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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 crystalized 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

acknowledged 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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