We apprehend that the reason why the principles under lying the common-law actions are of permanent worth is to be found in the fact that those principles are indissolubly associated with fundamental conceptions of legal liability. It is true that the forms of action are the vestments or trap pings of substantive rights of action. But they are more than this. Historically they are the vehicle in which substantive principle has been conveyed to the teachable mind, and such conceptions of fundamental liability as those actions were capable of conveying are the conceptions which have been accepted in our law.
Under the system of common-law pleading, lawyers and judges were compelled to do exact thinking. In choosing the form of action in framing the pleadings, as well as in the instruction of Juries, and even in the rendition of the judg ment, it was necessary in each case to anatomize the cause of action in order to ascertain the exact nature of the legal liability upon which the suit was based. Each particular species of liability had, or was supposed to have, its peculiar and appropriate remedy. A mistake in the diagnosis of the nature of the liability would lead to the adoption of the wrong form of action, and this at a later stage would certainly lead to a wreck of that particular lawsuit and perhaps to a loss of the right of action itself. Every cause of action was therefore certain under the common-law system to be sub jected, at one stage or another, to the closest scrutiny to ascertain the exact nature of the liability involved. The dis cassions to which this gave rise tended vastly to elucidate the principles underlying our law, and they form one of the richest elements in our court decisions.
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Publisher - Forgotten Books
Language - English
Author(s) - Thomas Atkins Street
Published Date - August 27 2019
ISBN - 9780266154402
Dimensions - 22.9 x 15.2 x 3.4 cm
Page Count - 588
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