Definition
A historical common law procedural device. "Pass on the case" — more commonly shortened to "case" or "action on the case" — was a form of personal action ex delicto developed under the authority of the Statute of Westminster II (13 Edw. I, c. 24, 1285). It was designed to provide a remedy for civil wrongs that did not fit within the older, rigid forms of personal action available at common law. Where the existing writs — trespass, detinue, replevin, and the like — left an injury without a recognized remedy, the action on the case was fashioned to fill the gap.
The phrase "pass on the case" reflects the older pleading language for bringing such an action, understood as proceeding "upon the special facts of the case" rather than by resort to a fixed, formulaic writ. Courts and clerks, passing upon the particular circumstances presented, fashioned relief where the standard forms were silent.
As a research matter, the term is encountered almost exclusively in historical and procedural sources predating the merger of law and equity. Modern practitioners do not use it; modern researchers will encounter it only when working with early common law pleading materials, colonial or early American practice, or treatises explaining the roots of modern tort law.
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Common Language
Modern common usage (Wiktionary): "Pass on" in ordinary English means to decline, to transmit something to another, or to die. "Case" means an instance or matter under consideration. "Pass on the case" in common speech might suggest declining to hear a matter or handing it to someone else.
Historical common usage (Webster's 1913): "Pass" carried the meaning of moving through or beyond, deciding upon, or transmitting. "Case" could refer to a state of facts or a legal proceeding.
The gap here is significant. In ordinary usage, "pass on the case" reads most naturally as a judge declining jurisdiction or transferring a matter. In historical legal usage, the phrase describes the opposite of avoidance — it is the mechanism by which courts actively extended jurisdiction to reach novel injuries. The action was called "on the case" precisely because the court was passing upon the specific facts presented, not refusing to act.
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Common Confusion
"Pass on the case" and "trespass on the case" are closely related terms that researchers sometimes treat as synonymous and sometimes as distinct. They are in fact the same form of action referred to by slightly different shorthand. The full phrase was "trespass on the case" (or "action on the case"), with "pass on the case" appearing as an abbreviated variant in older pleading practice. Burrill's entry records the shortened form. Confusion also arises because the word "trespass" in modern usage describes a narrow tort (unlawful entry onto land), while the historical action of trespass on the case was a broad residual category covering a wide range of wrongs. Researchers moving between modern and historical sources must remain alert to this divergence.
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Why It Matters in Research
This term is a threshold concept for understanding the structure of pre-merger common law pleading and the origins of modern tort categories. Several points of navigational importance:
First, many modern torts — negligence, nuisance, deceit, defamation — have their procedural roots in the action on the case. When tracing the doctrinal history of any of these torts in early American or English sources, researchers will encounter "case" or "action on the case" as the procedural vehicle. Misreading these references as referring to a judicial decision or a declined matter will derail the research.
Second, the distinction between trespass (direct, immediate injury) and trespass on the case (indirect or consequential injury) was foundational to pleading before the merger. Many early appellate decisions turned entirely on which form was properly brought. A researcher evaluating historical holdings must understand that a ruling against the plaintiff on "case" grounds may have had nothing to do with the substantive merits and everything to do with whether the plaintiff chose the correct procedural form.
Third, the Statute of Westminster II is the originating authority, but the action was elaborated almost entirely through judicial practice. Historical dictionaries and treatise writers disagreed about the precise scope of the action, and that disagreement is preserved in the sources. What counts as a proper "case" versus a matter that belonged to an older form was litigated repeatedly.
Fourth, the Law of the Case doctrine (civpro_100) is a distinct and unrelated modern concept. Researchers who encounter "pass on the case" in historical materials should not conflate it with that modern procedural rule.
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Historical Dictionary Support
Burrill's entry correctly identifies "pass on the case" as a personal action ex delicto — that is, an action arising from a wrong, as opposed to a contract claim. Burrill's citation to Stephens' Commentaries (vol. 3) and Stephen on Pleading is standard for the period and points researchers toward the best secondary sources for elaboration. Burrill characterizes the action as "less ancient" than the other forms and as a remedy "invented" by the authority of Westminster II — language that accurately captures the judicial creativity involved. The action was not simply declared by statute; it was developed by common law courts using the statute as authorization.
What Burrill's entry does not capture is the full doctrinal significance: the action on the case became the seedbed of negligence law and several other modern tort categories. Historical dictionaries of Burrill's era tended to treat the term as a pleading classification rather than a substantive legal concept, which understates its long-term importance.
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Encyclopedia Cross-Reference
The Law Mind Civil Procedure & Evidence Encyclopedia — The Law of the Case Doctrine (civpro_100)
Note: This encyclopedia entry addresses the modern doctrine of the same name, which is procedurally and historically unrelated to "pass on the case" as a historical form of action. The cross-reference is included for disambiguation purposes only. Researchers should consult The Law Mind Torts & Personal Injury Encyclopedia — Professional Malpractice: Legal Malpractice Causation (torts_63) for context on how historical case forms shaped modern causation analysis.
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