revolution at first caused the utmost confusion in the administration of justice in Pennsylvania. At the beginning of the conflict the influential and conservative element in the province while opposed to the measures of parliament were exceedingly adverse to the idea of a separation from Great Britain. The grievances of the Pennsylvanians were not as great as those of the New England colonists; they had a liberal charter and a satisfactory system of local government, while the proprietary family stood between them and the crown to soften controversies and prevent conflicts of authority; they earnestly hoped for reconciliation and were carried on the tide of revolution sorely against their wills. To accelerate the movement and to get rid of the conservatives, a bold minority, with the moral support of Congress, organized and carried through a revolution in the government of Pennsylvania. A convention called in July, 1776, and presided over by Franklin, drew up a new constitution, which, after considerable opposition, was declared to have been adopted, Penn's charter was discarded, the proprietary government ceased to exist, the old officials and assembly retired and new men took their places.

The Constitution of 1776 was not a satisfactory instrument and was discarded after a fourteen years' trial, but some of its features are worthy of notice. The executive power was vested in a supreme executive council composed of twelve members, one from the city of Philadelphia and eleven from the respective counties. The term of office was three years, and the president and vice-president were chosen from the council by joint ballot of the assembly and council. The president and council were empowered to choose and commission all judges and other officers and fill

[88]

vacancies. Every officer of the State was subject to impeachment by the Assembly, the impeachments to be heard before the president and council. The principal judiciary clauses were as follows:

"Section 23. The judges of the supreme court of judicature shall have fixed salaries, be commissioned for seven years only, though capable of reappointment at the end of that term, but removable for misbehaviour at any time by the general assembly; they shall not be allowed to sit as members in the continental congress, executive council or general assembly, nor to hold any other office, civil or military, nor take or receive fees or perquisites of any kind.

Sec. 25. Trials shall be by jury as heretofore, and it is recommended to the legislature of this state to provide by law against every corruption or partiality in the choice, return or appointment of juries.

Sec. 26. Courts of sessions, common pleas and orphans' courts shall be held quarterly in each city and county, and the legislature shall have power to establish all such other courts as they may judge for the good of the inhabitants of the state; all courts shall be open, and justice shall be impartially administered without corruption or unnecessary delay: All their officers shall be paid an adequate but moderate compensation for their services, and if any officer shall take greater or other fees than the laws allow him, either directly or indirectly, it shall ever after disqualify him from holding any office in this state.

Sec. 27. All prosecutions shall commence in the name and by the authority of the freemen of the commonwealth of Pennsylvania, and all indictments shall conclude with these words-against the peace and dignity of the same. The stile of all process hereafter in this state shall be The commonwealth of Pennsylvania."

The office of justice of the peace was made elective, the voters of the respective districts to choose two, one of whom was to be commissioned by the president for the term of seven years.

A peculiar feature of the constitution was the provision for the election every seven years of a council of censors who were to meet and inquire whether the constitution had been preserved inviolate, whether the laws were duly executed, and, if there appeared any necessity to amend the constitution, to call a convention for that purpose. While these changes were in progress and while most of the active citizens were engaged in war or political strife, the administration of justice was sadly neglected. The supreme court was closed during 1776, not to resume its sittings until the new court took office in August, 1777.

By an act of January 28, 1777, passed for the purpose of putting into effect such and so much of the laws of the province as were necessary in the commonwealth, it was provided, that the courts of quarter sessions and gaol delivery, petty sessions, common pleas, orphans' courts, supreme court, courts of oyer and terminer and general gaol delivery should be held and kept in each respective county at the times and places appointed by law with all the powers, authority and jurisdiction which by law such justices and judges theretofore had had and exercised and such as were given by the constitution. It was further provided that the president and council should appoint one justice in each county to preside in the respective courts and in his absence the justices who should attend were to choose a president. All actions in the provincial courts were continued in the same state as if the authority of such courts had never ceased.

The chief justice of the new supreme court was Thomas McKean, a signer of the Declaration of Independence and one of the most active of the patriot party. The associate justices were William A. Atlee and John Evans. The suspension of the courts caused considerable inconvenience and letters and petitions complaining of the prevailing conditions were presented to the council.2 In the counties the same trouble was had with regard to the justices, many of whom were away, or unwilling to act in the unsettled state of affairs; in some parts of the state the local committees of safety assumed judicial power and took cognizance of minor crimes, for example a case involving horse stealing was tried by the committee for Northumberland County in 1777

The first session of the common pleas, at Philadelphia, when the style and process was altered from king to commonwealth, was held in September, 1777, when six at

'IX Stat. at Large, 29.

VI Pa. Arch. (1st Series) 228, 245, 294; VII Pa. Arch. (1st Series), 72; IX Col. Rec., 214, 260.