Odger's English Common Law

LEGAL FICTIONS. 55
contain decisions in which are formulated most of the great
principles of our English law ; they are a mine in which all
who study our laws must bore with increasing energy, and in
which they will find many a vein of pure gold embedded in
much useless quartz.
As civilisation advanced, new causes of action arose, which
our judges at first readily welcomed and found a place for in
the existing legal system. By the Statute of Westminster II. 1
the clerks of the "Chancery" (which was the secretarial
department of the King's Court) were expressly bidden to
issue a writ in a new form, whenever a new cause of action
was similar (in consimili casu) to any old one recorded among
their forms. Under the powers conferred by this statute
there sprang into existence a great variety of new actions,
technically known as "actions on the case." All actions of
contract, except debt and covenant, and many actions of tort,
where there was no direct physical trespass, owe their origin
to the elasticity with which this new remedy was applied by
the judges.
But later on other new causes of action arose which were
not similar to any of the old ones ; and there was no formula
which could be legitimately strained to cover these. The
only method by which they could be brought within the
ambit of the Courts of law was by means of those ingenious
devices which were known as "legal fictions." A legal
fiction has been defined by Sir Henry Maine as "a false
averment on the part of the plaintiff which the defendant
was not allowed to traverse." 2 By means of such fictitious
averments a place was found for causes of action which were
wholly unknown to the earlier law. Such subtlety was
necessary because there existed among the older lawyers too
great a reverence for the law, as they had received it, to
admit of its being openly disregarded.
At last in the sixteenth century the importance of British
1 1285, 13 Edw. I., c. 31. Tb3 words of the Statute are "as often as it shall
happen in Chancery that in one sase a writ is found, and in a like case falling
under the same right and requiring like remedy, no writ is found, the clerks in
Chancery shall agree in making a writ."
2 Ancient Law, 1906 ed., p. 30.