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A HISTORY OF ENGLISH LAW

f

A HISTORY OF ENGLISH LAW

IN SEVEN VOLUMES For List of Volumes and Scheme of the History, see p. vii.

A HISTORY OF ENGLISH LAW

BY

W. S. HOLDSWORTH. KG., D.G.L.

VINERIAN PROFESSOR OF ENGLISH LAW IN THE UNIVERSITY OF OXFORD; FELLOW OF ALL SOULS

COLLEGE, OXFORD ; LATE FELLOW OF ST. JOHN'S COLLEGE, OXFORD ; FOREIGN ASSOCIATE

OF THE ROYAL BELGIAN ACADEMY ; FELLOW OF THE BRITISH ACADEMY

VOLUME III

THIRD EDITION, REWRITTEN

To say truth, although it is not necessary for counsel to know what the history of a point is, but to know how it now stands resolved, yet it is a wonderful accomplishment, and, without it, a lawyer cannot be accounted learned in the law. Roger North

METHUEN & GO. LTD.

36 ESSEX STREET W.C.

LONDON

First Published .... May igoj Second Edition .... October igi4 Third Edition, Rewritten . . 1923

PRINTED IN GREAT BRITAIN

TO

The Right Honourable FREDERICK EDWIN EARL BIRKENHEAD

SOMETIME LORD HIGH CHANCELLOR OF GREAT BRITAIN

THIS WORK

IS

BY HIS lordship's PERMISSION

RESPECTFULLY DEDICATED

PLAN OF THE HISTORY

(Vol. I.) BOOK I. — The Judicial System : Introduction. Chap. I. Origins. Chap. II. The Decline of the Old Local Courts and the Rise of the New County Courts. Chap. III. The System of Common Law Jurisdiction. Chap. IV. The House of Lords. Chap. V. The Chancery. Chap. VI. The Council. Chap. VII. Courts of a Special Jurisdiction. Chap. VIII. The Reconstruction of the Judicial System.

(Vol. II.) BOOK II. (449-1066) — Anglo-Saxon Antiquities : Introduction. Part I. Sources and General Development. Part II. The Rules of Law : § i The Ranks of the People ; § 2 Criminal Law ; § 3 The Law of Property ; § 4 Family Law ; § 5 Self-help ; § 6 Procedure.

BOOK III. (1066-1485) — The Medieval Common Law: Introduction. Part I. Sources and General Development: Chap. I. The Intellectual, Political, and Legal Ideas of the Middle Ages. Chap. II. The Norman Conquest to Magna Carta. Chap. III. The Reign of Henry III. Chap. IV. The Reign of Edward I. Chap. V. The Fourteenth and Fifteenth Centuries. (Vol. III.) Part II. The Rules of Law: Chap. I. The Land Law : § i The Real Actions ; § 2 Free Tenure, Unfree Tenure, and Chattels Real ; § 3 The Free Tenures and Their Incidents ; § 4 The Power of Alienation ; § 5 Seisin : § 6 Estates ; § 7 Incorporeal Things ; § 8 Inheritance ; § 9 Curtsey and Dower ; § 10 Unfree Tenure ; § ii The Term of Years ; § 12 The Modes and Forms of Conveyance ; § 13 Special Customs. Chap. II. Crime and Tort : § I Self-help ; § 2 Treason ; § 3 Benefit of Clergy, and Sanctuary and Abjuration ; § 4 Principal and Accessory ; § 5 Offences Against the Person ; § 6 Possession and Ownership of Chattels ; § 7 Wrongs to Property ; § 8 The Principles of Liability ; § 9 Lines of Future Development. Chap. III. Contract and Qua si-Contract. Chap. IV. Status : § i The King ; § 2 The Incorporate Person ; § 3 The Villeins ; § 4 The Infant ; § 5 The Married Woman. Chap. V. Succession to Chattels : § i The Last Will ; § 2 Restrictions on Testation and Intestate Succession ; § 3 The Representa- tion of the Deceased. Chap. VI. Procedure and Pleading : § i The Criminal Law ; § 2 The Civil Law.

(Vol. IV.) BOOK IV. (1485-1700) — The Common Law and Its Rivals: Intro- duction. Part I. Sources and General Development: Chap. I. The Sixteenth Century at Home and Abroad. Chap. II. English Law in the Sixteenth and Early Seventeenth Centuries : The Enacted Law. (Vol. V.) Chap. III. English Law in the Sixteenth and Early Seventeenth Centuries : Developments Outside the Sphere of the Common Law — International, Maritime, and Commercial Law. Chap. IV. English Law in the Sixteenth and Early Seventeenth Centuries : Developments Out- side the Sphere of the Common Law — Law Administered by the Star Chamber and the Chancery. Chap. V. English Law in the Sixteenth and Early Seventeenth Centuries: The Development of the Common Law. (Vol. VI.) Chap. VI. The Public Law of the Seventeenth Century. Chap. VII. The Latter Half of the Seven- teenth Century : The Enacted Law. Chap. VIII. The Latter Half of the Seven- teenth Century : The Professional Development of the Law.

(Vol. VII.) Partll. The Rules of Law. Chap. I. The Land Law :§ i The Action of Ejectment ; § 2 Seisin Possession and Ownership ; § 3 Contingent Remainders ; § 4 Executory Interests ; § 5 Powers of Appointment ; § 6 The Rules Against Per- petuities ; § 7 Landlord and Tenant ; § 8 Copyholds ; § 9 Incorporeal Things ; § 10 Conveyancing; § 11 The Interpretation of Conveyances. Chap. II. Chattels Personal : § i The Action of Trover and Conversion ; § 2 The Ownership and Possession of Chattels; §3 Choses in Action. Chap. III. Contract and Quasi- Contract : § i The Doctrine of Consideration ; § 2 The Invalidity, the Enforcement, and the Discharge of Contract ; § 3 Quasi-Contract. Chap. IV. The Law Mer- chant. I. — Commercial Law: §1 Usury and the Usury Laws; §2 Negotiable Instruments ; § 3 Banking; § 4 Commercial Societies ; § 5 Agency ; § 6 Bankruptcy. II. — Maritime Law. III. — Insurance. Chap. V. Crime and Tort. Lines of De- velopment. § I Constructive Treason and Other Cognate Offences ; § 2 Defama- tion ; § 3 Conspiracy, Malicious Prosecution, and Maintenance ; § 4 Legal Doctrines Resulting from Laws Against Religious Nonconformity ; § 5 Lines of Future Development; § 6 The Principles of Liability. Chap. VI. Status: § i The King and Remedies Against the Crown : § 2 The Incorporate Person ; § 3 British Sub- jects and Aliens. Chap. VII. Evidence, Procedure, and Pleading : §1 Evidence; § 2 Common Law Procedure ; § 3 Equity Procedure.

CONTENTS

PAGE

Plan of the History vii

List of Cases xxxvii-xli

List of Statutes xliii-xlv

BOOK III. (continued)

PART II THE RULES OF LAW

CHAPTER I

The Land Law

§ I. The Real Actions 3-29

What is a real action ? 3.4

Importance of the real actions 4

Those by which rights to corporeal hereditaments of free tenure

were asserted 5-14

(i) The writ of right group 5-8

Varieties 5-6

Magna Carta § 34 6

Survivals in them of old rules 6-7

Disuse of writs of right 7-8

Neglect to pass statutes of limitation — Legal memory . 8

(ii) The Assize of novel disseisin 8-11

Origins 8

Scope 9

Development 9-10

Used to protect title 10

Extended by the legislature 10

Extended by omission to pass statutes of limitation . . 10

The Assize of nuisance 11

(iii) The writs of entry sur disseisin 11-14

Principle of the writs of entry 11-12

Date when they originated 12

Reason for their invention 12-13

Their original scope 13

Entry in the per and cui 13

Magna Carta 13

Entry in the /05^ 13-14

Their position in relation to the other groups ... 14

They supersede the others 14

The other real actions 15-26

(i) The actions which lie as between lord and tenant . . . 15-17

Ne injuste vexes 15

De consuetudinibus et serviciis 15-16

Cessavit 16

ix

CONTENTS

PAGE

Mesne * i6

Warrantia Cartae i6

Escheat i6

De recto Custodiae terrae et heredis 17

(ii) The actions which lie to protect the lord or tenant of parti- cular estates in the land 17-19

Estates tail 17-18

The writ of Formedon . . . * . . . 17

Its nature 17

Varieties 17

Did they exist before De Donis ? .... 18

Estates for life 19

Intrusion 19

Entry ad communem legem 19

Entry in casu proviso 19

Entry in consimili casu 19

Estates for life or years 19

Ad terminum qui praeteriit 19

Estates held in common 19

Partitione facienda 19

(iii) The actions which lie to protect incorporeal rights . . 19-20

Novel disseisin 19

Quod permittat 20

Quo jure 20

Secta ad molendinum 20

(iv) The action which lies to assert the right to a villein . . 20

Native habendo 20

De Libertate Probanda 20

(v) The actions which arise out of certain family relationships . 20-24

Husband and wife 20-22

Writs connected with dower 20-21

Writ of right of dower 20

Writ of dower under nihil habet 21

Admeasurement of dower 21

Developments made by Chancery in the eighteenth

century 21-22

Cui in vita 22

Cui ante divortium 22

Causa matrimonii praelocuti 22

Ancestor and heir 22-24

Writs of right 22-23

Assize of Mort d'ancestor 23

Extensions of the assize 23

Ayel, Besaiel, Cosinage 24

(vi) The actions which arise out of the incapacity of persons . 24

Dum fuit non compos mentis 24

Dum fuit infra aetatem 24

Sine assensu capituli 24

(vii) The actions concerning ecclesiastical property . . . 24-26

The writ of right of advowson 24

Assize of darrein presentment 24-25

Quare impedit 25

Quare non admisit 25

Assize utrum 25-26

(viii) The actions which deal with abuse of the process of the court 26

Attaint 26

Quod ei deforceat 26

Redisseisin and post disseisin 26

Encroachments of the personal actions 26-29

Trespass and novel disseisin 27

„ „ wardship 27

„ „ replevin 27

CONTENTS Td

PAGB

Trespass and nuisance 28

„ „ Curia Claudenda, Cessavit, Secta ad Molen-

dinum 28

,, „ Annuities and Corodies .... 28

The real actions and real property 29

§ 2. Free Tenure, Unfree Tenure, and Chattels Real . . 29-34

Free tenure and unfree tenure 29-34

The procedural test 29-30

Wide field covered by the free tenures 30

Comparison with French law 30

Survivals 30-31

What ideas underlie the procedural test ? 31

Their fluctuating nature 31

Incidents 31

Character of services 31

Analogy of servant and independent contractor . . . 31-32

Status 32

Control of lord over those holding in villeinage necessary for

the working of the manor 32-33

The distinction remains after the causes for it disappear . . 33

The conveyancing test 33*34

Free tenure and chattels real 34

Denial of the real actions rests on no economic difference . . 34

Difference in future history 34

§3. The Free Tenures and their Incidents 34-73

The free tenures 34-54

(i) Frankalmoin 34*37

Definition ^4-^S

Services 35

Jurisdiction 35

No secular service 36

Tenure by Divine Service 36

Effect of Edward I.'s legislation 36-37

(ii) Knight service 37-46

Knight service in Littleton 37

Had lost its original meaning in the fifteenth century . . 37-38

Knight service in the reigns of William I. and II. . . . 38-39

King, mesne, and tenant 39-40

Commutation for personal service 40

Uncertain fine as between king and tenant in chief . . 40-41

Scutage as between mesne lord and tenant ... 41

Effects on the development of the tenure of (a) royal policy . 42-44

Favours commutation 42

The enquiry of 1 1 66 43

Effects 43

Lords grant their scutages to the king .... 43

Tends to be levied as if a national tax .... 43

Quia Emptores 44

Uncertain fines paid to the king lost sight of . . . 44 Effects on the development of this tenure of (6) the growth of

parliament 44-45

Magna Carta and scutage 44

Superseded by newer forms of national taxation . . 45

Tenure per baroniam 45-46

(iii) Serjeanty 46-51

Serjeantry and service 46

The "Servientes" of Domesday 46

Personal character of the service 46

Legal consequences of this 46-47

Non-military services 4748

The great officers of the kingdom 47-48

xii CONTENTS

PAGE

Domestic services 48

The magnates and their Serjeants 48

Military services 49-51

Supplied light auxiliary troops 49

Becomes a duty to supply small munitions of war ... 49

Causes of decay 49-51

Hired servants more efficient 49-5°

Honourable and military services only left .... 50

Grand and petit serjeanty 50

Origin of technical distinction 50-5^

(iv) Socage 51-54

Negative characteristics of the tenure 51

" Soc " and " Socmen " 51

Villein and free socage 52

General characteristics 52

Socage and fee farm 52-53

Merger of the two classes 53

Socage falls in best with modern ideas of land-holding . . 53

Burgage 53-54

The incidents of the free tenures 54-73

(i) Homage and Fealty 54-57

Definitions 54

Original consequences of homage 55

Homage and felony 55

Importance diminishes 56

Homage and allegiance 56

Growth of jurisdiction of common law courts ... 56

Consequences become proprietary 56

Conclusions to be drawn from this history .... 57

(ii) Relief and Primer Seisin 57-61

Origin of the relief 57-58

Not payable on death of lord 58

At first a characteristic of tenure by military service . . 58

Spreads to the other tenures 59

Amount of the relief 59

Gradually fixed 59-60

The lord and primer seisin 60

The Statute of Marlborough 60-61

The king and primer seisin 61

(iii) Wardship and Marriage 61-66

Basis of these rights 61

Ancient and modern ideas 61-62

Vagueness of these rights after the Conquest .... 62

Glanvil 63

Magna Carta 63

Statute of Merton 63-64

Statute of Westminster I. 64

Regarded as chattels 64

Slight modifications 64

Conflict between the rights of different lords .... 64-65

Statute of Westminster H 65

Only exist in tenure by knight-service and grand serjeanty . 65

Guardianship in socage 65-66

(iv) Aids 66-67

Original vagueness 66

Magna Carta 66

Growth of fixity 66-67

Statutes of 1275 ^^^ i35o 67

(v) Escheat and Forfeiture 67-73

Definitions 67

Escheat and reversion 67-68

Escheat propter defectum sanguinis 68

CONTENTS xiii

PAGE

Escheat propter delictum tenentis 69

Felony and escheat 69

Magna Carta 69

Doctrine of corruption of blood 69

Year, day, and waste 69-70

The Act of 1870 70

Forfeiture 70

Forfeiture and treason 70-71

The Act of 1870 71

The application of escheat and forfeiture to equitable estates . 71-72

Law as to this in the Middle Ages 71

The Statute of Uses 71

Later equitable estates 71-72

(a) Escheat 71-72

(b) Forfeiture 72

General conclusions 73

4. The Power of Alienation 73-87

(i) Restrictions in the interest of expectant heirs .... 73-76

Glanvil 73-74

Effects of the rule of primogeniture on the older rules . . 75

Bracton 75

Heir compensated by prohibition of devise . . . . 75-76 (2) Restrictions in the interest of the maintenance of the rights and

duties involved in the relation of lord and tenant . . 76-87

Vague ideas of the older law 76-77

Land-owning becomes a form of property .... 77

The royal courts favour freedom of alienation .... 77-78

Mortmain 78

Magna Carta 78-79

(i) Feudal restraints 79-86

(a) Mesne tenant and mesne lord 79-83

Alienation of land 79-8 1

Subinfeudation and substitution . . . . 79 80

Quia Emptores 80-81

It diminishes the importance of tenure ... 81

Did not apply to the king 81

Alienation of the seignory 81-83

Feudal difficulty 82

Legal difficulty 82

Attornment 82-83

(b) The tenant in chief and the king 83-85

Ordinance of 1256 83

The law as laid down accepted .... 83-84

Statute of 1327 84

Reasons for difference in treatment of tenants in chief 84

The principle of freedom of alienation ... 85

Public policy 85

Limited restraints allowed 85-86

Restrictions on tenants of smaller estates . . 86

No hint of a rule against remoteness ... 86

(ii) Restraints upon alienation to religious houses . . . 86-87

The Provisions of Westminster 87

De Viris Religiosis 87

Ancient and modern reasons for this legislation . . 87

\ 5. Seisin 88-101

Meaning 88

Ownership and possession 88-89

The contrast the mark of a mature system of law .... 89

English law has no theory of ownership like that of Roman law . . 89

Scope of the writ of right 89-90

Bracton's treatment of the subject 90

XIV

CONTENTS

Seisin and different rights thereto is all that English law recognizes

Consequences

(li The person seised has all the rights of an owner (2) The person disseised has none of these rights .

Better protection of the right to seisin ....

Rights of person seised not curtailed

The Real Property Limitation Acts

No usucapio because it is not wanted

The logical consequences of this principle ....

Originality of the common law theory

The question why the law protects possession

Application of these theories to the facts of land holding

Two persons cannot possess at once the same thing .

But applied to lord and tenant and to life tenant and reversioner

An incorporeal thing cannot be possessed ....

The idea of livery of seisin is applied to incorporeal things .

ii) In respect of transfer and creation .... 2) In respect the way the law regards them {3) In respect of the way in which they are enforced and protected

PAGE

91 91

91-92 92

92-93 93

93-94 94 94 95 95 96 96 96

96-97 97-101

98-99

99-100

100- 10 1

§ 6. Estates

estate tail

Wide powers of landowners in the thirteenth century .... The " law " which could be imposed by the Forma Doni .

Royal gifts

Influence of Roman learning as to conditions

Confused state of the law

Thomas of Weyland's settlement

Determinable fees

Estates in possession

The estate in fee simple

The word *• heirs " a word of limitation ....

This conclusion reached through the law as to warranty

Was favoured both by the judges and the great landowners

The word " assigns " .

Becomes unnecessary .

Origins of the rule in Shelley'' s Case

Later history

Why it has caused so many doubts The estate in fee simple conditional and the The maritagium .... The conditional gift The interpretation of these gifts . A fixed rule of interpretation grows up De Donis Conditionalibus The literal meaning of the statute . Bereford, C.J.'s, construction Its modern construction . Varieties of the estate tail Petitions for repeal of De Donis The legal profession evade it .

Warranty .... Lineal and collateral warranty Warranty and collusive real action The common recovery .

Antiquity of . Taltartini's Case The effect of a fine . Estates for life, pur autre vie, at will and at sufferance Old ideas as to the position of the tenant lor life

Newer ideas — Waste

The tenant for life is seised .... Results of this

101-137

ioi-ro2

102-103

103

103

103-104

104

105

105-132

105-111

105

105-106

106

106

106-107

107-108

108-109

109-111

111-120

III

111-112

112-113

113-114

114

114

"5

115-116

116

116-117

117-120

117

117-118

118-119

118

118

119

120

120-125

120

120

120

120-121

CONTENTS XV

PAGE

The Provisions of Westminster 121

The Statute of Marlborough 121

The Statute of Gloucester 121

The Statute of Westminster II 121-122

Later legislation 1^2

The year books and waste 122

Must be voluntary 122

Permissive waste 122-123

Ameliorating waste 123

" Without impeachment of waste " . . . . 123

Botes and estovers 123

The estate pur autre vie a chattel in the thirteenth

century 123-124

Regarded as a freehold in the fourteenth century . 124

Occupancy 124-125

The tenancy at will 125

Originally regarded as a servitude .... 125

Emblements 125

Tenancy at sufferance 125

Co-ownership 126-128

The various kinds 126

Gradual evolution 126

Bracton and Britton 126-127

Partition 127

Tenancy in common 127-128

Tenancy by entireties 128

Estates created to secure money lent ; tenancies by Elegit,

Statute Merchant, and Statute Staple . . . 128-132

Mortuum vadium and vivum vadium in Glanvil . . 128-129

Defects 129

They disappear 129

Three methods adopted 129-130

The form which prevailed 130

Reasons for this 130

Strictness of the common law 130

The Jews and the mortgage 130-131

Tenancy by Elegit 131

Statutes Merchant and Staple 131-132

Estates in expectancy 132-137

Reversions and remainders 132-133

The reversion 133

Reversion and escheat 133

The remainder 134-137

Vested or contingent 134

The latter cease to be valid 134

Littleton on Rickhill's settlement 135

Begin to be allowed in Henry VI. 's reign . . . 135-136

Not fully allowed till the following period . . . 136

A doubtful case in the Book of Assizes .... 136-137

Note upon Taltarum's Case 137

7. Incorporeal Things 137-171

Advowsons, Commons, Rents, and Easements 138-157

Advowsons 138-143

Definition 138

Historical importance . . 138

Origins 139

The older and the newer ideas 140

Treated like a piece of land 140

Why it gave rise to so much litigation 140-141

Helps towards the realization of incorporeal things . . 141-142

And towards their classification 142-143

VOL. III. — b

xvi CONTENTS

PAGE

Commons . . .* 143-151

Classification of rights of common 143-144

Origins i44-i45

Rights of common and the village community . . . 146

Approvement 146-147

The Statute of Merton 147

The Statute of Westminster II 147

Causes which led to distinction between rights appendant

and those appurtenant . . . • . • 147-150

Rights appurtenant become the most general . . 150-151

Rent service, rent sec and rent charge 151-153

Annuities 152

Corodies 152-153

Mediaeval realism 153

Easements I53-I57

Classification I53-I54

Number of easements not fixed

Nature not clearly fixed 154

The easement and proceedings for nuisance .... 154-156

No clear distinction between easements and natural rights . 156

No easement in gross 156-157

Covenants annexed to the land 157-166

Easements and covenants 157-158

Origin in the obligation of warranty 158-159

(i) How far on a conveyance in fee simple can (i) the benefit and (ii) the burden of a covenant be made to run with

the land 159-165

Modes of enforcing the obligation of warranty . . 159-160

Implied and express warranties 160-161

(i) The benefit of these covenants 161-163

The analogy of inheritance 161-162

The analogy of an easement 162

Pakenhani's Case 162

Privity of estate in assignor 162-163

Covenants for title 163

(ii) The burden of these covenants 163-165

Bracton 163

Cannot be annexed to land 164

This accords with the principles of modern law . 164-165 (2) How far could a covenant be made to run with the

reversion 165

Prescription 166-171

Only applies to certain kinds of incorporeal things . . 166

What is legal memory 166

Bracton 166-167

Deed, custom, prescription 167-168

Special " law " created 168

Therefore prescription only for things against common right i68-i6g

Franchises . . . i6g

Communities prescribe 169

Change in the theory of prescription 169-170

Evidence of a grant made before memory . . . . 170

Effects of the old and nev^^ theories 170-171

§8. Inheritance 171-185

The rules of inheritance 171-172

(i) The preference of males to females 172

(2) The rules of primogeniture and coparcenary 172-175

Primogeniture the rule of the military fief .... 172

Parage 173

Spread of the rule 173-174

Coparcenary in Bracton 174

CONTENTS xvii

PAGE

Coparcenary and the incidents of tenure 174-175

(3) The rule of representation 175

Glanvil and Bracton 175

The " casus regis " 175

Settled in Edward I.'s reign 175

(4) The exclusion of ascendants 175-177

Blackstone's view 176

Maitland's view 176

Objections 176

Quia Emptores and Britton 177

(5) The inheritance of collaterals 177-183

The " gradual " and '* parentelic " schemes .... 177-178

The parentelic scheme in the Year Books 178-179

What about remote ascendants ? 179

" Paterna paternis, materna maternis " 179-180

This maxim and the law of procedure 180

Illustration 180-181

Case in Y.B. 49 Edward III 181

Father's ancestors preferred 181-182

How are we to decide between the father's ancestors ? . . 182

Clere v. Brook 182

Manwood C.B.'s dictum 182

Bacon and Hale 182

Plowden and Blackstone 183

The Inheritance Act 183

(6) The position of the half-blood 183-185

Uncertain in the thirteenth century 183-184

Growth of common law rule as to " possessio fratris " . . 184-185

Hardships of the rule 185

9. Curtesy and Dower 185-197

Curtesy . 185-189

Derivation of the term i86

Origins i86

The common law rule 187

De Donis 187

The wife's seisin 187-188

Birth of issue 188

Later history 188-189

Dower 189-197

The common law rule 189

Five kinds of dower known to Littleton 189

(i) The old order — dower created by the act of the parties . . 189-191

Glanvil and Bracton 189-190

Dower of chattels disappears 190

Limitation of amount disappears 190

Ad ostium ecclesiae 190

Ex assensu patris 191

Disappearance 191

(2) The new order — dower created by law 191-197

(i) The reasons for the change 192-193

Feudalism and the widow's rights .... 192

La pluis beale 192

The power of alienation and the widow's rights . . 192

Need for a fixed rule of law 192-193

(ii) The contents of the widow's right 193-195

The third 193

Thehusband's alienation does not affect it . . . 193

The technical reasons for this rule .... 193-194

A compromise 194

Relation to the named dowers 194-195

Becomes general 195

xviii CONTENTS

PAGE

(iii) The modes in which dower may be barred . . . 195-197

Joint tenancy I95

Elopement 195

Exchange 195

Fines 195-196

The Use 196

The Statute of Uses 196

Equitable bar 196-197

The devices of the conveyances 197

The Dower Act 197

10. Unfree Tenure 198-213

The common field mode of cultivation 198

The " farm " system 198

The labour-service system 198-199

The money-rent system 199

Thirteenth to fifteenth centuries — transition from labour-service to

money-rent system 199

The composite class of villani 199-200

Services 200

Incidents • . . 200-201

Origins of these incidents are diverse 201

Fixity of the system 201

Gradual nature of the transition 201-202

The process of transition 202-206

Growing prosperity 202

Rent-paying tenants in the thirteenth century . . . 202-203

The Black Death 203

Breaks up the old economic conditions 203-204

The revolt of 1381 205

Spread of leases and commutation 205-206

Tenure by copy of the court roll 206

The effect of this transition on the land law .... 206-209

Increased protection for the copyholder 206-207

Need for this . 207-208

The Chancery and the Council 208

The common law courts follow 208-209

The settlement of the position of the copyholder .... 209-213

Not settled till the Tudor period 209

Increased need for regulation at this period .... 209-210

Statutes and royal commissions 210

Efforts of all the courts 21 r

Nature of the settlement effected 211-212

Effect on the law of copyhold tenure 212 213

11. The Term of Years 213-217

The termor's right is a jus in personam 213-214

The Quare ejecit infra terminum 214

Statute of Gloucester

Trespass — ejectio firmae 214

Why it remained a chattel interest . . . . . . . 214-216

The term becomes recoverable by ejectio firmae 216

Reasons for this 216-217

Real property and chattels real 217

12. The Modes and Forms of Conveyance 217-256

Existing conveyances show us the land law in motion . . . 218

The practice of conveyancers 218

Compared with the Responsa Prudentum 219

Of less authority in this period than later 219

These conveyances occupy a larger sphere owing to importance of the

land law 219

CONTENTS xix

PAGE

The history of the forms of conveyance 219-249

Conveyancing in France and England 220

(i) Freehold interests in lands held by free tenure . . . 220-246 (i) Conveyances which take effect simply by the act of the

parties 221-234

Feoffment with livery of seisin 221

Writing not needed 221

Ceremonies which evidence livery .... 221-222

Need to leave the land vacant 222

Tendency to confuse the livery with ceremonies which

evidence it 222

Roman law 222-223

The delivery of a deed 223

In England the deed is not allowed to convey . . 223-224

The Jury 224

Conveyance not conceivable without a real trans- fer 224

Reasons for the long life of this principle . . . 224

Elimination of the lord's participation . . . 225 Deeds become common to show the intent with which

seisin is delivered 225

Writ forms 226

Influenced by ecclesiastical ideas .... 226

The modern deed 226-227

Deeds poll and indentures 227

Parts of the deed and usual clauses .... 227-230

Date and ceremonies attending execution . . . 230-231

The Release 232

The Surrender 232

The Confirmation 232-233

The Exchange 233

Partitions 233

Deeds of Grant and incorporeal things . . . 233-234

Growing importance of Deeds of Grant . . . 234 (ii) Conveyances which depend for their efficacy on the

machinery of the court 234-246

Conveyances made in the king's court . . . 235

Conveyances enrolled there 235

Effect of possession by order of the court . . . 235-236

Fines 236-245

Parts of the fine 236-238

The writ 236

The Licentia concordandi 237

The concord ....... 237

The note -37

The foot . . . . . . . . 237-238

Varieties of the fine 238

The two types 238

Sur done grant et render combines the advantages

of both 239

Reverence with which the fine was regarded . . 239-240

Its effects 240-245

(i) Bars adverse claims 240-244

Fines and livery of seisin .... 240-241

Fines become a substitute for livery of seisin . 241-242

Effect of merely levying a fine . . . 242-243

Statute of non-claim 243-244

Richard III. and Henry VII.'s statutes . . 244

(2^ Guarantee against forgery 245

(3) Attornment of tenants 245

i^) The married woman's conveyance . . . 245

5) Useful for settlements 245

XX CONTENTS

PAGE

Recoveries 246

Not a regular mode of conveyance in this period . 246

{2) The Copyhold 246-248

Surrender and admittance 246

Effects various transactions 247

Reasons for the form 247

Lord becomes merely passive 247- 248

(3) The Lease for Years 248-249

Forms of conveyance similar to freehold interests . . 248-249

Need for entry 249

The modes in which landowners can deal with their land by these

conveyances 249-254

Thirteenth century settlements 250

Elaborate conditions in leases 250

Growing fixity in forms 250

Many conveyances needed to effect a settlement .... 250

Feoffment and re-feoffment 250-251

Instance from 1348 251-252

Fines and settlements 252

Fines and the validity of dispositions thereby made . . . 252

Control by the judges 252

Advantages to the parties 253

Comparison with the law of pleading 253

Effects on the art of conveyancing 253-254

Mediaeval conveyancing and the development of the law . . . 254-256

The conveyances illustrate many branches of law . . . 254

Personal and human side of legal development .... 255-256

§ 13. Special Customs 256-275

Survivals of an old order 256

Causes which made for their disappearance 257

Causes which made for the retention of such as survived . . . 257-259

Gavelkind 259-263

Derivation of the term 259

(i) The Kentish Custumal and its contents 260-262

Contents 260-262

Extent of application 262

(2) The reasons for the continued existence of these Kentish cus- toms 262-263

Ancient Demesne 263-269

Definition 263-264

The king a franchise holder 264

Peculiar tenure 264-265

Blackstone's account 265

The little writ of right 265-266

The writ of monstraverunt 266

The tenant's services 266

Survival from pre-Conquest days 266-267

Later law 267

Freeholders or not ? 267-269

31 George IL c. 14 . . 269

Disappearance of the peculiar remedies 269

The Borough Customs 269-275

Causes of divergence . . 269

(i) Rules arising from the fact that the borough customs were

codified 270-271

Restraints on alienation 270-271

Inheritance 271

Borough English . . . • . . . . 271

(2) Rules arising from the commercial character of the borough . 271-273

Devise 271

Repair and waste 272

CONTENTS xxi

PAGE

The lessee for years 272

Wardship 272-273

The customs are influenced by and influence the common law . 273

Germs of later legal doctrines in some of the customs . . . 273-274

Survive only in isolated rules 274

Historical importance 274

Miss Bateson's summary 274-275

CHAPTER H

Crime and Tort

Characteristics of the criminal law in this period 276

The law encumbered by survivals 276

Judicial decisions and the criminal law 277

Statutes and the criminal law 277

Progress in the law of tort 277-278

§ I. Self HELP 278-287

Self-help and the law of crime and tort 278

In defence of person or property 278-279

Recapture of goods 279-280

The crown's rights in case of felony 280

Re-entry on land 280

Distraint 281-287

Definition 281

Development of 281

Its various forms 281

(i^ Distraint damage feasant 281

(2) The landlord's right to distrain 281-287

Origin and development 28i-:?82

Regulation 282

Vetitum namii ^82-283

Things distrained in the custody of the law . . . 283

Replevin 283-284

History of the action 284

Procedure 284

De proprietate probanda 284

Replevin and trespass 285

Replevin and trover 285-287

§ 2. Treason 287-293

The position of Edward III. 's statute 287

(i) Earlier ideas as to treason 287-291

(a) The idea of treachery 287-288

Alfred's law 287

Petit treason 288

(b) The idea of a breach of the feudal bond 288

Clauses due to this idea 288

Conspiracy to levy war 288

(c) The idea that duty to the king is higher than the feudal duty

to the lord 288-289

Loss of England's continental possessions .... 288

Theories of the king's lawyers 289

(d) The Roman law of laesa mejestas 289

Elasticity of these ideas 289

Treason and felony 289-290

No clear distinction 290

Reason 290

Extensions of treason 290-291

Objects of the framers of Edward III. 's statute . . . 291

(2) Treason in the fourteenth and fifteenth centuries .... 291-293

xxii CONTENTS

PAGE

Treason in Richard II.'s reign 291-292

Henry IV ^ ^?2

No constructive extensions in the fifteenth century . . 292 Indications of the form that these extensions will take m later

law 292-293

§ 3. Benefit of Clergy, and Sanctuary and Abjuration . . 293-307

Benefit of clergy and sanctuary 293-294

Benefit of clergy 294-302

How it developed 294-295

Its mediaeval history 295-299

(i) The thirteenth century 295-297

(i) The procedure when clergy was claimed .... 295-296

(ii) How the church dealt with its criminals .... 296

(iii) Persons who could claim the privilege .... 296-297

(iv) Cases in which it could not be claimed .... 297

(2) The fourteenth and fifteenth centuries 297-299

(i) Extension of the privilege 297

(ii) Increased control of the royal courts .... 297-299

(iii) Exclusion of certain oiTences 299

Later history 299-302

Henry VII.'s and VIII.'s statutes 299-300

Modificationof Henry VIII. 's statutes 300

(i) Persons who could claim the privilege .... 300

(ii) Consequences of a successful claim 300-301

(iii) Further exclusion of offences 301

Results of this 301-302

Blackstone and Benefit of Clergy 302

Sanctuary and Abjuration • . 303"307

Nature of this institution 303

Principles underlying it 303

The principle that certain places are sanctuaries .... 303

The principle that the refugee must abjure the kingdom . . 303-304

What places were sanctuaries 304

Refusal to abjure 304-305

Effects of abjuration 305

Who could not take sanctuary 305

Crimes to which the privilege applied 305

Attempts to restrict it in the Middle Ages 305-306

Changes made in Henry VIII.'s reign 306-307

His legislation repealed in 1603 307

Its abolition 307

Later so-called sanctuaries 307

§ 4. Principal and Accessory 307-310

The common law classification 307-308

Only important in felony 308

Reasons for this 308

Accessories at the fact 308

Accessories before or after the fact 308

The definition of principal and accessory ...... 309

Application of the rule that you cannot try the accessory till the.

principal is convicted 309-310

Elaboration of the rules 310

Later changes 310

§ 5. Offences against the Person 310-318

Homicide 310-316

The modern classification 310-311

Not reached in this period 311

Process of discrimination begun 311

Homicide always an offence . 311

CONTENTS

XXlll

Very few exceptions

Pardons in cases of misadventure or self-defence

Misadventure

Self defence

Various degrees of guilt in felonious homicide

Murdrum and Murder

Killing other than by malice — manslaughter Need for a voluntary act directly causing death

Attempts

Suicide

Rape

Definitions

Statute oi Westminster II

Mayhem

Definition

Ceases to be a felony

Large extent of trespass .... Shows the need for extending the criminal law its criminal side sinks into the background . Later statutory misdemeanours .

of detinue

§6. Possession and Ownership of Chattels

Law originates in the history of the personal actions The development of the personal actions . (i) Involuntary loss of possession

Glanvil and Bracton ....

(i) The appeals of robbery and larceny . (ii) Actions for res adiratae

Relation between the two remedies Nature of the remedy . Origin of sale by operation of law . Decay of these remedies .... (i) The appeals and the action of Trespass Comparison between these remedies (ii) The action for res adiratae and the action Scope of detinue .... Detinue against other than bailees The count in trover (iii) Legal doctrines resulting from these developments These actions delictual in character The overlapping of these remedies Order of priority chronological Precedence of the indictment to Tresp This advantageous to the Crown . Effects on the law ....

(a) "Property" ascribed to thieves

(b) Torts which amount to felonies {c) The rule in Baker v. Bolton

(2) Voluntary parting with possession The term bailment . Legal position of the bailee The bailor's ownership Liability of the bailee The law in Glanvil's day Influence of Roman ideas (i) Influence of the Roman idea of dominium

Bailor gets increased rights .

Bailee's rights based on his liability over Influence of Roman ideas of liability

Idea that bailee's absolute liability should be

These ideas do not materalize

But some tendencies in this direction

(ii)

modified

PAGE

3"

312-313 313

313-314 314 314 315 315 315

315-316 316 316 3i6

316-317 316 317 317 317 318 318

318-360

318-319 319-351 319336 319-320

320 320-322

321 321-322

322

322 322-324 323-324 324-327

324 324-326

327

328-336

328

328

329

329

329-331

331-336

331

331-333

333-336

336-350

336

336

336-337

337-338

338-339

339

339-341

339-340

340-341

341-347

341

341

341-342

xxiv CONTENTS

PAGE

Theory that he can sue because accountable accepted . 342-344

Hence no diminution in his liability .... 344

Is this historically true ? 344-345

An academic question in the Middle Ages . . . 345 Reasons in favour of this view ..... 345-346 Reasons for basing his right to sue on his possession . 346 A continuous tradition in its favour . . . 34^-347 In harmony with fundamental common law prin- ciples 347

Holmes's view correct 347

Continued extension of the Bailor's rights .... 347-348

Trespass 34^

Detinue 348-349

(3) The origins of the action of trover and conversion . . . 35o-35i

Why necessary 350-35^

How it differed from Detinue 35 1

Summary 351

The Mediaeval theory of the ownership and possession of chattels . 351-360

Comparison between land and chattels 351

Differences 351-352

But fundamental similarity in principle 352-353

Need for a delivery to pass property 353-354

The two exceptions 354

The contract of sale 354-357

The deed 357*358

They elucidate the conception of ownership 358

Elucidated mainly by the increased powers of owners out of

possession 359

Parallel between lands and chattels 359

Influence of the law of actions 359-3^0

§ 7. Wrongs to Property 360-371

Larceny 360-368

Not originally a felony 360

Reason 360

A felony from Henry II. 's reign . , 360

Bracton 360-361

Subsequent history 361

(i) Larceny and the theory of possesssion 361-366

Physical change of possession 361

Asportation 361

Intention 361-362

Definition too narrow 362

Bailee cannot commit 362

Consent of owner got by fraud 362-363

Taker from a thief 363

In this period only extended in two ways .... 363-366

The servant 363-364

The licencee 364-365

Interpretation of these exceptions .... 365

The carrier who broke bulk 366

(2) The value of the thing stolen 366-367

Grand and petit 367

(3) Things not the subject of larceny 367-368

Robbery 368

Burglary 369

Coke 369

Britton 369

Fitzherbert 369

The rule as to commission at night later ..... 369

The intent ........... 369

Arson 370

CONTENTS XXV

PAGE

Coke 370

Anglo-Saxon law ^^o

Later definition , 370

Only form of injury to property recognized as a felony in this

period 370

The scope of trespass 370-371

18. The Principles of Liability 371-388

The old principles remembered 371

Criminal liability 372-375

Grounds of excuse ......... 372

Compulsion in time of war 372

Self-defence 372

Infancy 372

Madness 372

Damage done by animals .... .... 373

Femes covert 373

Act and intent 373

Felony and civil wrong . 374

Intent the chief but not the only test 374

The intent and the evidence of it 374-375

Civil liability 375-388

Old principles not mitigated in the case of civil liability . . 375

A man is liable for his acts 375

Illustrated from the Y.BB 375-376

Accident no defence 376

Nor infancy or lunacy 376-377

But some harm may be justifiably inflicted 377

In the public interest 377

Protection of private rights 377-378

The act causing damage is the plaintiff's 378

Origin of doctrine of contributory negligence . . . 378-379

Idea of proximate consequence 379

Negligence • . . 379-380

Act of God • . . . 380

Convenience amounting to necessity 380-381

Effects of those developments on old principle of liability . . 381

Effect of growth of actions on the case 381

Roots of a doctrine of negligence 381-382

Liability of a master for the acts of his servant .... 382-385

The older rules 382

Command and consent must be proved 382-383

Was the servant's act the act of the master ? . . . 383-384

Consequence of the prevailing principle of liability . 384

A question of agency simply 384

Practical results 384-385

Extensions of the strict theory on grounds of public policy . 385-387

Damage by fire 385

Innkeepers, etc 385-386

Work done badly under a contract 386 387

Statutes 387

Mercantile custom 387

The later rule 387

The mediaeval principles of liability and constitutional law . 387-388

9. Lines of Future Development 388-411

Public duties of communities, officials, and citizens .... 388-389

Growing laxity of the control of the common law .... 389-390

Offences against the machinery of justice ...... 390-391

(i) Contempts of the court and its process 39^-394

Fine and imprisonment 391-392

Statutory extensions 392

xxvi CONTENTS

PAGE

Control by the court of its officers and of jurors . . . 392

Contempts in the presence of the court 392-393

No power to punish summarily 392-393

Indictment . 393

Enlargement of the court's power to punish summarily . 393

Influence of Star Chamber 393

Later part of the seventeenth century .... 393-394

The King v. Almon 394

(2) Perversion of the machinery of justice 394-400

Prevalence of these offences 394*395

Evolution of certain specific offences 395

Champerty 395*396

Maintenance 396-399

Stat. West. 1 396

Stat. West. II 397

Ordinance against conspirators, 1293 .... 397

Statute of conspirators . 397

Later statutes 397-398

Coke's definition of maintenance and champerty . . 398

Mediaeval distinctions 398-399

Embracery and maintenance 399-400

{3) Off"ences against justice generalized in later law .... 400-408

Forgery and perjury 400-401

Conspiracy 401-407

Bracton and Britton 401

Effect of Edward I. 's legislation 401-402

(i) Edward I.'s statutes ....... 402-404

(ii) The writ of conspiracy and its development . . 404-405

Limitations on the writ 405

(iii) The action on the case in the nature of a conspiracy . 405-407

Deceit 407-408

Original scope 407

Extension in case of sales 407-408

Defamation 408-411

Scandalum Magnatum 409

Object of this legislation 409

Not effective 409-410

The ecclesiastical jurisdiction 410

The common law controls ecclesiastical jurisdiction . . . 410-411

Does not assume jurisdiction in this period 411

CHAPTER III

Contract and Quasi-Contract

Antiquities 412

" Cause " in French Law 412

English and Roman theories of contract 412-413

Consideration 413

Consideration and " cause " 413

Periods in the history of the law 414

The age of Glanvil and Bracton . . 414-417

Glanvil 414-415

Bracton 415-416

The real and formal principles predominate 416

The Use 416

The thirteenth, fourteenth and early fifteenth centuries .... 417-428

Covenant 417-420

Why a sealed writing was binding 417

Sealed writings evidencing a debt 418

Other agreements 418-419

The seal and consideration 419-420

Develops idea of an actionable agreement 420

CONTENTS xxvii

Debt

PAGE 420-424

Debt and detinue 420

Debt and contract 421

On what contracts debt lies ^21

Quid pro quo 421-422

Of what Quid pro quo may consist 422

Extensions of the idea of Quid pro quo 422-423

Historical importance of these extensions 423

Inconveniences of the action 423-424

Felt more as the common law became more common . . . 424

The idea of quasi-contract 424-428

Developed by the action of debt , 425-426

Developed also by the action of account 426-428

Evolution of this action , 426-427

Brings out idea of implied and quasi-contract . . . 427-428

Is superseded in later law 428

The fifteenth and sixteenth centuries 428-454

Extensions of delictual liability 428

Contract and tort 428-429

Case and Assumpsit 429

(i) Original application of the action — misfeasance .... 429-434 Liability in tort incurred by doing work badly in breach of an

undertaking 429-430

Illustrations 430-431

Somerton's Case 431-432

Ground of liability is tort 432

No liability for non-feasance . 433-434

(2) Extension of action to remedy certain non-feasances . . . 434-441

Views of Paston and Juyn, J.J 434-435

Their principle too large 435

The test ultimately applied 435

Doight's Case 435-436

Reasons for this decision 436-437

Views of Newton and Prisot, C.JJ. 437*438

Their reasoning fallacious 438

Explanation of it 438-439

State of the law at the close of the Middle Ages . . . 439-440

Further extension — The Doctor and Student .... 440-441

Comparison with Quid pro quo 441

Wholly executory contracts not enforceable .... 441

(3) Absorption of the sphere of Debt, and extension to remedy the

breach of executory contracts 441-446

Competition of the Chancery 442

Popularity of Assumpsit 442

(i) Absorption of the sphere of Debt 442-444

(ii) Extension to wholly executory contracts .... 444-446

Slade^s Case 445-446

Special Assumpsit and Indebitatus Assumpsit . . 446

(4) Extension of the action to implied contracts 446-451

Slade's Case and implied contracts 446

Assumpsit on a quantum meruit 446-447

The principle generalized 447

Competition with the Chancery 447

Encroachment on spheres of Debt, Account, and Case . . 447-448

(i) Applied to enforce the liability of innkeepers, etc. . . 448

(ii) Confusion of the spheres of tort and contract . . 448-450

Consideration 449-450

(iii) Effect on principles of liability 450

Extension to quasi-contractual obligations later . . . 450-451

Assumpsit becomes the contractual action of the common law . . 451

Application of the maxim actio personalis, etc 451-452

Measure of damages 452

xxviii CONTENTS

PAGE

Evolution of an original theory of contract 453

Why this was possible 453-454

Effect on the law as a whole 454

CHAPTER IV

Status

•' Status to Contract " — how far true 455-456

Complexity of the mediaeval law of status 456

The point of view of mediaeval law 457

Gradual growth of the idea of a normal person 457

Varieties of status in mediaeval law 457-458

§ I. The King 458-469

Blackstone's account of the prerogative 458-459

Periods in the history of the prerogative 459

Double aspect of the prerogative in the Middle Ages .... 460

The feudal ideas 460-463

The king a feudal lord writ large 460

These feudal powers more frequently heard of in the courts . . 461

Consequences of this conception 461

Allegiance and homage 461-462

The king is a lord who cannot be sued 462

Not the sole fountain of justice 462

Proprietary and governmental rights 462

Descent of the kingdom 462

The king's property 462-463

The national ideas 463-469

The king the representative of the state 463

Subject to law 463

The king a natural man 463

The king can die 463-464

The king can be under age 464

The king can do wrong 464-466

No idea that the king has two capacities 466

The theory suspected 466-467

Can the king be seised to a Use ? 467-468

Henry VII. 's Statute of Treason 468

Effect of the decline of feudal ideas 468-469

§ 2. The Incorporate Person 469-490

The earlier groups 469

The group and the corporation 469-470

The idea of a corporation is neither primitive nor native . . . 470

Why the idea was received by the common lawyers .... 470

The church 471

Earlier ideas and difficulties 471-474

The theory of the />^rso«a^i;^a . 474

The theory applied to other groups 474

The borough 474-475

Evolution of the consequences of this conception . . . . 475

Creation 475-479

Who can create 475-476

Corporation and franchise 476

Agreement of canon and common law 477

How reconciled with the existence of unincorporate groups . . 477-478

The trust concept 478

The point of view of public law 478-479

Classification 479-482

Corporations aggregate and sole 479

Corporations aggregate and the boroughs 480

The church and the corporation sole 480-481

CONTENTS xxix

PAGE

King and corporation sole 482

Idea imperfectly worked out 482-483

The nature of corporate personality 482-487

(i) Distinct from its members 482-483

(ii) Its property distinct from that of its members .... 483-484

(iii) Its property is not liable for the debts of its members . . . 484

Speculations as to its nature 484-485

Difficulties in the application of these speculations . . . 485

(i) Effect of duress applied to members of a corporation . . 483-486

(ii) Effect of death, etc., of the head of a corporation . . . 486-487

Powers, capacities, and liabilities ....... 487-489

Difficulties arising from the character of a corporation . . 487-488

Delictual liability 488

Proprietary and contractual capacity — the seal .... 488-499

Dissolution 489-490

How dissolved .......... 489-490

Fate of its property 490

Future development of the law ........ 490

3. The Villeins 491-510

A composite class 491

Theories borrowed from the Roman law of slavery .... 491

(i) Do not fit the facts of English life 491-493

No market in villeins 492

Protected by the custom of the manor 492

Facility of manumission ........ 492-493

(2) Do not fit the rules of English law 493-496

Public law 493

Public duties 493

Protected and punished by the criminal law .... 494

Modes of getting freedom 494

Private law 494

Liberty and the theory of seisin 494-495

Relativity of servitude 495

Results of this theory 495

Privileged position of the villein in procedure .... 495-496

(3) Do not fit the leaning of the royal lawyers in favour of liberty . 496-500

Legal theories 496-497

Procedure in questions of status 497-498

Status of children . 499

Prescription 499

Summary 500

Changes in the social and agricultural system 500

Legislation in favour of lords 500

Ineffective ............ 500-501

Gradual disappearance of the status 501

Still survived in a decadent condition 501

Hard lot of surviving villeins 501-502

Why it survived 502

(i) The status valuable for purposes of oppression and chicane . . 502-505

Illustrations 503-504

(2) The status might be valuable to the lord 505-507

The villein who rose in life 505-506

Payments for enfranchisement 506

Elizabeth's manumissions 506-507

Final extinction 507-508

Note on the terms " Regardant " and " In Gross " as applied to villeins 509-510

4. The Infant 510-520

(i) The age of majority 510-511

The general rule 510

Other ages for other purposes 510-51 1

XXX CONTENTS

PAGE

(2) Guardianship 511-513

No general rules as to guardianship 511

Various guardians for various purposes 511-512

The old and the new view of guardianship .... 512

Inadequate machinery of the common law .... 512-513

(3) The capacity of the infant 513-520

Difficulty when there is no adequate theory of guardianship . 513

Maintenance of the status quo 513-514

Demurrer of the parol 514

Long life of this conception 514

Compared with France 514

Modifications of the theory 514

Bracton 514-515

Applies chiefly to inherited rights and real actions ... 515

But applied to some personal actions in this period . . . 515-516

The infant has proprietary capacity 516

He is in some cases allowed to be made liable .... 516-517

In some cases allowed to act 517

But could disaffirm on majority 517

Evasion of this rule 517

The Guardian ad litem — common recoveries .... 517-518

Letters under the Privy Seal 518

Private Acts of Parliament 518

The infant's contracts 518-519

Could disaffirm on majority 519

Modifications 519

The " next friend " 519-520

Instead of a law of guardianship the capacity of the infant is

defined 520

§5. The Married Woman 520-533

Difficulty of the problem of the married woman 520-521

Diverse solutions 521

Two systems recognized in Europe 521-522

But the division not very clear 522

Twelfth and early thirteenth centuries 522-524

The wife's land 522-523

The wife's chattels 523

The latter part of the thirteenth century 524

Community rejected — reasons 524

(i) The common law loses sight of the wife's right to chattels

on her husband's death 524

(2) The common law makes the law of the nobles the law for all 524-525

(i) The wife's property 525-527

Freehold 525-526

Chattels 526-527

Paraphernalia 527

Choses in action 527

The Chattel real 527

(ii) The wife's contracts 528-530

No capacity 528

But can act as her husband's agent .... 528

Analogy of the monk 528-529

The rule of agency established 529

Fineux, C.J 529

Manby v. Scott' ........ 529

Agency by necessity 530

(iii) Criminal and civil liability 530-532

The wife's crimes 530

Idea of the husband's coercion 530-531

The wife's torts 531

Consequences of her proprietary disabilities . . 531

CONTENTS

XXXI

PAGE

Ante-nuptial torts and debts 531

Post-nuptial torts 531-532

Distinction between post-nuptial torts and post-nuptial

debts 532

Rigidity of the common law rules 532-533

Need for equitable rules 533

General tendency of these rules 533

CHAPTER V Succession to Chattels

Peculiarities of this branch of the law

§ I. The Last Will

of a

will

Intestacy in the Middle Ages Canon Law and Common Law .

The making, revocation, and interpretation Eleventh and twelfth century wills The will with executors Testamentum and Ultima Voluntas Verbal or nuncupative wills . Variety of forms of written wills . Proof of the nuncupative will A will always revocable Modes of revocation ... The interpretation of the will The capacity to make a will

Lyndwood

The villein

The married woman .

Common law and canon law .

Lyndwood ....

Wills made by married women

Victory of the common law .

Fineux, C.J

The infant

Age for making a will fixed by canon law Some clauses found in the wills of this period Usual clauses .... Wills and the chantries Charitable bequests The specific legacies . Legacies of books Clauses relating to the executor . Importance of the executor . Powers conferred on him Extensive results achieved by the testator through him The human side of these wills

§ 2. Restrictions on Testation and Intestate Succession

The rights of wife and children

The writ de rationabili parte bonorum .... The evidence for the older scheme ....

Wills

Survivals

It disappears in the South of England so far as it imposes

restrictions on testation

The reasons for the disappearance of the older scheme

Want of evidence

The meeting-place of lay and ecclesiastical jurisdictions No fixed rules in either common or canon law

VOL. lll.—C.

534-535

535-550

535-536 536

536-541 536

536-537 537

537-538

538-539

539-540 540 540

540-541

541-545 541 542

542-544

542-543 543 543

543-544 544

544-545 545

545-550 545

545-546 546

546-547 546-547

547-548 548 548

548-549

549-550

550-563

550

550

551-554

551-552

552

552-554

554-556

554

554

554-555

xxxii CONTENTS

PAGE

The common law and the married woman .... 555

Effect on the old scheme . . . . • . . . 555

The common law and the children 555-556

Analogies from the land law 555

No court to superintend the administration of their shares . 555-556

The growth of the modern law 556-563

The administrator 556

No adequate control 556

Perkins 556-557

The Reformation 557

Antagonism of the common law 558

The case of Hughes v. Hughes 558-559

It causes a legislative change 559

The Bill of 1668 559-560

The Statute of Distribution . 560

Objects of the Statute 560

The effect of the Statute . 560-562

Survivals from the older law 562-563

§3. The Representation of the Deceased 563-595

Origins 563-572

(i) The executor 563-566

Executor and hceres 563

The •♦ Salman " 563-564

Becomes the testamentary executor 564

Comparison with his position abroad 565

Testamentary executor and Salman 565

Supervisors and coadjutors 566

Joint executors 566

The executor's title to the goods 566

(ii) The administrator 566-571

Swinburn 566

Special and limited grants 567

His position before 1357 567-568

The ordinary 568

The ordinary's delegate 568

His position after 1357 568-569

31 Edward III. st. i c. 11 569

Survival of older ideas 569

Devolution of the office . . . . . . . . 569

Title to the property 569

Graysbrook v. Fox 570

Hewson v. Shelley 571

(iii) The Executor de son tort 57^-572

Definition 571

Why so-called 571

His position 571-572

His position in harmony with common law principles . . 572

In harmony with principles of ecclesiastical law . . • 572

What will make a man such an executor 572

The mode in which and the extent to which executors and administra- tors have become the representatives of the deceased . . 572-595

Executor and heir 572-573

Bracton 573

Actions by and against executors in the royal courts . . . 573-574

New division of functions 574

Effect on the Ordinary and the administrator .... 574

(i) Restrictions on liability and rights of the heir . . . 574-576

TheY.BB 574-575

Causes 575

Inconveniences 575-576

(ii) The extent of the liability of the executor .... 576-583

CONTENTS xxxiii

PAGE

Actio personalis moritur cum persona .... 576

History of the maxim 576-578

Does not appear in the Y.BB 576

Was Coke its inventor ? 576

Bracton 577

Application to assumpsit 577*578

To Trespass and Case 578

Why principally confined to actions in tort . . 578 In thirteenth century applied to nearly all personal

actions 578-579

Sherrington's Case 579

The principle in the Y.BB 579-580

Supersession of detinue by trover 580-581

Hambley v. Trott 581

Assumpsit an alternative remedy 581

Phillips V. Homfray 582

A reversion to the mediaeval common law .... 582

Inconvenience of the law 582

Mitigated in practice by testamentary directions . . 582-583

(iii) The right of the executor to the estate of the deceased . . 583-585

Chattels 583-584

Choses in action 584

Early modification of '• actio personalis," etc . . . 584

Reasons 584

13 Edward I. st. i c. 23 584

4 Edward III. c. 7 584

Extensions 584-585

The position of the representative at common law and in the Ecclesias- tical Courts 585-595

(i) At common law , . 585-591

Point of view of the common law 585

The fundamental principle 586

The sanction of personal liability 586

The order in which debts must be paid 586-587

Preference 587

Powers to trade 587-588

Debts due from the deceased to the representative . . . 588

Retainer — allowed even to a sole executor .... 588-589

Debts due from the representative to the deceased . . . 589

Extinguishment 589

Liability " de bonis propriis " 589-590

Inconveniences of the common law rules 590-591

Cause of these inconveniences 591

(ii) In the Ecclesiastical Courts 591-595

Historical position of these rules 591

The inventory 591-592

Executor treated as a trustee 592

His powers 592

Account 593

Illustration 593-594

Decay of the jurisdiction of the ecclesiastical courts . . . 594

Chancery 594-595

CHAPTER VI

Procedure and Pleading

Fundamental changes in this period 596

Permanence of the mediaeval principles 597

Divergence of criminal and civil procedure 597

§ I. The Criminal Law 597-^23

Process 597-607

xxxiv CONTENTS

PAGE

(i) The arrest of persons not yet indicted 598-604

(i) Twelfth-fourteenth centuries — communal action . . . 598-599

(ii) Fourteenth-sixteenth centuries 599-601

The ordinary citizens and the official 599

Growing precision in the law 599-600

The constable 600

More liberal construction of powers of officials . . . 601

Obscurity of the law 601

(iii) Late sixteenth century 601-604

Increased power of officials 602

Hale 602-603

The constable and the private person 603-604

(2) The arrest of persons who have been indicted .... 604

The Sheriff's powers and immunities 604

(3) Process against persons evading arrest 604-607

Outlawry 604-605

Verbal accuracy in the process 605

Writs of error 605-606

Treason 606

Extension to trespass in a modified form 606-607

Procedure and Pleading 607-623

The normal procedure 607

Other forms of procedure 607

(i) Exceptional forms of procedure 607-611

The criminal caught in the act 608

The appeal 608-609

Arraignment on an appeal which failed . . . 6og

Its influence on the indictment 609

Other exceptional modes of procedure 610

Arraignment on a jury's finding in a civil action . . 610-611

Presentment of a coroner's inquest .... 611

(2) The normal procedure of indictment 611-620

The old conception of a trial 612

Adapted to the jury 612-613

(i) The differences between the new and the old procedure . 613-615

The jury is not a mechanical test 613

The jury do not decide matters of law .... 613-614

Special pleas 614-615

(ii) Resemblances between the new and the old procedure . 615-620

Pleading adheres to the old oral forms .... 615-616

Question submitted to jury as to one of the older tests . 616

The formality of the indictment 616

(a) Illustrations of this 617-618

(b) Reasons for this 618-619

{c) Effects — bad and good 619-620

(3) The peculiarities of English criminal procedure . . . 620-623

The English and the continental development . . . 620-621

Accusatory not inquisitorial 621

An action between parties 622

Due to survival of old ideas . . . . . . 622

Its defects 623

Future history 623

§2. The Civil Law 623-656

Process 623-627

Its characteristics — slowness and technicality .... 623-624

Real actions 624-625

Personal actions 625

Impossible to avoid mistakes 625-626

Bad effect of these rules .' 626

Trespass vi et armis 626-627

Procedure and Pleading '. 627-656

CONTENTS

XXXV

(i) The origins and development of the new system The common law system of pleading . Why was this peculiar system developed ? Old idea of trial adapted to jury system

The varieties of pleas

Bracton and exceptiones .... The old rules and the new exceptiones Roman rules which survived Effect of cessation of Roman influence (i) Adaptation of new ideas of pleading to jury system Possible to submit complicated issues to the jury Rules as to way they must be submitted . Statements must be material, single, and certain No argumentative pleading ....

Negative pregnant

Double pleas — Protestations ....

No departures in pleading

(ii) Characteristics of the older system of pleading

Oral

Rules adapted to this system .... Its strong point — latitude allowed This necessitated by absence of law of evidence Illustrations of these points .... Colour and demurrer to evidence (2) The introduction of written pleadings ....

The new system

Large effects of the change

(i) The change to written pleadings ....

Series of small changes

Old and new system intimately related (a) The beginnings of the change

Growth in technical strictness

Coke and Hale

Change in mode of recording pleas .

Reeves's summary

Practice of leaving a note of the plea with the pro

thonotary

Disapproved by the judges

Litigants appearing in person .

Helped by the prothonotaries or their clerks

Their clerks employed as attornies .

First mention of " paper " pleadings in this

nection

Views of the court

(&) Development of " paper " pleadings Growth of law of evidence Takes away old objections to these pleadings Example of the Chancery and Star Chamber Growth of complexity — the special pleader Attornies of the parties oust the prothonotaries Modern system reached . Survivals of the older practice (ii) The effects of these changes .... Effect on the mechanism of legal institutions Effect on the law report .... Effect on the law

Conclusion

clerks

PAGE

627-639

627-628

628

628-629

629-630

630

630-631

631-632

632-633

633-634

633

633

633

633-634

634

634

634

634-639

634

635

635

635-636

636-638

638-639

639-656

639-640

640

640-653

640

640-641

641-648

641

641-642

642-643

643-644

644-645 645 645

645-646 646

646-647

647-648

648-653

648-649

649-650

650

650-651

651-653

653

653

653-656

653-654

654-655

655-656

656-658

APPENDIX

I. Specimens of original writs from the Register .

659-664

(3) (4)

xxxvi CONTENTS

PAGE

A. Real Actions —

(i) Writs of Entry 659

(2) Writs of Formedon 659-660

Mesne 660

Customs and Services 660

(5) De scutagio habendo 660

(6) Cessavit 660

(7) Quod Permittat 660

(8) Cui in Vita 661

(9) Ayel, Besaiel, and Cosinage 661

(10) Dower unde nihil habet 661

(11) Quare impedit 661

(12) Little writ of right 661

(13) Monstraverunt 661

(14) Quare ejecit infra terminum 662

(15) Ejectio firmae 662

(16) De nativo habendo 662

(17) De libertate probanda 662

B. Personal Actions —

(i) Debt 662

(2) Detinue 662

h) Covenant 663

(4) Account 663

(5) Trespass to the person 663

(6) Trespass to land and goods 663

{7) Trespass on the case 663-664

(8) Assumpsit (misfeasance) 664

(9) Assumpsit (non-feasance) 664

n. A manorial Extent 664-666

III. Early Conveyances

(i) The Land Book 666-667

(2) The Laen 667

(3) Writ form of conveyance 667

(4) Transition between Anglo-Saxon and Anglo-Norman forms of

conveyance 667-668

(5| Indenture form of conveyance 668-669

(6) Deed poll form of conveyance 669

(7) Fines 670

IV. Wills

(i) Tenth century 670-671

(2) Fourteenth century 671

(3) Fifteenth century , . 672

V. Statutes Merchant and Staple . 672-673

VI. Grants of Wardship and Marriage 674

VII. The Law Terms and the Dies in Banco, or Return Days . . . 674-675

VIII. Some criticisms on the decision of the House of Lords in the case of

The Admiralty Commissioners v. S.S. Amerika .... 676-677

Index 679-695

LIST OF CASES

PAGE Abbot of Hulme's Case . . 484, 485 Abbot of Strata Marcella, Case of . 169 Abbots Ripton v. St. John . . 210 Abram v. Cunningham . . . 570 Ackroyd v. Smith . . . .156 Admiralty Commissioners v. S.S.

Amerika . . 335, 336, 676-677 Agars V. Lisle .... 286

Alden's Case 265

Angus V. Clifford . . . -375 Anthony Ashley's Case . . . 601 Applegarth v. Sergeantson . . 439 Armstrong's Case .... 606 Arnold v. Jefferson .... 347 Atkinson and Horsell's Contract, m

94

72

72

Attorney-General v. Duke of Leeds Attorney-General v. Sands Austerberry v. Corporation of Old- ham

164

B

Baily v. Birtles . . . .581 Bainbridge v. Postmaster-General . 388 Baker v. Bolton 330, 333, 334, 335, 676,

677 Balme v. Hutton .... 323 Banister v. Benjamin . . . 649 Banks V. Sutton .... 196 Barretry, Case of . . . . 397

Basset's Case 515

Basset v. Corporation of Torington 489 Beauchamp, in re . . . .531 Beauchamp v. Croft . . 409

Beddall v. Maitland . . . 280

Bernina, the 677

Bettisworth's Case .... 224 Beverley's Case .... 516

Bevil's Case 99

Bibithie's Case . . . 308, 310 Birkenhead Railway Company v.

Pilcher 519

Birt V. Rothwell .... 643 Bishop V. Viscountess Montague 286, 287 Bishop of Winchester v. Knight . 268 Blackamore's Case .... 653

Blackborough v. Davis Blake v. Lanyon Blount's Case Bourne v. Keane Bovey v. Castleman Brediman's Case Brett v. Rigden Brewster v. Kitchell Britton v. Gradon Brown V. Hancock Bruistone v. Baker Buckler's Case Burgess v. Wheate Burton v. Eyre Butler and Baker's Case Butler V. Crouch Butts V. Penny

Calvin's Case . 56, 290, 373,

Carter v. Abbot of Malmesbury

Carter v. Crawley . 558, 560,

Casborne v. Scarfe .

Cayle's Case ....

Chamberlain v. Williamson

Chawner v. Bowes .

Chesterfield v. Harris

Chudleigh's Case .

Clapham v. Clapham

Clark v. General Omnibus Co.

Clark v. Thomson .

Clarke v. Clarke

Clere v. Brooke . . 178

Clowes V. Hughes .

Cochrane v. Moore .

Coggs V. Bernard . . 341

Colls V. Home and Colonial Stores .

Colthirst V. Bejushin

Combe's Case .

Conolly V. Vernon .

Constable's Case

Cooke V. Danvers .

Cooper's Case

Cooper, in the goods of *

Cooper V. Macdonald

Cooper V. Witham .

Corbet's (Miles) Case

PAGE

561, 562 . 677

517, 518 . 677 . 446 100 . 108 . 164 . 630 . 418

. 394 . 224 72, 197 . 650 . 196 506, 508 . 507

461,

464

• 504 561, 562 188, 196

. 368 . 584 . 418

• 171 . 158

196, 197

. 335

. 452

560

183

286

354 449 156

253 268 268

65 268 312

544 i8g

334 144

182,

345:

XXXVlll

LIST OF CASES

PAGE

Corbet's Case 639

Core's Case . . 35i. 357. 4i7. 427 Corpus Christi College's Case . 486

Cotton's Case 87

Coulter's Case . . . -572

Cox V. Paxton 333

Coxe V. Wirrall . . . .407 Cranmer's Case . . . . 33° Cromwel's Case . . .84, ig6 Cromwell's Case . . . .409 CuUyer v. Knyvett . . . .212 Currie v. Misa .... 413

D

Dalton V. FitzGerald

Davidson v. lllidge

Dawes v. Coveneigh

Dean's Case .

Dean of Exeter v. Trewinnard

Debenham v, Mellon

Dee V. Bacon .

Derry v. Peek

Despencers, Case of the

Dockeray's Case

Doight's Case

Donald v. Suckling

Dore V. Wilkinson .

Dormer's Case

Dowman's Case

Drake, ex pte.

Drury's Case .

Dufour V. Pereira .

Duke of Suffolk's Case

Dunraven v. Llewellyn

Dyke v. Kendall

. 94

. 588

333. 334

• 393

• 587

• 530 . 216 . 408 . 290 . 358 . 435 . 322 . 286 . 119

614, 650

. 322

. 65

. 540

. 557

. 144

. 197

Eager v. Furnivall

Eden v. Harris

Edgcomb v. Dee .

Edwards v. Burre .

Edwards v. Freeman

Edwick V. Hawkes

Egles V. Vale .

Ellis V. Ellis .

Etriche v. An Officer of the Revenue

Evelyn v. Evelyn ....

188 233 445 443 562 280 447 570 286 562

Farley v. Bonham . Fawcet v. Charter . Feather v. the Queen Fermor's Case Finlay v. Chirney . Fleir v. Southcot . Flud V. Rumcey Ford V. Hoskins Foreacre v. Fraunceys Forger v. Sales

. 197

• 452 . 466 . 244

578, 579

• 571 . 589 . 211

210, 211, 501 . . 651

Forster v. Crachroode Foster v. Bates Fotherbie's Case Fouke V. Lewen Fouldes V. Willoughby Foxwell V. Van Grutten Frederick v. Holt . Freeman v. Bernard

PAGE 569

287 109 567

447

Gale V. Noble

Gate ward's Case .

George v. Chambers

Gerberge, Case of .

Gibson and Johnson v. Hunter

Goodman v. Mayor of Saltash

Gower v. Capper

Gray v. Briscoe

Graysbrook v. Fox

Green v. Goddard

Greenwood, in re

Greneley's Case

Grenelife v. W.

Griesley's Case

Gylbert v. Fletcher

144.

. 268

150, 170

. 285

. 291

• 639 . 171

• 445 . . . 163

567. 568, 570, 57a . 279

. 197 . 128

163,

230

391 518

H

Hall V. Wright Hambley v. Trott . Hamington and Ryder's Hammersley v. de Biel Hampson v. Sydenham Harris v. Bervoir . Hartfoot v. Jones . Harvey v. Brydges . Hatchard v. Meg6 . Hayward v. Davenport Heming v. Brabason Heming v. Stoke Poges Henry Ferrers' Case Hensloe's Case Heskett v. Lee Hewer v. Bartholemew Hewson v. Shelley . Heydon's Case Heydon and Smith's Case Heyron v. Proute . Higgins v. Andrews Higgins V. Betts Higgins V. Butcher . Hills V. Mills . Holden v. Smallbrooke Holford V. Piatt Holmes's Case Holmes v. Seller . Holt V. Frederick . Hope V. Hope Howlet V. Osborne . Hudson V. Lee Hughes V. Hughes .

Case

579

. 581

. 163

540

■ 545

. 427

. 286

. 280

. 579

. 447

. 87

Golf Club . 280

. 617

. . 561

. . 518

• 427

567. 570, 571

. 209

. . 346

. 650

. 280

. . 156

I, 332, 334. 676

. 567

. . 96

. 575

. 370

. . 165

. 562

. 189

. 449

. 329 558. 559. 594

33

LIST OF CASES

XXXIX

PAGE

PAGE

Hulbert v. Watts .

.

. 518

Maylard v. K ester .

444

Hunt V. Burn .

, .

. 268

Melwich v. Luter .

. 2og

Hussey v. Cooke .

, ,

. 400

Mennie v. Blake .

. 287

Hutchings v. Strode

•

. 212

Mentney v. Petty .

Mersey Docks Trustees v. Gibbs

561 . 388

I

Merttens v. Hill . Middlemore v. Goodale .

. 268 163

Inhabitants of Whitby v

.York

207, 211

Middleton v. Spicer

72

Isaack v. Clarke

.

. 327

Midland Insurance Co. v. Smith

^^^

Israel v. Etheridge .

. 286

Mildmay's Case ... 86, 117

Mingay v. Hammond

648

J

Mires v. Solebay .

286

James v. Warren . Jesson V. Wright .

•

. 530 . 109

Mitchel V. Reynolds Montague v. Benedict . Moore v. Browne .

419

28

Jesus College v. Gibbs . John at Hill, Case of . John Imperial, Case of . John de Northampton, Case of

. 87

. 291

. 291

390, 409

Mortimer, Roger, Case of Moseley v. Fosset . Mountford v. Catesby Mouse's Case .... Moyle Finch's Case

290 448 163

377 244

John St. Albans' Case Johns V. Rowe

•

. 518

553. 561

Johnson v. Clark

•

245. 528

N

K

Nedham's Case ....

589

Kelly V. Metropolitan Railway (

:o. . 429

Netheway v. George

504

Kendal v. Fox

. 118

Newport v. Mildmay

518

Kenicot V. Bogan .

. 286

Newton v. Harland

280

Kent V. Seynt John ,

. 211

Nichols V. More

447

Keppel V. Bailey .

. 164

Nichols V. Raynberd

445

Ketsey's Case

517. 519

North's Case

387

L

Norwood V. Read . . 445, 45

1.452

Lane v. Cotton

. 388

0

Le Mason v. Dixon

578, 580

Ocle, William, Case of .

128

Leicester Town, Case of

. 265

Ognel's Case

561

Levanne's Case

. 558

Osborn v. Gillett . . 334, 33

5.336

Lewes v. Ridge

. 163

Oxenham v. Clapp ....

572

Ley, Viscount, v. Stephe

IS

. 409

Lincoln, Earl of, v. Rouj

jhton

. 409

P

Lincoln v. Topliff .

. 427

Lincoln College's Case

. 230

Pakenham's Case ....

162

Lisle V. Grey .

. 109

Palmer v. Allicock ....

558

L.S.W.R. V. Gomm

. 164

Parker v. Alder ....

374

Long's Case .

617, 619

Partridge v. Strange

92

Lord V. Thornton .

• 394

Patrick v. Stubbs ....

147

Lumley v. Gye

. 677

Peachy v. Duke of Somerset . Pearne v. Lisle ....

72 508

M

Pecke V. Redman .... Pelham's Case ....

445 119

Mackalley's Case .

602,

614, 619

Perrin v. Blake ... 10

3. iio

Maleverer v. Spinke

. 123

Perry v. Clissold ....

93

Manby v. Scott

.

529, 530

Peters v. Hey ward . . .

322

Markal's Case

515. 517

Peters v. Leeder ....

572

Markham v. Cobb .

332,

333. 334

Pett's Case

562

Martyn v. Williams

. 165

Phillips V. Homfray

582

Mary Portington's Case

"7.

119, 518

Pigg V. Caley ....

508

Maskall and Goldfinch's

Contract, |

Piggot's Case . . . .51

f. 567

inre .

.

. 261

Pimb's Case

70

Master v. Miller .

.

• 333

Pinchon's Case . . 444, 452

J. 567

Matravers, Case of .

.

. 290

Plessington's Case ....

130

Maundrell v. Maundrell .

.

• 197

Plummer v. Whitchcroft

387

xl

LIST OF CASES

Portland, Duke of, v. Hill Postnati, Case of the Powlter's Case Prince's Case . Proud V. Turner . Pudsey v. Newsam

51

PAGE 268 461 302

562 163

R

Raleigh v. Goschen

Rangeley v. Midland Rly

Ratcliff's Case

Ravensworth, Adam de,

Ray V. Pung .

Read and Redman's Case

Reeves v. Capper

Rege Inconsulto, Case of

Reniger v. Fogossa

R. V. Almon .

R. V. Berchet .

R. V. Charnock

R. V. Cooke .

R. V. Daily Mail

R. V. Davies .

R. V. Johnson .

R. V. Prince .

R. V. Raynes .

R. V. Rose

R. V. Rosewell

R. V. Tolson .

R. V. Townley

R. V. Tucker .

Rhodes v. Swithenbank

Riches v. Bridges .

Robinson v. Duleep Singh

Roddy V. Fitz Gerald

Ross V. Hill .

Rowbotham v, Wilson

Rowlet's Case

Rushden's Case

Russel and Prat's Case

Russell's Case

Ryle's Case .

Shipwick V. Blanchard . Shopland v. Ryoler Shrewsbury, Earl of, Case of the Six Carpenters' Case Skinner v. Gunton .

. 388 Co. . 156

176, 5"» 557

Case of 390, 409

. 197

. 585

• 365 . 460

639, 648 392, 394 . 615 . 615 . 633 . 393

• 393 . 606

. 374

. 567

• 615 . 618

• 374 . 368 . 618 . 520

. 449 46, 148, 149 109 344 165 119 92

584 649 618

Slade's Case . 444, 445, 446, 45

Slawney's Case

Smith V. Adams

Smith V. Browne

Smith V. Colgay

Smith V. Cranshaw

Smith V. Selwyn

Smith V. Smith

Somerton's Case . 431,

Sommersett's Case . 498,

Southcote V. Bennet

Spencer's Case

Spicer v Martin

Stanley v. Powell

Stan tons. Case of the

Stapleton's Case

Stapleton v. Sherwood

Stavern v. Bouynton

Stephenson v. Hill .

Stokes V. Porter

Stoneham v. Stoneham

Stonehouse v. Bodvil

Story V. Lord Windsor

Stowel V. Lord Zouch 240, 241, 243, 244

PAGE

286

66

28

447 404

t. 452 558 197

507

584

401

676

• 515

432, 433, 434

499. 508, 509

343. 344. 346

162

102

382

242

518

552

649

268

572

354

422

244

Strangborough and Warner's Stroud's Case . Stubbings v. Rotheram Swayne's Case Syer's Case . Symons v. Darknoll

333

380,

Case

445 392 451 168 310 448

576. 578,

119 527

Salter v. Butler . . . .286 Sanchar's Case . . . .310 Sanders v. Easterby . . -452 Saunders and Browne's Case . . 288 Scammel v. Wilkinson . . . 544

Scott, in re 562

Scott V. Tyler 586

Searle v. Williams .... 301 Segrave's Case .... 290 Serle v. Rosse . . . .451 Seymor's Case .... 230 Shannon v. Shannon . . .285 Sharington v. Strotton . . 419, 441 Shelley's Case 99, 107, 108, 109, no, III, 134, 242 Sherrington's Case . . 579, 580

Ship Money, Case of , , . 388

Talbot V. Frere

Taltarum's Case

Tasker v. Tasker .

Tennant v. Goldwin

Tey'sCase .

Tharpe v. Stallward

Thomas v. Quatermaine .

Thomas v. Sylvester

Thomas Buckler's Case .

Throckmerton v. Tracy .

Thorogood v. Bryan

Tilford V. French .

Tinkler v. Poole

Tooker v. Loane

Townsend, Lord, v. Hughes

Trenchard v. Hoskins

Tufton and Ashley's Case

Twycross v. Grant .

Tyrringhams Case . . 143, 1481

Vachell v. Jeffreys Vaux v. Brooke

588 137 544 168 236

569 429 28 617 224, 650 677

447 286

558 409

163 653

584 150

562 6x8

LIST OF CASES

xli

Vavassour v. Chadworth . Vivion V. St. Abyn Vynior's Case .

W

PAGE

594 649

540

Walker v. Woolaston . . . 567 Walpole V. Orford .... 540 Walsh V. Walsh .... 562 Wankford v. Wankford . . . 589 Warbrooke v. Griffin . . . 447 Warrick v. Queen's College, Oxford 144 Watt V. Crook .... 562

Weekly v. Wildman . . . 171 Wells V. Abrahams . . • 333 Weyland, Thomas, Case of . 104, 240 Wheatley v. Low . . . 449, 450 Wheler v. Huchynden . . . 436 Wickals V. Johns .... 445 Wilkin V. Wilkin .... 447 Wilkinson v. Coverdale . . . 449 Williams v. Thomas . 21, 22, 193

PAGE

Williamson v. Norris . . .374 Willion V. Berkeley 18, 68, 108, 113, 120, 224, 253, 467

Winkfield, The . Wiseman v. Cotton Withers v. Iseham . Woodward v. Chichester Woodward v. Darcy Wotton V. Brinth . Wrotesley v. Adams Wyat Wyld's Case

York, Mayor of, v. Towne Young's Case .... Young and Ashburnham's Case Young V. Englefield

Zouch and Michel's Case

337. 345 260 170 590 589 433

132, 224 . 150

450 602 446 653

517

LIST OF STATUTES

PAGE

PAGE

Magna

Carta 6, 37, 41, 46, 59, 63, 64,

13]

Edward I. St. i c. 16

. 65

192, 260,

329, 461,

,,

,.

„ „ c. 18

• 131

464, 505,

535, 550

,,

,,

„ „ c. 19

. 568

20

Henry

III. c. 4

• 147

..

,,

„ „ c. 21

. 16

,,

„ c. 6

.

17,63

„

„

„ „ c. 23

. 584

,,

„ c. 7

. 63

,,

,,

„ „ c. 24

II, 19

43

„ c. 3

.

26,38

,,

,,

„ „ c. 25 20, 100, 152,

52

„ cc. I, 2

.

. 282

153

»,

„ c. 3

.

61, 282

,,

,,

„ „ c. 32 87, 117, 246

,,

„ cc. 4, 15

.

. 282

,,

„

„ „ c. 34

. 316

,,

„ c. 16

.

. 61

,.

,,

„ „ c. 35

• 17

„

„ c. 17.

. 66

.»

„

„ „ c. 39

• 392

.,

„ C. 21 .

.

. 282

,.

,,

„ „ c. 40

• 515

,,

„ c. 25.

.

. 315

„

,,

„ ^^ „ c. 46

. 147

,,

„ c. 29.

.

. 13

,,

,,

„ St. 3

• 131

3

Edward I. St. i c. 13

.

316, 397

,,

,,

„ St. 4 c. I

. 410

.,

„ „ c. 15

.

. 366

18

,,

„ C. I

68, 80, 87,

,,

,,

„ „ C. 22

.

. 64

160, 176

,,

.1

„ „ c. 36

.

. 67

20

,,

„ St. 2

. 122

,,

),

„ „ c. 39

.

10

21

,,

,, ,,

. 312

»,

,,

„ C. 21 .

.

• 63

27

,,

„ St. I c. I

. 241

,,

,,

„ c. 34 .

. 409

28

,,

„ St. 3 c. 10

. 402

>.

,,

„ c. 47.

.

. 515

„

,,

„ „ C. II

. 397, 398

,,

„

„ C. 48 .

.

. 519

33

„

„ St. 2

398, 403

4

„

M St. 3c. 5

.

• 297

34

,,

„ St. 3

. 87

,,

,.

„ „ c. 6

.

. 160

9

Edward II. St. i c. 4

. 410

6

.1

.

• 532

I

Edward III. St. i c. 11

. 410

,,

.,

„ c. 2.

.

. 515

..

„ cc. 12, I

3 . 84

„

,»

„ c. 3

.

. 193

4

c. 7 .

. 584

,,

,,

„ c. 4

.

. 16

..

C. II

. 397

,,

,»

„ c. 5

. 63

121, 122

5

c. 10 .

• 399

.,

,,

„ c. 6

.

• 193

14

St. I c. 4

. 314

„

„

„ c. 7

.

. 19

,,

„ c. 9

. 387

,,

,,

„ c. 9

.

. 312

..

St. 4 c. 2 .

. 141

..

..

„ c. ri

I

17, 214

246, 272

20

cc. 4, 5, 6

. 398

7

>,

1,

. 87

25

St. 3c. 4

. 296, 297

12

„

,,

.

. 419

St. 5 c. 2

. 288

13

»,

„ St. I c. I

17, 18

, 68, 112,

.»

,. c. 4

. 608

"3.

187, 373. 397. 403

„ c. 5 ,. c. 7

. . 565 . . 584

„

..

„ „ c. 2

.

. 284

..

, „ C. II

. 67

,,

,,

„ „ c. 3

"7.

121, 193, 246, 526

».

„ c. 18 „ c. 21

20, 500 . . 387

"

,»

„ „ c. 4

26.

117. 193. 246

27

, St. 2 c. 9 „ c. 19

. 132

. 383, 387

.»

»,

,, », c. 5

25

100, 141

28

c. 3 .

. 608

,1

„

„ „ c. 6

10

31

„ St. I c. II

. 565-568

.,

,,

„ „ c. 14

.

. 122

34

c. 8 .

. 399

,,

„

„ „ c. 15

.

. 519

»i

„ c. 15

. . 84

xl

iii

xliv

LIST OF STATUTES

PAGE

PAGE

34 Edward III. c. i6

. 243

6 Edward VI. c. 11

. 72

38 „ c. 12

. 399

5 Elizabeth c. 9

. 649

42 „ c. 3 .

. 608

8 „ c. 4

. 301, 332

I Richard II. c. 4

. 398

13 1. c- 10

. . 487

»> ». c. 6

. 204, 500

18 „ c. 7

300, 301, 332

2 „ St. I c.

5 . .409

27 M c. 5

. 650

St. 2 c.

3 . .305

M C. 13

. . 482

9 „ c. 2

. 500

39 .» cc- 9, 15

. 301

12 „ C. II

. 409

43 , 1. c. 8

. 557

15 » c. 5

. . 87

I Jac. I. c. 8

. 301

4 Henry IV. c. 18

. 392

„ „ c. 25

• 307

5 » c. 8

. 393

3 » c. 13

. 393

c. 14

. 236, 237

21 „ c. 6

. 300

I Henry V. c. 3 .

. 400

„ « c. 13

. 650

2 Henry VI. c. 10

. . 387

,, » c. 28

. 307

8 „ eg

. 27

16 Car. I. c. 6

. . . 673

c. 10

. 404

12 Car. II. c. 24 44, 45, 51, 53, 56, 61,

„ „ c. 12

. . . 368

65-67. 273

II n c. 5

. 122

22, 23 „ c. 10 .

. 560-562

23 „ c. I

. . . 387

29 M c. 3 .

. 124, 561

I Edward IV. c. i

. . 467

I Jac. II. c. 17 .

552, 561, 562

I Richard III. c. 5

. . . 468

3 William and Mary c.

9 . .302

c. 7

. 244

4 »» i» ^*

9 . -300

4 Henry VII. c. 24

. 120, 244

4.5 » .. c.

2 . .552

II » c. I

. . . 468

6 „ „ c.

10 . . 273

12 „ c. 7

. 301, 315

7, 8 William III. c. 3

. . . 615

21 „ c. 7

. . 365

II ,1 c. 38

• 552

3 Henry VIII. c. 14

. 406

I Anne St. 2 c. 9

. 302, 310

4 » c. 2

. 299

2, 3 m c. 5

. 552

21 „ c. 2

. . 306

4i 5 » c. 16

• . . 578

c. 5

. . 569

5 M c. 3

. 100, 234

II ,. c. 7

• 362, 365

II M c. 6

. 300

C. II

. 280, 320

II „ c. 31

. . . 363

22 „ c. 14

. . . 306

7 „ c. 18

. 100

23 „ C. I

299. 300, 315

12 „ St. 2 c. 6

. . . 482

II » C. 10

. . 546

4 George I. c. 11 .

. 300

II » C. II

. 299, 300

6 „ c. 23 .

. 300

24 „ c. 5

. 312

9 11 c. 7.

. . . 478

25 » c. 3

. 300, 302

II „ c. 18 .

. 552

26 „ c. 13

• 70, 305

14 George II. c. 20

. 124

27 „ c. 10

. 196

24 .. c. 48

. . . 673

II » c. 17

. 300

30 II c. 24

. . . 363

11 » c. 19

. . . 306

31 11 c. 14

. . . 269

28 „ C. I

. 300

39 George III. c. 85

. . . 365

31 .. c. I

. 19, 127

39, 40 „ c. 88

. 72

32 „ C. I

. 246, 273

41 » c. 23

. . . 478

II » C. 2

10, 93 1 508

54 » c. 14

. 70

II » c. 3

. 300

59 1. c. 94

. 72

II » c. 9

. 400

7 George IV. c 64

. 310

•1 » C. 12

. . . 306

7. 8 „ c. 28

. 302, 310

II II C. 21

• . . 673

.1 II c. 29

. 363. 367

II ,1 c. 30

. 650

9 11 c. 31

. 70

II » c. 32

. 19

II Geo. IV. and i Will.

IV. c. 47. 514

c. 34

. . . 165

II II 1)

c. 60 . 72

II II c. 36

. 120

II II 11

c. 70 . 673

33 » c. 20

. 72

I William IV. c. 47

. . . 576

I Edward VI. c. 12

• 195, 300, 305

2,3 » c. 39

. . . 674

2, 3 „ c. 12

. 212

3.4 M c. 42

. 576, 585

c. 33

. 300, 307

c. 74

. . . 269

5»6 „ c. 9

. 300

II II c. 104

. . 576

c. 10

. 300, 302

c. 105

. 197

II „ C. II

. 195, 690

II I. c. 106

. 70. 183

LIST OF STATUTES

xlv

PAGE

4, 5 William IV. c. 23 . . 72

I Victoria c 26 . 124, 540, 541, 545

I, 2 „

3. 4 M

4' 5 M

8. 9 „

9. 10 M

II, 12 ,,

13. 14 M

15. 16 .»

18, 19 „

19. 20 „ 22, 23 „

c. 69 .

C. 96 .

C. 22 .

c. 106 .

c. 93 .

c. 46 .

c. 60 .

c. 76 .

c. 117 .

c. 94 .

c. 17 .

. 72

. 482

. 302

92, 93, 160, 234

• 335 . 310

• 72 . 269 . 482 . 552 . 621

24, 25 Victoria c. 95 c. 100

33.34 36.37 39.40 44.45 47.48 50.51 51.52 53.54 56.57 60, 61

23 66 18 41 71 59 42 29 53 65

PACK

. 310

70, 315

70, 71

673

482

72

72

410

87

561

72

565

ERRATUM P. 284, n. 5. For •' withernamio " read ** vetito namio.'

BOOK III

(1066-1485) THE MEDIi^VAL COMMON LAW {Continued)

VOL. III. - I

A HISTORY OF ENGLISH LAW

PART II

THE RULES OF LAW

CHAPTER I THE LAND LAW

I HAVE already described in outline the general features of the development of the land law during this period. Here I shall trace in somewhat greater detail the history of some of its more important doctrines. All through this period it holds the first place both for political and legal reasons. My arrangement of the subject will be as follows : § i. The Real Actions ; § 2. Free Tenure, Unfree Tenure, and Chattels Real ; § 3. The Free Tenures and their Incidents ; § 4. The Power of Alienation ; § 5. Seisin ; § 6. Estates ; § 7. Incorporeal Things ; § 8. Inherit- ance ; § 9. Curtesy and Dower; § 10. Unfree Tenure ; § ii. The Term of Years; § 12. The Modes and Forms of Conveyance; § 13. Special Customs.

§ I. The Real Actions

In the developed common law a real action was an action in which the specific thing demanded could be recovered ; and, as, in the great majority of cases, it was only certain interests in or incorporeal rights over land,^ which were so recoverable, they could be defined with substantial accuracy by Blackstone as " actions whereby the plaintiff . . . claims title to have any lands or tenements, rents, commons, or other hereditaments, in fee simple, fee tail, or for term of life." ^ Any action, even an action of covenant, in which the land itself was recovered, was classed as a real action ; ^ while certain actions, such as the action of waste, in which both the land and damages could be recovered, were

1 Many incorporeal things, such as offices or corrodies were, from the point of view of remedies, and in some other respects, treated like land, vol. ii 355-357 ; below 97-101, 151-153.

2 Bl. Comm. iii 117-118.

3 For this action of covenant real, whereon fines were usually levied, see Maitland, Collected Papers i 448 ; Forms of Action 358.

4 THE LAND LAW

classed as mixed ^ But when Bracton wrote, the common law had not attained this classification of actions ; and the term real action had not developed its modern meaning. Bracton, as Maitland points out,^ " knew too much of Roman law to call an action ' real ' merely because the successful plaintiff will thereby obtain possession of a specific thing. The novel disseisin, for example, is actio personalis ; it may be rei persecutoria, but it is personalis. . . . With him the test is rather the nature of the mesne than the nature of the final process. If the mesne process is against the thing, if e.g. the land is seised into the king's hand, the action is real, but if, as in the assize of novel disseisin, the process is attachment, then the action is personal." But long before the close of the mediaeval period the term " real action " had acquired its modern meaning. Bracton himself uses the term in this sense ; ^ and, when at the close of the thirteenth century, English lawyers ceased to know anything about the terminology and rules of Roman law,^ it was in this sense that they used the term.^ It is in this sense that I use it in this section.

The learning of the real actions is the foundation of by far the greater part of the land law of the Middle Ages. The lead- ing divisions of our law of property at the present day — the divisions into realty and personalty, and into land held by free- hold tenure, by copyhold tenure, and for a term of years — can be traced ultimately to the rules which defined the scope of these real actions. Similarly, as we may see from Littleton's book,^ many of the doctrines of the land law, both of the Middle Ages and of the present day, took their shape, in the first instance, from the various real actions which protected many and various rights in the land. In order, therefore, to understand the mediaeval land law it is necessary to approach it from the point of view of the real actions, just as in Roman law it is necessary to approach the conceptions of " dominium ex jure Quritium," " bonitary owner- ship," and "possession" from the point of view of the various remedies which protect them. Moreover, in approaching the subject in this way we are placing ourselves at the point of view of our earliest authorities — Glanvil and Bracton. Littleton, it is true, does not approach the subject from this point of view ; but his treatise was a treatise primarily upon tenures and estates ; and, when he discusses the principles of the law, he assumes a knowledge of the real actions. The doctrines which he discusses cannot be understood without a knowledge of the law of real actions, any more than the doctrines discussed by Gaius and

1 Bl. Comm. iii ii8.

^Collected Papers i 448 ; Forms of Action 370-371 ; cf. vol. ii 261. 3 f. 159b. 4 Vol. ii 287.288.

5 P. and M. ii 568. « Vol. ii 582-588.

THE REAL ACTIONS 5

Justinian in the second and third books of their Institutes can be understood without some reference to some of the topics discussed in their fourth books.

In dealing with the real actions, I shall, in the first place, describe those by means of which a person could assert his right to the seisin of corporeal hereditaments held by free tenure ; and, in the second place, I shall enumerate some of the more important of the other real actions, or actions real in their nature,^ which protected other rights incident to land-holding. Their enumera- tion will show us the skeleton round which the largest part of the body of the mediaeval land law grew up.

Tke Actions by which Rights to Corporeal He7'editanients of Free Tenure were Asserted

These actions may be divided into three groups, (i) the writ of right group ; (ii) the assize of novel disseisin ; and (iii) the writs of entry sur disseisin. This division represents the chronological order of development. As in Roman law we see in the Legis Actio Sacramenti the most primitive form of real action, and in the new formulary procedure per sponsionetn and per formulam arbitrariam successive improvements upon the primitive form ; ^ so in English law the writs of right are our oldest form of real action, while the assize of novel disseisin and the writs of entry represent the new improvements effected by royal justice. In both systems the survivals of the older forms mark definite periods of historical development.

(i) The writ of right group.^

There are three varieties of the writ of right — the writ of right patent, the praecipe in capite, and the little writ of right. The last named was the writ by means of which the tenant in ancient demesne could recover his land ; and I shall speak of it again when I discuss that tenure.*

The writ of right patent was the original form of the writ of right. "It is," says Booth, "the general writ of right;" "and it hath the greatest respect and the most assured judgment." ^ This form of the writ was used when the land was held of a mesne lord. It was directed to the lord of whom the land was held, and ordered him to do full right to his tenant. If the lord waived his right to his court, a special variety of the writ, known as the writ of right " quia dominus remisit curiam," was directed to the sheriff", and proceedings thereon were had in the king's court.^ It was

^ Booth, Real Actions 86, 87, 125. ^Qirard, Droit Romain 327-332.

3 For the forms see vol. i App. V a, b, and c.

4 Vol. ii 378, 578; below 265-266; Booth, Real Actions 116, 117; App. Ia (12).

5 Booth, op. cit. 87, Booth treats separately the writ of right in London ; but, as he says, " it is of the same nature with the writ of right patent, only different as to the place where the lands lie, i.e. concerning lands in London," ibid 117.

"Vol. i 178.

6 THE LAND LAW

thus essentially a feudal and not a royal plea, so that it is not surprising to find that such pleas were not stopped, as most royal pleas were stopped, by the coming of the Eyre.^ The praecipe in capite directed to the sheriff was the proper writ when the land was held in chief of the king. By it the sheriff was directed to order the tenant to restore to the demandant the land in question, and if he did not so restore it, to summon him to show why he had not done so. The proceedings upon it took place in the king's court. If it be true that originally a writ of right was so called because it ordered a lord to do full right to the demandant, this form of the writ cannot properly be classed as a writ of right. But, as Maitland has pointed out,^ " when possessory actions had been established in the king's court ' right ' was contrasted with * seisin,' and all writs originating proprietary actions for land, including the praecipe in capite, came to be known as writs of right."

The praecipe in capite ought only to have been allowed when the land in dispute was held of the king in chief But Henry II., pursuing the policy of attracting to the king's court jurisdiction over all cases concerning land held by free tenure, had extended the scope of the praecipe in capite from the cases where the land was held in chief to cases where it was held of a mesne lord. It was this extension which the Barons effectively checked by the thirty-fourth clause of Magna Carta.^ As the result of this clause a plea begun by the writ praecipe in capite could, even at the last stage of the action, be stopped by showing that the land was not held of the king.^

These writs of right carried with them to the end many marks of their great antiquity. We see a survival of the days when litigants could buy procedural advantages of the crown ^ in the tender of the demi mark. If the tenant tendered this sum at the proper time (what was the proper time was "a great question in law " ^) he could defeat the demandant, if the demandant was not seised in the reign of the king alleged in his count; otherwise the Grand Assize '^ could find for the demandant if his ancestor had been seised at a time more remote.^ We see a survival of the old

^ " The third cry was that no court or count}' court should be holden within the said county during the continuance of the Eyre save by reason of some plea of land, and that by writ of right patent, or for appeals in the county court," Eyre of Kent (S.S.) i 7 ; for this effect of the coming of the Eyre see vol. i 266-267.

2 Collected Papers ii 129 n i ; Forms of Action 318.

^ Vol. i 58-59 ; see McKechnie, Magna Carta (2nd ed.) 346-355 ; Maitland, Forms of Action 317-318.

4 Eyre of Kent (S.S.) ii 86-87 ; cp. Y.B. 20, 21 Ed. I. (R.S.) 72-74.

^ Vol. i 57-58 ; there are some illustrations of this step in the proceedings in Y.B. 5 Ed. II. (S.S.) (1312) 26, 44; it was probably because its object was to buy a pro- cedural advantage that it could not be tendered as against the king, Y.B. 20 Ed. III. (R.S.) i 416.

^ Booth, Real Actions 98. "^ For the Grand Assize see vol. i 327-329.

8 Litt. § 514, " Herle, Justice, said to the Grand Assize after that they were charged upon the mere right, You good men, Reynold [the tenant] gave half a mark

THE REAL ACTIONS 7

rule that a defendant must deny the plaintiffs case in every detail with minute accuracy.^ Trial by battle was possible till 1819.''' The tenant need not make use of any pleas open to him : he might submit the whole case to the battle or the Grand Assize — " he can insist that the whole question of better right, involving, as it may, the nicest questions of law, shall be left all in one piece to the knights of the neighbourhood ; if he fears their verdict he can trust to the god of battles ; he can force the demandant to a probatio divina which is as much to be dreaded as any probatio diabolica of the canonists."^

The proceedings decided the question of better right only as between the parties. The mere judgment bound no one else. A stranger was only bound if, being under no disability, he did not claim within a year and a day after execution of the judg- ment.* Success in the writ of right therefore did not depend upon absolute right, but upon majusjus. We shall see that the tenant could not defend himself by setting up 2. jus tertii, through which he did not claim, in order to disprove the demandant's title.^ If the demandant's title was better than the tenant's he would re- cover. At the same time the action is a real action, brought to assert the demandant's right to the land. It is no mere delictual action in which the demandant accuses the tenant of ouster forcible or otherwise. But in this fact that success depends, not upon absolute title, but upon majusjus, we may see one more trait of its ancient origin. It goes back to the time when the chief con- cern of the law was to adjudicate upon a dispute between litigants — when it had not as yet begun to analyse the conceptions of ownership and possession.^

We have seen that Magna Carta secured for lords of tenants their right to try actions begun by writ of right.'' It thus pre- served for centuries this piece of feudal jurisdiction. But, as we have seen, it had come to be of little value to these lords as early as Edward I.'s reign.^ In fact, the procedure was too primitively cumbersome. This was recognized in a register of writs of the

to the king for the time, to the intent that if you find that the ancestor of John [the demandant] was not seised in the time that the demandant hath pleaded, you shall inquire no further upon the right; and, for this, you shall tell us whether the ancestor of John was seised in King Henry's time as he hath pleaded or not. ... If Reynold had not tendered the half mark to inquire of the time, etc., then the Grand Assize ought to be charged only to inquire of the mere right, and not of the possession, etc. ; " cp. Y.B. 20, 21 Ed. I. (R.S.) 292.

^ Booth, Real Actions 94, 95 ; vol. ii 106 ; below 629, 630-631.

2 Vol. i 309-310, and App. XXVII. ^ p. and M. ii 63.

* Booth, Real Actions loi, '* Judgment after the niise joined binds all strangers that make not their claim within a year and a day : but this is to be after execution ; " Y.B. ir, 12 Ed. III. (R.S.) 306.

' Below 90. ^ Vol. ii 79. ' Above 6.

^ Hengham, Magna c. 3, cited vol. i 59 n. 2 ; for a case of this sort which had been removed into the Bench see Y.B. 6, 7 Ed. II. (S.S.) 67-68.

8 THE LAND LAW

early years of Edward I.'s reign ; ^ and in 1338 the court admitted that the writ of right involved too much delay. ^ Newer remedies were invented which met all the ordinary needs of litigants ; and these newer remedies were only available in the royal courts.^ It was a rare case in which recourse to a writ of right was necessary.* Finally it should be noted that the writ of right, in common with the other real actions, suffered from the neglect of the legis- lature to pass statutes of limitation. " Before 1237 claimants had been allowed to go back to a seisin on the day in 1 1 3 5 when Henry I. died ; then they were restricted to the day in 1 1 54 when Henry H. was crowned; in 1275 the boundary was moved for- ward to the coronation of Richard I. in 1 189, and there it remained during the rest of the middle ages." ^ The fact that it remained there so long was the decisive cause of the length of legal memory. Legal memory in the Middle Ages naturally refused to go behind the period of limitation fixed for the writ of right ; but because it went back to this date in the Middle Ages it continued to do so, even after new statutes of limitation were passed.*^ And we shall see that this practice, traceable ultimately to the negligence of the legislature, has had a permanent influence on the law of prescription.^

(ii) The assize of novel disseisin.

I have already said something of the origin and purpose of the assize of novel disseisin.^ Unlike the writ of right, which bears upon it the traces of a very primitive antiquity, it was a new royal remedy founded on positive ordinance. It was invented, not to decide which of two litigants had a better right to the property in dispute, but to protect the person who is seised or possessed of property; and not only will the person seised and disseised be restored to his seisin, but the disseisor will be punished.^ " There can be no doubt that this action was suggested by the canonists' actio spoilt, which itself had its origin in the Roman interdict uiide vi. But when once adopted, English law very speedily made it her own. It soon became an exceedingly popular action. The plea rolls of Richard's reign and John's are covered with assizes of novel disseisin, many of which are brought by very humble persons and deal with minute parcels of land." ^^ It was popular because it was both speedy and effective. It will be seen by a

1 H.L.R. iii 215 ; vol. ii App. Vd (14), " quia propter . . . discrimina brevis de recto vitandum ab omnibus consiliariis et justiciariis domini Regis." 2Y.B. 12, 13 Ed. III. (R.S.)98.

3 Y.B. 2, 3 Ed. II. (S.S.) 202 n. I. 4 P. and M. ii 70.

« Ibid 81. «Bk. ivPt. I. c. 2.

7 Below 166 ; Bk. iv. Ft. II. c. i § g.

^ Vol. i 275, 329 and App. IIIa ; see Maitland, Forms of Action 321-323. 9 Eyre of Kent (S.S.) iii 138. " P. and M. ii 47.

THE REAL ACTIONS 9

reference to the Appendix ^ that the question which the assize was to settle was formulated in the writ which called the assize to- gether ; there need not therefore be any pleadinf^. There could be no vouching to warranty and no essoin ; and it could be taken though the defendant made default in appearance. The assize, in fact, protected seisin — whether rightful or wrongful. It pro- tected the man in possession from attack ; and it restored a person disseised if he took proceedings at once.- But if the person dis- seised was on the land he must take such proceedings within four days.^ Otherwise the disseisor was seised and the only remedy for the person disseised was, before the invention of the writs of entry, the writ of right.

Such was the assize of novel disseisin when it first made its appearance. But in course of time it gradually lost those char- acteristics of speediness and effectiveness which made it so useful a remedy in the twelfth and thirteenth centuries. In the first place, the growing elaboration of the law was giving to the terms of the question put to the jurors by the assize — Did B unjustly disseise A of his free tenement? — special and technical meanings.^ This meant that the number of incidental questions of law or fact which must be answered before the main question was reached was growing, and that, therefore, a large scope was given to the new arts of the pleader; for, as we have seen, it had become possible to plead many " exceptiones ; " ^ and these " exceptiones " might involve the decision of many questions of law by the court, or of fact by a jury into which the assize must be turned for this purpose.^ In the second place, the maintenance of the assize as a remedy for the person seised — seised rightly or wrongly — re- quired a large measure of the " lawyerly courage " "^ which will prevent hard cases from making bad law. The judges did not always possess this courage. They could not withstand the temptation of doing substantial justice. Consequently the scope

;voi. i App. iiiA.

- p. and M. ii 52, " Besides serving as ' an interdict for the recovery of posses- sion,' it will often serve as 'an interdict for the retention of possession.' To consti- tute an actionable disseisin a successful ejectment of the possessor is not indispensable ; an unsuccessful attempt, a repelled invasion, will be enough,"

^ Vol. ii 263, 583 ; L.Q.R. iv 29 — if he is away from the land a further reasonable time is allowed ; " the reasonable time is in several cases determined by the parallel rules about essoins ; " as to the four days Bracton, f. 163, says, " Quia si primo die rejicere non potuit, potest tamen in crastino vires resumere, arma congerere et auxilia amicorum invocare."

^Vol. ii 354; L.Q.R. iv 28; P. and M. ii 48, "The ideas answering to the terms * injuste,' ' disseisivit,' ' libero tenemento ' are being developed and defined, and it is becoming rather rash for laymen over whose heads an attaint is pending to swear that B has unjustly disseised A of his free tenement ; " for the later developments of the law which centered round these conceptions see Bk. iv Pt. II. c. i § 2.

^Vol. ii 251 ; below 630-632; for illustrative cases see Y.BB. 4 Ed. II. (S.S.) 126-128; 5 Ed. II. (S.S.) (1312) 9-11.

•* Vol. i 330-331. ■- P. and M. ii 52.

10 THE LAND LAW

of the assize was modified. In Bracton's day, if A disseised B and enfeoffed X, B could proceed against A and X, provided that A was still alive : A was punished for the disseisin ; X must re- store the land. But the assize did not lie either for the heir of the disseisee or against the heir of the disseisor, or, if the disseisor was dead, against his feoffee or disseisor.^ But in allowing it under any circumstances against the disseisor's feoffee it is clear that the law was extending the scope of the assize. It not only protected actual seisin, but also enabled a person entitled to seisin to recover it. But its original scope and purpose was so far re- membered that the question whether the disseisee could recover from the disseisor's feoffee depended upon the question whether the disseisor was alive or dead. It is clear that this will soon appear to be a very arbitrary limitation. In the third place, this tendency to introduce considerations of title was strengthened by two other circumstances, (i) The great usefulness of the assize induced the legislator to extend still further its capacity to pro- tect the owner. The Statute of Westminster II. enabled it to be used by an owner against a tenant for years and a guardian who had aliened in fee, and also against their feoffees.^ Here, again, therefore, a plaintiff could recover on the strength of his title against a person who had got peaceable seisin. (2) The period of limitation, i.e. the time within which the assize must be brought, gradually lengthened. Short periods of limitation were at first fixed by royal ordinance. These periods gradually ceased to be fixed.^ 1242 was the date fixed by the Statute of Westminster I. ;^ and 1242 the date remained till the year 1540.^ " If," says Maitland, " I be permitted to demand restitution of land on the ground that you ejected me eighty or even twenty years ago, whatever we may call this complaint, it will be difficult to think of it as other than a demand that you should restore to me what is mine, difficult to think of it as based not on proprietary right, but on injured possession, and difficult because substantially un- just to prevent your pleading whatever title you may have." ^ Thus we are not surprised to find that the plaintiff in the assize gradually relied more and more on title.''' The cases in which

^P. and M. ii 55 — we may note that if A had enfeoffed X during the time allowed to B for self-help, both A and X could be punished as disseisors.

2 13 Ed. I. St. I c. 6, *' In case also when any holding for term of years or in ward alieneth the same in fee and by such alienation the freehold is transferred to the feoffee, the remedy shall be by writ of Novel Disseisin, and as well the feoffor, as the feoffee shall be had for disseisors, so that during the life of any of them the said writ shall hold l^ce." In Bracton's day these cases were met by writs of entry, P. and M. ii 54 n. i ;"^.B. 3, 4 Ed. II. (S.S.) 112, 113.

3 P. and M. ii 50, 51. ^3 Edward I. st. i c. 39. ^ 32 Henry VIII. c. 2. 6 L.Q.R. iv 293.

' See the cases cited by Maitland from the Y.BB. of Edward I. and III., L.Q.R. iv 287-289 ; as he says, they show that the requirement of title is growing more

THE REAL ACTIONS 11

the true owner could not recover by its means on the strength of his title became fewer and fewer ; and those which remained — the cases of Descents Cast and Discontinuances ^ — soon began to be regarded as anomalies.

The result was fatal to the assize of novel disseisin. More and more scope was allowed to the subtleties of pleaders en- deavouring to evade the main question to be decided by raising points of law or incidental questions of fact.^ " And so the assize falls into the ruck of the real actions." ^

Before passing from the assize of novel disseisin to the newer forms of action which took its place, we must glance at the As- size of Nmsance, which was, in a manner, supplementary to it. It lay, says Fitzherbert,^ " where a man levieth a nuisance to my freehold which I have for my life, in tail, or in fee simple." The novel disseisin was directed to secure an undisturbed possession : the assize of nuisance to secure its free enjoyment.^ Being a real action it only lay for or against freeholders who had suffered by or who had caused the nuisance.^ For a more general remedy against other persons unconnected with the land there was no remedy till the rise of actions of trespass on the case.'^

(iii) The writs of Entry sur disseisin.

These writs of Entry begin, like the PrcBcipe in capite, with the words " Praecipe quod reddat ; " but they do not leave at large, as between the parties, the question of better right. They go on

stringent; cp. the Eyre of Kent (S.S.) ii 192-193; iii 143-144; Y.B, 8 Ed. II, (S.S.) 2g per Bereford, C.J.

1 Vol. ii 585-586.

2 See e.g. Y.BB. 5 Ed. II. (S.S.) (1312) 112-113; 20 Ed. III. (R.S.) ii 128-138; 12 Rich. II. 114-115.

^ L.Q.R. iv 295, " The formulation in the original writ of the question for the jurors was a device only suitable to an age whose law was as yet but meagre. As such terms as • freehold ' and ' disseisin ' become more and more technical, the pleader of one litigant becomes more and more anxious that the question so formu- lated shall not be answered, and the justices take that pleader's side, for they hold that matter of law is for the court and only purest fact for the laymen. The plead- ings in assizes become at least as complicated and as colourable, because there is a fixed question for the jurors which has to be evaded. And so the assizes fall into the ruck of the real actions."

^F.N.B. 183I-184B; for the writ see Bracton f. 233; for another specimen see Eynsham Cart, i no. 504.

^ P. and M. ii 53. A writ which was directed to a somewhat similar object is the Curia Claudenda; "This writ," says Booth (Real Actions 242), " lies for him who is tenant for life, or has other estate of freehold in land, and he who has land next ad- joining, ought to inclose his land and will not, to the nuisance of the plaintiff."

« Y.B. 20 Ed. III. (R.S.) ii 148-150 ; F.N.B. 185 G. ; Bl. Comm. ii 222 ; the scope of the assize was slightly extended by the celebrated clause 24 of the Stat. West. II. which empowered the issue of writs on the case — indeed, the narrow scope of the as- size is given as an illustration of the kind of evil the statute was meant to remedy ; for the effect upon substantive law of this limitation in the scope of the assize see below 156-157.

7 Below 28.

12 THE LAND LAW

to suggest that the tenant, or his predecessors in title, " had no entry into the land claimed " except by some means stated in the writ, which means will give no right to the land. The question to be tried, therefore, is limited to the question. Did or did not the tenant come to the possession of the land in the manner sug- gested by the demandant ?

Though these writs do not appear in Glanvil's book, we can see an approach to them in the writ provided for the debtor, who, having gag^d his land to a creditor for a term of years, wishes to redeem it. The writ commands N that he restore to R certain land, which R gaged to N for lOO marks for a term which has elapsed, -^nd that he (N) receive his money.^ As Maitland has pointed oiit ^ this is a writ Prcecipe for land, assigning as a special reason why the tenant should restore, the fact that the term has expired. " The change of a few words would turn the writ now before us into one of the commonest of the writs of entry, the writ of entry ad terminum qui praeteriit. Here i& the first germ of a great institution."^ The institution was not long in making its appearance ; for some of these writs are known in the first years of the thirteenth century/

The reason for the invention of these writs is to be found primarily in the cumbersome character of the writ of right and the limitations of the original scope of the novel disseisin. It was felt to be hard to drive a man, who might perhaps have a recent and long-continued seisin on his side, to prove his title by means of a writ of right. ^ He was allowed, therefore, to suggest a par- ticular fault in the tenant's title, and to recover if he could show that the tenant entered by the faulty title suggested. This being the reason for the invention of these writs, we are not surprised to find that some of the earliest of them are the " writs of entry sur disseisin." At first perhaps they were only allowed where either disseisor or disseisee had died pending the trial of the assize ; ^

1 " Precipe N quod juste et sine dilatione reddat R totam terram, vel terram illam in ilia villa, quam ei invadiavit pro centum marcis ad terminum qui preteriit ut dicit, et denarios suos idem recipiat," Glanvil x 9.

2 Forms of Action 333. 3 Ibid.

^ Vol. ii 193 ; P. and M. ii 64 ; a writ of entry for the disseisee against the heir of the disseisor was made a writ of course in 1205, Rot. CI. John 32, cited P. and M. loc. cit. n. I ; in the Eyre of Kent (S.S.) iii 41 Spigurnel, J., puts the converse case of a writ of entry for the heir of the disseisee against the disseisor ; for specimens see App. Ia (i).

^ For a similar development based on similar reasons in the canon law see P. and M. ii 66.

6 Bracton, f. 219b, puts the following clause in the writ, " Et unde assisa novae disseisina; summonita fuit coram justiciariis nostris ad primam, etc., et visus terra captus, et remansit assisa capienda eo quod praedictus C. obiit ante captionem illius assisae ; " but ibid 2i«b he says, " In omni casu tenet, sive incepta fuerit in vita ante- cessoris sive non et quoad restitutionem, et secundum quosdam tenet quoad poenam, si assisa fuerit incepta, et quoad restitutionem, et aliter non "—the law was clearly in an uncertain state; and cp. Y.B. 3, 4 Ed. II. (S.S.) 112 per Herle.

THE REAL ACTIONS 13

but this soon ceased to be a condition of obtaining them. Indeed, the justice and expediency of limiting in some way the enquiry as to better right was obvious ; and, as we have seen, the right to get this advantage by the tender of the demi mark was even ad- mitted in the writ of right itself.^

Once having allowed the principle of these writs, two questions naturally arise, (i) Can the disseisee or any of his heirs sue? (2) Can the tenant be sued if a faulty entry by any of his prede- cessors in title at any distance of time in the past be suggested ? The first question was answered in the affirmative from the early years of the thirteenth century.^ The second cjuestion was answered in the negative until the Statute of Marlborough (1267).^ Before 1 267 the demandant might suggest that the tenant had no entry save per A, which A had disseised the demandant or his an- cestors {writ of entry in the per) ; or he might suggest that the tenant had no entry sdiVQper A to whom (cut) B demised the land, which B had disseised '^the- demandant or his ancestors (writ of entry in the per and cut). It was only " within these degrees " that a writ of entry lay.^ But there was no logical reason for this limitation, and perhaps no legal reason. Probably the reason was political. All these writs of entry began, as we have seen, with the words " Praecipe quod reddat ; " and Magna Carta had con- ceded to the feudal lords that the writ Praecipe should not issue so that a man shall lose his court. ^ It is true that the clause in the Charter was probably directed to the praecipe in capite ; but it is equally clear that if the demandant was allowed to allege a flaw in the tenant's title, at any period however remote, in a form of action which could only be brought in the king's court, the clause in the Charter would be rendered nugatory. In 1267, however, the king was again master in his realm ; and in that year the view for which Bracton had argued ^ became law. A de- mandant was allowed to bring the writ of entry in the post ; that is, he could allege that the tenant had no entry save after (post) a disseisin that one A had committed against the demandant or some one of his ancestors.'' In other words, the writ was allowed to be

1 Above 6. '^ P. and M. ii 64, 70. ^ 52 Henry III. c. 29.

, \V. and M. ii 64, 65 ; App. Ia (i) ; Bracton f. 2igb; it is suggested ibid f. 318 that the limit originated in the fact that the entry should ht. proved by the testimony of living witnesses, " non enim excedit tertium gradum nee tempus quod excedit testimonium de visu et auditu;" 318b— so the writ of entry maybe turned into a writ of right " propter longissimum ingressum; " below 14 n. 2. , °(i2i5) c. 34; vol. i 58-59; above 6.

i "f. 219b, " Et si hujusmodi tenementum ulterius quam ad tertiam personam iranslatum non fuerit, locum non habebit breve de ingrespu, nisi sit qui dicat quod sine mentione de ingressu fieri possit breve hoc modo."

' 52 Henry III. c. 29, " Habeat conquerens breve de recuperanda seisina sine

\mencione graduum, ad cujuscunque manus per hujusmodi alienaciones res ilia de-

venerit, per brevia originalia per consilium domini Regis providenda ; " as Maitland

14 THE LAND LAW

brought " out of the degrees ; " and when the writ was so brought there was no need to show how the land had passed from A the disseisor to the tenant.

It is clear that these writs of entry occupy a middle position between the summary possessory remedy of the novel disseisin and the lengthy proprietary remedy of the writ of right. It is clear too that, as between the various writs of entry, some partake rather of the nature of possessory, some of the nature of pro- prietary remedies. Bracton is not quite clear in his own mind as to their nature. He sometimes speaks of them as if they were merely supplementary to the assize of novel disseisin ; ^ but he ad- mits that other species of writs of entry are proprietary; and some of them have such close affinity with the writ of right that they can be turned into a writ of right by the pleading of the parties to the action.^ This double aspect — partly possessory, partly proprietary — they retained to the end.^

The popularity of these writs was due to the flexibility of the principle upon which they were based. New writs could easily be formed on this model to protect the various rights recognized in the land. Though the older remedies survived, and were sometimes used, their work and sphere were for the most part usurped by writs of entry of one sort or another. A writ of entry in the post could do most of the work of the writ of right, and a writ of entry in the nature of an assize'* came in practice to be substituted for the assize of novel disseisin. In fact, the various writs of entry were, during this period, made to do for the land law what the various developments of the writs of trespass and deceit were made to do for the law of tort,^ because, in both cases, the flexibility of the form of action made it capable of the most diverse applications.

has said, Forms of Action 336, '* the Statute of Marlborough, which in many ways marks the end of feudalism, in effect abolished the restrictions on the formation of writs of entry — but it only did this by adding to their number ; " apparently a writ in the post was abateable if a writ within the degrees could have been brought, Y.B. 6 Ed. II. (S.S.) i 61.

^ f . 220, ♦' Tale breve de ingressu naturam sapit assisae novae disseisinae ad omnia quoad restitutionem licet non quoad pcenam."

2f. 318b, "Nisi breve de ingressu per narrationem vertatur in breve de recto, propter longissimum ingressum, qui probari non poterit per visum proprium alicujus et auditum sed ahenum ; " this doctrine became obsolete, P. and M. ii 74 n. 2. Was this owing to the invention of writs of entry in the post ? The entry in such a writ could not be proved per visum et auditum proprium.

3Y.BB. 33-35 Ed. I. (R.S) 421; 3 Ed. II. (S.S.) 160, "I wish all of ycu to understand that no writ of entry is a writ of right, but it lies in the possession coloured by right ; for that only is a writ of right which takes issue in the right," per Bereford, C.J.

4 F.N.B. igiC-ig2F ; Booth, Real Actions 174 seqq. It is sometimes called a writ of entry in the Quibus, and as Booth says, 172, ** differs not from an assize of novel disseisin in the cause of action, but in the proceedings and process ; " for a case in which such a writ was brought see Y.B. 12 Rich. II. 172.

"* Vol. ii 455-456; below 350-351, 429-451.

i

THE REAL ACTIONS 15

The other Real Actions

We must now consider the other real actions which protected the diverse interests which various persons might have in the land. It would be impossible to describe them all in detail ; but, as I have said, their enumeration will serve as a useful guide to the mediaeval land law regarded from the mediaeval point of view. In thus enumerating them I shall divide them into the following groups : —

(i) The actions which lie as between lord and tenant, (ii) The actions which lie to protect the lord or tenant of

particular estates in the land. (iii) The actions which lie to protect incorporeal rights, (iv) The action which lies to assert the right to a villein, (v) The actions which arise out of certain family relation- ships, (vi) The actions which arise out of the incapacity of persons. (vii) The actions concerning ecclesiastical property, (viii) The actions which deal with abuse of the process of the court.

In the various forms of action falling within these groups we can see the various stages in the development of the real actions. There are the actions which fall within the writ of right group, e.g. the ne injuste vexes, and the writ of right of dower. There are actions which belong to the possessory assize group, e.g. the assize of mort d'ancestor, and darrein presentment. The most numerous class of actions are those begun by writs of entry, in the per^ cut, ^.ndpost, devised to protect the many new relations which gradually came into being with the growing elaboration of the law.

(i) The actions which lie as between lord and tenant.

Ne injuste vexes} This writ lay where the tenant and his ancestors held the land of the lord and his ancestors by certain services, and the lord, by the hand of his tenant, got seisin of more or greater services and distrained for them ; in such a case the tenant by this writ could assert his freedom from such services.

De consuetudinibus et serviciis} This writ lay for the lord against the tenant who withheld his due services. It is a writ

^ Booth, Real Actions 126, 127 ; cp. Y.B. 3, 4 Ed. II. (S.S.) ^^y Scrope, J., for various alternative remedies ; for the cases in which the lord might use an assize of novel disseisin, or mort d'ancestor, or a writ of right sur disclaimer see Bl. Comm. iii 232, 233.

2 Booth, Real Actions 132; cp. Y.BB. i, 2 Ed. II. (S.S.) 116; 11, 12 Ed. III. (R.S.) ig8 ; App. Ia (4).

16 THE LAND LAW

of right in its nature — in the debet and solet when the lord counts of his own seisin ; in the debet when he counts of the seisin of his ancestor. Being a writ of right in its nature, the procedure upon it was slow and cumbrous. The lord, if successful, established his title to the services, and could distrain for them; but he could not regain possession of the land. If there was nothing on the land to be distrained it was a remedy of small value. ^ In fact, after the decay of the feudal courts, the lord had no effective remedy against a tenant who left his services unperformed and his land uncultivated. In such a case a remedy was required by which the lord could regain possession of the land itself.^ Such a remedy he obtained by means of the writ of Cessavit.

Cessavit} This writ was introduced by the Statutes of Gloucester (1278) and Westminster II. (1285)^ in order to enable the lord to get the land itself in default of the due performance of the services. It was derived, through the canon law, from Justinian's legislation.^ But Miss Bateson has shown that the action differs from the Roman model, and resembles the rules laid down in some of the borough customs in its requirements (i) that the land must have lain fresh for two years; (2) that there must be no distrainable goods on the land ; and (3) that the landlord must have got judgment^ According to Roman law it was only necessary that the rent should be in arrear for the required period. Probably here as in other cases a Roman idea has been naturalized and adapted to native requirements. The writ could be brought in the per^ cui^ or post.

Mesne? This writ lay where there was lord, mesne, and tenant, and the mesne did not perform his services, so that chattels on the land held by the tenant were distrained. The tenant re- covered damages from the mesne, and got judgment that the mesne acquit him by performing his services.

Warrantia Car tee} This writ lay against the feoffor or his heirs where a man was enfeoffed by deed with warranty, and was impleaded in an action (e.g. an assize) in which he could not vouch to warranty. There were also other remedies for breach of warranty of which I shall speak later. ^

Escheat}^ The lord had this writ to recover the land when his tenant in fee simple died without heirs.

1 P. and M. i 333. 2 ibid i 335.

3 Booth, Real Actions 133; Y.B. 11, 12 Ed. III. (R.S.) 196; App. Ia (6). ^6 Edward I. c. 4 ; 13 Edward I. st. i c. 21. ^ P. and M. i 334 n. 2 ; Bl. Comm. iii 334. fi Borough Customs (S.S.) ii Ixiv,

7 Booth, Real Actions 136; for instances see Y.BB. 3, 4 Ed. II. (S.S.) 130; 4 Ed. II. (S.S.) 71 ; App. lA (3).

^ Booth, Real Actions 240. ' Below 159-161.

1° Booth, Real Actions, 135.

THE REAL ACTIONS 17

De Recto CustodicB terrce et heredis} This was a writ of right by which the lord could assert his right to the wardship of the land and of the body of the infant heir.

Of the remedies for waste I shall speak later ; ^ and with the action of replevin which arose out of the lord's right of distraint I shall deal with when I come to the subject of self-help.^

(ii) The actions which lie to protect the lord or tenant of particular estates in the land.

Estates tail.

The writ of Formedon {fonna doni\ though originally regarded as being possessory in character,* came to be regarded as so distinctly proprietary that it was called the writ of right for the tenant in tail.^ In the developed common law there were three varieties of the writ. Formedon in reverter. This variety of the writ could be brought by the donor or his heirs when the issue of the donee in tail failed. Formedon in descender. This variety of the writ could be brought by the issue in tail against the alienee or disseisor of the donee in tail after the death of such donee. Formedon in remainder. If the tenant in tail alienated, or was disseised, and died without issue, the remainder-man had this writ to recover the land.^ The question whether some or all of these writs were known to the common law before the passing of the Statute de Donis Conditionalibus (1285),'' or whether, like the estate tail, they were created by this statute, has been the subject of some controversy. It seems to me that this controversy can only be settled by considering the object with which the Statute de Donis was passed. We shall see ^ that before this statute a gift to a man and the heirs of his body created a fee simple con- ditional. It was a gift to a man and his heirs conditionally upon the birth of issue. Hence if no issue was born, the condition was not fulfilled, and the donor could recover the land ; but, if issue was born, the condition was fulfilled, and the donee got in substance a fee simple, which he could alienate as he pleased. If, however, he did not alienate, and died without issue, the estate reverted,

^ Booth, Real Actions 132 ; for the writs of ejectment and ravishment of ward (20 Henry III. c. 6; 13 Edward I. st. i c. 35) see F.N.B. 1391-1400 ; Reeves, H.E.L. ii 117, 118; Y.BB. 33-35 Ed. I (R.S.) 174; 13, 14 Ed. III. (R.S.) 146; 17, 18 Ed. III. (R.S.) 392 ; they are writs in the nature of trespass, and they are an early, probably the earliest, instance in which such a writ was employed to protect rights for which there was a real action, below 27 ; it was the easier to protect these rights in this way because they were regarded as chattels, below 215.

2Below 121-123. 3 Below 283-287.

4Y.B. I, 2 Ed. II. (S.S.) 159.

5 Booth, Real Actions 139 ; App. Ia {2). ^ Co. Litt. 326b.

' 13 Edward I. c. i, Stat. Westminster II.

8 Below 111-114 ; cf. vol. ii 349-350.

VOL. in.— 2

18 THE LAND LAW

just as if no issue had been born. This being the case, it is not surprising to find that there is a practically uni\'ersal consensus of opinion that the first form of the writ — Xh&fonnedon in reverter existed at common law.^ On the other hand, it seems to me that the weight of the evidence is in favour of the view that the formedon in descender was introduced by the statute. Before the statute the issue had no remedy if his ancestor alienated ; and one of the objects of the statute was to give him a remedy in such a case.^ It is true that if his ancestor was disseised he had a remedy ; but it was probably not by writ of formedon, but by assize of mort d'ancestor.^ This, it seems to me, is the view of the law accepted in the Year Books ; and, having regard to the words and scope of the statute, the view which is a priori the most probable. The writ of formedon in remainder is not given by the statute ; nor is there any positive evidence that it existed at common law. Estates in remainder were certainly limited to take effect after conditional fees ; ^ but as yet we have no evidence that any writ was devised for their protection.^ However that may be, it is quite clear that such a writ was introduced shortly after the passing of the Statute de Donis.^

^ " Breve per quod donator habet recuperare suum, deficiente exitu satis est in usu in cancellaria," 13 Edward I. c. i ; cf. Y.BB. i, 2 Ed. II. (S.S.) 3 ; 3, 4 Ed. II. (S.S.) 41 ; 8 Ed. II. (S.S.) 60 ; 18, 19 Ed. III. (R.S.) 202 ; Willion v. Berkeley (1561) Plowden at p. 235 ; Coke, Second Instit. 336 ; Booth, Real Actions 140 ; Challis, Real Property (3rd ed.) 84; according to one not improbable view, Plowden at p. 247, cited below 115 n. 4, it did not lie after three descents from the donee ; see below 115 for an explanation of this view. It would seem, however, that before De Donis the donor's right was not a reversion, but merely a possibility of reverter, below 68 n. 5.

2" Et quia in novo casu novum remedium est apponendum fiat impetranti tale breve "—then follows the writ, 13 Edward I. c. i.

3 Y.BB. 3, 4 Ed. II. (S.S.) 112-113 ; 2 Rich. II. 48-49 ; Willion v. Berkeley (1561) Plowden at p. 239; Coke, Second Instit. 336; Booth, Real Actions 140. On the other hand, the existence of the writ at common law is thought to be probable by Maitland from a consideration of a MS. register of writs of Edward I.'s reign, cited vol. ii 615 App. Vd note 4 ; and this view is supported by Co. Litt. 19a ; an intermediate opinion is that of Serjeant Bendloe who thought that a formedon in descender lay at common law where an assize would not serve the issue ; thus if a man married a first wife and had a son, and he then married a second wife and land was given to him and the heirs of his body by the second wife, and he had a son by her— then, as the assize would not meet the case of the son by the second wife, because he was not heir, this son had a formedon in descender, Plowden at p. 239 ; but there is no evidence that such a writ was ever brought before the statute in such a case.

4 P. and M. ii 23-25 ; Maitland, Remainders after Conditional Fees, Coll. Papers ii 174 ; Challis's reply to this paper will be found in his Real Property (3rd ed.) App. II.

5 Co. Litt. 280b ; Booth, Real Actions 151, says, " This writ is partly grounded upon the equity of the Statute de Donis Conditionalibus ; " it is true that Bracton, f. 69, says that there was such a writ, and that he will give it, but he fails to do so ; see P. and M. ii 24.

6 It is mentioned in Y.B. 33-35 Ed. I. (R.S.) 20 ; and there is a case turning on such a writ in Y.B. i, 2 Ed. II. (S.S.) 166-168.

THE REAL ACTIONS 19

Estates for life.

Intrusion} This was a writ of entry (in the/^^, cui or post) which lay for the reversioner when the tenant for life, in dower, or by the curtesy died seised, and after his death one intruded upon the land.

Entry ad communem legem} This was a writ of entry (in the per^ cui or post) which lay for the reversioner after the death of the tenant for life, in dower, or by the curtesy when such tenant had aliened.

Entry in casu proviso} This was a writ of entry (in the/e?r, cui ox post) given by the Statute of Gloucester (1278). It lay when the tenant in dower aliened in fee, in tail, or for life ; and by it the reversioner could recover the land even during the life of the tenant in dower. " The statute," said Bereford, CJ., "was provided to supply a deficiency in the common law; for under the common law there could have been no recovery during A's [the tenant's] lifetime ; and the statute was made in remedy of that hardship." *

Entry in consimili casu} By the Statute of Westminster II. (1285) the last mentioned writ was extended to the cases of the tenant for life and tenant by curtesy.

Estates for life or years.

Ad terminmn qui prceteriit} This was a writ of entry (in the pery cui, or post) which lay for the lessor or his heirs, when such lessor had leased for life or years, and the lessee, after the ter- mination of the lease, held on, or where a stranger entered, so that the land was detained from the lessor or his heirs.

Estates held in Common.

Partitione Facienda} This writ lay at common law for coparceners (whether at common law or under the custom of gavelkind) to compel a division of the land. It was not extended to tenants in common and joint tenants till Henry VIII.'s reign. ^

(iii) The actions which lie to protect incorporeal rights. The Assize of novel disseisin lay if a man were disturbed in his possession of certain incorporeal things, such as rents or

J Booth, Real Actions i8i. "^WAA. 190; Y.B. 3, 4 Ed. II. (S.S.) 22, 23.

3 Booth, Real Actions 197; 6 Edward I. c. 7; Y.B. 3 Ed. II. (S.S.) 16.

*Y.B, 6, 7 Ed. II. (S.S.) 60; see ibid, xxi-xxiii for the manner in which the writ was used instead of a formedon in order to avoid being barred by the ancestor's warranty ; as to this effect of warranty, see below 117-118.

5 Booth, Real Actions 199 ; 13 Edward I. st. i c. 24 ; Y.B. 17, 18 Ed. III. (R.S). 440 seqq.

^ Booth, Real Actions 195 ; for the evolution of the writ see P. and M. ii 68, n. 2,

^ Booth, Real Actions 244 ; Litt. § 247.

831 Henry VIII. c. i ; 32 Henry VIII. c. 32.

20 THE LAND LAW

rights of common.^ Its scope in this direction was extended by the Statute of Westminister lU

Quod Permittat} This was a writ which might be in the nature either of a writ of right or of a writ of entry. It lay for the disturbance of rights of common or other incorporeal rights ; and could be brought by the heir of the disseisee against the disseisor, his heir, or feoffee. In some cases the question whether it or a Praecipe quod reddat was the appropriate writ gave rise to controversy ; ^ and in other cases it was coextensive with the assize of novel disseisin as extended by the Statute of West- minster II. Its scope was extended to remedy many various nuisances to incorporeal hereditaments by the provision of c. 24 of the same statute, which permitted the making of writs in consi- mili casu.

Quo ]ure} This writ lay for a tenant seised in fee simple against one who claimed common over his land.

Secta ad Molendinum.'^ This writ lay for a man to whose mill another owed suit, if that suit were withdrawn.

(iv) The action which lies to assert the right to a villein.

Nativo habendo? This was a writ directed to the sheriff ordering him to deliver to the lord his villein who has run away from his manor. The villein could, before 1350,^ stop all pro- ceedings on this writ, till the itinerant justices came into the county, by suing out the writ de libertate probanda!^

(v) The actions which arise out of certain family relationships.

Husband and wife.

The writs connected with dower. The law provided several writs to enable a woman to recover her dower. ^^ The first of these writs is the Writ of right of dower. '^^ This was a writ of right patent directed to the heir of the husband ordering him to do the wife right in his court. ^^ But, because it was a writ of right patent triable in the lord's court, it came in course of time to be

1 P. and M. ii 130, 131, 139. 2 j^ Edward I. st. i c. 25.

8 Booth, Real Actions 237; F.N.B. 123F-125A ; App. Ia (7).

^The Eyre of Kent ii 131, 132, 133, 134, 135, 136; it seems to have been thought that if the disturber of the right was the owner of the soil of the servient tenement this writ lay ; and if the disturber was a stranger a Praecipe quod reddat lay.

^ Booth, Real Actions 129.

« Ibid 137 ; see Y.B. 12, 13 Ed. III. (R.S.) 122 for a specimen.

' Booth, Real Actions 127 ; App. Ia {16).

8 25 Edward III. c. 18. » Booth, Real Actions 128 ; App. Ia (17).

^° For the law as to dower, see below 189-197.

1^ Glanvil vi 5; Booth, Real Actions 118; Maitland, Forms of Action 330.

12 If he had no court the writ was directed to the sheriff and was returnable in the Common Pleas, Booth, op. cit. 118.

THE REAL ACTIONS 21

superseded by the writ of dower unde nihil habet} This was a writ of right brought in the king's court ; and, as its name im- plies, only lay when the woman had received no part of her dower. The explanation given by Bracton ^ of the reason why the action lay in the king's court in such a case is as follows : — It is possible that the widow has not got any part of her dower because the heir denies that she was married. But this question, being a matter of ecclesiastical law, can only be tried by the bishop ; and the bishop can only be compelled to certify as to this by the king's court.^ " It follows that if there is any chance of a denial of the marriage the widow must go to the king's court. " * Because this writ lay in the king's court it eventually superseded the writ of right of dower, " wherein sometime great delays are used." ^ Booth speaks of it as the "ordinary writ," and explains that generally, when a wife sues for dower, she has no part of her dower assigned to her.*' The writ of Admeasure- ment of dower lay when " the heir when he is within age endoweth the wife of more than she ought to have dower of: or if the guardian endow the wife of more than the third part of the land of which she ought to have dower."" In these cases the heir, when he attained his full age, could sue for admeasurement, and the restoration of the surplus. As the result of a judgment in a writ of dower the widow could not enter, but she must get a writ to the sheriff to assign her dower ; ^ and, in a writ of dower unde nihil habet, the statute of Merton gave her damages against the heir for its detention ; ^ but her right to damages was lost if the heir died before they were assessed. ^^

The inconvenience of this procedure for the recovery of dower induced the court of Chancery to interfere in the eighteenth century. ^^ That court not only gave a better remedy, but actually enlarged the scope of the widow's right. It gave her a third of the rents and profits from the date of her husband's death till

^ Glanvil vi 15 : Booth, Real Actions 166 ; Bl. Comm. iii 183 ; Maitland, Forms of Action 330-331 ; App. I a (10).

2 Ff. 106, 296b. 3 See vol. i 121.

^ Maitland, Forms of Action 331. ^ Co. Litt. 32b.

" " This writ is of little use or practice because of the ordinary writ of dower (unde nihil habet) ; for ordinarily now the wife has no part of her dower assigned to her when she sues for dower, and unless she have some part of her dower in the same town, and of the same person, and sues for the residue, she needs not bring a right of dower, but the other, unde nihil habet," Booth, Real Actions 118; and see 3 Edward I. st. i c. 49.

' F.N.B. 148F; Bracton ff. 314-315.

8 Co. Litt. 34b. » Ibid 32b ; 20 Henry III. c. i.

^° Williams v. Thomas [1909] i Ch. at p. 720 ; cf. Fitz., Ab. Damages pi. 119.

^^ See the judgment of Cozens-Hardy, M.R., in Williams v. Thomas at pp. 720- r23 ; apparently Somers, L.C., refused to give any relief to a dowress in 1699, 2 Eq. "i^as. Ab. 386 ; but Cowper, L.C., in 1710 allowed a dowress a third of the profits ifore the assignment of dower, ibid. 386-387,

22 THE LAND LAW

dower was assigned, not only as against the heir, but also, if the the heir was dead, against his representatives. Thus the widow got in equity "two distinct rights, namely first a right to one third of the rents and profits from the death, and next a right to have dower assigned to her ; " ^ and her right of action to get an assignment, though it may be barred by laches, does not fall within the Real Property Limitation Act.^

Cui in vita.^ This was a writ of entry (in the per, cui, or post) which could be brought by the wife, after her husband's death, to recover the wife's freehold aliened by the husband. If the wife died before she brought this writ, the heir had a writ of entry sur cui in vita if the estate was in fee simple : a formedon if the estate was an estate tail.

Cui ante divortiurn} This was like a cui in vita, substituting the divorce for the death of the husband.

Causa matrimonii prcelocuti.^ This was a writ of entry (in the per, cui, or post) which lay to enable a woman to recover land from a man to whom she had given it in consideration of a contemplated marriage with him, which had not taken place.

Ancestor and heir.

The three different varieties of the real actions — the writ of right, the assizes, and writs analogous to the writs of entry in that they extend the scope of the assize — can be seen in the actions provided to protect the interests of the heir.

The writs of right, (a) If there were two claimants to the estate, both of whom claimed to be descended from the same ancestor, and the rival pedigrees were not disputed, the matter was tried by writ of right as a pure question of law on the pleadings. There was neither battle nor the grand assize.^ (J)) The writ of right de rationabili parte? If an ancestor seised in fee simple made a lease for life and died, and after- wards the lessee died, and then one of two or more coparceners deforced the other or others, they could bring this writ to recover their share. As in case {a) the question was tried on the pleadings, ic) Nuper obiit.^ This writ was not properly a

^ Williams v. Thomas [1309] i Ch. at p. 721.

2 " In my opinion the statute applies to an action at law or suit in equity to gain possession of a definite piece of land as distinguished from a proceeding to obtain a delimitation of parcels under which for the first time a title to a definite piece of land will be obtained," ibid, at p. 722 per Cozens-Hardy, M.R.

2 Booth, Real Actions 185 ; for the evolution of this writ see P. and M. ii 68 n. 2, and Y.B. 20 Ed. III. (R.S.) i 428 per Hillary, J. ; App. Ia (8).

4 Booth, Real Actions 188.

5 Ibid 197 ; vol. ii 594 n. i ; Y.BB. i, 2 Ed. II. (S.S.) 32-34 ; 13, 14 Ed. Ill (R.S.) 226.

«P. and M. ii 61. ' Booth, Real Actions 119.

^ Ibid 204 ; for cases which illustrate its scope see the Eyre of Kent (S.S.) iii 147-151. 153-159'

THE REAL ACTIONS 28

writ of right at all. But, as Booth says, it had great affinity with the last-mentioned writ. Both lay for the recovery of land by one coparcener against another. The difference was that the writ of right de rationabili parte might be brought if the ancestor was seised at any time, whereas for the purpose of this writ the ancestor must have died seised.

The assize of mort d' ancestor. I have already said some- thing of the scope of the assize of mort d'ancestor.^ The assize was summoned to answer the following definite questions — "the points of the assize " : (i) Was A seised in his demesne as of fee on the day on which he died? (2) Did he die within the period of limitation allowed by the writ ? (3) Is the claimant A's nearest heir ? ^ The need for this assize arose because, as Maitland has pointed out, " seisin is not conceived of as a descendible right." ^ In the age of Bracton the law did not, as in the days of Littleton,^ attribute a seisin in law to the heir.^ Seisin had not in the former period acquired that connotation of title which it was acquiring in the latter.^ If the law had conceived of seisin as a descendible right " there would have been no place for the mort d ancestor, for its sphere would have been covered by the novel disseisin."^ The assize did not lie in respect of lands which were devisable.^ It followed that when, as the result of the legislation of Henry VIII.'s and Charles ll.'s reigns, all land became devisable, this remedy became obsolete.^

Extensions of the assize. The assize of mort d'ancestor lay not only against the original abator, but against anyone holding the land however remotely, from that abator ; ^^ but it could only be brought by the father, mother, brother, sister, uncle, aunt, nephew, or niece of the deceased ancestor. ^^ The reason for this limitation was probably the same as the reason for which the scope of the writs of entry were formerly limited — an extension would have taken business from the feudal lords and their courts. ^^ These lords do not seem to have objected

1 Vol. i 275-276, 329 ; P. and M. ii 56-62.

2 Booth, Real Actions 207. 3 Forms of Action 324 ; P. and M. ii 59. 4 § 448 ; Bk. iv Pt. II. c. I § 2.

' P. and M. ii 60. ^ Above 10 ; vol. ii 354, 584.

■^ Forms of Action 324 ; P. and M. ii 59.

8 " If the tenements be devisable the mort d'ancestor does not lie, and I will tell you why. In respect of devisable tenements the demandant may aver the points of his writ . . . yet, though he have all the points, he cannot recover against the devisee ; wherefore the mort d'ancestor does not lie," the Eyre of Kent (S.S.) iii 42 per Spigurnel, J. ; but this did not apply to the other ancestral writs aiel, besaiel, and cosinage, Y.B. 3 Ed. II. (S.S.) 198-199.

9 Bl. Comm. iii 187. 10 P. and M. ii 61. ^^ Booth, Real Actions 206 ; P. and M. ii 56.

^2 Above 13 ; MaitUnd, Forms of Action 325.

24 THE LAND LAW

to its extension by means of the writs of Aiel and Besaiel} by- means of which heir got a remedy when the deceased was his grandfather or great-grandfather. But they did object to the writ of Cosinage ^ by means of which the heir got a remedy where the deceased was his collateral relative, however remotely related ; and, in support of their objection, they contended that such an extension was contrary to the clause of Magna Carta which limited the right to issue the writ Praecipe.^ Bracton argued that this extension was no infringement ; and the writ was upheld.^ Thus we get a set of writs of entry which were supplementary to the assize of mort d'ancestor in the same manner as the writs of entry sur disseisin were supplementary to the assize of novel disseisin.

(vi) The actions which arise out of the incapacity of persons.

Dum fuit non compos mentis} This was a writ of entry (in the per, cut, or post) by which a person, or his heir, who had aliened his land in fee simple, fee tail, for life, or years, while he was of unsound mind, could recover the land.

Dum fuit infra cetatem} This was a similar writ in the case of alienation during infancy.

Sine assensu capituli} This writ lay in the per, cui, or post for the successor of a dean, bishop, prebendary, abbot, prior, or master of a hospital where the predecessor had alienated the lands belonging to the house or office without the consent of their convent or chapter.

(vii) The actions concerning ecclesiastical property.

These actions were a very important branch of the law of real actions, and we can see here, as in other cases, the same distinct varieties.

The writ of right of advowson? This was a writ analogous to the writ of right for land by which a person seised in fee simple of an advowson could recover the advowson. It very early came to be superseded by the two following writs.

The assize of darrein presentment.^ This assize was sum- moned to answer the question, who presented on the last

1 For these writs see Booth, Real Actions 200 ; F.N.B. 221 D-O ; App. Ia (9).

2 Bracton f. 281a; Bracton's Note Book, case 1215.

"See Y.B. 6 Ed. II. (S.S.) 212 where the proprietary character of the writ comes out in the remark of Bereford, C.J., to the effect that "this is a writ of cosinage in which you can take your title as high as you want to as long as you can make yourself cousin to him from whom you take your title."

* Booth, Real Actions 189. ^ Ibid 193.

« F.N.B. 194I-195B. ' Booth, Real Actions 121.

8 Vol. i 276, 329; Booth, Real Actions i2r, 224; P, and M. ii 136, 137; see Y.B. 3, 4 Ed. II. (S.S.) 47 for an instance.

THE REAL ACTIONS 25

vacancy of a church, the advowson of which A is claiming against B. " The act of successfully presenting a parson to a church was regarded as a seisin, a possession of the advowson," ^ so that if A or his ancestors presented on the last occasion, A will probably 2 be adjudged to be entitled to present on this vacancy.

Quare impedit? This writ was an extension of the assize of darrein presentment. If A presented to a church on the last vacancy, and, in the meantime, conveyed his right to B, B could not assert his right by the assize ; but he could sue by this writ any one who hindered his right. Originally, if the wrongdoer presented before action brought, B had no remedy whatever; but the Statute of Westminster 11. (1285) allowed him a period of six months from the vacancy within which to assert his right. The same statute also preserved the rights of infants, married women, and reversioners by allowing them to bring the assize or this writ, in spite of a usurpation made while they were under disability ; and gave damages to the plaintiff. It was for this reason that, in Richard II.'s reign, it was regarded as being rather delictual than proprietary in its character.*

Supplementary to these writs was the Quare non admisit. It lay when a man, having recovered his advowson, and having got a writ to the bishop to admit his clerk, the bishop refused to admit him.^

The assize utrum was directed to a different purpose. Its original object was, as we have seen, to determine whether land was held by spiritual or by a lay tenure, in order that the case might go before the proper tribunal, spiritual or lay.^ But in spite of the clause of the Constitutions of Clarendon,'^ which stated that all cases concerning land held in frankalmoin should go to the ecclesiastical courts, the king's courts had obtained jurisdiction over all land held by this tenure. The

^ Maitland, Forms of Action 326 ; below 98, 100.

2 A might have granted the advowson to B, and B could plead this by an exceptio, P. and M. ii 137.

3 Ibid 137, 138; 13 Edward I. st. i c. 5 ; Booth, Real Actions 223 seqq. ; App. Ia (ii).

4 Y.B. 12 Rich. II. ^•^ per Charlton, CJ.

'" F.N.B. 47C ; for a case in which such a writ was brought see the Eyre of Kent (S.S.) iii 162 ; for other supplementary writs relating to these matters see F.N.B. 36G-39G.

^ Vol. i 276, 329-330 ; Glanvil, xiii 2, mentions other recognitions " utrum," e.g. " utrum aliquis seisitus fuerit de aliquo libero tenemento die quo obiit ut de fcedo vel ut de vadio ; utrum aliquis sit infra astatem vel plenum habuerit aetatem ; utrum aliquis obierit seisitus de aliquo libero tenemento ut de foedo vel ut de warda ; " but these never developed into definite legal processes for beginning £( litigation.

^ c, ix ; below 35.

26 THE LAND LAW

ordinary tenant in frankalmoin, therefore, had the ordinary free- holder's remedies, possessory and proprietary ; and he was denied any others. But the land belonging to a parish church was regarded as a gift to the church and not to the rector and his successors. The rector was regarded simply as the guardian of the church ; and though he might have a possessory remedy, e.g. the assize of novel disseisin, he had no proprietary remedy. The assize utrum came in the thirteenth century to be so used that it gave him, in right of his church, a proprietary remedy. This writ, said Scrope arguendo in 1 3 12-13 1 3, " is a writ of right, in which the parson can try the right of his church as highly as by any other writ that there is ; " and to this argument Bereford, C. J., assented.^ Thus the writ came to be " the parson's writ of right." ^

(viii) The actions which deal with abuse of the process of the court.

Some of the actions which were given to remedy these abuses had a peculiar reference to the real actions. The writ of Attaint lay originally only against the assize.^ The writ Quod ei deforceat^ was given by the Statute of Westminster II. (1285) to enable a tenant of the particular estate of freehold to recover land which he had lost by default in a real action. The writ of Redisseisin was given by the Statute of Merton (123 5- 1236), and lay when a man who had recovered in an assize and had had execution was again disseised by the same disseisor. The writ of Post disseisin was given by the same statute after a recovery in any real action. The disseisor was sent to prison, and the injured party was by the Statute of Westminster II. awarded double damages.^ I have already mentioned the statutes which gave special remedies in the case of forcible entries.^

At the beginning of the mediaeval period the sphere of the real actions was kept quite distinct from the sphere of the personal actions ; ^ but, as we have seen, the action of trespass and its offshoots showed, at the end of this period, a tendency to encroach upon the sphere of the other personal actions.^ It was hardly possible that its expansion should leave the real actions wholly unaffected. The old stringency was being somewhat re- laxed. The forms of action were no longer divided from one

lY.B. 6Ed. II. (S.S.)70, 71.

2 P. and M. i 226-228 ; the parson is not yet regarded as a corporation sole, below 480-481.

3 Vol. i 337.

* Booth, Real Actions 253 ; 13 Edward I. st. i c. 4. •^ Booth, Real Actions 260, 261 ; 20 Henry III. c. 3. " Vol. ii 453 ; below 27 n. 5. 7 Vol. ii 261 ; below 27 n. 4. » Vol. ii 455-456.

THE REAL ACTIONS 27

another by compartments which were completely watertight.^ From an early date trespass was regarded as being in some cases supplementary to the assize of novel disseisin. In the assize the plaintiff could only recover damage to the actual freehold, and not damages for injury to the chattels thereon/ unless the injury to the chattels and the disseisin were all part of one transaction.^ In other cases it was possible to make trespass do the work of the novel disseisin;^ and Henry VI. 's statutes of forcible entries, by giving actions of trespass, encroached on the sphere of the assize of novel disseisin.^ But it is not to be expected that trespass will make serious advances in this direction, in spite of the greater convenience of its procedure, till something more than damages can be recovered by its means. It was used at the end of this period to protect the copyholder^ and the lessee for years ; ^ and, when it has become possible by its means to restore to the lessee his term, it will become by easy fictions a serious rival not only to the novel disseisin, but also to many other real actions.® But this is as yet in the future.

There are, however, other cases in which some forms of the action of trespass were making inroads upon the outlying frontiers of the field of the real actions. I have already noted that what was in substance a variety of the writ of trespass could be used to do the work of the writ of right of ward.^ In Edward III.'s reign another variety of the same writ became concurrent with the action of replevin. ^*^ But trespass was chiefly used, or attempts were made to use it, in the cases where the specific restitution given by the real actions was not so clearly superior to the damages given by the personal action. It is clear that encroach- ments upon the free enjoyment of some of that miscellaneous collection of incorporeal things known to the mediaeval common

1 Vol. ii 454-455.

2 Eyre of Kent (S.S.) iii 63, 73-74.

^ This is Mr. Bolland's explanation of the cases cited, ibid xx.

^Bracton's Note Book case 378; Y.B. 11, 12 Ed. III. (R.S.) 186 Stonore, C.J., says, " In a plea of trespass, by plea of the defendant the plea may be turned out of the nature of the writ, by pleading in the Right ; but let the plaintiff take care for himself that he do not plead out of the nature of the writ; " ibid 516 Trewith says, " It is not decided whether a writ of trespass lies for a disseisin ; " see Y.BB. 14 Ed. III. (R.S.) 230, 232 ; 14, 15 Ed. III. 104 seqq. for cases in which trespass was brought where an assize might have lain.

^8 Henry VI. c. g; Hale, H.C.L. 210, 211, "Many titles of land were deter- mined in personal actions ; and the reasons hereof seem to be . . . 3rdly, because the statute of 8 Henry VI. had helped men to an action to recover their possessions by a writ of forcible entry ; even while the method of recovery of possessions by ejectments was not known or used."

^ Below 208-209 ; vol. ii 578. "^ Below 216 ; vol. ii 581.

« Bk. iv Pt. II. c. I § I.

*• Above 17 n. i ; and the writ of Deceit and a Cui in vita might be concurrent, Y.B. 20 Ed. III. (R.S.) i 428,

^« Below 285.

28 THE LAND LAW

law might easily be remedied by some form of this action.^ In Henry IV. 's reign an attempt was made to bring this action for an obstruction to a right of way ; but it was laid down that the case was one for the assize of nuisance, and the writ abated.^ But though, both in this period ^ and later,^ there was some re- luctance to interfere with the sphere of the real actions, the opinion was expressed that as against persons against whom the assize did not lie, or for minor disturbances, not amounting to total obstruction, the action might lie.^ As early as Richard II.'s reign it was allowed to do the work of the writ Curia Claudenda ; ^ and in Henry VI. 's reign there are several cases in which trespass on the case was used either as a substitute for or a supplement to a Cessavit, '^ or a Secta ad Molendinum.^ It was in respect to such rights as annuities and corodies,^ which lie on the borderland between property and contract, that the most definite encroach- ments were made in this period. In Richard II.'s reign it was allowed that the infringement of a customary right of the bedell of a hundred to claim, as incident to his office, certain gallons of beer, could be remedied by action of trespass on the case ; ^^ and, in Edward IV.'s reign, " Moyle and other justices and some of the Serjeants resolved that, if a man grants me that I shall have yearly for my life hay and straw in my house sufficient for the keep of two cows during the winter season, and if I am seised of this right and disseised, I shall have action on my case." ^^ These precedents were cited by Coke in the Earl of Shrewsbury s Case}'^ in which the modern rule was established that, in such cases, the parties might sue either by an assize or by action of trespass on the case.

1 Vol. ii 355-356.

^Fitz., Ab. Accion stir le Cas pi. 24, Markham said, " Si home leve un fosse ou molin a travers de mon chymin, j'avera assise de nusans etnul auter brief; " cp. Y.B. 19 Hy. VI. Mich. pi. ^g per Paston, J. (p. 29).

^Y.B. 20 Hy. VII. Mich. pi. 18, '• A ce que Kingsmill dit que ou Nusance gist, la ne gist Action sur le cas jeo agre bien : car I'un est real, et I'autre mere personel, et tiels actions ne peuvent estre ensemble ; " this idea survived till the abolition of the real actions in the rule that the action of debt would not lie to recover a freehold rent, so long as the freehold on which it was charged existed, Thomas v. Sylvester (1873) L.R. 8 Q.B. at p. 371 per Blackburn, J.

** See Anon. (1566) Dyer 248b; Moore v. Browne (1573) ibid 319b.

5Y.BB. 19 Hy. VI. Mich. pi. 49; 33 Hy. VI. Trin. pi. 10 per Prisot, C.J., and Moile, J.

"Fitz., Ab. Accion sur le Cas pi. 50.

'Y.B. 22 Hy VI. Hil. pi. 36 (p. 47).

8 Ibid Mich. pi. 33. 9 Below 152-153.

^^ Fitz., Ab. Accion sur le Cas pi. 51 — this indulgence was put on the ground that the man could hardly be said to have a freehold ; as Thirning said, " Paraventour il n'ad riens mes pur cause de son office pour le temps, et, come un clerke cieins, il n'ad rien forsque un occupacion pour le temps ; uncore, si ascun luy fait tort a chose que afifectira a son office, il avera brief de trespass."

" Ibid pi. 17 = Y.B. 4 Ed. IV. Pasch. pi. 2.

12 (161 1) 9 Co. Rep. atf. 51a,

FREE AND UNFREE TENURE 29

In these directions, therefore, certain small inroads had been made upon the sphere of the real actions by the action of trespass on the case. When a variety of trespass on the case came to be regarded as a contractual action,^ we can see one road by which some of these miscellaneous incorporeal things of mediaeval law lost their character of things and became rights arising out of contract. We can see, too, one of the roots of the later doctrines as to covenants running with the land. The rights conferred by these covenants were in many cases things which issued out of the land, the right to which could be enforced against the holder of the land for the time being by real action.^ Some of them did not lose this characteristic when they came to be regarded as rights which rested upon the agreement of the parties. But, as I have said, the supremacy of this organized system of real actions was not seriously threatened during this period. That supremacy it had held for three hundred years, so that it was inevitable that the rights which were protected by it should assume a form different from those which were not so protected. In fact, the determination of the question whether any given right fell within its sphere has in many cases affected the whole subse- quent history of that right by placing it in one or other of the two great categories known to English law, real or personal property. We do not meet the term "real property" in the mediaeval common law; but the foundations of that conception were laid in the rules which determined the sphere of these real actions. So marked were the peculiarities impressed upon the rights which fell within that sphere that, though the real actions have disappeared, real property remains. In the ensuing sections we shall see what rights in the land were included within the sphere of influence of the real actions and what were not ; and we shall see that their inclusion or exclusion has given rise to large differences in the substantive law relating to them.

§ 2. Free Tenure, Unfree Tenure, and Chattels Real

The distinctions between free tenure, unfree tenure, and chattels real are fundamental in the land law. I have already lid something of these distinctions.^ Here I must say something I little more in detail about their origins and the principles which iderlie them.

Free Tenure and Unfree Tenure

In the thirteenth century the legal effect of deciding that land is held by free or unfree tenure was clear. If the land was

i Below 429-453.

2 Cp. Holmes, Common Law 388-390 ; below 161-165.

3 Vol. ii 260-262, 576-578, 581-582.

30 THE LAND LAW

held by free tenure the tenant was protected by the courts of common law and by the real actions. If it was held by unfree tenure the tenant was protected neither by these courts nor by these actions. What was the principle which underlay this pro- cedural test, and what were its effects upon the law ?

The free tenures cover a wide field, comprising many kinds of relationship between many different classes of persons ; ^ and the conception of tenure covers a yet wider field.^ But all those who held by these free tenures were protected by the same courts and by the same forms of action. It was only those who held by unfree tenure who escaped their direct^ influence. Now, this extension of the jurisdiction of the royal courts effected a great simplification in the land law. To see how great it was we need only look across the Channel. In France the laws relating to the military fiefs, to the lands of the roturier (a person answering in some respects to the socage tenant), and to the lands of the villein, all differed from one another;^ jurisdiction over land held by these different kinds of tenure was parcelled up among many feudal lords ; ^ and, as we have seen, the franc alien was still known. ^ It is clear, therefore, that the royal judges, in making this great simplification in the land law, must have been obliged to ignore many old distinctions, and to draw their lines through many different classes of tenure and classes of persons which, in the old days of customary law, shaded off into one another.^ Certain cases decided in the thirteenth century, when these great distinctions were being drawn, afford an illustration. These cases apparently lay down the rule that the lord cannot eject a free man holding by unfree tenure so long as he duly performs his services.^ But in later law, so soon as it was admitted that the services were villein services, the courts of common law would have enquired no further. These cases are in fact a survival from the days before all land-holding had been neatly divided into two classes upon the principle of protected or not protected by the king's court. ^ They cannot be regarded as foreshadowing the copyhold tenure of later law.^*^ It is true that some of the customs observed by the unfree tenants within the manor, and

^ Vol. ii 200, 260 ; below 34-54. ^ Ibid 199-201.

'As to their indirect influence see vol. ii 380-381.

"^Esmein, Histoire du Droit Frangais (nth ed.) 215-248.

5 Ibid 294-301. fi Vol. ii 75 n. 8.

7 P. and M. i 389.

^Bracton's Note Book cases 70 and 88 (1220); case 1103 (1225); a decision of William Raleigh cited Bracton f. 200; for these cases see Vinogradoff, Villeinage 78-81 ; the Mirror tries to distinguish the villein from the serf (cp. Vinogradoff, op. cit. App. III.), and the book sometimes represents conservative opinion, vol. ii

332-333-

^ P. and M. i 340 n. 3.

1** For this view see Leadam, L.Q.R. ix 351.

FREE AND UNFREE TENURE 31

that some of the exceptional modes of land-holding recognized by the common law, supply striking evidence of old resemblances ignored by the clear-cut distinctions of the royal judges ; ^ but copyhold tenure was the product of later influences, such as the growth of fixed customs created by the working of the manorial courts, and changes in the economic system.^

What then were the tests adopted by these judges if it became necessary to decide whether a giv^en piece of land was held by one tenure or another, and what were the social or economic facts at the back of this distinction ?

The tests which the judges applied were somewhat fluctuating and uncertain. They sometimes took some particular incident and treated it as presumptive evidence of unfree tenure. The incident most usually taken is Merchet — the fine paid for leave to give a son or daughter in marriage.^ Other incidents were the liability to tallage,^ and the fact that the land descends to the youngest child. ^ But none of these tests based upon the incidents of tenure were decisive, because such incidents were found in the case of lands held by free tenure as well as in the case of lands held by unfree tenure.*^ A more satisfactory test was found in the character of the services themselves. In employing this test