The Humber Ferry Case

The case of Bukton v Tounesende (1348), better known as the Humber Ferry case, is a seminal case in the development of the law of contract. ohn Bukton paid !icholas Tounesende of "essle, ferr#man at a crossin$ on the %iver "umber, to carr# his mare over the river. Tounesende overloaded his boat with horses and the plaintiff&s mare was lost, presumabl# overboard. 's the common law then stood there was a t#pe of contract action( the action of covenant. But this applied onl# to failure to perform a$reements (and which were an#wa# re)uired to be under seal). Bukton could have tried to $et compensation in one of the local courts with their limited powers of compellin$ attendance and enforcin$ *ud$ments. But it so happened that the +in$&s Bench, which then still occasionall# travelled awa# from ,estminster, had arrived in -ork. The ro#al courts had developed the ver# effective action of trespass for wron$full# inflicted ph#sical harm, and whether to person, $oods or land. "owever the plaintiff in trespass had to alle$e and prove a breach of .the kin$&s peace&, a violation of law and order/ which could not be said of dama$e done b# a person to whom propert# had been entrusted. 0pportunisticall#, Bukton brou$ht his action before the +in$&s Bench, alle$in$ trespass. 1urprisin$l#, the ro#al court was willin$ to allow his action of trespass to appl# to the dama$e and loss caused b# the badl#2performed a$reement. This case is the first known such instance. 3n the succeedin$ #ears the new approach came $raduall# to be applied $enerall#, first to the ill2performance and then the non2performance of undertakin$s. The older and more restricted forms of action were superseded and the action of assumpsit, the basis of the modern law of contract, was born. But the Humber Ferry case has another e)uall# important aspect( the harm done was not directl# caused (.with force of arms& as trespass called for) but merel# ne$li$ent. -et the court seems not to have been concerned about this. 1o b# allowin$ accidental harm to be remediable in a trespass action, the# paved the wa# for the action on the case for ne$li$ence, and from that most of the modern law of tort was to evolve. The Humber Ferry case has not so far appeared in an# of the 1ociet#&s volumes. The chart indicates how the 1ociet# mi$ht publish it/ and more $enerall# shows how the 1ociet#&s editors $o about their task in editin$ a #ear book report, throu$h each sta$e from the ori$inal raw material to the finished product. ,e first see the #ear book report( in manuscript, in the earliest printed version, and in the last printed .4ul$ate& version of 1567. 8ach presents (var#in$l#) *ust the ver# bare facts but $ives the in2court e9chan$es between 1er*eant %ichmond and Baukwell on the point of law. (-ear book editors have to identif# amon$ the named speakers which is counsel and which is *ud$e.) ,e then confront these reports with the official record of the case from the +B roll, from which the parties& correct names and other details emer$e/ and also the *ur# verdict and the award of dama$es. :ast, there is the entr# in the %oll of ;ines relatin$ to the case. This shows that for his trespass the ferr#man had also to pa# a fine to the kin$, maintainin$ the fiction of breach of his peace. 8ach report or roll e9tract is photo$raphed from the ori$inal, and captioned, transcribed and translated, with the editor&s commentar#. Brief .before and after& summaries e9plain the si$nificance of the case. The chart measures 61 9 <6 cm. 3t was first produced in 178< as a memento for the 'merican Bar 'ssociation members who met in :ondon in that #ear. 3t has been out of print for some time but after man# en)uiries it has been decided to reprint it. The 1ociet# hopes that members will find it attractive as well as educative. =opies will be dispatched in a stron$ tube. The price to members, inclusive of surface dispatch cost, is 18 ($36). >lease complete the form below as applicable and return to the 1ecretar#. 22222222222222222222222222222222222222222222222222222222222222222222222222222222222222222222222222222222222222222222222222222222222222 T0( 1ecretar#, 1elden 1ociet#, 1chool of :aw, ?@A:, @ile 8nd %oad, :ondon 81 4!1, A+.

>lease send meBus one cop# of the "umber ;err# case chart.

C18 (D35) is enclosed.

>lease invoice meBus for one cop# of the "umber ;err# case chart, plus dispatch cost.

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