The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface to the Fifth Edition
• Table of Mediaeval Cases
• Table of Modern Cases N.b. the Report References, Which Appeared In This Table In Earlier Editions, Will Be Found Incorporated In the Footnotes In the Text.
• Table of Laws and Statutes
• A Concise History of the Common Law
• Book One: a General Survey of Legal History
• Part 1: The Crown and the State
• Summary
• Chapter 1: The Anglo-saxon Period: Races and Religion
• Chapter 2: The Conquest to Henry II: The Beginnings of Administration
• Chapter 3: The Great Charters: Law Separates From Administration
• Chapter 4: Edward I to Richard II: Statutes and Social Revolution
• Chapter 5: The Fifteenth Century: the Problem of Enforcement
• Chapter 6: The Tudors: Renaissance, Reformation and Reception
• Chapter 7: The Stuarts: Struggle For the Supremacy of Law
• Chapter 8: The Eighteenth Century: Industrial Revolution
• Chapter 9: The Nineteenth Century: Liberalism and Reform
• Part 2: The Courts and the Profession
• Summary
• Chapter 1: The Communal Courts
• Chapter 2: Seignorial Jurisdiction
• Chapter 3: The Crown and Local Courts
• Chapter 4: The Jury
• Chapter 5: The Origins of the Central Courts
• Chapter 6: The Elaboration of the Judicial System: 1307-1509
• Chapter 7: The Tudors and the Common Law Courts
• Chapter 8: The Rise of the Prerogative Courts
• Chapter 9: Prerogative, Equity and Law Under the Stuarts
• Chapter 10: Parliament and the Privy Council
• Chapter 11: The Courts In the Nineteenth Century
• Chapter 12: The Legal Profession
• Chapter 13: The Growth of the Judiciary
• Chapter 14: Professional Literature
• Part 3: Some Factors In Legal History
• Summary
• Chapter 1: The Civil Law of Rome
• Chapter 2: The Canon Law of the Church
• Chapter 3: Custom
• Chapter 4: Legislation
• Chapter 5: The Principle of Precedent
• Book Two: Special Part
• Part 1: Procedure
• Summary
• Chapter 1: The Forms of Action
• Chapter 2: Civil Procedure
• Chapter 3: Pleading
• Part 2: Crime and Tort
• Summary
• Chapter 1: Criminal Procedure
• Chapter 2: The Felonies
• Chapter 3: Misdemeanours, Trespass and Tort
• Chapter 4: Liability, Civil and Criminal
• Chapter 5: Defamation
• Part 3: Real Property
• Summary
• Chapter 1: Feudalism
• Chapter 2: Feudalism In England
• Chapter 3: Inheritance and Alienability
• Chapter 4: Tenures and Incidents
• Chapter 5: The Rise of the Entail
• Chapter 6: The Common Law Estates Down to 1540
• Chapter 7: Uses and the Statute
• Chapter 8: The Later Law of Real Property
• Chapter 9: The Mortgage
• Chapter 10: Conveyances
• Part 4: Contract
• Summary
• Chapter 1: Origins
• Chapter 2: The Fourteenth Century
• Chapter 3: Assumpsit to Slade’s Case
• Chapter 4: Contract After Slade’s Case
• Chapter 5: Law Merchant and Admiralty
• Part 5: Equity
• Summary
• Chapter 1: The Early History of Equity
• Chapter 2: The Formative Period
• Chapter 3: The Work of the Chancellors
• Part 6: Succession
• Summary
• Chapter 1: Inheritance
• Chapter 2: Intestacy
• Chapter 3: Wills

CHAPTER 1

THE FORMS OF ACTION

The forms of action are in themselves a proof that the King’s Court only intended to intervene occasionally in the disputes of his subjects. It was no doubt possible to argue with perfect justice that the country was well provided with competent courts for all ordinary purposes, and that the King’s Court was only concerned with matters of state and matters of special difficulty which could not be otherwise determined. A few classes of cases with which the King’s Court concerned itself were therefore most naturally treated along formulary lines. They constituted one or two of the several routines of government which the administration had developed, and in order to handle them more easily it was a simple device to standardise the forms which were used. As long as this condition of things lasted a formulary procedure was clearly an advantage, and for a while it may have limited the activities of the administration and prevented them from overstepping the proper boundaries of their jurisdiction.

THE RELATION OF WRIT AND REMEDY

Whenever it became necessary to enlarge the scope of the King’s Court, the change could be effected simply by the invention of a new set of forms, and so the early development of the jurisdiction of the King’s Court very closely resembles the enlargement of the sphere of an administrative body by means of the invention of new administrative routines. Once the habit was formed, future development for a long time seemed simple. Glanvill had described a royal court which had very little interest in enlarging its jurisdiction beyond certain matters. Two generations later Bracton described this same court and shows us how greatly it had elaborated its machinery; indeed, Bracton was even ready to contemplate an indefinite expansion of the common law in virtue of which the King’s Court was to administer a law as rich in its variety and as wide in its extent as the Roman law itself. The means whereby such a prodigious expansion was to be effected (and indeed had already been begun) was the invention of new forms of action; many new forms were invented by Bracton’s hero Raleigh, and Bracton had no hesitation in saying that there will be as many forms of action as there are causes of action. “There ought to be a remedy for every wrong; if some new wrong be perpetrated then a new writ may be invented to meet it.”1 This was a bold programme. It contemplated special sets of forms through which the King’s Court would exercise general jurisdiction and afford a remedy for every wrong. One would expect that so ambitious a scheme would emanate from some great monarch such as Henry II, and in truth he may have taken the first steps in that direction; but it was under the comparatively weak rule of Henry III that the greatest progress was made—and here we have a striking example of the way in which organisations such as the King’s Court and Council could do effective and even constructive work although their nominal head was undistinguished. The secret seems to lie in a little group of lawyers whom we can only see, at this distance of time, in the appreciative pages of Bracton. As Maitland has observed, this formulary system is distinctively English,—

THE BEGINNINGS OF ROYAL INTERVENTION

It was, of course, civil business—common pleas—which was most susceptible of this treatment; pleas of the Crown, which at this time were mainly criminal, had already been provided with a different machinery necessarily based upon the system of local government. Of these civil pleas, then, those which first received the attention of the King’s Court were pleas of land. Reasons of state demanded that the Crown through its court should have a firm control of the land; the common law, therefore, was first the law of land before it could become the law of the land. But here, too, it was possible to argue that the existing local jurisdictions, communal and seignorial, were numerous enough and competent enough to administer real property law. In a sense this was true. Each landowner could litigate concerning his land in the court of his feudal lord; if, as often happened, it was part of the dispute who was the feudal lord (such as when A claims to hold a piece of land of X while his adversary B claims to hold it of Y), then recourse was had to the lord who had feudal jurisdiction over both X and Y, and in this way such litigation would very likely come before the court of the King himself. Again, it may be that there were practical difficulties; the feudal court may be weak or partial, and then, too, recourse will be had to a higher court. Frequently it seems that a writ from the King will facilitate matters in seignorial courts, and the Crown at an early date would issue sharp admonitions commanding feudal lords to do immediate justice or else to explain their action in the King’s Court. Such intervention was at first of a political or administrative character. The King used his influence, sometimes in the form of a threat, to set his vassal’s judicial machinery in motion. For this there was Anglo-Saxon precedent,1 and the early Anglo-Norman writ is undoubtedly continuous with the Anglo-Saxon writ (and here it must be remembered that the word “writ”, in Latin breve, means nothing more than a formal letter of a business character; it does not necessarily imply either a court or court procedure).2

THE NATURE OF THE EARLIEST WRITS

Some of the earliest of our writs, therefore, are not, strictly speaking, documents directly instituting litigation. They are in form administrative commands to an alleged wrongdoer or to some inferior jurisdiction to do justice in a particular matter in such wise that the King shall no more hear complaints concerning it; disobedience of this writ will be punished in the King’s Court unless a satisfactory explanation can be given. A writ of right, for example, may be in various forms. It may command the feudal lord of two contestants to do justice between them;3 but the Crown deliberately encroached upon seignorial jurisdiction when it devised a new variant which is called the writ of right praecipe quod reddat, which soon became the most usual form. This writ completely ignores the feudal lord and is directed to the sheriff of the county where the land lies; he is instructed to command the defendant to render to the plaintiff the land which he claims, justly and without delay, and if he fails to do so the sheriff is to summon him before the King or his justices to show cause, and the sheriff is to return the original writ together with the names of the summoners who witnessed its service. By the time we get to this form it is clear that we have only a slight disguise for a writ virtually initiating litigation in the King’s Court in complete disregard of the lawful rights—property rights as they then were—of the feudal lords. The writ of right praecipe quod reddat, therefore, has its beginning in somewhat discreditable circumstances; the Crown, by these writs, deprived feudal lords of their rightful jurisdiction.1 Thus it was that the insurgent barons extorted from King John a promise in the Great Charter2 that henceforward the writ called praecipe should not issue in such wise that a lord lost his court; though retained in all succeeding charters, this clause had little effect. The feudal court of freeholders was already declining; many lords voluntarily waived their rights in particular cases.3 Those who wished to assert their jurisdiction when it was imperilled by a praecipe, could obtain a writ for that purpose.4 As law became complicated, both lords and their tenants were disposed to avoid the responsibility of having to try writs of right,5 and so there was little serious opposition when, in the early years of Henry III, the Crown invented a variety of other writs in the form praecipe quod reddat—notably the very popular writs of entry.

Whatever its form, the original writ was not the assertion of the jurisdiction of the court, but rather a royal commission conferring on the judges the power to try the matters contained in it. For every case a separate ad hoc authority was thus conferred, and Bracton naturally compared the jurisdiction of the common pleas to that of papal judges delegate.6 The results of this situation upon pleading will be considered later.7

NEW WRITS UNDER HENRY II

At the same time it became an established principle that no freeman need answer for his land without a royal writ unless he chose. This rule is well known in the reign of Henry II and may date from the reign of Henry I.1 Its effect was drastic; any defendant if he chose could have real property cases removed from seignorial courts into the King’s Court. The steps were (1) a procedure called tolt which removed a plea from a seignorial court to the county court, and (2) a writ of pone which moved it from the county into the common pleas.2 On the accession of Henry II, therefore, the operation of this principle, combined with the growing practice of issuing the writ of right called praecipe, had already given to the King’s Court the basis of a very wide jurisdiction over land. Henry II improved the occasion by devising some new forms of action which again deliberately attacked the position of the lords. He modified the proceedings on a writ of right by allowing the defendant (or, more technically, the “tenant”) to choose if he wished trial by a Grand Assize, which was a jury of twelve knights, instead of trial by battle. The principle of recognition, or jury trial, was further extended by Henry II in the establishment of the petty assizes.3 These were all modelled on the general principle that a person who had recently been evicted from the quiet enjoyment of his land was entitled to be restored.

PETTY ASSIZES, SEISIN AND POSSESSION

Bracton set the fashion of regarding these actions as definitely designed for the protection of possession as distinct from ownership, but it has recently been objected with a good deal of force that Bracton’s use of these Roman terms “ownership” and “possession” does not accurately fit contemporary English law. Into this question we cannot enter in any detail, but it is clear that the petty assizes (which Maitland and Holdsworth, following Bracton, call “possessory assizes”) were based upon more than one consideration. “Disseisin”, as such wrongful ejection was technically called, was viewed partly as a crime, and so a defendant who was found guilty would be fined and occasionally imprisoned.4 The maintenance of peace and order was, therefore, one element in the petty assizes; but there was also a strong element of tort, for the plaintiff very soon recovered damages; at the same time it was a thoroughly real action, giving recovery of the land. In short, these assizes were designed to protect “seisin”, which was a conception peculiar to the middle ages; it is an enjoyment of property based upon title, and is not essentially distinguishable from right. In other words, the sharp distinction between property and possession made in Roman law did not obtain in English law; seisin is not the Roman possession, and right is not the Roman ownership.1 Both of these conceptions are represented in English law only by seisin, and it was the essence of the conception of seisin that some seisins might be better than others. The most solemn action in real property law, the writ of right, merely ascertained whether the demandant or the tenant had the better right (without prejudice to third parties), by investigating which of them claimed on the older and better seisin.

NATURE AND ORIGIN OF NOVEL DISSEISIN

Although the writ of right would answer the serious question of the relative merits of the two titles according to the antiquity of the seisin from which they were derived, there seemed room for the invention of forms of action of more limited scope. If A unjustly and without a judgment disseised B of his free tenement, then it seemed reasonable that B should be restored to the enjoyment of his property upon satisfactory proof, first, that he was in quiet enjoyment (that is to say, seised), and secondly, that A had turned him out. There was surely no need in a situation such as this, which in fact was usually brought about by acts of violence, to compel B, merely because he had been wrongfully evicted, to make out a title good enough and old enough to sustain a writ of right, and to compel him, if A so elects, to wage battle on it. It seems that we get at this point a trace of the influence of the canon law. The tenant (i.e. defendant in a real action) had marked advantages over the demandant (plaintiff); he could interpose almost interminable delays, and even when the case finally came to be argued the demandant had to sustain a heavy burden of proof. Hence, one who had been disseised and attempted to recover by a writ of right was at a great disadvantage.2

This problem of preventing a disseisor, spoliator, from acquiring procedural advantages from his own tort, was not local to England, nor peculiar to the twelfth century. The solution was in fact ancient. It consisted in the requirement that the spoliatus should be restored at once to his possession, and that he be not called upon to defend his title while he is out of possession. From the Sentences of Paul,3 early in the third century, the idea passed to the Theodosian Code (ad 319).4 It appears in the False Decretals of the mid-ninth century,1 and thence passed to our own Leges Henrici Primi2 and a little later to the Decretum of Gratian.3 The False Decretals which announced this principle also appear in the collection of canon law which Lanfranc4 introduced into England. The general principle had therefore long been common knowledge, and both the Conqueror and Henry I forbad the disturbance of the status quo until their court had pronounced on the rights of the dispute. In other words, novel disseisin was designed to redress the situation created by one party who had had recourse to self-help.

Such a policy is so obvious, that it is hardly necessary to look to canon law for its origin.5 The famous actio spolii in which the canonists finally enshrined their ancient principle seems actually later in date to the assize of novel disseisin.6 It is also to be remembered that “it is said that German Law without foreign help” went a good deal of the way towards novel disseisin.7

Henry II’s new action, the assize of novel disseisin, worked on these lines. One who had been ejected from his land was first of all to be restored. When he has been restored, and not until then, the rights and the wrongs of the case can be brought into question. If the ejector wished to raise questions of title he could then proceed later on as demandant in a writ of right.8 Henceforth he could not pursue his claim by the too-simple device of forcibily ejecting the tenant in seisin, thereby compelling him to assume the difficult rôle of a demandant in a writ of right. In its earliest form the assize of novel disseisin was thus subsidiary and preliminary to a writ of right. It was only natural, however, once the assize had passed, that the parties should in many cases be content with its verdict, and therefore the petty assize becomes a complete form of action and not merely a subsidiary to the writ of right. This idea was so attractive that Henry II applied it to several different situations, and by the end of his reign there were three petty assizes all fashioned on the same model. There can be very little doubt that one of his strongest motives was the desire to treat disseisin as an offence which should be cognisable solely in the royal courts. In France the same policy was pursued, in spite of protests from lords who found that their jurisdiction suffered serious prejudice thereby.1

SCOPE OF THE PETTY ASSIZES

In the case of the assize of novel disseisin the original writ was directed to the sheriff of the county where the lands lay, commanding him, if the plaintiff gave security for prosecuting, to summon twelve free and lawful men who should view the lands in dispute and be ready to recognise before the King’s justices whether the defendant had unjustly and without a judgment disseised the plaintiff of his free tenement since the period of limitation. In the assize of mort d’ancestor set up in 1176 by the Assize of Northampton,2 the assize of twelve is to recognise whether the plaintiff’s ancestor died seised3 in his demesne as of fee of the tenements in dispute, whether he died since the period of limitation, and whether the demandant is his next heir. The assize of darrein presentment applied the principle of novel disseisin to the difficult case of advowsons, and called upon the assize to say whether the plaintiff was the last patron in time of peace who presented a parson to the church in dispute.4 If so, he was seised, and is therefore entitled to present again. All three of these petty assizes ignored the court of the feudal lord; the assize of mort d’ancestor seems to have been definitely directed against the lords, for the defendant was frequently a feudal lord who refused to admit the heir of his deceased tenant to succeed him, and this assize therefore played a large part in the final establishment of the hereditary principle. A fourth assize called utrum also began as a preliminary proceeding in order to ascertain whether litigious land fell under the jurisdiction of the Church or the Crown, but in course of time the decision in this preliminary question became in effect a decision upon the principal question.5

THE ASSIZES SUPPLEMENTED

By the time we come to the reign of Henry III we find the beginnings of the Register of Writs; the forms of action are numerous enough to be collected in a formulary. Some new actions were invented about 1237 expressly to supply the place of gaps in the assize of mort d’ancestor; originally the only ancestor from whom one could claim was father, mother, brother, sister, uncle or aunt. Special actions which were not assizes, but variants of the writ of right, were now provided for claims based upon the seisin of grandfather (aiel) and great-grandfather (besaiel) and from “cousins”, which in law means all other relations (cosinage).1 “Great-great-grandfather by the use of the Chancery is called cousin.”2

THE WRITS OF ENTRY

By this time, however, it is abundantly clear that the King’s Court began to dream of something like a general jurisdiction over land without the slightest reference to the existing feudal courts.

We have seen that the petty assizes were based on the allegation that the tenant had obtained the land recently and wrongfully. The next step is to be seen in the writ of gage (which was another praecipe) demanding restitution of land which the tenant held lawfully at first, although later this title failed. In the case of the writ of gage it was alleged that the plaintiff made over his land to the defendant as security for a debt, and that since he is now ready to pay the debt the defendant has no more right to the land, but must restore it. The result was the pattern for a new and important group of writs called writs of entry.3 Like the writ of gage, they expressly alleged that the tenant only had entry into the land by a particular means which is set forth, thereby acquiring only a defective title. As time goes on a great variety of writs of entry is devised. At first the writ recounts all the hands through which the land has passed since the original defect, although there were limits placed upon the number of changes (whether alienations or descents) which could be alleged; finally, by statute demandants were allowed to say that the tenant had no entry save after (post) a particular defective title; dealings in the land subsequent to that event and leading down to the entry of the tenant no longer need be specified in the writ.4 Of these numerous varieties of writs of entry it will only be necessary to say that they all ignore the lord’s court and begin with the formula praecipe quod reddat. They were common in the time of Bracton,5 and the fact that it is impossible to say whether they are possessory or proprietary6 is only proof that these terms imported by Bracton really did not fit contemporary English law.

In one or two cases they supplement the assize of novel disseisin. That assize only lay between the disseisor and the disseisee. If in the meantime the disseisor had died and his heir entered by descent, the assize did not lie against the heir. So in 1205 a writ of entry sur disseisin was established to cover this case. If, on the other hand, the disseisee died, the assize again was not available to his heir, and so the writ of entry called “de quibus” or “entry in the nature of an assize” filled the gap.1 Other varieties were entry ad terminum qui praeterit, which lay to recover lands against one who held them originally for a term of years, which term had expired.2 An action which was very common during the middle ages was entry cui in vita, which lay for a widow to recover lands which were her own property, but which had been alienated by her husband, since she during his lifetime could not prevent his dealing with her property. If, however, the wife predeceases her husband, her heir can recover such lands by a writ of entry sur cui in vita. It frequently happened that a doweress wrongfully alienated her dower, and by a writ of entry “at common law” the reversioner could recover such lands only after her death. By statute, however, it was enacted that if a doweress alienated her dower the reversioner might obtain immediate entry (virtually a forfeiture) by a writ to be devised in the Chancery;3 this was called entry in casu proviso. But it did not apply to alienations by other life tenants, and so, after a famous incident between Chief Justice Bereford and the Chancery officials,4 a writ of entry in consimili casu was devised for use by reversioners and remaindermen against the alienees of tenants for life, and by the curtesy, immediately after such an alienation.

THE EARLIEST FORMS OF PERSONAL ACTIONS: DEBT

In one or two rare cases the King’s Court was prepared to intervene in matters which did not involve land, although the forms which it used were almost identical. The writ of debt, for example, was in the same form as the praecipe quod reddat, and at first looks very much as if it were a real action; as Maitland remarks, “We are tempted to say that Debt is a ‘real action’, that the vast gulf which to our minds divides the ‘give me what I own’ and ‘give me what I am owed’ has not yet become apparent”.1 There is fairly old authority for the theory that a contract consists of “mutual grants”—a view which seems to be merely a deduction from the consensual character of the sale of chattels in the later common law.2 Such reasoning, however, is really a sixteenth-century phenomenon; it is not to be found in the early days of the action of debt. Still more modern is the belief that because many actions for land beginning with a writ in the form praecipe quod reddat are real actions, therefore all actions so commenced are real actions, and among them the action of debt. There are no historical grounds for this view. Twelfth-century lawyers in the King’s Court were not given to metaphysical speculation, but were just practical administrators who saw a need for enforcing some of the commoner types of debt in the King’s Court. They propounded no theory of obligation; they said nothing about mutual grants, consent, consideration or any other theory of contract. All they did was to establish a procedure for compelling debtors to pay their obvious dues. It so happened that original writs at this critical moment were framed on a uniform pattern:3 the King tells the sheriff to order the defendant to do what he ought to do, and if he does not, then to summon him to the King’s Court. The only significance attaching to the words praecipe quod reddat is their indication of the date of origin of the writ, and its nature as a “demand” rather than a “complaint”; it is only the oldest actions which are cast in this form. The numerous writs praecipe quod permittat may be proprietary or possessory according to circumstances. As we shall see, later forms of action are based on a different model.

The writ of debt existed already in Glanvill’s day, and follows precisely the same form as the writ of right and was available for a number of purposes. It could always be brought upon “obligations”, that is to say, debts acknowledged by deed under seal, and in such cases the establishment of the genuineness of the deed was conclusive. Where there was no deed under seal, debt could still be used to recover a loan, to collect the rent due upon a lease, the price upon a sale, and, later on, to enforce various statutory penalties. The action of debt, therefore, was fairly comprehensive, but as time went by the defects of the action became more apparent. In the first place, trial was by compurgation (wager of law)1 , and as the middle ages proceed this was felt to be increasingly irrational; although decisions substituted trial by jury in a number of cases, the place left for compurgation still remained considerable. And secondly, as with all the oldest groups of actions, a particularly complicated system of pleading grew up around it. As a result, from the beginning of the fifteenth century we see a tendency to avoid using the writ of debt and to make other forms of action serve its purpose.

DETINUE

The action of detinue was very similar, and it is evident that the two actions were originally one. Glanvill describes but one action, which covers the field later divided between debt and detinue. The form of writ he gives is that of debt, the demand being for a sum of money, but he goes on to say that the “debt” may be demanded for various reasons, such as a loan of money, the price on a sale, the loan of a chattel, a letting to hire or a deposit. The writ was also available for a creditor against a surety on the default of the principal debtor. In his discussion of it, Glanvill speaks simply of “debt” and the writ is designed to secure to the plaintiff his debitum, his due, whether it be money or chattels. Even in the Year Books we sometimes find it expressed as “duty”. The basic idea of the action, therefore, is not confined to contract, or tort, or property concepts, but is simply the enforcement of what is “due”.

Superficially, then, it might seem that Glanvill’s undifferentiated action of debt-detinue will enforce any sort of obligation, but as with several other of our writs, the form is in broader terms than the practical scope of the action. In spite of a few sweeping words, Glanvill’s real meaning is to be found in the enumeration of situations in which the writ can be used. In the course of the succeeding half-century these are classified into two groups, one of which we have already described as the province of debt, while the remainder are allocated to detinue with a slight modification in the terms of the writ. A broad distinction grew up which treated detinue as the particular remedy of a bailor against his bailee—i.e. where the defendant acquired the chattel with the plaintiff’s consent. If the defendant had acquired the chattel by violating the plaintiff’s possession, however, the remedy was obviously trespass de bonis asportatis. A third situation was that classified by later lawyers as trover; here there was some hesitation.2

In their subsequent history, debt becomes an important factor in the history of the contract, while detinue contributes much to the development of the rules of personal property law. It is also worth remembering that a frequent use of detinue was to obtain possession of charters, on the principle that one who was entitled to land was thereby entitled to bring detinue for the deeds relating to it. Cases of detinue of charters, therefore, may contain important discussions of the law of real property.1

ACCOUNT

The action of account is particularly interesting and its history deserves more investigation than it has yet received. It appears on the plea rolls from 1200 onwards. In form it is a praecipe quod reddat, and is based on the existence of a duty to render a “reasonable account”.2 Originally it was used between a lord of a manor and his bailiff in order to compel the latter to account for the profits of the manor. The word “bailiff”, however, gradually shifted its meaning, and by the end of the fourteenth century account could be used against certain types of bailees who had to be described as “bailiffs”, although this allegation was not traversable.3 This transition was assisted, no doubt, by the fact that quite early in its career the action of account could also be used between partners; when commercial matters appear in the Year Books, it is usually in actions of account.

Account could also be brought against one who had received money to the use of the plaintiff. Here (as with the bailiff), the earlier law only concerned itself with the “common receiver” who was authorised to act as such for a period of time.4 Soon, a casual receiver, like a casual bailee, came within the action.

COVENANT

The action of covenant appears soon after the time of Glanvill, and is stated in some of the earlier sources to have very wide scope over contractual matters. The Statute of Wales in 1284 informs us that land or chattels may be demanded by the writ of covenant according to circumstances; “and forasmuch as contracts in covenants are infinite in their variety, it is impossible to mention each one in particular, but judgment is to be done according to the nature of each covenant and according to the statements and denials of the parties”. It would therefore seem that covenant almost became a general contractual action. In local jurisdictions it remained so until comparatively late. In the county court we find it used as late as 1333 to obtain damages for breach of a covenant to use care in handling a borrowed fishing boat.5 In the King’s Court it is mostly a covenant concerning land, apparently,1 and very often the writ seems brought merely in order to proceed to a fine, or final concord, which already was a popular conveyancing device. It had one other function—a minor one—and that was to afford a modicum of protection to lessees against their lords. Like the other writs we have mentioned, it was on the ancient pattern, slightly modified: praecipe quod teneat conventionem. It ceased to be of much importance after the reign of Edward I, when the rule became established that covenant would only lie on a deed under seal.

THE NEW PATTERN OF WRIT

So far, the writs we have considered have been either summary, like the petty assizes, or else based on a single pattern, that of the praecipe quod reddat, and as we have seen, this same pattern is used whether the action is real or personal.

At the end of the twelfth century a new formula appears, and many of the newer actions are commenced with writs of the new model. Instead of the archaic demand for restitution which was the essence of the praecipe quod reddat, we have a much more modern form which begins immediately with an order to summon the defendant (if the plaintiff has given security to prosecute) to come before the justices to show why he had done a particular act. The change is partly one of arrangement, for even a praecipe quod reddat concludes with a summons to show why the defendant has not made restitution; the new model begins with the summons, and the defendant is called on to explain his action, instead of his inaction as in the praecipe quod reddat. If the old model emphasises the failure to do what is due, the new one rests on a positive misdeed. This misdeed, moreover, is frequently described in the writ as being a breach of the peace.

THE ACTION OF TRESPASS

The summons ostensurus quare, to show why the defendant did something to the damage of the plaintiff and the breach of the King’s peace, was a momentous development, for it gave us the action of trespass. The breach of the peace, however, was not always alleged, and there are numerous examples of summonses to show why the defendant had done something which damaged the plaintiff where the phrase does not occur.

In accordance with a constant tendency, the commonest cases give rise to well-settled forms. Thus we get distinct varieties of trespass for assault, imprisonment, for taking away chattels, and for unlawfully entering upon land, and by 1249 we get a trespass case enrolled in what seems already a settled form. By the thirty-fifth year of Henry III (1250-1251) payments for writs of trespass become numerous on the Fine Rolls.1 Besides these, however, it is important to remember that in the early years of the thirteenth century there were numerous unclassified cases where defendants were summoned to show why they had caused damage to the plaintiff, with or without a breach of the peace, and with or without the allegation that the act was done vi et armis, with force and arms.2

Trespass is therefore one variety of the great class of writs which call upon the defendant to come before the justices ostensurus quare, to show why he caused damage to the plaintiff. We may note that the allegation of a breach of the peace is not necessarily present, and that the King’s Court takes jurisdiction over these cases, therefore, on broader grounds than a mere technical breach of royal peace. It is, however, quite clear that if a breach of the King’s peace is mentioned, no court save the King’s Court dare proceed. The great importance of trespass and its related quare actions is abundantly clear, but it is a great misfortune that Bracton, whose official career coincides with its formative period, did not live to write upon it the systematic treatise which he had planned.3

At first sight it seems strange that trespass begins to appear in the King’s Court only in the middle of the thirteenth century, and does not become common there until the middle of the fourteenth century. There is nevertheless good reason. The King’s Court was interested in land, in the first instance, for feudal reasons only; and it was interested in trespasses for criminal reasons only. Hence it was the felonies and indictable trespasses (later called misdemeanours) which received attention at Westminster. From the point of view of litigants, trespasses usually involved much less valuable stakes than real-property cases, and so it was much more difficult to persuade juries to trudge across the country to give their verdicts in the King’s Court. The issues would almost always be trivial in comparison with the trouble and expense. Trespass could not become a common action in royal courts until means were found to try it locally. In the late thirteenth century the baronial governments made extended use of judicial eyres; early in the fourteenth century the invention of the nisi prius system allowed juries to try issues reached at Westminster without going out of their counties. It is just at those moments that we find the action of trespass making sudden advances in the King’s Court.4

THE ACTION OF REPLEVIN

The continuous history of trespass to the person, to goods and to land stands out clearly from among the scores of quare actions in use at the beginning of the thirteenth century. But what became of the others? Some of them vanished, to be revived later under somewhat different circumstances; but many in their turn crystallised into distinct forms of action. This happened to quare ejecit (as we shall see later) which became an important remedy for lessees.

Still another became the action of replevin, and one of the most valued defences of the feudal tenant against his lord. In the thirteenth century this was often a quare action, calling on the defendant to show why he took cattle in distress and kept them in spite of the owner’s offer of gage and pledge. The final form of the proceedings was greatly modified,1 for the Crown realised the urgent necessity of moderating this powerful relic of self-help which still survived, as distress, in daily use.

The action of replevin was greatly used in the middle ages in circumstances such as these. When a lord distrained his tenant to perform services and the tenant desired to dispute his liability to do them, he could recover possession of the chattels distrained by giving security to the sheriff for maintaining his contention in a law court. The procedure was then for the tenant to declare that his beasts were taken, to which the lord might reply by denying that he took them, or else (and this was almost universally the case) by admitting the distress and disclosing the reasons—such as services and rents in arrear, homage not performed, relief unpaid, etc. This is technically called an “avowry”, and in this form of action a great number of questions relating to the feudal relationship could be conveniently raised. If the lord’s case is proved, judgment is given that he shall “have the return”; that, is the chattels which he originally distrained and which the sheriff restored to the tenant are given back to the lord by judgment of the court to hold again as a distress. In early times, if the question of the ownership of the chattels was raised in replevin, it was determined by interlocutory proceedings called de proprietate probanda. In the early fourteenth century the convenience of the action of replevin led to determined attempts to make it serve the purpose of certain other actions, and these attempts were nearly successful; in the fifteenth century we have this distinction drawn by Chief Justice Newton: “If you have taken my beasts, it is in my choice to sue replevin (which proves property in me), or to sue a writ of trespass (which proves the property in him who took them); and so it is in my will to waive the property or not”.2 By this time it was settled doctrine that even a thief acquired property in the stolen goods. We therefore have here in the choice between replevin and trespass a curious parallel to the doctrine of disseisin at election in real property law. In England replevin was generally restricted to its proper field of testing the legality of a distress, but in America it was frequently used instead of detinue.

THE ORIGIN OF TRESPASS

There has been much controversy over the origin of trespass. The question is certainly one of the greatest importance, for the later history of trespass has grown so wide as to cover the largest part of the field of law. This is not the place to undertake a fresh investigation into a very debatable subject, but some reference to it is unavoidable.

According to one theory the action of trespass developed from the old appeal.1 According to this view the changes which took place were as follows: the appeal of larceny (like the appeals of murder, mayhem or other felony) was in very truth a “form of action” for criminal matters. The injured party pursued the trail, caught the criminal and then formally charged him with the crime; if he denied his guilt, the action concluded with trial by battle; if the plaintiff was successful he recovered the stolen property, and if he had not already slain the thief in battle he was expected to hang him. Gradually, means were found for substituting jury trial upon the appellee’s allegation that the appeal was only brought by hate and spite (de odio et atia). Technically a side issue tried by jury, in fact it went to the root of the case.2 If trespass developed from the appeal, then the changes must have been these: first, where the stolen goods were no longer forthcoming, or would have gone to the king,3 the plaintiff in trespass is now able to recover their money value from the defendant; this seems to have been impossible by the appeal. Secondly, words of felony must be omitted; this was already optional in an appeal, which could thus be changed from a criminal into a civil action.4 This, it is suggested, naturally led to the idea of trespass.

Another theory would regard the action of trespass as having its origin in the assize of novel disseisin.5 The assize only gave recovery of the land; it was always uncertain whether chattels which had been on the land (most commonly crops) could be recovered—if they had been consumed, at first there was to remedy. Hence the assize of novel disseisin was modified so as to give damages representing the value of those chattels removed in the course of the disseisin whose restoration was impossible. And so in this way, too, the element of damages in trespass has been accounted for, although Woodbine insists that the idea of damages was borrowed from Roman law.

A third theory suggests that “Roman law was a solvent acting upon the appeal of larceny, from which the action of trespass by almost insensible stages separated itself”.1

THE PROBLEM RESTATED

These theories were framed with special reference to trespass for taking away chattels, but, as we have suggested, the problem is much wider than that. The origin of trespass de bonis asportatis is part of the larger question of the origin of all the actions which were directed against a defendant who had done damage to a plaintiff. The original writ in all these cases is in the same form ostensurus quare, and the origin of that form is the real root of the matter. If we may be so rash as to confound the confusion by offering yet another theory, it would be to suggest that in this, as in other matters, the King’s Court was adopting methods already in use in the local courts. From local customs which are still extant we can trace the gradual change (which in fact was not a very great or fundamental one) between the Anglo-Saxon bot and the later damages.2 The idea of damages, therefore, has no necessary connection with trespass as a form of action, being indeed much older, and there is no doubt that there was forms in use in the local courts whereby these damages could be obtained. If this would explain the nature of the remedy, it still remains to determine the origin of the form which the royal courts adopted. In the writs of trespass there is a constant formula. The King orders the sheriff to summon the defendant (or else to take pledges for his appearance) to show in the King’s Court why (ostensurus quare) he did certain things. In the enrolment of such cases upon the plea rolls the recital of the writ is immediately followed by the words “whereof A. B. (the plaintiff) complains that . . . (unde queritur quod . . .)”. It may be that in these words we have a clue to the origin of the form through which the royal courts gave remedy by damages. The origin of quare actions in the King’s Court lies near the year 1200, but many writs were granted at first only as a matter of favour. Even the writ of debt might be purchased at the cost of a champertous bargain to give the Crown a large percentage of the sum recovered.

A complaint might be pursued by means of a writ,3 and, indeed, Bracton constantly refers to novel disseisin as a querela. The writ does in fact use the phrase questus est nobis . . . to introduce the crucial words alleging the disseissin. But it is clear that a writ was not always necessary, and that many complaints were dealt with without an original writ.

We may well suspect that the earlier summonses to show quare were granted only of grace, but the political crisis in the middle of the thirteenth century coincided significantly with the final settlement of the form of trespass, and no doubt contributed largely to its popularity. In the course of the inquiries into abuses by royal officials which then took place, great use was made of a vague procedure of complaint (querela). In these circumstances anyone could complain of the oppressions of public ministers, and the enrolment of these complaints is curiously similar to that of an action of trespass.1 It is not without significance that in France, too, the Crown was developing machinery whereby such complaints could be heard.2 According to this hypothesis the procedure of complaint against public officials was extended to complaints against any wrongdoers in general, and this, combined with the already existing idea of damages in local jurisdictions, as well as the existing practice of the summons to a royal court ostensurus quare, would give us all the elements of trespass. However, no final settlement of these controversies is possible until more plea rolls of the earlier thirteenth century are available in print.

REMOTER ORIGINS

We have spoken of trespass as a newer type of remedy in the King’s Court, appearing at a slightly later date than the praecipe quod reddat type; but the first appearance of trespass on the rolls is by no means the actual beginning of the remedy. The King’s Court was a newcomer among much older institutions, and although it did invent some things (such as the petty assizes) it borrowed many more, and among these borrowings, the complaint, or querela, must be numbered. Moreover, even the Crown’s first venture into the field of general adjudication was likewise no new invention. There was litigation for land long before the King’s Court threw open its doors to litigants, and we have reason to believe that the writ of right also was derived from the older but unwritten procedure of the ancient courts of the shire and hundred.

The two main types of action in the King’s Court may both be traced back therefore to the age before the common law. In that age England still lived under a customary law which can be conveniently described as “Germanic”, and which was matched in many other European countries with similar customs; “in all probability neither the victors nor the vanquished on the field of Hastings knew any one legal formula or legal formality that was not well known throughout many lands”.1 Now this old Germanic custom had two main types of procedure. One was a demand for a thing or the enforcement of a due; the other was a complaint against a wrong. The former looked forward to specific relief; the latter to compensation, bot or some similar form of settlement.2 Here, then, we already have the prototypes of the two great groups of actions, the demand becoming the writ of right, and the complaint the action of trespass.

TRESPASS AND CASE

We must now examine these complaints. They are extremely varied, but those most persistently recurring will naturally turn into settled forms. The assizes of novel disseisin and nuisance (beginning Quaestus est nobis) separated under Henry II.3 In the thirteenth century the Crown will show a special interest in complaints of wrongs done vi et armis and contra pacem; in the days of Bracton, these complaints will involve outlawry,4 and will become familiar with their recurrent allegations of assault and battery, asportation of chattels, and breach of close. These also become separate actions. So too did quare ejecit infra terminum, about 1235.5 At first, the King’s Court concentrated upon these real or supposed breaches of the peace, and only occasionally troubled itself with other complaints. Local courts, however, preserved the undivided field of tort; in such courts “trespass was a rough equivalent of our modern tort in general; under it were included many wrongs (such as defamation) that the royal courts were later to reserve for the action of case. It was not limited to direct wrongs.”6

As forms became settled, it was evident that writs of trespass for assault, breach of close, and asportation were practically common form; the others were an unclassified mass of instances where the writ had to be specially drafted so as to include a good deal of narrative matter. Such writs were said to be “upon the case”—an expression constantly used of writs (and also of pleadings) which set out particular circumstances in unusual detail.7 In some (but not all) of these cases, the narrative was prefaced by an important preamble introduced by cum. This may recite the “custom of the realm” (as against innkeepers), or it may recite one of scores of statutes, the breach of which caused loss to the plaintiff; later still, it will recite the assumpsit which played so large a part in the history of contract. The ancient formula summone A. ostensurus quare . . . is thus immensely expanded (and complicated) by inserting the lengthy clause cum . . . immediately after quare.

This orderly development in the science of diplomatic took many years to accomplish. At the same time legal habits were growing up which attached certain forms to certain circumstances, and often hardened into law without much regard for formal propriety. Many anomalies were created, particularly in the use, or omission, of the words vi et armis and contra pacem. It was always necessary to distinguish trespass from case, because the defendant could be arrested or outlawed in trespass, but not in case (until 1504); but the line came to be drawn without close reference to the form of the writ, or to the nature of the complaint. Trespass and case are clearly distinguished as early as 1368,1 but for a long time every situation had to be considered separately in order to decide (a) whether the remedy was to be in the nature of trespass or case, and (b) in either event, what the form of the writ should be.

There seems to be no foundation for the belief that the action of case has any connection with the Consimili casu clause of the Statute of Westminster II, c. 24 (1285).2

THE RISE OF EJECTMENT

Another special form of trespass is de ejectione firmae. This lies for a lessee against anyone3 who ejects him, and at first gives him damages, although not the recovery of his term. This writ is therefore the termor’s equivalent for the freeholder’s quare clausum fregit. The distinction between them is nevertheless clear: the freeholder speaks of the breach of “his close”, but the lessee uses no such proprietary language; instead, the writ recites the lease to the plaintiff of the premises, and his ejection from his term (firma sua).4 At the end of the fifteenth century it would seem the courts finally decided to allow the lessee to recover his term as well by this writ,5 and soon afterwards this great change enabled it to be used instead of most of the old forms of real action. When two parties wished to try the title to a piece of land, one of them leased it to an imaginary person (John Doe), and the other similarly leased to another (William Styles). One lessee ejects the other (this will be all fiction), and in order to try the rights of the rival lessees the court has to enter into the question of the rights of the lessors. This procedure was known as ejectment, and after the close of the middle ages was the principal method of trying title to land. The nominal plaintiff in such actions was the fictitious John Doe on the demise of the real plaintiff; and so an action which to-day would be called A v. B used to be described as Doe d. A (that is, Doe on the demise of A) v. B. The fictitious William Styles was usually replaced by his lessor, for in the earlier proceedings the plaintiff’s solicitor writes a letter to the defendant in the name of “your loving friend, William Styles”, asking the defendant to defend Styles’s interest. This development took place in the seventeenth century, but it was not until late in the eighteenth that a judgment in ejectment became really definitive. Until then, a persistent but unsuccessful plaintiff could start a new action as often as he liked. Useful as it was, ejectment did not entirely supersede the old real actions. In 1852 the fictitious John Doe was abolished by statute, and in 1875 this, together with all other forms of action, was abolished.

ASSUMPSIT: TROVER

We have already mentioned1 that the preamble introduced into quare writs by the word cum may allege that the defendant undertook (assumpsit) to do something. This is a development of the highest importance, and it will be discussed in due course.2

Another (and the latest) of these clauses contains the allegation of trover, and deals with situations which involve neither bailment nor a trespassory taking. In Bracton’s day the appeal of larceny could be converted into an action de re adirata by omitting the words of felony. By this means a chattel could be recovered against a finder.3 Proceedings of that sort were typical of manorial courts, but an obscure note in a Year Book4 suggests that in 1294 detinue could be brought against a finder. Cases on stray cattle are not quite in point, for the franchise of estray had rules of its own, but detinue against the finder of charters seems to have been possible in 1389.5 But charters, like strays, have peculiar features, and these actions deal principally with executors who withhold the heir’s title deeds which came into their hands (devenerunt ad manus) with the ancestor’s chattels. In 1455 Littleton explained the “new-found haliday” which consisted in counting upon a finding (invencio) instead of the traditional devenerunt.1

The preoccupation of detinue with the two special cases of estrays and title-deeds persisted, and the general problem of recovering chattels which had neither been stolen nor bailed was only solved when a new start was made by inventing a new preamble to be inserted in the writ ostensurus quare. This preamble alleged that the plaintiff casually lost possession of the chattel, that the defendant found it, refused to restore it, and converted it to his own use. This development of case for trover and conversion had begun by 1510.2 Just as forms of assumpsit replaced debt, so in the seventeenth century trover3 replaced detinue.

By the end of the seventeenth century, therefore, the great bulk of the litigation of the kingdom was conducted through the various forms of action which had developed from trespass, and this remained the case until the nineteenth century, when first of all the real actions, and finally, in 1875, all remaining forms of action, were abolished by statute and replaced by a single uniform writ of summons upon which the plaintiff endorses his statement of claim. At that moment, the change was purely procedural, but it has undoubtedly affected the development of substantive law by freeing it from the mediaeval classification imposed by the old forms of action, and permitting broad general concepts (such as liability in tort) to aid in the development of a field which was formerly subdivided on lines which were traditional rather than rational.

ACTIONS REAL AND PERSONAL

As long as the forms of action were living things, this was the only classification which really fitted them. The writs praecipe quod reddat had a system of procedure and pleading quite different from that applicable to those which summoned the defendant to show why (quare) he had damaged the plaintiff.

The study of Roman law, especially in the pages of Bracton, introduced much confusion. Instead of this Germanic classification based on the nature of relief sought, the Roman classification was based upon the nature of the right asserted, and Bracton attempted to apply this classification to the existing English material. In the Romanesque introduction to his treatise he regards the assize of novel disseisin as a personal action because it is based upon tort, and because the procedure in it is directed against the person of the disseisor and not against the land,4 but when he comes to the detailed discussion of English law he changes his mind and says that novel disseisin is a real action because the judgment is for the restitution of a res, a specific piece of land.1 This latter decision brings him nearer to the old Germanic notion than to the Roman, but still it is not quite the same thing. The difference appears when the action of detinue is considered. On the old Germanic plan detinue belongs exactly where we find it, in the praecipe quod reddat group, because it is a demand for something which is the demandant’s right or due. Bracton discusses the nature of detinue in a well-known passage,2 and asks whether it is a real action since the writ demands the restitution of a specific chattel. He concludes that it is not a real action because in practice the defendant can elect between restoring the chattel or paying its price.

This was the test which was finally adopted in England: an action is real if it compels the specific restitution of the res. Littleton adopts the rule3 and since his day it has become current. The words “real” and “personal” in later ages came to be applied (or misapplied) in a very curious fashion to property. It became customary to call land “real property” while chattels were “personal property”, apparently because land could be recovered specifically in a real action, but chattels could only be made the subject of an action for damages.4 This usage becomes common in the late seventeenth century, after the time of Coke.5 The use of these distinguishing terms is not, of course, the origin of the distinction between the two different types of property; the differences between them are much older and deeper than these unhappy attempts to apply Roman terminology to English law, and will be mentioned later.

ACTIO PERSONALIS MORITUR CUM PERSONA

Our remarks about this famous brocard can happily take the form of an obituary notice. Although of mediaeval origin,6 the maxim owes its currency to Coke and is thus one of those fioretti which the faithful Ashe collected in his Fasciculus Florum: or, a Handfull of Flowers (1618). When Coke propounded it, the maxim certainly did not correspond with the state of the law of the reign of James I. There may have been a time, however, when such words as these would have summed up the situation with rough accuracy; rather curiously, however, the maxim certainly did not then exist.

Even as early as Glanvill, however, the heir is liable for his ancestor’s debts,1 and in Bracton we are told that an heir can enforce his ancestor’s credits.2 It would almost seem as if this were a twelfth-century innovation made with the deliberate intention of competing with the Church; if so, its success was bought at the cost of some inconvenience, and only in the reign of Edward I3 did the common law courts allow executors to appear before them in their representative capacity. This therefore did away with the cumbrous machinery of making the heir party to the litigation although the chattels were in the hands of the executors. Without legislation, therefore, the courts granted actions of debt by and against executors, and before the death of Edward I Fleta was able to say that the heir was not liable unless under a deed which expressly bound him.4 Statute soon afterwards gave executors an action of account.5

A certain amount of provision had therefore been made by the end of Edward I’s reign for the survival of personal actions, especially those of a contractual nature. Even so, serious limitations affected them; where the testator could have waged his law as a defence, the executors escaped liability, for they could not wage law in their testator’s name. Hence cases of this sort (and they were common) had to wait for equitable relief, which only came late in the fifteenth century.6

Actions of tort had a curious history. Trespass certainly died with the person, until the first tentative inroad upon the simplicity of the rule was made in 1267, when abbots were allowed to sue upon trespasses done to their predecessors during the Barons’ War.7 Sixty years later, the civil wars of the reign of Edward II resulted in the defeat of the Despenser faction, the deposition of Edward II and the accession of Edward III. The victorious Mortimer party secured a statute to the effect that the executors of those who were slain “in the said quarrel” should have an action in respect of the goods and chattels of their testators, if they had been members of the party.1 That was in 1327, and for the moment was merely an example of politicians, flushed by victory, sweeping aside established rules of law for their personal benefit. It did not rest there, however, for the reform seemed so beneficial that it was extended in 1330 to the world at large by the enactment that executors for the future shall have an action for damages against those who had taken the chattels of their testators during their lifetime.2 From these two beginnings the law by devious paths gradually abandoned portions of the principle that personal actions died with the person, but progress was much faster in the field of contract than of tort. The replacement of the old actions of debt and detinue by assumpsit and trover brought further complications by confusing the two lines of mediaeval development.3 In our own day the ravages of the automobile have completed the work begun by the feud of the Despensers and the Mortimers. The Chancellor, Lord Sankey, referred the rule to the Law Revision Committee over which Lord Hanworth then presided, and their recommendation4 to abolish the rule (except in cases of defamation and seduction) has now been carried out.5

[1]Bracton, f. 413 b.

[2]Pollock and Maitland, ii. 558; at first the system was not exclusively English, for it also existed in Normandy.

[1]W. H. Stevenson, Yorkshire Surveys, English Historical Review, xxvii. 4.

[2]See now the important work of Miss F. E. Harmer, Anglo-Saxon Writs.

[3]This is the writ of right de recto.

[1]The procedure (including the dilatory writ de pace) peculiar to a writ de recto (described by Richardson in Law Quarterly Review, liv. 387) must have made praecipe quod reddat much more popular. For an alternative speculation on this point, see Lady Stenton’s introduction to Pipe Roll of 6 John (Pipe Roll Society, n.s. xviii), xxx ff.

[2]Magna Carta (1215), c. 34; (1216), c. 27; (1217), c. 30; (1225), c. 24. Cf. Miss N. D. Hurnard, in Essays presented to F. M. Powicke, 157-179.

[3]Hence a variety of writs of right with the clause quia dominus remisit curiam suam.

[4]De non intromittendo. Even without getting that writ, a lord might intervene orally, and “pray his court”: Eyre of Kent (Selden Society), ii. 86-7. But if the lord took no steps, the parties to the action could not raise the matter. Y.B. 30 & 31 Edward I (Rolls Series), 233-234.

[5]Not infrequently, tenants held by the services of attending the lord’s court “when a writ of right is to be tried, or a thief is to be hanged”.

[6]Bracton, f. 108. Cf. Y.BB. Edward II (Selden Series), xxii. 31-32, per Bereford, C.J.

[7]Below, p. 408.

[1]Above p. 156.

[2]The technicalities are discussed by G. J. Turner in Brevia Placitata (Selden Society), lxiii, lxxxvi. If the plea had been by plaint instead of writ, then it had to be recorded before removal into a royal court.

[3]The assize of fresh force existed in the city of London before 1166. See the references by Dr A. H. Thomas in his edition of Plea and Memoranda Rolls, 1323-1364, 141 n. 1; Mary Bateson, in English Historical Review, xvii. 708 (from B.M. Add. 14252).

[4]There is an example in Y.B. 21 & 22 Edward I (Rolls Series), 276.

[1]Joüon des Longrais, Le Conception anglaise de la saisine (whose views we have summarised in Harvard Law Review, xl. 921-925) and La Portée politique des réformes d’Henry II, [1936] Revue historique de droit, 540.

[2]Cf. the comment and references of F. Barlow, Letters of Arnulf of Lisieux, lxv, for the corresponding position in canon law.

[3]Sententiae Pauli (ed. P. Krueger), i. 7.

[4]Codex Theodosianus (ed. Mommsen), ix. 10. 3.

[1]Decretales Pseudo-Isidorianae (ed. Hinschius), 18, 108-109, etc. (full list of references in Joüon des Longrais, La Portée politique des réformes d’Henry II, [1936] Revue historique de droit, 548 n. 1).

[2]In Gesetze der Angelsachsen (ed. Liebermann), v. 3; xxix. 2; liii. 3-6; lxi. 20.

[3]cc. 1-6, C. 2, q. 2; and also in C. 3, q. 1.

[4]Z. N. Brooke, English Church and the Papacy, 57 ff.; references are given by Joüon des Longrais, loc. cit., 548 n. 3.

[5]This very sensible suggestion is from Joüon des Longrais, loc. cit., 550.

[6]Richardson and Sayles, Procedure without Writ (Selden Society, vol. 60), cxxix ff.

[7]Pollock and Maitland, ii. 47. On possession and seisin in this connection, see Ernst Levy, West Roman Vulgar Law: The Law of Property, 96 ff., and on possessory remedies, ibid., 243.

[8]The date of its establishment seems to be 1166; Maitland, Equity and Forms of Action, 339. Thus in 1218 a plaintiff (who was in under a tortious feoffment) succeeded in novel disseisin against the true owner (who had disseised him) “who may pursue in another way if he wants to”: Eyre Rolls (Selden Society, vol. 53), no. 38.

[1]Joüon des Longrais, La Saisine, 52 n. 1.

[2]In Stubbs, Charters. For an example as early as 1157, see Joüon des Longrais, op. cit., 50 n. 1.

[3]This was essential. The only instance of success where the ancestor did not die seised is in Eyre Rolls (Selden Society, vol. 59), no. 474 (1221), where the court frustrated a lord’s attempt to evade a possible assize by disseising the ancestor just before he died—a bold piece of equity. The word “ancestor” included only father, mother, brother, sister, uncle and aunt.

[4]Cf. J. W. Gray, The Jus Praesentandi, English Historical Review, lxvii. 481.

[5]See above, p. 17.

[1]Bracton’s Note Book, no. 1215.

[2]Y.B. 19 Edward III (Rolls Series), 332. There was a long tussle between the courts and the Chancery over this; the Chancery won: Y.B. 20 & 21 Edward I (Rolls Series), 228, Y.BB. Edward II (Selden Series), x. xxxix, 95, xii. xl, 107.

[3]For all this, see G. E. Woodbine, Curia Regis Rolls, Yale Law Journal, xxxix. 509. Another element was the tender of a demi-mark, in writs of right, for permission to take a specially narrow issue: D. M. Stenton, Pipe Roll of 6 John (Pipe Roll Society, N.S. xviii), xxxj.

[4]Statute of Marlborough, c. 29 (1267); Pollock and Maitland, ii. 71; Plucknett, Statutes and their Interpretation, 80.

[5]For an early example, see Select Civil Pleas (Selden Society), no. 59 (1200).

[6]Maitland, Equity and Forms of Action, 338, 340. Cf. Maitland’s note to Bracton’s Note Book, no. 1215.

[1]There are useful references in Powicke, Henry III, i. 400 n. 3.

[2]As land could be gaged either in fee or for a term of years, there is a close connection between the writs of gage and entry ad terminum; gage thus became the ancestor of the writs of entry. Maitland, op. cit., 333.

[3]Statute of Gloucester, c. 7 (1278); a right of entry was given by 11 Hen. VII, c. 20.

[4]Bereford’s words “Blessed be he who made that statute [Westminster II, c. 24]. Make the writ and we will maintain it” occur in only one manuscript and concern the remainderman’s rights (Y.BB. Edward II (Selden Society), iii. 19); the same MS. tells a similar story in another case where alienations by other particular tenants and the reversioner’s recovery are involved, ibid., 108-109.

[1]Maitland, Equity and Forms of Action, 332. Note the veiled doubt, characteristically expressed in Maitland’s words (he was more positive in Pollock and Maitland, ii. 205). The theory is reduced to an absurdity when it is argued (as has been done) that the action of debt is designed to recover the identical coins lent. Praecipe quod reddat is the current blank form for writs in the twelfth and very early thirteenth centuries. It seems to recall the solemn demand for restitution which was a necessary preliminary to litigation before the Conquest, only now it is the King’s sheriff who makes it. Cf. Ine, 9; Canute II, 19; Leges Henrici Primi, 51, 3; Bateson, Borough Customs (Selden Society), i. 89. But see the curious bond in Pollock and Maitland, ii. 193, n. 3.

[2]Edgecomb v. Dee (1670), Vaughan 89 at 101.

[3]The only important exception is the group of assizes; novel disseisin begins by reciting a complaint, questus est nobis . . .; mort d’ancestor is merely a summons.

[1]Except when a sealed deed was the basis of the demand; below, p. 633 n. 3.

[2]For this, see below, p. 375.

[1]And consequently, a doweress could not demand dower unless she handed over her late husband’s charters: Y.B. 41 Edward III, Pasch. no. 9.

[2]Cf. Pollock and Maitland, ii. 221, citing Langdell, Equity Jurisdiction, 75; Ames, Lectures in Legal History, 116; Plucknett, The Mediaeval Bailiff, 22 ff.; Curia Regis Rolls, i. 191, 249; iv. 64, 145.

[3]See the details in Plucknett, Words, Cornell Law Quarterly, xiv. 263, 270.

[4]Y.BB. Edward II (Selden Series), xxii. 264. Unless appointed by the creditor, the receiver’s acquittance did not discharge the debt: ibid., xxiv. 84 (1319) and Intro., p. lxxxvi. Cf. Y.B. 5 Edward III, Michs. no. 104 (1331).

[5]Plucknett, New Light on the Old County Court, Harvard Law Review, xlii. 666, citing Morris, Early English County Court, 185.

[1]Subject to exceptions and qualifications: C. H. S. Fifoot, History and Sources of the Common Law: Tort and Contract, 255-256.

[1]The enrolment is on J.I. 1/1177 m. 1 d. This reference, and figures relating to the Fine Rolls, were kindly communicated by Mr. C. A. F. Meekings of the Public Record Office.

[2]See the long and varied assortment of quare actions (brought in 1200 and shortly afterwards) listed in the index of Select Civil Pleas (Selden Society), 107-108.

[3]Bracton, f. 164.

[4]Cf. below, p. 371 n. 1.

[1]The early history of replevin is somewhat obscure; for the quare form of replevin see Bracton’s Note Book (ed. Maitland), no. 157. There is much material on the procedure and pleading of replevin in F. A. Enever, History of the Law of Distress (1931).

[2]Y.B. 19 Henry VI, 65 (Pasch. 5), cited in Ames, Lectures on Legal History, 69, 70. See the discussion by Bordwell, Property in chattels, Harvard Law Review, xxix. 374.

[1]Holmes, The Common Law, 3, 4, 101, 102; Ames, op. cit., 56-61. For an example of an “appeal”, see above, p. 121.

[2]Numerous examples are collected by Elsa de Haas, Antiquities of Bail, 118 ff.

[3]See below, p. 452.

[4]Bracton describes this form as an action de re adirata. It came very near to being a real action for those chattels which the demandant had lost involuntarily (it did not lie if the chattels had been bailed; in that case, detinue alone would serve).

[5]Woodbine, Origins of the Action of Trespass, Yale Law Journal, xxxiii. 799-816, xxxiv. 343-370.

[1]Richardson and Sayles, Procedure without Writ under Henry III (Selden Society, vol. 60), cxvi.

[2]A clear example of damages in Anglo-Saxon law occurs in Ine, 42, and the twelfth-century custumal of Preston shows the old bot changing to damages including costs and expenses: Borough Customs (Selden Society), i. 30-31.

[3]Bracton, f. 179; cf. below, p. 394.

[1]For discussion of the quare group of actions and of the querela see Jacob, Baronial Rebellion and Reform, 65; Adams, Council and Courts, 348; Treharne, The Baronial Plan of Reform, i. 147, and Woodbine in Yale Law Journal, xxxiv. 349-356. The volume of Proceedings without Writ under Henry III, edited by Mr. Richardson and Dr. Sayles (Selden Society, 1941), constitutes a large collection of material on the history of trespass for that very reason. Many of the cases come from eyre rolls, and very few from common pleas rolls (cf. above, p. 367).

[2]Joüon des Longrais, La Saisine, 52 n. 1.

[1]Pollock and Maitland, ii. 558.

[2]Ibid., 571; Maitland, however, did not connect the old complaint with trespass.

[3]The recital of a complaint does not appear in mort d’ancestor or darrein presentment.

[4]Below, p. 385; Bracton, f. 441.

[5]Below, p. 571.

[6]Glanville Williams, Liability for Animals, 128.

[7]See the passages cited in Maitland, Register of Writs, Harvard Law Review, iii. 104 n. 1.

[1]Y.B. 42 Edward III, f. 11, no. 13 (below, p. 481), where the question whether process was by capias was discussed. For another example, see Y.B. 13 Richard II (Ames Foundation), 104 (1390).

[2]Maitland, Equity and Forms of Action, 345, 346, states the old view, but with obvious hesitation. For a discussion of this see Plucknett, Case and the Statute of Westminster II, Columbia Law Review, xxxi. 778, and the comments of Sir William Holdsworth in Law Quarterly Review, xlvii. 334; P. A. Landon, Law Quarterly Review, lii. 63 (and cf. ibid., 220); Dix, Origins of Trespass on the Case, Yale Law Journal, xlvi. 1142; Kiralfy, The Action on the Case (1951).

[3]There was already an older action quare ejecit infra terminum (ascribed to Raleigh, c. 1235) whose usefulness was very limited as it only lay between rival lessees who both claimed to hold from the same lessor. It is notable that Bracton, f. 220, gives two forms of it, one is a praecipe quod reddat, and the other is a summons ostensurus quare. For more as to the termor’s remedies see below, pp. 570-574.

[4]Pollock and Maitland seem confused on this; the writ is printed in Maitland’s Forms of Action.

[5]See the data in Maitland, Forms of Action, 350, which represents the state of the printed sources. An unpublished case of 1389 (De Banco Roll, Michs. 13 Ric. II, roll ccclxxxvii) already shows recovery of the term.

[1]Above, pp. 372-373.

[2]More will be said of assumpsit in discussing the history of tort and contract; below pp. 481 ff., 637 ff.

[3]But indirectly; if the finder refuses in court to restore the chattel as an adirata, then the plaintiff counts afresh, this time with words of felony: Bracton, f. 150 b.

[4]Y.B. 21 & 22 Edward I (Rolls Series), 466-468. It is said there that the trial is by wager of law by the plaintiff (not by the defendant).

[5]Y.B. 13 Richard II Ames Foundation), 56.

[1]Y.B. Trin. 33 Henry VI, no. 12, ff. 26-27; Pollock and Maitland, ii. 175 (criticised by Ames, Lectures, 82 n. 4).

[2]Intrationum excellentissimus Liber (1510, i.e. 1511), f. 22 and f. 71; cited in Ames, Lectures, 83.

[3]In America replevin was more often used in place of detinue; in England the scope of replevin was practically restricted to distress.

[4]Bracton, f. 103 b-104.

[1]Bracton, f. 159 b, which may be contrasted with f. 161 b.

[2]Ibid., f. 102 b.

[3]Littleton, Tenures, s. 508.

[4]A few exceptional cases show the specific recovery of chattels in trespass: Sayles, King’s Bench, i. 178-179 (1289) and ii. 16-17 (1290).

[5]See the New English Dictionary (ed. Murray), s.vv. It occurs first in 1441; E. F. Jacob, Chichele’s Register,ii. 593.

[6]III Æthelred 14 (c. 997); Y.B. 18 Edward IV, Michs., no. 17; Winfield, Death as affecting liability in tort, Columbia Law Review, xxix. 239 at 244.

[1]Glanvill, vii. 8.

[2]Bracton, f. 407 b.

[3]This is the conjecture of Pollock and Maitland, ii. 347.

[4]Fleta, ii. 62. 10. Nevertheless, the plaintiff does not describe himself in the writ as “heir”: Y.BB. Edward II (Selden Society), xxiv. 129, with which cf. ibid., xxiii. 28. According to the later law, this liability only attached if the heir had inherited from the ancestor, but his liability was not limited to the value of the inheritance (Y.B. 40 Edward III, 15); a petition in Parliament to that effect was denied (Rot. Parl., ii. 240-241). Such cases are rare (Davy v. Pepys (1573), Plowd. 441).

[5]Westminster II, c. 23 (1285). It may be that the statutory change was the earlier, and that the courts merely extended its policy.

[6]Ames, Lectures in Legal History, 95 n. 5. When the attitude of Chancery was well established, this sort of case was again brought in the common law courts, and the defendant executors refrained from abating the writ by insisting on a specialty. Their theoretical right to do so remained (as to this, see p. 703 below). After all, executors should care for their testator’s soul by paying his just debts: Edgecomb v. Dee (1670), Vaughan, 89 at 93. Below, p. 647.

[7]Statute of Marlborough, 52 Henry III, c. 28. See also Westminster II, c. 35 (1285), for another aspect of the matter.

[1]1 Edw. III, stat. 1, c. 3 (1327). The solecisms in this chapter suggest that the text originated with laymen rather than with lawyers.

[2]4 Edw. III, c. 7 (1330).

[3]Details will be found in Holdsworth, iii. 576 ff.; cf. Goudy, “Two Ancient Brocards” in Essays in Legal History (ed. Vinogradoff), 215-229; Vinogradoff, Collected Papers, i 240.

[4]Law Revision Committee, First Interim Report, 1934 (Cd. 4540).

[5]Law Reform (Miscellaneous Provisions) Act, 1934.