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Waiver of Tort and Suit in Assumpsit, 19 Yale Law Journal 221 (1910)


This subject has already been developed exhaustively and with great accuracy. Yet it is a subject in which there has always been great confusion of thought, and the decisions are in hopeless conflict. This is due to the fact that the substantive principles of the common law were developed as mere incidents to forms of action and procedure. The common law system of procedure afforded no remedy in many cases where common notions of justice acknowledged the existence of a right. The system, therefore, had to change, as it ever must continue to change. Before the modes and forms of procedure had crystallized into a system, these changes were easy. The king's courts could make new law by authority of the king. But the kings grew weak and the system of procedure grew stiff. Changes in it grew hard, and many acknowledge rights were without a remedy. New remedies must be invented for these rights, or old remedies must be expanded to include them. The latter alternative was easier because it involved less appearance of innovation. The greatest single step in applying it was the Statute of Westminister II, when Edward I and his law-givers authorized the granting of writs in consimili casu.

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