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. John Bukton paid Nicholas Tounesende of Hessle, ferryman at a crossing on the River Humber, to carry his mare over the river. Tounesende overloaded his boat with horses and the plaintiff’s mare was lost, presumably overboard.
As the common law then stood there was a type of contract action: the action of covenant. But this applied only to failure to perform agreements (and which were anyway required to be under seal). Bukton could have tried to get compensation in one of the local courts with their limited powers of compelling attendance and enforcing judgments. But it so happened that the King’s Bench, which then still occasionally travelled away from Westminster, had arrived in York. The royal courts had developed the very effective action of trespass for wrongfully inflicted physical harm, and whether to person, goods or land. However the plaintiff in trespass had to allege and prove a breach of ‘the king’s peace’, a violation of law and order; which could not be said of damage done by a person to whom property had been entrusted.
Opportunistically, Bukton brought his action before the King’s Bench, alleging trespass. Surprisingly, the royal court was willing to allow his action of trespass to apply to the damage and loss caused by the badly-performed agreement. This case is the first known such instance.
In the succeeding years the new approach came gradually to be applied generally, first to the ill-performance and then the non-performance of undertakings. The older and more restricted forms of action were superseded and the action of assumpsit, the basis of the modern law of contract, was born.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 equally important aspect: the harm done was not directly caused (‘with force of arms’ as trespass called for) but merely negligent. Yet the court seems not to have been concerned about this. So by allowing accidental harm to be remediable in a trespass action, they paved the way for the action on the case for negligence, and from that most of the modern law of tort was to evolve.
The Humber Ferry case has not so far appeared in any of the Society’s volumes. The chart indicates how the Society might publish it; and more generally shows how the Society’s editors go about their task in editing a year book report, through each stage from the original raw material to the finished product. We first see the year book report: in manuscript, in the earliest printed version, and in the last printed ‘Vulgate’ version of 1679. Each presents (varyingly) just the very bare facts but gives the in-court exchanges between Serjeant Richmond and Baukwell J on the point of law. (Year book editors have to identify among the named speakers which is counsel and which is judge.) We then confront these reports with the official record of the case from the KB roll, from which the parties’ correct names and other details emerge; and also the jury verdict and the award of damages. Last, there is the entry in the Roll of Fines relating to the case. This shows that for his trespass the ferryman had also to pay a fine to the king, maintaining the fiction of breach of his peace.
Each report or roll extract is photographed from the original, and captioned, transcribed and translated, with the editor’s commentary. Brief ‘before and after’ summaries explain the significance of the case.
The chart measures 71 x 57 cm. It was first produced in 1985 as a memento for the American Bar Association members who met in London in that year. It has been out of print for some time but after many enquiries it has been decided to reprint it. The Society hopes that members will find it attractive as well as educative.
Copies will be dispatched in a strong tube. The price to members, inclusive of surface dispatch cost, is £18 ($36). Please complete the form below as applicable and return to the Secretary.
TO: Secretary, Selden Society, School of Law, QMUL, Mile End Road, London E1 4NS, UK.
□ Please send me/us one copy of the Humber Ferry case chart. £18 ($36) is enclosed.
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