But that which, perhaps, more frequently calls up a feeling of pain and humiliation in the barrister, is that for which he is not at all responsible; namely, the nature of those legal weapons the employment of which his client has a right to demand of him. The rules of pleading and of evidence have been lately much simplified and improved, and they will, year after year, be still further improved; but they still furnish the willing or the unwilling advocate with abundant obstructions to the fair investigation of truth. Speaking of pleading, Mr Warren has very truly said, in a passage we have already quoted—"It is continually a matter of serious difficulty to refer a particular combination of facts to their appropriate legal category; and, if the wrong one should be selected, substantial justice is sacrificed before arbitrary legal technicality." A glance at these "legal categories" will fully bear out the statement which our author has here so temperately made. Let us open the justly lauded book of Mr Stephen, "On the Principles of Pleading"—a work which every man, lawyer or not, who receives a gratification from clear and logical statements, may take pleasure in perusing. We extract the following account of personal actions:—
"Of personal actions, the most common are the following—Debt, covenant, detinue, trespass, trespass on the case, replevin.
"The action of debt lies where a party claims the recovery of a debt, i. e. a liquidated or certain sum of money alleged to be due to him.
"The action of covenant lies where a party claims damages for a breach of covenant, i. e. of a promise under seal.
"The action of detinue lies where the party claims the specific recovery of goods and chattels, or deeds and writings detained from him.
"The action of trespass lies where a party claims damages for a trespass against him. A trespass is an injury committed with violence."
Having described these, the author comes to one which requires to have its history told before it can be rendered intelligible. This is still not unfrequently the case in our law; instead of a definition founded on the nature of things, and growing out of the science itself of jurisprudence, we are presented with a narrative to tell us how the matter came about.
"The action of trespass on the case lies where a party sues for damages for any wrong or cause of complaint to which covenant or trespass will not apply. This action originated in the power given by the statute of Westminster 2, to the clerks of the chancery to frame new writs in consimili casu with writs already known.... Such being the nature of the action, it comprises, of course, many different species. There are two, however, of more frequent use than any other species of trespass on the case, or, perhaps than any other form of action whatever. These are Assumpsit and Trover.
"The action of assumpsit lies where a party claims damages for breach of simple contract, i. e. a promise not under seal."
The action of trover differs from detinue inasmuch as the party claims damages, not the recovery of the identical goods and chattels. With the action of replevin we will not trouble our readers, to whom we ought, perhaps, to apologise for entering thus far into legal technicalities.