This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
During the thirteenth century the king's courts began to arrest the natural development of the common law by refusing to allow new writs to be framed for the purpose of meeting new cases as they arose. As we have seen already,1 this tendency characterizes all legal systems of primitive type. In a nation which is progressing in a social and economic development, an irrepressible conflict ensues between legal theories and the facts of life. A nation thoroughly alive will not remain fettered by a rigid system of law based on an obsolete theory of society. The extension of trade and commerce in England resulted in an increased demand for the recognition and enforcement of contracts at the very time that the king's courts by their hostile attitude toward the customs of the local courts were crushing out the jurisdictions which up to this time had been the means of enforcing contracts. Even in the courts that applied the law-merchant, the defense by oath, or compurgation, the so-called wager of law, was proving an obstacle to the development of trade. Belief came through legislation.2 Undoubtedly this legal reform originated with the king, Edward I, and its adoption by Parliament was due to his initiative. The Statute, 13 Edw. I, ch. 24, passed in 1284 A. D., is known from the place were Parliament convened as the Statute of Westminster second. Prom its characteristic words this section of the statute is known as in consimili casu. This section provides that "Whensoever from henceforth it shall fortune in chancery that in one case a writ is found, and in like case falling under like law and requiring like remedy is found none, the clerks of chancery shall agree in making the writ; or the plaintiffs may adjourn it until the next parliament, and let the cases be written in which they can not agree, and let them refer themselves (them) until the next parliament (and) by consent of men learned in the law a writ shall be made (let a writ be made) lest it might happen after that the court should long time fail to minister justice unto complainants." This statute marks a turning point in the history of English law. If the courts had refused to extend their jurisdiction by taking advantage of this statute, equity would have so developed as to overshadow common law. If the courts had promptly enforced the statute in the spirit in which it was passed, equity would have had but a limited field for its operations. As it was, the courts compromised. Slowly, and with evident reluctance, they took a partial and limited advantage of this statute; leaving equity room to develop side by side with the common law, and giving to posterity a system of law, split into two parts, which it is our business to weld into a whole.
1 Pollock ft Maitland, History of English Law (2d Ed.), Vol. II, 219. By the eighteenth century either action could he brought if a fixed earn was due on a sealed instrument; but owing to wager of law, covenant was preferred: Blackstone's Com., III, 154-156.
1 See Sec. 18, 47,1493 et seq.; Pollock ft Maitland, History of English Law (2d Ed.), Vol. II, 210, 211.
1 See Sec. 2.
2 This was only one means of development. Legal fictions and equity worked with legislation to keep the law abreast of national life.
3 Translation from English Statutes at Large, by Danby Pickering.