Actions of Covenant, 1200–1330

JOSEPH BIANCALANA

The following abbreviations and abbreviated citations are used in this essay:

Bedfordshire Eyre--Bedfordshire Eyre 1247, ed. G. H. Fowler, Bedfordshire Historical Record Society, vol. 21 (1939).
Berkshire Eyre--The Roll and Writ File of the Berkshire Eyre of 1248, ed. M. T. Clanchy, Publications of the Selden Society, vol. 90 (1972–73).
BL--British Library
BNB--Bracton's Notebook, ed. F. W. Maitland, 3 vols. (London: C. J. Clay, 1887).
CP40--Common Plea Rolls, Public Record Office
CRR--Curia Regis Rolls (1922– )
Earliest English Law Reports--Earliest English Law Reports, ed. Paul Brand, Publications of the Selden Society, vols. 111, 112 (1995, 1996).
Gloucs.--Rolls of the Justices in Eyre for Gloucestershire, Warwickshire and Staffordshire [Shropshire] 1221, 1222, ed. D. M. Stenton, Publications of the Selden Society, vol. 59 (1940).
JUST 1--Itinerant Justice Rolls, Public Record Office
KB26--Curia Regis Rolls, Public Record Office
Kent Eyre--The Eyre of Kent, 6 and 7 Edward II, a.d. 1313–1314, ed. F. W. Maitland, L. Harcourt, and W. Bolland, Publications of the Selden Society, vols. 24, 27, 29 (1909, 1912, 1913).
LI--Lincoln's Inn
London Eyre--The Eyre of London, 14 Edward II, a.d. 1321, ed. H. M. Cam, Publications of the Selden Society, vols. 85, 86 (1968, 1969).
RCR--Rotuli Curiae Regis, ed. Francis Palgrave, 2 vols. (London: Eyre and Spottiswoode, 1835).
RS--Rolls Society
Shropshire Eyre--The Shropshire Eyre Roll of 1256, ed. Alan Harding, Publications of the Selden Society, vol. 96 (London, 1980).
SS--Selden Society
YB--Yearbook
This article tries to answer two questions about the writ of covenant that have perplexed legal historians. Maitland noticed that the common law courts adopted a requirement that plaintiff produce a writing of the covenant under defendant's seal as proof of the covenant.1 When and why royal officials adopted this requirement continue to be the chief unanswered questions about covenant. Second, there is the matter of remedy. Some legal historians believe that the remedy in covenant changed from specific performance to damages.2 But what was the remedy in covenant? Did it change? If so, when and why did it change?	1
Legal historians have had difficulty with the writing requirement and the question of remedy because they have thought of covenant as if it were a monolithic legal entity--a cause of action. This assumption has shaped the questions of when did the royal courts adopt a requirement of a writing in covenant and when did the remedy in covenant change? These questions presuppose that the royal courts adopted a writing requirement for all cases of covenant at a single time for a single confluence of reasons and that the remedy changed in all cases of covenant at a single time for a single confluence of reasons. But there was no cause of action in covenant in the thirteenth century.3 There were writs of covenant or, more accurately still, there were claims made by writs of covenant, claims arising out of particular transactions that allegedly went bad for plaintiffs. The anachronistic assumption that there was a cause of action in covenant is understandable not only because the abstraction, cause of action, was familiar to common law historians but also because using the abstraction seemed to organize and simplify the evidence. For once examine the claims made by writ of covenant and one can quickly become lost in a welter of individual cases. The author of the Statute of Wales (1284) suffered that plight.4 He said that the variety of actions of covenant was infinite. For that reason, he continued, no rule can be set forth for all actions of covenant. Rather, litigation proceeds and the law varies according to the nature of each covenant. The author's despair at stating general rules for cases of covenant wins the sympathy of anyone who has surveyed more than a handful of covenant cases.	2
Yet any attempt to understand the actions of covenant in the thirteenth century requires that individual cases be grouped into types or categories. Any attempt to construct types or categories of covenant cases will be governed by the purpose for which the types or categories are constructed. This article seeks to answer two legal questions about cases of covenant--the law governing proof and the law governing remedies. For this purpose, claims made by writs of covenant should be put into types or categories according to the legally significant differences among claims. Claims differ in a legally significant way when the principle of defendant's liability differs, the legal idea in virtue of which defendant's conduct is a wrong to plaintiff and not merely a misfortune for plaintiff.	3
For many of the legal historians who have struggled with covenant, the idea that there was more than one principle or basis for defendant's liability seems odd. In the accepted view, a covenant (conventio) was simply an agreement.5 The writ of covenant enforced the performance of agreements.6 Covenant was thus a contractual action.7 The writing requirement was a requirement that plaintiff produce a written contract. Because covenant was a contractual action, a remedial order to perform the covenant was specific performance, until the remedy changed to damages.	4
Covenant (conventio) indeed meant agreement. But that is no reason to suppose that all actions of covenant in the thirteenth century were contractual actions in our sense of the term. One does better to look at the cases and listen to how plaintiffs made out their claims in their pleadings. Plaintiffs made three types of claim. In most cases, plaintiff was a termor who claimed that defendant had demised to him certain land for a term of years, that plaintiff had been seised of the land under that demise, and that defendant had ousted him. In this type of case, plaintiff was making a proprietary claim, a claim, essentially, that he had greater right to hold the land as defendant's termor or lessee than defendant had to hold the land free of plaintiff. In other words, plaintiff claimed that defendant had made a grant of land to him and was barred from taking back the grant. In a second type of case, plaintiff asserted that he and defendant had entered into an agreement and that defendant had breached the agreement. Plaintiff thus made a contractual claim, a claim that defendant had undertaken a special obligation to plaintiff and had breached that obligation. The obligation was special, as opposed to general, because absent the agreement defendant had no duty to perform the actions as alleged by plaintiff.	5
The writ of covenant thus had a dual nature.8 It could be used to initiate a proprietary, real action or it could be used to initiate a contractual, personal action. Until the last decades of the thirteenth century, plaintiff's claim was more important than the fact that he used a writ of covenant. The dual nature of covenant is revealed by the way clerks described the writ in plea roll entries. The writ of covenant was a precipe writ, which commanded defendant to hold to his covenant with plaintiff.9Precipe writs ordinarily initiated proprietary or real actions. In the earlier cases the plea roll clerks entered the writ on the rolls as a precipe writ.10 Beginning in the 1220s, however, they entered the writ as if it were an ostensurus quare writ.11Ostensurus quare writs ordinarily initiated personal actions. In the late 1230s plea roll clerks adopted a hybrid form for entering covenant writs, one that began as if the writ were an ostensurus quare writ and ended as if it were a precipe writ.12 The hybrid style of entry reflects the dual nature of the writ.	6
There was also a third type of covenant case. In this type of case, plaintiff claimed that he and defendant had entered into an agreement that called for defendant to convey to him land in freehold or fee but that defendant had failed to make the conveyance. This type of case and claim presented judges and lawyers with great difficulty. There was no consensus until perhaps the first decade of the fourteenth century whether this type of case presented a proprietary claim or a claim of obligation. If one focused on plaintiff's claim to recover land in freehold or fee, this type of claim looked like a proprietary claim. But if one focused on the agreement and its breach, this type of claim looked like a claim of special obligation.	7
Putting cases and claims of covenant into these three categories takes one a long way toward understanding the writing requirement and the remedies in covenant cases. The proof requirement for the peculiar kind of proprietary claim made by writ of covenant differed from the rules of proof that governed claims of special obligation. The remedy in real actions was to put plaintiff in seisin, a remedy resembling specific performance, but the remedy in cases of obligation was damages. In cases involving claims of freehold, where judges and lawyers were uncertain whether plaintiff made a proprietary claim or a claim of obligation, there was uncertainty over what proof plaintiff had to produce and what remedy, if any, plaintiff could have by writ of covenant.	8
I. The Requirement of a Writing
The first unanswered questions about covenant are when and why royal officials adopted a requirement that plaintiff produce a writing of the covenant under defendant's seal. It is useful to consider the three types of covenant cases separately. In actions by lessees, the requirement of a writing was probably as old as the writ, which was probably invented as a remedy for a lessee ejected by his lessor. In this case, an action on the writ was a real action based on a grant. A written lease was necessary to make the lessor warrant his grant. Other claims made by writ of covenant, except claims to freehold or fee, were based on defendant's special obligation to plaintiff. In these cases, plaintiff had to produce suit as witnesses or a writing of the special obligation defendant had undertaken to plaintiff. In the late 1270s, suit and wager of law were eliminated as modes of proof in actions of covenant. From this decision, there emerged the requirement that plaintiff produce a written covenant.13 Yet, earlier, a minority view had held that where plaintiff claimed land in freehold or in fee, suit alone was not sufficient. He had to produce a writing. There was disagreement whether plaintiff's writing could be a charter of feoffment or had to be a chirograph. The minority view that plaintiff had to produce a writing succeeded when as a general matter suit and wager of law were eliminated. There continued to be debate whether plaintiff's writing could be a charter of feoffment.	9
A. Leases and Other Grants of Less than Freehold
Legal historians have long been aware that most actions of covenant involved leases.14 Only David Ibbetson, however, has treated actions on leases separately from other actions of covenant when considering the requirement of a writing.15 He argued that the requirement of written leases was transplanted from Roman law, an argument he has since abandoned.16 But he was right in that a requirement of written leases preceded the general requirement of a writing. Indeed, that a lessee had to produce a written lease was a requirement probably as old as the writ.	10
The evidence that a lessee suing on a lease had to produce a written lease is simply the fact that plaintiff-lessees almost always produced written leases. In the comparatively few cases in which the plea roll entry does not say that plaintiff produced a written lease, defendants never took issue with plaintiff's description of the lease. Most often in these cases, defendants admitted the covenant, denied the breach, and put themselves on a jury. In one case, defendant claimed that plaintiff had never had seisin under the lease, but the jury found otherwise.17 The plea roll clerk might well have omitted mention of a written lease in these cases because they did not turn on plaintiff's description of the terms of the lease. None of the cases in which defendant waged his law to deny plaintiff's description of the covenant involved leases.18 Where defendants waged their law to deny a breach of the lease, plaintiffs' claim, under written leases produced in court, was that defendant had failed to acquit the tenements of services owed a superior lord, had committed waste, or had denied plaintiff estovers in woods appurtenant to his lease hold.19	11
Very few cases raised the issue of plaintiff's proof of the lease. In 1256, defendant asked plaintiff to produce a writing, charter, or other muniment of the lease.20 Significantly, his request was for a writing, not suit. But plaintiff had neither suit nor a writing. He offered a mark for a jury trial. No judgment is recorded. In 1277, a lessee sued his lessor in covenant for ejectment and the defendant asked what proof plaintiff had of the lease. Plaintiff said he had nothing, because defendant had taken his charters in the ejectment.21 The case went to a jury. Plaintiff assumed that he had to produce a writing or had to explain his inability to do so. In 1284, when plaintiff produced a written lease, defendant, arguing that the writing was the foundation of plaintiff's writ, claimed that the writing varied from the writ.22 Plaintiff admitted the variance and was given license to withdraw. Because these latter two cases date from the period during which a writing requirement was emerging generally in covenant, one cannot be certain that they are evidence of a requirement peculiar to leases. Yet in earlier as well as later cases, lessees almost invariably produced written leases. One infers that they were not merely following a rule but were being guided by one. The question is not whether there was a requirement but the reason for the requirement.	12
Maitland and Simpson, perhaps following what seems to have been Britton's suggestion, have surmised that the writ of covenant was probably invented in order to provide an ejected lessee a remedy analogous to that provided a freeholder by the assize of novel disseisin.23 By thinking through the implications of this suggestion, one can deduce the requirement of written leases. In the thirteenth century, a term of years could be a farm lease under which the tenant farmer rendered a periodic rent or, more frequently, it was security for a loan hardly distinguishable from a gage of land.24 A creditor loaned money and his debtor secured and frequently repaid the loan by granting the creditor a term of years.25Glanvill, a treatise written in the 1180s, said that if a creditor received land in gage and was ousted by his debtor, the creditor did not have an action in the royal courts to recover his gage.26Glanvill made a point of saying that the ousted gagee did not have an assize of novel disseisin. He rationalized this rule by saying that the creditor had his action to recover his debt. Although Glanvill speaks of the gagee being seised of the land held in gage, one wonders what kind of seisin the gagee enjoyed if it was not protected by novel disseisin. The gagee and the lessee did not have novel disseisin because they had not been seised of a free tenement, of freehold.27	13
But not all gagees were without a remedy. As early as the 1190s creditors could purchase royal assistance to acquire land gaged to them.28 In these transactions the debtor designated land as gage or security for his loan and his creditor could take possession of that land in gage should the debtor default. The agreement could be called a covenant.29 Perhaps from the 1190s a Jewish creditor ousted by his debtor from land held in gage could recover the land by judgment of the Exchequer of the Jews.30 Christian creditors who took land in gage or for a term of years had no remedy. The writ of covenant gave the Christian creditor a remedy in the common law courts analogous to the remedy enjoyed by Jewish creditors in the Exchequer of the Jews.	14
But why did they have to produce a written lease? In credit transactions substantial enough to be secured by leases or gages of land the prudent creditor might well require the transaction to be written down for his own protection. The evidence of a writing requirement--that plaintiffs-lessees always produced written leases--might only reflect the practical prudence of creditors or of other lessees for that matter. But there were also legal reasons requiring plaintiff-lessees to produce written grants of their terms of years. The legal requirement can be reconstructed by comparing covenant to recover a term of years with novel disseisin or mort d'ancestor to recover land in freehold or in fee.	15
A lease for a term of years required a grant of land for the term.31 A lessee who sued his lessor in covenant for ejectment said in his pleadings that defendant had conceded or demised the land to him for a term of years, that he had been seised under the concession or demise, and that defendant had ejected him.32 Plaintiff thus set forth a grant and said how he had been seised in virtue of the grant until defendant, the grantor, ejected him. Plaintiff was demanding that defendant-grantor maintain his grant and not take it back. Ordinarily what barred a grantor from taking back a grant of land was that he had taken the grantee's homage or had made a written commitment to warrant the grant. What was peculiar about the lessee's grant was that the grantor had not taken the grantee's homage and there had been no livery of seisin in the usual sense. Nor could the lessor take the lessee's homage without turning the grant into a grant of freehold or fee. Without homage there was no implicit warranty of the grant. If there were to be warranty, it would have to be by charter, by writing. This was because the only two bases for raising a warranty bar were homage or a writing.33	16
Claims in covenant of ejectment from a term of years were of three types. First, the lessee might claim that his lessor ejected him.34 In this type of case, covenant served as the lessee's novel disseisin. If, however, a grantor of land in freehold or fee ejected his grantee, that would be a disseisin only if the grantor had taken the grantee's homage and had put him in seisin.35 In order for the lessee to raise a warranty bar against his lessor taking back his grant, he needed a written lease because there had been no homage. Second, the original lessee's heir might claim that his ancestor's lessor had excluded him.36 The plaintiff's ancestor was most often his father or, less frequently, his brother or uncle. In this type of case, the writ of covenant served as mort d'ancestor for the lessee's heir. In two cases, the lessor answered that his lessee had died seised and had left the term of years to a third party by testament.37 The lessor had accepted the legatee to continue the term of years. Mort d'ancestor used the homage or warranty bar to enforce rules of inheritance within a limited range of possible heirs.38 The lord's warranty to his tenant descended to the tenant's heir. The lord was thus prevented from taking back the land upon his tenant's death. An important requirement of mort d'ancestor was that the tenant have held of the lord in fee and inheritance. A lessee did not, of course, so hold his term of years. The problem was to create the lessor's warranty and get it to descend to the lessee's heir where there had been no homage and could have been no homage. A written commitment by the lessor to his lessee and his heir was necessary.	17
Difficulty could also arise upon the death of the lessor. If the lessor's heir was of age, he might not recognize the lessee.39 Indeed, lessees complain that their lessor's heir ejected them. The analogous action for a freehold tenant was novel disseisin. If the lessor's heir were underage, the lease was suspended during the wardship of the heir. Upon coming of age, the lessor's heir might not admit the lessee to the remainder of his term of years.40 The analogous action for a tenant in fee was a writ of right. In the actions by tenants in freehold or fee analogous to covenant for the termor the lord's heir was bound only if the lord had taken homage or had warranted the grant. In order to protect a lessee, it was necessary to create the lessor's warranty and get it to descend to his heirs. Absent homage, the lessee needed a writing to create the warranty and have it descend to the lessor's heir.	18
This analysis helps to explain the 1256 case noted above.41 In turn, this case elucidates why there was a requirement of a written lease in covenant. A lessee claimed that defendant's father had given him a lease of certain land and that defendant, soon after his father's death, had ejected plaintiff. Defendant asked to see a writing of the lease. When plaintiff conceded that he had only his own bare word, defendant asked for judgment whether that was sufficient to put him to his law or to a jury. Defendant might have wanted to deny the ejectment or the lease itself. Suit alone might have been sufficient to put him to his law to prove his denial of the ejectment but not of the lease itself. Defendant could not wage his law to deny that his father had entered into a lease. One could not wage law for another.42 Suit alone would not be sufficient against a lessor's heir. Furthermore, defendant would not be bound by his father's lease unless the lease bound the lessor and his heirs.43 Homage would bind a grantor's heirs to warranty, but there had been no homage. Without homage, a lessee needed a writing in order to bar his lessor's heir from taking back the lessor's grant. Defendant's demand for a writing, not merely suit, was right on point.	19
A remedy for a lessee ejected by his lessor analogous to novel disseisin or mort d'ancestor could not have been invented without a requirement that the lessee produce a written lease. Conversely, if royal officials had decided that grantees of less than freehold or fee did not have to produce a written grant but could nevertheless bind their grantor and his heirs without homage or livery of seisin, they would have greatly expanded novel disseisin and greatly contracted mort d'ancestor. Novel disseisin would no longer have been limited to freehold tenants but would have been available to anyone in possession under any type of grant or permission. That would have opened novel disseisin to villeins holding by customary tenure. If any sort of oral grant or permission without homage or livery of seisin would have been sufficient to stop an assize of mort d'ancestor, any last will of land or death-bed transfer, under which the grantee gained some sort of possession, would have withstood mort d'ancestor.44 That would have destroyed the royal, common law policy against last wills of land. Royal officials had good reasons to maintain the integrity of novel disseisin and mort d'ancestor. In order to fit a remedy for lessees into the legal framework of novel disseisin and mort d'ancestor there had to be a requirement that the lessee produce a written lease. Little wonder, then, that lessees who sued in covenant for ejectment by their lessors regularly presented written leases.	20
The writ of covenant also served as the lessee's writ of mesne.45 In an action of mesne, plaintiff's claim had four parts: defendant was his lord for certain land held of the defendant, defendant was obliged to perform the services owed a superior lord for that land and thus to acquit the plaintiff, defendant had failed to do so, and, as a consequence, the superior lord had distrained plaintiff for the services. Although there were plaints sounding like actions of mesne as early as 1200 and some evidence of a writ of mesne as early as the first decade of the thirteenth century, the writ does not appear to have been in regular use until the later 1220s.46 Tenants in fee, however, could use either a writ of warranty of charter or a writ de fine facto to lodge their complaint that their lord had failed to acquit them of services owed the superior lord.47 Plaintiffs to these writs had to produce the charter or the final concord. As early as the 1250s, defendants to actions of mesne began demanding that plaintiff produce a writing as proof that defendant had undertaken the obligation to acquit the tenant of services owed a superior lord.48 In the 1280s the king's court gestured toward requiring plaintiff to produce a writing of defendant's obligation to acquit.49 But the prevailing rule was that plaintiff could produce a writing or could plead either that defendant had been seised of his homage and the same services as those owed the superior lord or that defendant or his ancestor had acquitted the tenant or his ancestor in the past.50 This last alternative, a sort of prescriptive acquittance, was a development of the later thirteenth century. Earlier in the century, plaintiff had to produce a writing or plead that defendant was seised of his homage. A lessee, unable to plead that his lessor had taken his homage, had to produce a written lease.	21
The reason for requiring lessees to produce written leases also applied to other grantees of less than freehold or fee. Plaintiffs in these less frequent cases also based their claims on a concession or demise by defendant under which they were seised until defendant ejected them. They almost always produced a written covenant. Defendants never waged their law to deny the covenant.51 The written grant was necessary to bar defendant from taking back the grant.	22
For the most part lessors used covenant either to claim rent in arrears or to recover for the lessee's failure to return the property in the condition required by the lease.52 They almost always produced a written lease, but we do not know whether they were required to do so. The reasons why a plaintiff-lessee had to produce a written lease--to bar the defendant-lessor from taking back his grant--would not apply to a lessor. A desire for symmetry between lessee and lessor and the desire for a uniform rule for leases could have extended the requirement beyond its supporting reasons. It is hard to find a case by a plaintiff-lessor without a written lease. Given that plaintiff-lessors produced written leases, not surprisingly, one does not find defendants waging their law to deny the lease. Until the later 1270s, defendants could wage their law to deny the breach. As one might expect, defendants waged their law to deny that they had failed to return the property in good condition.53 Given the written lease, a defendant could not wage his law to deny that he was in arrears in his rent. He had to produce suit or a written acquittance.54	23
Two actions by lessors dating from 1304 have been read to mean that there was no writing requirement in covenant in the early fourteenth century.55 What the cases show at best, however, is that the court was willing to make discrete exceptions to a requirement of a written lease. The first 1304 case presents the difficulty that the plea roll record of the case stops after defendant's standard, opening denial of force and wrong.56 The plea roll record thus differs from three reports of the case, which show the parties pleading to an issue of fact.57 From the plea roll record one infers that plaintiff was not successful.58 The reason for the plaintiff's failure probably had more to do with the fact that plaintiff claimed freehold where a writ other than covenant was available for that purpose than that he did not have a written lease. Plaintiff claimed that he had leased land to defendant for a two-year term, that defendant had agreed to make a writing of the lease, that defendant never did so, and that defendant had stayed beyond his two-year term. Defendant demanded that plaintiff produce a written lease. According to two reports, plaintiff responded that he had good suit; according to another, he responded that he had alleged defendant's broken promise to make a writing and that whether defendant had stayed beyond the term was cognizable by a jury.59 The court let the pleading continue. According to two reports, defendant then argued that one could not recover freehold by writ of covenant without at least showing title or specialty.60 At this point, according to all the reports, defendant claimed the freehold. The court then put the burden of proving freehold on defendant.61 He asserted that an earlier assize of novel disseisin plaintiff had brought against him had found that he, defendant, had freehold. That, according to all three reports, was the issue of fact. But the plea roll record stops well short of an issue of fact.	24
According to the reports, the court treated plaintiff's claim as if he had brought a writ of entry ad terminum qui preteriit, which fit the case of a lessee holding over his term and for which plaintiff need not produce a written grant of the term to defendant. But in an action on the writ of entry, plaintiff would have had to plead his right to the land based on his own or his ancestor's seisin and could, on that basis, recover the freehold. It is odd in the 1304 case that the court put the burden of proving freehold on defendant. In at least three much earlier cases, lessors had used covenant to claim that their lessees had held over their terms.62 But by 1300, the court had severely restricted the use of covenant to recover freehold.63 In 1292, for example, when a widow, for reasons best known to her and her husband, tried to use covenant to recover her dower, the court threw out the case.64 She had a writ of dower. In the 1304 example, the court probably, on second thought, also threw out the case. Plaintiff had his writ of entry. The justices also might well have reconsidered making defendant, rather than plaintiff, prove freehold. It is at any rate worth noting that plaintiff claimed that defendant had promised to make a written lease, a claim with little purpose unless there was a requirement of a written lease.	25
In the second 1304 case, plaintiff, a dowager, had granted her life estate to defendant.65 She alleged that defendant had committed waste and the heir had recovered against her. The heir could not have proceeded against her grantee.66 In that action brought under Chapter Five of the Statute of Gloucester she had lost her life estate and had paid triple damages.67 She now wanted to recover over against the wrongdoer. The problem was how to do so. She could not sue under Chapter Five of the Statute of Gloucester, because in an action under the statute she would have to claim that defendant had committed waste to her disinheritance.68 The claim of disinheritance would be the basis for recovering the land. As a dowager, she could neither claim inheritance nor recover the land in fee.69 She could sue in covenant if the lease prohibited waste or required the tenant either to maintain the property or to return the property in as good a condition as he had received it.70 These contractual obligations, as defendant pointed out in one report, required a specialty.71 Plaintiff was careful not to allege that a covenant with defendant had prohibited waste. Rather, she alleged that she had made the grant on the condition that ("ita quod") defendant not commit waste.72 Nevertheless, because she brought a writ of covenant and did not have a written lease, Justice Bereford had a difficult case before him.	26
If he enforced the writing requirement in covenant, plaintiff would have no other means of recovery and the wrongdoers would escape.73 He could prevent the innocent parties from bearing the loss and could do the least damage to the law by making an exception to the requirement of a writing. That is what Bereford does. He never denies that there is a requirement of a writing. Rather, he says that "it would be great hardship if they [plaintiff] were not to be answered on the writ without specialty."74 Bereford also says that since waste is against the law, if defendant had been given permission to commit waste, he should produce a specialty to prove the permission. And he excuses plaintiffs for not having a specialty. In one report he says the defendant has the specialty and in another he says that a lease ordinarily stays in the possession of the tenant, here the defendant.75 Bereford is unwilling to allow defendants to escape because of the writing requirement. In effect, Bereford allows dowagers to use covenant to bring an action under the statute without claiming that the waste is to their disinheritance, at least where the heir has already recovered against her. A very narrow exception to the writing requirement.	27
B. Other Covenants
The requirement of a writing developed differently for actions that were not based on a lease. Actions to recover land or rents in freehold or in fee presented special difficulties. These can better be appreciated after the pattern for non-lease covenants is established. Covenants that were neither leases nor agreements calling for conveyances of land in freehold or fee were of various kinds. In return for land received, the recipient might grant back an annual supply of food and clothing. The grant of necessities, a type of corrody, was analogous to a grant of an annuity. Covenants regulated access to and enjoyment of commons in pasture or in woods. The agreement might be to provide access to commons, to maintain an enclosure of commons, or to apportion improved and enclosed commons between the parties.76 There were various indemnity agreements: to indemnify a surety, to hold a sheriff harmless for releasing a prisoner to defendants, to hold harmless a coparticipant in a disseisin, to indemnify a grantee of land if he is penalized for not maintaining a sea wall.77 An indemnity agreement could operate as a warranty of title in a sale of chattels.78 And there were agreements to perform services such as building a mill or a bell tower, transporting a cartload of hay, or healing a wound.79 Very few cases involved indemnity or service agreements.	28
The Emergence of the Writing Requirement. Before the late 1270s plaintiff to a writ of covenant had to produce suit or a writing as proof of the covenant. At the least plaintiff had to produce suit. In at least eleven cases, plaintiff lost because he failed to do so. Some plea roll entries say that plaintiff lost because he had only his bare word. Other plea roll entries say that plaintiff lost because he had neither suit nor a writing, which indicates that either would have been sufficient. Yet others indicate that plaintiff had nothing or no suit.80 Suit was required in many types of action in the first half or so of the thirteenth century. They were witnesses ready to support crucial points of plaintiff's claim.81 Where a plaintiff in covenant produced both suit and writing, and most plaintiffs did, the suit were probably witnesses to the breach. Where plaintiff had only suit, his suit had to serve as witnesses to the making of the agreement and to the breach. In one case, plaintiff lost because he had no proof of the covenant or the breach.82 In another, defendant admitted the covenant but won because plaintiff did not have suit to prove the breach.83	29
If plaintiff produced suit, but no writing, a defendant who denied plaintiff's description of the covenant could put himself on a jury or wage his law to prove his denial. In at least ten cases defendant waged his law in denial of the covenant.84 Where the plea roll entry does not mention that plaintiff produced a writing, a defendant who neither conceded the action nor waged his law almost always admitted the covenant, denied the breach, and either waged his law in denial of the breach or put himself on a jury. The only cases I could find in which defendant denied the covenant and put himself on a jury were in 1280 and 1292.85 By then defendants could no longer wage their law. This pattern suggests that even when the plea roll entry does not say so plaintiffs probably had a writing. If plaintiff produced a writing of the covenant, defendant could not wage his law against his own or his ancestor's deed. He could claim, however, that the writing was not authentic. The authenticity of the writing would be tried by means similar to those used to try the authenticity of charters. The seal on the proffered writing could be compared to other seals known to be valid.86 More frequently, the issue was put to a jury.87 Witnesses named in the specialty, if any, were added to the twelve jurors to make up the jury.88 In either case, suit or writing, a defendant who denied the breach could wage his law or put himself on a jury. In at least thirteen cases, defendant waged his law in denial of the breach.89	30
Wager of law was removed from cases of covenant in the later 1270s. The latest case I could find in which defendant waged his law in denial of the covenant occurred on the Lincolnshire Eyre of 1271–72.90 The latest case I could find in which defendant waged his law in denial of the breach occurred in 1275.91 The loss of wager of law in the later 1270s was not peculiar to actions of covenant. In actions of mesne, wager of law to deny a failure to acquit plaintiff ended in the late 1280s.92 In actions to enforce final concords, wager of law to deny a breach of the final concord did not survive much beyond the Yorkshire Eyre of 1279–81.93 In actions of replevin, wager of law did not appear much beyond the Lincolnshire Eyre of 1271–72.94 In these other actions, wager of law was analogous to wager of law to deny a breach of covenant rather than wager of law to deny plaintiff's description of the covenant. For example, in an action to enforce a final concord, defendant could deny that he acted contrary to the final concord and prove his denial by wager of law. His answer is similar to a defendant's denial in covenant that he went against the covenant.	31
In covenant, defendants also lost their ability to wage law in denial of the covenant. The loss of wager of law for defendants meant that suit was no longer sufficient proof for plaintiffs. They had to produce a writing of the covenant. In two other actions, the elimination of suit and wager of law in the 1270s resembled the loss of suit and wager of law as a mode of trying plaintiff's description of a covenant. There is some evidence that in an action for an annual rent plaintiff had three choices. He could produce a written grant of the annual rent, he could claim that he had been seised of the rent, or he could produce suit.95 If he produced suit, defendant could wage his law. Wager of law went to whether defendant had an obligation to pay an annuity to plaintiff. For in 1256, the court asked plaintiff whether he had a writing of the annual rent.96 When plaintiff said he had no charter or writing, the court permitted defendant to wage his law. A writing could only show whether defendant was obligated to plaintiff, not whether he was in arrears. Defendant probably could not admit the obligation and wage his law to deny that he was in arrears. He would have to show a written acquittance. This much was clear by the 1270s.97 At some point after 1256, perhaps in the later 1270s, wager of law was eliminated from actions for an annuity. From then on, plaintiff was left with the choice between producing a writing or alleging seisin.	32
Before the later 1270s, a defendant to an action of debt on a written obligation who admitted the debt but wanted to plead part or full payment had to produce suit or a written acquittance as proof of payment.98 He could produce suit to prove payment whether plaintiff had produced suit or a writing in proof of the debt. If defendant produced suit, plaintiff could wage his law to deny receipt of the payment.99 The elimination of suit for defendant and wager of law for plaintiff began in about 1272. In the Hampshire and Cambridgeshire eyres of that year the justices began to enforce the new rule: where plaintiff had written evidence of the debt, defendant had to produce a written acquittance of the debt.100 The old and the new rules coexisted until shortly after 1278. Defendants to debt on an obligation thus suffered the same fate as plaintiffs in covenant. They once could choose between suit and writing, but the elimination of suit and wager of law meant they had to produce a written acquittance as proof of payment. Before wager of law was eliminated, defendants in covenant could also plead that they had complied with the covenant and produce suit in support of their answer.101 Plaintiff could then wage his law.102 There are, however, very few examples of this practice on the plea rolls. The latest example I found was in 1276.103	33
The removal of suit for defendants and wager of law for plaintiff as the means of proving payment affected wager of law in debt where plaintiff produced only suit. A defendant who had paid part or all of the debt had three choices: he could produce an acquittance, he could allege payment or enter a general denial and put himself on a jury, or he could enter a denial and try to wage his law. Defendant was unlikely to have an acquittance. Some defendants in debt alleged payments and put themselves on a jury.104 There was some effort toward not permitting defendants who had paid to wage their law. After the 1270s, in most cases of debt in which defendant waged his law, he denied having incurred the debt by specifically denying the transaction alleged by plaintiff.105 Specific denials of the debt-creating transaction are found earlier, but they appear as a smaller proportion of cases in which defendant waged his law.106 The move toward limiting wager of law to denials of having incurred the debt was also and by the same token a move toward not permitting defendants who had paid to wage their law. As Chief Justice Scrope explained on the Northamptonshire Eyre of 1329–1330, an allegation of payment is an affirmative statement unsuited to wager of law.107 Wager of law was to prove a negative statement. But defendants could no longer produce suit as proof of the affirmative allegation of having paid the debt. This change left defendants in a hard place. Some of the denials on which defendants waged their law sound as if they are denials on the grounds of having paid. A defendant who answers that he is not bound by "the aforesaid debt" ("predicto debito") sounds as if he is not denying having incurred the aforesaid debt but is denying that it is still owing.108 But the phrases used were ambiguous, making it as hard then as now to tell whether defendant denied incurring the debt or any longer owing the debt.109 A plaintiff on the Kent Eyre of 1313–1314, aware of the ambiguity of a general denial, tried with unknown results to pin defendant down to a specific denial of having incurred the debt or an allegation of payment.110 The effort would have been pointless unless defendant was thought to be unable to wage law for an allegation of payment.	34
After defendants in covenant lost wager of law, there were few cases in which plaintiff produced only suit and defendant denied the covenant. I have found only two possible cases, one in 1280 and another in 1292.111 The plea roll entries do not mention that plaintiff produced a writing. Defendants denied the covenant and put themselves on juries. Without reports of the cases one cannot be certain whether plaintiff lacked a writing or whether he produced one at defendant's demand. The issue whether suit alone was any longer sufficient was almost raised in a case in 1283.112 Defendant asked what plaintiff had to show of the covenant. The plea roll reads that plaintiff had suit but no writing. The parties did not debate whether suit was sufficient; they instead settled their dispute.	35
As one might expect, once suit and wager of law were eliminated, judges and lawyers paid greater attention to the writing a plaintiff produced as proof of the covenant. In 1284 plaintiff lost because of a variance between his writ and his writing.113 In 1279, when plaintiff claimed that defendant had agreed that she and her late husband were to receive an annual rent from a certain tenant, the only writing she could produce authorized her and her husband to collect the rent from the tenant for defendant.114 Because defendant was the mother of plaintiff's late husband, one suspects that, while her son was alive, defendant in fact permitted him to keep the rent so collected but stopped the practice at his death. Perhaps a decade earlier plaintiff could have produced suit to prove the arrangement. Now, however, she was caught because no writing recorded the practice of the parties. In 1292, a plaintiff lost because the writing he produced was illegible to the court.115	36
The argument that the writing requirement in covenant emerged in the later 1270s from the elimination of wager of law runs counter to the position taken by those legal historians who, unaware of the changes in proof, have believed that the requirement was not in place until the early fourteenth century.116 This position is based largely on three cases, one decided in 1292 and two in 1304, in which the court permitted plaintiff to proceed without producing a written agreement. The two 1304 cases, brought by lessors, were discussed earlier.117 Once the report and record of the 1292 case are sorted out, it becomes clear that the case was not one of covenant.	37
The confusion arises from two printed reports of a case in the Shropshire Eyre of 1292. The two reports have been assigned to the wrong plea roll entry. The assignment of reports to record seems to have been made on the basis of the names of the parties rather than on the basis of the substantive issues. There was, however, a second similar case in the Shropshire Eyre. The plea roll record of this second case fits the reports better than the record of the case to which the reports have been assigned.118 When the reports are assigned to the right record, the record reveals that the case was treated as one of detinue or debt. Not surprisingly, plaintiff did not have to produce a writing and defendant waged his law.	38
One report describes Thomas Corbet bringing a bill of covenant against B complaining that Thomas and B had covenanted that Thomas would bail his horse worth £20 to B for a joust on the condition that if the horse were maimed or killed, B would pay Thomas £20.119 Thomas bailed the horse to B, the horse was maimed and then died while in B's keeping, but B refused to pay the £20. Thomas sued. B demanded judgment when Thomas could produce only suit. No judgment is reported. A second report describes Thomas Corbet bringing a bill against Richard Scurrye and Richard Fitz Pride for £20.120 This report treats the bill as a case of debt. Defendant first argues unsuccessfully that plaintiff must proceed by writ, not bill, because his claim exceeds 40 shillings. He then asks for proof of the debt and plaintiff says he has good suit. Defendant then moves on to a jurisdictional point that the case is one for the law of arms but is overruled on the grounds that the law of arms applies only where both parties participated in the joust. Having exhausted his preliminary points, defendant answered that he had indeed within three weeks returned the horse in good condition. The parties go to a jury on this issue.	39
These reports have been assigned to the record of a case between Thomas Corbet and Richard Scurrye.121 The record of the case has Thomas claiming that on 23 January 1292 he delivered a horse to Scurrye and to one Richard Pryde on the condition that if the horse was maimed or died in their custody, they were to pay him 30 marks on 2 February 1292. The horse died and Thomas demanded the 30 marks. They refused and he claimed damages of £40. The parties settled: plaintiff accepted 20 marks. Four things about this record are worth noting. The record does not mention a joust or how the horse was injured, but the reports mention a joust. The record names the sum of money as 30 marks, not as £20, although the two locutions name the same value. The record names a date when payment was due, the report does not. The record does not mention when, if ever, the horse was returned to plaintiff, but in one report defendant says he returned the horse within three weeks.	40
There was another case on the Shropshire Eyre about a horse.122 The record of this case says that one Richard Sturmy made a plaint against Roger Folyot that on 23 January 1292 they covenanted that if one of them injured the other's horse, he would compensate the other for the injury. Roger injured Richard's horse by hitting him with a lance to the head. Richard brought the horse to Roger because of the injury and Roger accepted him on the condition that if he could not make the horse well he would pay Richard £20, the price of the horse, and if he could heal the horse, he would return it. Richard kept the horse for one month, after which the horse died. Richard claimed damages of 20 marks and produced suit. Roger denied that he had received the horse or that they had agreed ("inter eos convenit") that he would pay Richard £20. Defendant made his law and plaintiff was amerced for a false claim.	41
The reports fit this record better than they fit the record of Corbet v. Scurrye. The two reports and this record name the price of the horse by the words twenty pounds, not thirty marks. The reports mention a joust and this record describes an injury to the horse of the sort a horse might well suffer in a joust--a blow to the head by a lance. The record also describes an indemnity agreement that cautious participants in a joust might find prudent. The second report has defendant invoke the law of arms, which is plausible if one infers from the indemnity agreement that both parties participated in the joust. The confusion of the reporter in using the names of the parties of a similar case is understandable.123 Both agreements were made on the same date. Thirty marks is equal to twenty pounds. Both cases involved the bailment of a horse. The amount claimed in damages in the second case is the same as the amount of the settlement in the first case. The confusion between characterizing the plaint as covenant or as debt is also understandable. The indemnity agreement in the second case sounds like a covenant, although it has nothing to do with plaintiff's ultimate claim. In the record of the case, defendant denied receipt of the horse, appropriate in an action of detinue, and denied the agreement to pay £20, appropriate in an action of debt. Viewing the plaint as detinue or debt, the justices accepted plaintiff's production of suit and defendant's wager of law.	42
The Reasons for the Writing Requirement. Because the writing requirement emerged from the removal of suit and wager of law in the late 1270s, the reason for the writing requirement has two parts. First, why did plaintiffs before the late 1270s have to produce suit or a writing in covenant? Second, why was suit for plaintiffs and wager of law for defendants removed in the late 1270s? An answer to this second question should also explain why suit and wager of law were removed from actions of covenant but not from actions of debt or detinue.124	43
Suit or a writing proved that defendant had undertaken a special obligation to plaintiff, an obligation not imposed generally by common law or statute.125 This reason for suit or a writing in covenant was also at work in debt and detinue, where plaintiff had also to produce suit or a writing. The writ of debt is almost as confusing as the writ of covenant and for much the same reason: at least at its beginning debt was a hybrid action. Some claims of debt, those arising from transactions such as sales and loans, were based on the idea of obligation.126 Other claims of debt were more like claims to property based on a grant. The debtor granted a debt to his creditor, frequently, but certainly not always, by means of a writing.127 The introduction of trespass writs in the 1220s and 1230s to enforce a general obligation not to breach the king's peace changed the conceptual landscape.128 Although the new trespass writs were introduced piecemeal, they nevertheless were based on the idea of a general obligation enforceable in the royal courts. Their introduction could clarify the concept that debt and covenant were based on a special obligation. In trespass, plaintiff did not need to prove the general obligation not to breach the king's peace. The very fact that he obtained a writ meant that there was such a general obligation. But in debt and covenant, plaintiff needed suit or a writing as proof that defendant had indeed undertaken a special obligation to plaintiff.	44
A similar idea was at work in cases of nominated dower and dower assensu patris. In such cases, suit or a writing was required as proof of a grant that gave rise to a special entitlement, one not created by the common law rules of dower. Although in these dower cases it was a matter of proving a special entitlement under a grant rather than a special obligation, the opposition between special and general entitlements was analogous to the opposition between special and general obligations. The king's court thought of dower as a grant made by a groom to his bride at the marriage ceremony.129 After Magna Carta, however, as long as there had been a marriage ceremony at the church door, a widow was entitled to one third of the lands of which her husband had been seised in fee at any time during the marriage.130 That was her general entitlement at common law. A groom, however, could designate at marriage specific lands as his bride's dower. If she later claimed this nominated dower, she had to produce suit or a charter.131 Although there were some arguments in the last three decades of the thirteenth century that a widow who claimed nominated dower had to produce a writing, they were not successful. The possibility of producing suit was not eliminated from cases of nominated dower as it was from cases of covenant. If a groom had no land when he married, he could endow his bride with lands held by his father with his father's consent. The endowment could be either of common law or nominated dower. This arrangement, known as dower assensu patris raised two issues: whether the widow's husband had endowed her at the marriage ceremony and whether her husband had authority to make a grant of land that was not his own but his father's. A widow had to produce suit or a writing of the endowment and of the father's consent.132	45
That suit or a writing was required to prove a special obligation or a special entitlement comes close to the explanation of the writing requirement in covenant offered by Patrick Philbin.133 He argued that a writing was required in covenant because a covenant was thought to be created by the wills of the parties to be bound to the covenant, the will of a party was thought to be internal to him, and a writing was thought to be necessary to render manifest his internal will. In a case of covenant on the London Eyre of 1321 Serjeant Burton argued that covenant is the will of another and the will of another could only be proved by specialty.134 In another case on the same eyre, Justice Herle spoke of covenant as being a matter of assent that lay in specialty.135 Justice Herle's statement need not rest upon Burton's explanation. Twenty years earlier, when he was a serjeant, Herle argued for defendant in a case of dower assensu patris that plaintiff must produce a writing of the father's assent, because his assent was internal to him and could be made external and evident only by a writing.136 Going the other way, from Herle's argument in assensu patris to Burton's argument in covenant, Philbin reaches the position that a writing was required in covenant because the will to be bound is internal and can be made external only by a writing.	46
There are difficulties with this argument. Plaintiff in dower assensu patris need not produce a charter. In the 1301 case of dower assensu patris cited by Philbin the argument that a writing was necessary to make the father's assent external was countered by Warrewick, who observed that one could render internal assent external by spoken as well as written words.137 Witnesses, that is, suit, were as good as a specialty. Justice Hengham agreed. At that point, Herle, who had insisted on a writing, gave up his point and offered to produce witnesses that the father had not assented. But Mutford pointed out that proof against proof ("prove contre prove") was the procedure in ecclesiastical, not common law, courts. The case went to a jury with plaintiff having produced suit but no writing. By 1301, the practice in cases of assensu patris of accepting plaintiff's production of suit and sometimes adding the suitors to the jury was almost a century old.138 And the practice continued in cases in 1308 and 1315.139	47
A more serious difficulty with Philbin's argument is that he sets up the wrong oppositions. The relevant opposition is between special and general obligations, not between internal will and its external manifestation. In assensu patris, the issue was not whether the father entered into an obligation but whether he authorized his son to make a grant to his bride. If the son made an endowment of less land than that to which his father had assented, his son's widow did not have an action for the larger amount of land but only for the endowment actually made. The converse, however, was true. If the endowment was greater than that authorized by the father, the son's widow could recover only the endowment authorized by her father-in-law.140 In dower assensu patris as in nominated dower plaintiff had to produce suit or a writing because she was claiming a special entitlement, not a general entitlement provided by common law. In covenant, according to one note, plaintiff, "allegat speciale factum vel contractum."141 After the later 1270s, plaintiff needed a writing as proof of the special obligation.	48
The second part of the reason for the writing requirement is why suit and wager of law were removed from covenant in the later 1270s. Two different lines of thought converged to make the writing requirement a conscious change in the law.142 One had to do with the relationship between central and local courts. The other, with when trial by jury was appropriate.	49
Suit and wager of law were removed from covenant as part of a fairly extensive revision of the modes of proof used in the central courts. At the same time as royal officials removed wager of law from covenant, they removed wager of law from mesne, replevin, actions on writs of annuity, and actions to enforce final concords.143 At this time, too, suit and wager of law as the means of trying whether defendant had paid the debt were removed from actions of debt and there was some effort to restrict wager of law in debt to denials of having incurred the debt.144 These revisions in modes of proof were themselves part of wider efforts by royal officials to restructure the relationship of central to local courts. In the later 1270s royal officials took steps to tie central and local courts more closely together. From 1274 to 1281 the writ of pone, used to remove cases from county to central court, reached its peak.145 In 1275 recordari writs began to be used frequently to remove plaints of trespass, replevin, and debt from county to royal court.146	50
The moves toward greater integration of local with central courts were reversed and the dominant theme soon became to keep the two kinds of court clearly separate from each other. In the 1280s the increased use of pone subsided. By the 1290s the expansive use of the recordari writ had been cut back so that the writ was restricted to the removal of replevin cases.147 Royal officials also designed amount-in-controversy requirements for cases in the central courts. Chapter Eight of the Statute of Gloucester in 1278 confirmed and perhaps stiffened a requirement that trespass cases in the central courts involve at least forty shillings in damages.148 This floor for trespass actions in the central courts was extended without statute to cases of debt and detinue and in these cases became a ceiling for litigation in county court by the 1290s.149 The adoption of the writing requirement in covenant, through the elimination of suit and wager of law, might be a reason why the forty-shilling rule was not extended to covenant.150 At any rate, the revision of proof in covenant and in other cases helped to keep central and local courts separate and distinct from each other. Wager of law was a traditional mode of proof in local courts. By severely restricting suit and wager of law in the central courts, royal officials expelled from the central court modes of proof traditional in local courts. This was an effort to make central royal court procedures different and distinct from what went on in local courts.151 A late thirteenth-century treatise argued that claims based on specialties, that is to say written instruments, could not be tried in courts baron because in those courts defendant had to be able to wage his law.152 This view might have been the result of removing suit and wager of law from a number of actions, including covenant, in the royal courts.	51
This institutional reason for removing suit and wager of law from covenant converged with new thinking by judges and lawyers as to when trial by jury was appropriate. The underlying idea was that where alleged facts were sufficiently public to be cognizable by a jury, a party should not be permitted to wage his law. The idea can be seen at work precociously in a case of covenant as early as 1248.153 Plaintiff, a lessee, claimed that defendant had leased lands to him for a term of twenty years but had ejected him during the term. Defendant answered that plaintiff had assigned the balance of the term to a third person who had bequeathed it to his widow who had sold it to defendant, the original lessor. Plaintiff denied that he had assigned the entire balance of his term to the third party: he had assigned only part of the outstanding term. The court asked plaintiff whether he accepted trial by jury. Plaintiff did so. Then the court ruled that plaintiff could not wage his law in such a case. The parties settled. Plaintiff could not wage his law, not because wager of law by plaintiffs in covenant was impermissible, but because the involvement of a third party and his widow made the facts of plaintiff's denial sufficiently public to preclude wager of law.154 This idea also informs a case of debt in 1275.155 Defendant said that plaintiff's wife in her testament and with plaintiff's consent had authorized defendant to pay certain legacies to third parties in satisfaction of his debt to plaintiff. The written authorization had been destroyed by fire. Defendant produced suit and put himself on a jury. Plaintiff was ousted from waging his law. Here, too, the involvement of third parties assured the requisite publicity for trial by jury. The idea that public facts should be proved by trial by jury was applied sporadically before the later 1270s. The decision to apply the idea systematically was not taken until the 1270s and 1280s. Arguments articulating the idea clearly appear in the 1290s.156	52
This idea would apply most strongly to wager of law to deny the breach of a covenant. A denial of a breach of covenant was frequently a denial of facts cognizable by a jury because of their publicity. Did the defendant commit waste? Did he prevent plaintiff from taking estovers? Did he convey the land to plaintiff and put him in seisin? Did defendant build the bell tower? In a number of cases of covenant defendant waged law to deny a breach where plaintiff's claim mimicked a claim on a writ of mesne.157 It would have been strange to eliminate wager of law in mesne but not in actions of covenant that mimicked mesne. The idea that trial by jury was the mode of proof appropriate for proving public facts applied less strongly to the making of covenants. But once the decision was taken to remove wager of law from denials of a breach, extending the decision to wager of law to deny plaintiff's description of covenant could have appeared necessary for the sake of uniformity in actions of covenant. The value of having uniform rules for the writ was further secured in that, once wager of law was removed, all actions of covenants would be treated in the same manner as actions by lessees, the type of covenant case in which a writing was already required.	53
The reason why suit and wager of law were removed from covenant but not from debt lies in the difference between wager of law in debt and in covenant. Wager of law in debt was a more entrenched practice than was wager of law in covenant. For the period from 1220 to 1275, I have been able to find only twenty-three cases in which defendants waged their law in covenant.158 Instances of wager of law in debt were far more frequent. The overwhelming majority of plaintiffs in covenant already had written evidence of their covenants.159 Eliminating wager of law in covenant extended the practice of producing written covenants to all cases of covenant and thus brought all cases of covenant on a par with actions by lessees. The same cannot be said for debt. Until perhaps the very late thirteenth century, plaintiffs in debt who produced a writing of the debt were probably not even in the majority. Nor were there claims in debt for which plaintiff was required to have a writing. That wager of law in debt was more deeply entrenched made the introduction of a writing requirement in debt a more radical change in the law. Denials of a breach of covenant fit under the idea that public facts should be proven by trial by jury. Royal officials could move from eliminating wager of law to prove a denial of the breach to eliminating wager of law to prove a denial of the covenant. They could thus substitute trial by jury for wager of law. But neither part of a debt transaction--incurring the debt or paying it--need be public acts cognizable by a jury. Royal officials could not substitute trial by jury for wager of law in debt as they did in covenant, mesne, replevin, and actions on final concords. Where they could remove older modes of proof in debt, they did so. Royal officials eliminated suit and wager of law as the mode of proving payment. The requirement of an acquittance where plaintiff produced a writing was established because trial by jury was inappropriate under prevailing ideas. And there was the appeal of symmetry to require defendant to produce a written acquittance where plaintiff produced a written debt.	54
C. Actions to Recover Freehold or Fee
Actions of covenant to recover land in freehold or in fee presented special difficulties because there was no consensus until perhaps the first decade of the fourteenth century on whether plaintiff's claim in this type of covenant case should be treated as a proprietary claim, in which case plaintiff had to produce a specialty, or as a claim of obligation, in which case until the 1270s plaintiff need produce only suit. Some judges and lawyers who believed that plaintiff's claim was one of obligation could not understand how plaintiff could recover land in freehold or fee in an action of covenant. They took the position that the writ of covenant simply could not be used to recover freehold or fee.	55
If plaintiff's claim were based on the special obligation defendant had undertaken to convey land in freehold or fee, plaintiff should be able to produce either suit or a writing of the covenant. If plaintiff produced suit, defendant should be able to wage his law to deny the covenant. That is what one finds until the later 1270s.160 In the 1280s, lawyers turned the view of covenant as based on a special obligation against the recovery of freehold or fee. They said that because covenant was a personal action that led to the recovery of damages or chattels, the writ could not be used to recover land in freehold or fee.161 The underlying reason against using covenant to recover land in freehold or in fee was that a plaintiff who claimed freehold or fee made a proprietary claim that in most cases had to be based in part on the fact that he or his ancestor had been seised of the land. In cases in 1236 and 1285 defendant argued that covenant should not be used to recover freehold or fee because plaintiff could not plead his own or an ancestor's seisin.162 In cases in 1243–44 and 1247, the court rejected plaintiff's claim because he had only a charter of feoffment and defendant was still seised of the land.163 If, however, defendant had put plaintiff in seisin but had later ejected him, novel disseisin, not covenant, was the proper writ.164	56
Those who believed that a writing was required where plaintiff in covenant claimed freehold or fee saw the writing as a substitute for plaintiff's own or his ancestor's prior seisin. In other actions for land, if plaintiff could not base his claim on homage or seisin he had to produce a writing. Claimants to commons in gross had to produce a writing of the grant, because there could not be livery of seisin.165 Claimants under grants of reversions, who could not base their claims on their own or their ancestors' seisin, ordinarily had to produce a writing of the grant.166 There could not be livery of seisin in a transfer of a reversion. Perhaps the most interesting cases in which a writing was required because a claimant could not plead his own or his ancestor's seisin were actions on the writs of formedon in the descender and formedon in the remainder. Shortly after the statute De Donis (1285), defendants to formedon writs demanded that plaintiffs produce a writing of the grant in fee tail.167 In the case of formedon in the descender, whether plaintiff had to produce a writing of the grant depended on whether the basis of his claim was the grant in fee tail or the seisin of his ancestor, the first donee under the grant in fee tail.168 Once it was decided that plaintiff based his claim on the seisin of his ancestor, the first donee, there was no more talk of plaintiff having to produce a writing of the grant. The opposite became the rule of formedon in the remainder. One who claimed as remainderman could not claim as heir to the donor or to the donee of the fee tail. For that reason, plaintiff had to produce a writing of the grant that gave him a remainder.169 The writing substituted for the claim of ancestral seisin that plaintiff as remainderman could not make.	57
This idea probably lay behind demands by defendants that plaintiff produce a writing. If defendant demanded a writing, plaintiff had to produce one. In 1235, for example, plaintiff produced sufficient suit but lost because he had no charter or chirograph.170 In 1250, when defendant asked specifically for a writing, defendant lost because he proffered no writing of the covenant.171 Similarly, a plaintiff without a specialty lost in the Gloucester Eyre of 1268–69, although in this case the court also said that covenant could not be used to recover freehold.172 Defendants who did not believe that a writing was required would not ask for one. When suit and wager of law were removed from actions of covenant in the later 1270s, a writing was required in claims to freehold or fee.	58
When asked to produce a writing, it was not always acceptable for plaintiff to produce a charter of feoffment. If the action were based on a grant, a charter of feoffment, evidence of the grant, should have been sufficient. But two reasons militated against its acceptance. First, a charter of feoffment was not an agreement but rather an instrument made to execute an agreement. Thus, defendants sometimes explained that they had made the charter proffered by plaintiff but the grant was not to go into effect until plaintiff had executed his part of an agreement.173 It was not for defendant to plead the covenant that was the basis of plaintiff's claim. Plaintiff should plead the covenant and then produce suit or a writing of the covenant, not merely a document drafted to execute some unproven covenant. Only if plaintiff described a covenant and offered proof to back up his allegation did defendant have anything to answer. If plaintiff produced the agreement, he had, of course, to produce the entire agreement. In a case in 1292, the court postponed proceedings when it learned that plaintiff's written agreement referred to charters that he had not produced in court.174	59
Second, a charter of feoffment in other contexts was worthless without livery of seisin.175 Thus in a 1272 case of covenant, defendant argued that plaintiff's charter of feoffment was good only for lands he had received at the time of the covenant.176 If the royal courts had accepted a charter of feoffment as adequate proof for plaintiffs in covenant, they would have greatly enlarged the scope of proprietary actions in which plaintiff had to plead his own or an ancestor's seisin. A charter of feoffment without livery of seisin could operate as a last will. A case in 1246 illustrates this point. Plaintiff claimed fifteen acres of meadow appurtenant to lands received under the covenant.177 He had only a charter of feoffment and the court held that the charter was not sufficient. Plaintiff had alleged an agreement with defendant's deceased father. Once the maker of the charter of feoffment died, the charter, if enforced without there having been livery of seisin, was tantamount to a last will. The king's court did not recognize last wills of land.	60
The royal courts dealt with the problems of plaintiff's written proof in actions of covenant to recover freehold or fee by restricting the kind of claim plaintiff could make and the kind of proof he had to produce. First, the action would lie against only the defaulting seller, not his heir. The 1246 case noted above is the only case found in which plaintiff even brought an action against the seller's heir. This restriction on the action preserved the policy against last wills of land in freehold or fee. Second, a chirograph of the agreement, not just a charter of feoffment, was required where plaintiff claimed that he had received none of the land.178 Where plaintiff claimed land as appurtenant to lands already received under the agreement, the court was more willing to accept a charter of feoffment. In 1284 Chief Justice Weyland permitted a plaintiff to proceed in a claim for appurtenances with only a charter of feoffment.179	61
II. The Question of Remedy
What happened to the remedy in actions of covenant was more complicated than a simple change from specific performance to money damages. "Specific performance" is something of a misnomer in that it is an equitable remedy for breach of covenant or obligation and the remedy in covenant could be the real remedy of restoring plaintiff to his seisin. The difference is not merely a quibble over words. It goes to the conceptual basis for actions in covenant. Dividing actions of covenant between those in which plaintiff made a proprietary claim and those in which he made a claim of obligation helps to explain the remedies awarded in cases of covenant and the changes in those remedies. Where plaintiff made a proprietary claim, as did termors ejected by their lessors, the remedy was, and continued to be, the real remedy of restoring plaintiff to seisin. Where plaintiff made a claim of obligation, the remedy very early was an order that defendant perform the covenant, by analogy to the real remedy given to termors. But very early, too, the remedy changed to money damages as this type of action was firmly put in the category of special obligations. Yet in some cases--actions for an annuity or an annual supply of necessities--whether the case was treated as raising an issue of right or of obligation depended upon defendant's answer. If defendant denied the annuity, the case was treated as one of right and the remedy was an order to pay the annuity in the future and to pay damages for the past wrong. But if defendant only disputed the arrears, the case was treated as one of obligation and the remedy was damages. In this respect these actions resembled actions by lords for customs and services: if the tenant denied the services there could be trial by battle because the denial raised an issue of right.180	62
Actions of covenant that involved agreements calling for a conveyance of land in freehold or fee presented difficulties for the question of remedy as they did for the question of proof. And the reason for this was the same: uncertainty whether plaintiff's claim was proprietary or was one of obligation. In the last two decades of the thirteenth century, this type of covenant case was put into the category of obligation. The consequence of this conceptual move was not to change the remedy from the real remedy of awarding plaintiff seisin to the contractual remedy of damages. Rather, the royal courts took the position that the writ of covenant could not be used to recover land in freehold or fee, except in rare cases in which it would be clear that the covenant action could not be used to expand the scope of real actions. The remedy in these exceptional cases was probably the real remedy of awarding seisin to plaintiff.	63
A. Leases and Other Interests in Land Less than Freehold
Lessees used covenant to make two claims. A lessee might claim that the lessor had failed to acquit the tenements of the services owed a superior lord.181 In these cases, the court ordered the defendant to acquit the lessee in future and to pay damages, the services paid by the lessee.182 In one case, the court authorized the lessee in future to deduct from the rent the amount of services paid because of defendant's failure to acquit.183 This remedy would not, of course, be effective where a lessee had paid a lump sum in advance for the term of years. In this type of claim by a lessee, covenant mimicked mesne and, not surprisingly, the remedy in covenant was the same as the remedy in mesne, an order to acquit in future and to pay damages.184	64
Much more frequently, lessees or their heirs brought covenant against lessors or their heirs for ejectment. In these cases, the court ordered plaintiff to be put back in seisin of his leasehold if the term had not expired.185 The time remaining in the term was calculated from the date of ouster, not the date of judgment.186 If the term had expired, the lessee received damages.187 The lessee also received damages if the lessor could not deliver the term either because he had conveyed the freehold interest in the land or had lost the freehold interest by judgment.188 In one case, where the plaintiff-lessee had paid only part of the price and defendant had not transferred the leasehold to plaintiff, the court ordered defendant to return the part-payment.189 The real remedy against lessors in covenant continued throughout the period from 1220 to 1330 and later.190	65
Where the lessor had conveyed the freehold and the grantee ousted the lessee, the lessee had another writ. In the thirteenth century this writ was called occasione cuius vendicionis or infra quem terminum.191 It first appeared in the 1230s.192 Its invention was attributed by some to William de Raleigh and by others to Walter de Merton.193 The writ came to be called quare ejecit infra terminum, although in its earlier form the key word was not ejecit but deforciat. For the sake of clarity, the need for which will soon be apparent, I will call this writ infra terminum. There was also a writ for a termor who had been ousted by a stranger, which is to say by someone neither his lessor nor his lessor's grantee. This writ, ejectione firme, could also be called quare ejecit. Because infra terminum could also be called quare ejecit, it is sometimes difficult to tell which writ a lawyer or justice is talking about. Bracton, in an ambiguous passage, gives both writs without sharply differentiating between them.194 For Bracton, they were simply two versions of the same writ, not two different writs.195	66
A lessee who brought infra terminum against his lessor's grantee recovered the unexpired term as he would in covenant against his lessor.196 This remedy comports with the standard explanation for the invention of the writ. Bracton, who gave a non-standard explanation, wrote that a new writ had to be invented because covenant lay only between lessee and lessor.197 True, but not very helpful. Bracton was hindered in trying to explain the invention of infra terminum by his treating infra terminum and ejectione firme together. He sought to explain why there had to be a writ for ejectment by a third person, not specifically a third person who was the lessor's grantee. The standard explanation focused on the ejector being the lessor's grantee. Lessees, it was said, used to bring covenant against the lessor, even though he had granted away the land, but the lessor had frequently nothing with which to keep the covenant.198 Since fraud and deceit should profit no one, the Chancery invented infra terminum. Of course, if a lessor had granted away the land leased to a lessee, he could not restore the term to the lessee. Preference for a real remedy and a wish to preserve the real remedy available in covenant led to the new writ with a real remedy.	67
Although a lessee could recover the term from his lessor's purchaser, lessees continued to bring covenant against the lessor when he had granted away the freehold.199 Their doing so is a bit of a mystery. The writ infra terminum supposed that the lessor had granted freehold and that the grantee had ousted the lessee. But if the lessor had ousted the lessee and then granted freehold, infra terminum would not fit: the grantee had not ejected the lessee. In such a case, the lessee would have to bring covenant against his lessor. In some cases, defendant-lessor to an action of covenant says that when plaintiff failed to pay the full price of the lease, the lessor found someone else to purchase the leasehold. In these cases, plaintiff probably was trying at the very least to get the lessor to return the part payment.200 In yet other cases, the plaintiff makes much of a clause in the lease either that the lessor will warrant the leasehold to plaintiff or that the lessor will not alienate the land.201 Here plaintiff might be seeking escambium from the lessor, a lease of equivalent value in other lands of the lessor. More likely, he has to make much of such clauses because he has no other basis for suing the lessor. After all, the lessor did not eject him. In suing his lessor rather than his lessor's grantee, a lessee might wish not to disturb the lessor's grantee for the term of years but simply to get money damages from the lessor while he has the proceeds of the sale in his hands. If the lessee were a creditor of the lessor, he might well prefer the cash over a term of years. If, however, the lessee had made capital improvements, recovering the leasehold from the lesser's grantee might be the only way of securing the return on investment. And if the lessor were short of funds, infra terminum would be the better action. At any rate, a lessee could choose between covenant against his lessor or infra terminum against his lessor's grantee.	68
If a lessee were ejected by a stranger, he had quare ejecit, also known as ejectione firme.202 This was a trespass writ.203 Unlike covenant or infra terminum, it described defendant as acting with force and arms against the king's peace.204 Bracton, treating this writ and infra terminum together and as analogous to novel disseisin, thought that plaintiff recovered his term plus damages.205 In one early case from 1240, plaintiff indeed recovered his term.206 Later in the thirteenth century the remedy was damages, usual by that time in cases of trespass.207 Later still, confusion between infra terminum and ejectione firme might explain why plaintiffs to ejectione firme sometimes recovered their terms.208 If a lessee had ejectione firme, he could not bring covenant against his lessor, even, apparently, if he based his covenant action on a warranty clause of the lease.209 Conversely, if he did not have ejectione firme, he could bring covenant against his lessor. Where, for example, the lessor held of the king, plaintiff was a sublessee, and was ejected by the escheator, plaintiff had covenant against the sublessor.210 A simpler case would be a lessee ejected by someone with paramount title.	69
In the course of the thirteenth century, a term of years came to be classified as a chattel rather than as real property. The boundary between chattels and real property marked the boundary between the jurisdiction of ecclesiastical and royal courts. Church courts had jurisdiction over testamentary bequests of or intestate succession to terms of years as chattels. Although it is difficult to determine precisely when a term of years came to be classified as a chattel, the appearance of leases in church court probate cases or in testaments provides some clues. The pleadings in a case of prohibition in 1234 reveal that inclusion of terms of years in a testament was accepted at that time.211 In a case of covenant in 1261, the lessee's son who complained that the lessor had kept him out of his father's term of years was met by the defense that his father had left the term of years by testament to his executors.212 The Luffield Register of Writs dating from the 1260s describes a term of year as a chattel.213	70
The shift, if shift it was, of a term of years into the category of a chattel did not affect the real remedy provided in an action of covenant by lessees. It had, however, two other consequences. The classification of a lease as a chattel enabled lawyers better to distinguish recovery of a term of years from recovery of freehold or fee. Arguing that in covenant plaintiff could not recover freehold or fee, lawyers could say that in covenant plaintiff recovered either chattels or damages.214 Classification of a lease as a chattel raised the question whether the lessee's heir, rather than the lessee's executors, was the proper person to bring the writ. In 1311, when a lessee's grandson brought covenant for the ejectment of his grandfather, defendant, descendant of the original lessor, argued that plaintiff could not sue for a trespass done to another.215 Defendant's characterization of ejectment remediable by covenant as a trespass shows how lawyers had come to think of covenant as primarily a personal action. Justice Stanton, pending consultation with Chief Justice Bereford, held that plaintiff could not sue in covenant because the term of years was a chattel and only the lessee's executors could sue to recover a chattel. Chief Justice Bereford later agreed and plaintiff was non-suited.	71
In the case of covenants involving lands held or to be held in gage, in wardship, or in trust-like custody, the court ordered defendant to keep the covenant only if plaintiff's claim were to land. Ordinarily, this meant an order to put plaintiff in seisin. The cases involving gages focused on defendant's failure to execute the gage agreement. In two cases, if defendant failed to repay a loan by a designated date, plaintiff was to hold certain of the defendant's land until the loan was repaid.216 The remedy in both cases was to put plaintiff in seisin. The wardship cases paralleled the cases involving terms of years in that plaintiff complained that defendant had granted him a wardship and then had either ejected him or had failed to warrant the grant.217 A plaintiff making the latter claim could receive escambium from his grantor for his failure of warranty.218 A grantee of a wardship ousted by a stranger had the writ ejectio custodiae.219 Frequently, the cases involving trust-like arrangements involved marriage agreements. One parent either gave land to the other to be held in trust ("ad opus") for the children or conveyed land to the children and gave the other parent custody of the land for the benefit of the children. The actions tended to be brought by the trustee parent against the settlor parent for ejectment. The court ordered the trustee parent to be restored to his seisin.220 In another trust-like arrangement, the settlor gave land to the trustee for the purpose of paying the settlor's debts or providing for the settlor's wife and children and acquitting his debts. If the settlor interfered with the trustee's gathering of the profits from the land, the court ordered the settlor to restore what he had taken.221 One infers that, in the case of an ejectment by the settlor, the court would have ordered the trustee to be put back in seisin, but no example could be found.	72
B. Other Covenants
Other covenants include indemnity agreements and service contracts, provisions in leases obligating the lessee to pay rent and not to commit waste, and agreements to provide annuities or annual supplies of necessities. Covenants that called for a conveyance of land in freehold or fee are discussed separately.	73
The remedy in cases of indemnity agreements was damages.222 For example, in a case in 1288 plaintiff proved an agreement by which plaintiff's grandfather had exchanged land with defendant's grandmother and the grandmother had agreed to hold plaintiff's grandfather and his heirs harmless from damages and penalties incurred if the sea wall protecting the land received in exchange failed to keep the sea out.223 The sea wall failed and plaintiff suffered damages, including triple damages imposed by the king, for the injury caused his neighbors. Plaintiff recovered over against defendant. In another case, defendant had sold standing corn to plaintiff and had, in effect, warranted plaintiff good title, agreeing to hold him harmless from adverse claims of ownership.224 When plaintiff gathered the corn he was sued in trespass by the true owner. Plaintiff recovered his damages from defendant. Where the agreement was that defendant were to take custody of a prisoner from a sheriff and hold the sheriff harmless if the prisoner escaped, the remedy for defendant's breach was damages.225	74
In an early case of a service contract, the court ordered performance.226 Plaintiff had paid defendant to build a bell tower. Defendant failed to do so, but plaintiff had failed to supply the necessary wood as required under the covenant. The court nevertheless ordered defendant to build the tower as he had agreed ("perficit sicut convenit"). In another case about a century later, plaintiff had paid defendant to build two mills, which he had failed to do.227 But the jury found that defendant was only to do the carpentry, which he had done, and plaintiff was to supply the nails and iron work, which he had not done. Nevertheless, the court ordered defendant to return the payment, without retaining compensation for the work done. In a third case, defendant had failed to build a sea wall. Although the plaintiff lost for failing to include a necessary party as plaintiff, it was clear that plaintiff sought damages.228 The paucity of evidence makes it hard to draw firm conclusions. The change in remedy was the result of a shift from thinking of covenant as primarily a real action to thinking of covenant primarily as a personal action based on the special obligation undertaken by defendant.	75
Lessors made two claims by writ of covenant. They made claims of waste or failure to return the property in the condition agreed upon in the lease and claims of rent. In claims of waste or failure to maintain the property as provided in the lease, the court awarded damages.229 These claims were that defendant had violated a specific obligation to plaintiff as opposed to a claim of right. In claims for rent on a lease, the remedy depended upon the issue raised by defendant. If defendant admitted the amount of rent as described by plaintiff but unsuccessfully disputed that he was in arrears, the court ordered defendant to pay the amount in arrears.230 If defendant disputed plaintiff's right to the rent, plaintiff recovered seisin of the rent.231 This pattern, as discussed below, was identical to that in cases of annuity. There are few cases on the plea rolls of lessors suing in covenant to recover rent on a lease. There are two reasons for this. First, frequently a lessee did not pay periodic rent for a term of years but instead paid the total in advance. The advance payment was a loan to be recouped with interest from the term of years. A lessor would not transfer the leasehold until the money was in his pocket. Second, lessors frequently used debt to recover rent on a lease.232 In debt, plaintiff asked for an amount of arrears, frequently because the term of years had ended and there was no rent owed in the future.233	76
Closely resembling actions for rent on a lease were actions for an annual rent or annuity. The rent might be an annual amount of money or a periodic provision of food and clothing. In the case of a money rent, a writ of covenant could be used, but this use of covenant disappears from the plea rolls in the 1260s.234 By the 1240s Chancery had invented a writ of annuity.235 Claims on a writ of covenant to an annuity could be either a real or a personal action. One was entitled to an annuity in virtue of a grant. If defendant unsuccessfully denied the grant, the court ordered that plaintiff recover seisin of the annuity and the arrears plus damages.236 If defendant admitted the annuity but unsuccessfully denied that he was in arrears, the court ordered payment of the arrears plus damages.237 In one case, however, the court enforced a provision in the lease that defendant forfeited the land if he failed to pay the rent.238 The two types of remedy for claims to a money annuity on a writ of covenant continued as remedies in actions on writs of annuity.239 A writ of debt could also be used to recover an annuity, but only arrears.240 This practice was summarized and the scope of debt possibly restricted by the rule that debt could not be used if the annuity were still in force but only if the term of the annuity had been completed.241 The rule fit under the principle that debt could be used to recover only a sum certain.	77
Where the annual rent was to be delivered in food and clothing, the writ of covenant continued to be used after the writ of annuity became available.242 The fact that the annual rent in these cases was to be paid in kind, rather than in cash, might explain the continued use of the covenant writ.243 In these cases, plaintiff, frequently a woman and sometimes described as a dowager, had granted land for her life to defendant in return for the periodic provision of food and clothing. And in these cases, even if the defendant admitted the covenant, the court sometimes would award not only that defendant pay the arrears plus damage but also that he in future perform the covenant.244 In two cases, the court ordered the sheriff to distrain defendant for the arrears and that he hold to the covenant.245 In a third case, the court enforced a provision in the covenant requiring defendant to return the land if he were in arrears.246 Judicial orders that defendant perform the covenant resemble specific performance, but the basis of defendant's liability was not contractual. As in cases of an annuity, where plaintiff could either produce a writing of the grant or plead that he had been in seisin under the grant, defendant's liability was based on a grant.247	78
The remedy in an action of covenant depended very much upon plaintiff's claim. The report of a case in 1334 shows the court not averse to enforcing a restrictive covenant not to build a mill by ordering that the offending mill be demolished.248 The report also illustrates the hybrid nature of covenant. Defendant's father had agreed to permit plaintiff to build and operate a mill and had undertaken not to build a competing mill. As plaintiff to a personal action, plaintiff had to place the wrong in defendant, who claimed that not he but his father had built the offending mill. Plaintiff had to argue that defendant's failure to tear down the mill was a wrong that he had done in breach of the covenant. As a real action, the case should lead to an order to destroy the offending mill. The court was willing to contemplate such an order because in this situation covenant was doing the work of an assize of nuisance. The assize would lie if defendant were under a general obligation not to build a competing mill and the remedy would be an order to abate the nuisance.249 There was no general obligation to refrain from competing with existing mills. Defendant's father, however, had undertaken a special obligation not to compete with plaintiff. The analogy to an assize of nuisance and the difficulty of assessing damages inclined the court toward an order to demolishing the offending mill.	79
C. Covenant and Freehold
Covenants calling for a conveyance of land in freehold or fee presented the question whether plaintiff's claim was proprietary or one of obligation. We have seen that uncertainty over what proof plaintiff had to produce reflected uncertainty on this question.250 When it came to the remedy, sometimes the courts had no difficulty in awarding a real remedy. At other times, the courts held that freehold or fee could not be recovered by writ of covenant. Their reasoning seems to have been that plaintiff was making a proprietary claim but was using a writ for actions on obligations, which were personal actions. The perceived dissonance between type of claim and type of writ meant that the writ could not be used to make the claim. The concern was that if covenant could be used to recover freehold, the scope of the proprietary writs would be greatly enlarged. The courts reduced the dissonance between claim and writ by allowing plaintiff to use covenant to recover freehold in only two situations: where plaintiff had been in some sense seised of the land claimed and had given the land to defendant on loan and where, given the nature of the interest claimed by plaintiff, no one could have been seised of that interest. Under these severe restrictions, covenant no longer threatened the integrity of the proprietary actions. Plaintiff could make these proprietary claims by writ of covenant and receive the real remedy of restoration to the land.	80
In a number of cases, the question whether the writ was suitable for the recovery of freehold never arose.251 Defendant waged his law or the pleading raised other issues. In other cases, the court exhibited no qualms in ordering plaintiff to be seised of the land under the covenant.252 In 1242, a plaintiff claimed that defendant had failed to transfer certain land to him as required by their agreement.253 Defendant answered that plaintiff was to pay him 40 marks for the marriage of his daughter. Because plaintiff had paid only 27 marks, defendant had withheld the land. The court calculated that defendant's occupation of the land since the date agreed upon for delivery was worth 3 marks. Accordingly, it ordered plaintiff to pay defendant 10 marks and ordered the sheriff to put plaintiff in seisin of the claimed land. A year earlier, however, where plaintiff had paid only part of the purchase price and defendant had not conveyed the land, the court ordered defendant to return the part payment.254 The difference between the two cases might have been that the first case involved a marriage agreement and the second, a purchase-and-sale agreement. The court could not undo a partially completed but consummated marriage agreement. Yet in 1247, when plaintiff claimed that defendant had failed to make an agreed exchange of lands, the court ordered the sheriff to supervise the exchange.255	81
As in actions in covenant by lessees for ejectment, if defendant was unable to transfer the land to plaintiff, the court awarded damages.256 In a case in 1285, defendant answered that he did not have the manor claimed by plaintiff on the day plaintiff sued out his writ.257 When the court learned that he had had the manor on the day he had agreed to transfer it to plaintiff, it awarded damages because defendant had alienated the manor in order to defraud plaintiff of his recovery. The court's statement only makes sense if an order to put plaintiff in seisin were the usual remedy.258 Similarly in a case in 1292, plaintiff recovered damages because the court could not order plaintiff to be put in seisin.259 Plaintiff had purchased land from defendant and defendant was to execute a final concord in plaintiff's favor. When defendant's wife was examined as part of the proceeding to levy the final concord, she claimed that the land was her maritagium and refused to concede the final concord.	82
Yet, the royal courts were not always willing to allow disappointed purchasers to recover freehold by writ of covenant. On the Gloucestershire Eyre of 1268–69, a plaintiff who alleged that he had granted land to defendant who was to regrant plaintiff a life estate lost his case because he produced nothing to prove the alleged agreement and because the court held that the writ of covenant could not be used to recover freehold.260 A case in 1235, in which plaintiff failed to produce a charter or chirograph of an alleged agreement under which defendant was to grant him land for his services, might also be a case in which plaintiff lost not only because of his failure of proof but also because the court believed that one could not recover freehold by writ of covenant.261 Some manuscripts of Brevia Placitata dating from the 1260s or 1270s include a rule that neither fee nor right can be recovered by writ of covenant.262	83
The concern was that if a plaintiff could recover freehold in covenant on a claim not based on his own or on his ancestor's seisin, proprietary writs would be undermined. This objection had less force when plaintiff claimed land as part of or as appurtenant to lands already delivered to him in the transaction.263 For in that case he was in seisin of part of the lands subject to the covenant. In the late 1270s, lawyers began to make the argument that neither freehold nor fee could be recovered by writ of covenant.264 The argument could arise unexpectedly. In a case on the Westmoreland Eyre of 1278–1279 plaintiff claimed that defendant had leased certain land to him for a term of forty years but had ejected him after twelve.265 The lease provided that if during the term defendant-lessor had an heir male of his body, then at the end of the term the land would revert to defendant or the heir male of his body. Otherwise the land would remain with plaintiff in fee simple. Defendant argued that he need not answer plaintiff's writ of covenant because the lease held out the possibility of plaintiff receiving the land in fee. Plaintiff, of course, argued that he was claiming only his term. The case was taken under advisement with no judgment recorded.	84
The reason ordinarily given why covenant could not be used to recover land in freehold or fee was that covenant was a personal action, in which plaintiff could recover only damages or chattels.266 On its own terms this argument would support a court awarding damages for a failure to make the covenanted conveyance in freehold or fee. A case in 1285 suggests that the court might have momentarily entertained this inference. In that year two sisters brought covenant against a third sister and proved an agreement under which if the third sister recovered ten virgates of land in novel disseisin against the two sisters, she was to return two of the virgates to the two sisters for their lives.267 The court, calculating that the two virgates were worth 4 marks per year, awarded plaintiffs an annual rent of 4 marks out of all the lands of defendant with right to distrain for arrears and right of survivorship between the two plaintiffs. It is not clear why the court created this elaborate remedy that resembles money damages unless it was responding to the argument, made by defendant, that in covenant plaintiff receives only damages. The court might have ordered the sheriff to put plaintiffs in seisin of the two virgates for their joint lives. In the Oxfordshire Eyre of the same year, 1285, the court did just that: it ordered the sheriff to put plaintiff in seisin for his life.268 In the case among the sisters, the covenant might not have specified which two virgates plaintiffs were to receive and the court's remedy avoided that problem. But the sheriff could have supervised a fair division between the parties.	85
Whatever inclination toward shifting to money damages is represented by the sisters' case, the courts did not take that line. Instead, they interpreted the argument as asserting a dissonance between the nature of plaintiff's claim--proprietary--and the nature of the writ--personal. They responded by restricting the use of the writ to recover freehold so that the writ could not undermine the integrity of proprietary actions. The courts limited the use of covenant for the recovery of land in freehold or fee to cases in which plaintiff had given the land to defendant under an agreement calling for its return or in which no one could have been seised. This narrowing took place in the 1290s. Chief Justice Mettingham is reported to have said in 1294 that if he paid 30 marks for a parcel of land and the seller refused to convey, he could bring debt for the money or covenant for the land.269 His statement was becoming bad law. The evidence is sparse for the last decade of the thirteenth and the first decade of the fourteenth century. An extensive, but not exhaustive, search of the plea rolls for the Court of Common Pleas for the period 1301–1310 produced only four cases in which plaintiff attempted to use covenant to recover land in freehold or fee.270 None of the cases involved a straightforward claim on a simple purchase-and-sale agreement. The absence of these cases from the plea rolls is itself significant. Perhaps plaintiffs in these disputes were not obtaining writs of covenant from Chancery.	86
In the 1290s and the first decade of the fourteenth century, the court accepted the argument against covenant certainly in two cases and possibly in a third. In 1292 a plaintiff claimed one third of a grazing farm.271 Defendant asked point blank what plaintiff hoped to recover in the action. Plaintiff explained that they sought one-third of the grazing farm as dower ("ratione dotis"). Defendant then made the argument that covenant could not be used to recover freehold, the court agreed, and plaintiff lost. The court in effect made plaintiff bring her writ of dower. In a case from the first decade of the fourteenth century, plaintiff claimed that defendant had agreed to grant him land in fee with undisturbed entry and egress, but the lord of the fee impeded his coming and going.272 At this time after Quia Emptores the lord of the fee might have been trying to secure an entry fine.273 In order to use covenant, plaintiff could not allege a failure to deliver the land but rather had to stress the impediment to entry. Once it was pointed out that plaintiff had novel disseisin against the lord of the fee, Chief Justice Hengham ruled that plaintiff take nothing. In 1304, as discussed earlier, a plaintiff tried to use covenant in lieu of a writ ad terminum qui preteriit to recover freehold.274 Defendant argued that, in order to recover freehold, plaintiff had to show either title, which is to say his own or his ancestor's seisin, or specialty. Plaintiff did neither. Although the outcome of the case is none too clear, the court probably sent plaintiff to his writ of entry.	87
The court permitted plaintiff to use covenant to recover freehold where plaintiff had given the land to defendant under an agreement calling for its return or where no one could have been seised. Thus in a case in 1292, plaintiff alleged an agreement whereby he had given defendant two manors on the condition that he return them to plaintiff when plaintiff gave him land worth £10 yearly.275 Plaintiff claimed that he had offered defendant land worth £10 yearly, but defendant had refused the offer and had kept the two manors. Spignurel for defendant said that in covenant plaintiff could recover chattels, terms, and damages but not fee, right or free tenement. Bereford remarked that Spignurel stated a maxim of the law. Yet the record of the case has the parties pleading to an issue and does not hint at the debate over the scope of the writ. The argument that covenant could not be used to recover freehold went nowhere. Defendant had to answer that the grant of the two manors had been without condition. Plaintiff had been seised of the two manors and was not claiming them by inheritance or by purchase from defendant. He was claiming their return on the grounds that he had fulfilled the condition for their return.	88
In 1294, the argument against the use of covenant was ignored where plaintiff claimed the return of land loaned to defendant to assist him in assarting seven acres of his own land.276 In 1302, plaintiff, who had commons in certain land, set forth an agreement with defendant, the lord of the fee, that if the lord enclosed and improved more than four acres of the commons, plaintiff was to receive one-tenth of the additional improved land.277 Defendant made the argument against using covenant to recover land in fee. Chief Justice Hengham accepted the argument but ruled narrowly that in this case plaintiff could use covenant. The reason for Hengham's exception in this case is obscure, unless it be that plaintiff had a prior interest in the land improved by defendant. The parties took as an issue for a jury whether defendant had in fact improved more than the four acres.	89
Plaintiff could also use covenant to recover land in freehold or fee where no one could have been seised of the land or where establishing seisin was difficult. An agreement to grant a reversion following a life estate fits this exception. In 1292, plaintiff brought covenant to enforce an agreement that defendant transfer to plaintiff the reversion following his mother's life estate as dowager.278 The case was set aside for judgment because the written covenant produced by plaintiff referred to charters that neither party could produce on the spot. The rule, if rule it was, against the use of covenant did not come into play to stop plaintiff. Likewise, in a similar case in 1307, plaintiff used covenant to enforce an agreement that defendant convey the reversion following her mother's dower.279 One could not be seised of a reversion in any straightforward sense. Nor could one be seised of commons in the usual sense, which further supports Hengham's exception in the 1302 case.	90
The force of the general rule against covenant to recover freehold or fee is revealed by how parties adapted their pleadings to the rule. In a case in 1325, plaintiff had to try to make a grant in fee tail look like a grant of a term of years.280 He alleged that defendant's father had granted land to him in fee tail for a term of eight years at an annual rent of a rose and thereafter for an annual rent of £10. After defendant's father died, the lord of the fee brought an action and recovered wardship of the lands on the grounds that the grant was collusive, no doubt under Chapter Six of the Statute of Marlborough.281 Plaintiff had to focus his claim on the eight-year term interrupted by defendant's wardship. Defendant focused on the entire grant, which set no term.	91
A case in 1306 provides equivocal evidence that the court was reluctant to enforce the restriction on covenant in cases of marriage contracts. A father and son and two others brought covenant to enforce an agreement that defendant convey land to the son and defendant's daughter in fee tail pursuant to a marriage contract.282 Defendant's reluctance to make the conveyance is explained by the fact that his daughter died shortly after the marriage. There are suggestions in the reports that damages would be the remedy. The daughter's death raised the issue whether the four plaintiffs could recover for a breach of an obligation to the son and daughter alone. The discussion whether covenant could be used and whether damages was the appropriate remedy was cut short when the court learned that the grantees of the land in fee tail were, according to the covenant, to grant back to defendant a life estate. Chief Justice Hengham ruled that as tenants in tail they could not grant out a life estate. For that reason, the court refused to enforce the covenant.	92
The restrictions on covenant to recover freehold or fee were designed to prevent covenant from, in effect, expanding the scope of proprietary actions by removing the requirement that plaintiff base his claim of right on his own or his ancestor's seisin. Thus covenant could be used to recover freehold after the mid-1290s only where plaintiff's claim was based on an obligation to return land to plaintiff or where no one could have been seised of the land so that no proprietary claim based on prior seisin would fit the case. This severe restriction on covenant meant that the more clear distinction between proprietary claims and claims of obligation disabled the common law from providing a satisfactory remedy against a defaulting seller of land alongside the legal framework for proprietary claims to land in freehold or in fee. In the fifteenth century, Chancery, unencumbered by the common law framework, could act directly on the principle that there should be a real remedy against a defaulting seller of land.283	93
Conclusion: The Decline of Covenant
The number of actions of covenant on the plea rolls, never very many, rose to a plateau in the period from about 1240 to about 1290 and then declined. By the early fourteenth century, actions of covenant brought in search of a remedy, as opposed to a final concord, were few. Transactions once structured as agreements or grants of a lease actionable by writ of covenant were given the form of penal bonds with conditional defeasance, conditional bonds.284 The history of conditional bonds and of debt in the thirteenth century has yet to be written. But a glance at how conditional bonds came to replace covenants might be a fitting way to end an article on covenant in the thirteenth century.	94
As one might expect from the uncertainty among lawyers whether writs of covenant could be used to recover freehold or fee, conditional bonds used to replace covenants first appear in purchases of land in freehold or fee. In 1272, plaintiff brought a writ of debt claiming that defendant had agreed to enfeoff him of certain lands and "nisi fecerit" to pay plaintiff 20 marks.285 An agreement for a grant-regrant transaction could also be put in the form of a conditional bond.286 A widow's interest in property could be secured by conditional bond.287 Agreements to convey land as part of a marriage contract were put in the form of conditional bonds.288 A grant of an annual supply of necessities could be secured by conditional bond.289	95
Conditional bonds also began to invade the core use of the writ of covenant: actions by lessees.The earlier bonds focused on contingencies especially worrisome to lessees. In 1285, a lessee sued in debt for 100 marks on an agreement whereby he had given 120 marks for a twelve-year term. But if the lessor died so that because of wardship the lessee was ejected from his term, then the lessor and his heirs were obligated to pay the lessee 100 marks.290 The lessor had died, his lord had taken the land in wardship, and the lessor's heir when of age had failed to restore the lessee. In 1303, a lessee sued in debt to collect the 5 marks that became payable by his lessor if the lessor alienated the land during the term.291 Suspension of the term by reason of wardship and alienation of the land by the lessor were perhaps the more important risks facing lessees. By 1310, actions in debt by lessees for ejectment by their lessors appear in the reports. In that year, a lessee sued for £14, the amount owed by defendant-lessor if he ejected the lessee during his eleven-year term.292 The lessor had given the lease as a means of paying debts incurred in other transactions, or so plaintiff alleged. Where the lessee was a creditor and the lease was repayment of a loan, the shift to a conditional bond had the effect of making ejectment by the debtor convert the transaction back into one of debt on a bond. As Glanvill had written over a century earlier, if the creditor is ejected from his gage, he has his action of debt.293	96
Joseph Biancalana is a professor at the University of Cincinnati College of Law. Earlier versions of Part I were presented at the Fourteenth British Legal History Conference (Edinburgh, Scotland) in July 1999 and at the Ohio State Legal History Seminar in October 1999. The author is grateful for the opportunity to present at the conference and at the seminar and for the comments received from participants on those occasions. He is also grateful to Paul Brand, Charles Donahue, and David Ibbetson for discussing various topics of this essay with him. Notes 1 Frederick Pollock and F. W. Maitland, The History of English Law Before the Reign of Edward I, 2d ed., reissued with intro. S. F. C. Milsom (1898; Cambridge: Cambridge University Press, 1968), 2:219–20. 2 C. H. S. Fifoot, History and Sources of the Common Law (London: Stevens and Sons, 1949), 259; A. W. B. Simpson, A History of the Common Law of Contract (Oxford: Oxford University Press, 1975), 13–14; J. H. Baker, An Introduction to English History, 3d ed. (London: Butterworths, 1990), 364. 3 S. F. C. Milsom, Historical Foundations of the Common Law, 2d ed. (London: Butterworth's, 1981), 246 (" . . . we are wrong to use the definite article and write of 'the' action of covenant"). 4 Statute of Wales, 12 Edw. I, c. 10, 1, Statutes at Large 66 (1284). 5 J. H. Baker, Introduction, 360–62; Milsom, Historical Foundations, 246. 6 Robert Palmer, English Law in the Age of the Black Death, 1348–1381 (Chapel Hill: University of North Carolina Press, 1993), 64. 7 Pollock and Maitland, History of English Law, 216–20 (covenant classified as contract); Baker, Introduction, 360; David Ibbetson, A Historical Introduction to the Law of Obligations (Oxford: Oxford University Press, 1999), 21. 8 David Ibbetson also sees covenant as having had a dual nature: "The new action of covenant occupied an ambiguous niche between the entitlement-based action of debt and the loss-based action of trespass." Ibbetson, Historical Introduction, 22, 88. There are, however, difficulties with his categories. The difficulties stem from his using entitlement and loss, concepts that operate on different levels, to define the relevant categories. Debt itself occupied an ambiguous niche between entitlement and obligation. And every plaintiff complained that he had suffered a loss or wrong at the hands of defendant. A plaintiff in mort d'ancestor, for example, complained of a loss suffered or a wrong committed to him but mort d'ancestor was not a trespass action. The reason for calling defendant's conduct a wrong to plaintiff and plaintiff's position a legally cognizable loss in mort d'ancestor was plaintiff's entitlement. In trespass, the reason for calling defendant's conduct a wrong and plaintiff's position a legally cognizable loss was the general obligation upon defendant not to harm plaintiff with force and arms against the king's peace. It is therefore better to think in terms of entitlements and obligations than in terms of entitlement and loss. 9 Elsa de Haas and G. D. G. Hall, eds., Early Registers of Writs, Publications of the Selden Society, vol. 87 (1970), 79 (no. 1539), 232–33 (nos. 533–45). 10 E.g., 8 CRR, pp. 92–93 (Mich. 1219); 9 CRR, pp. 24–25 (Trin. 1220); 11 CRR, no. 1115 (Mich. 1223); 11 CRR, no. 2579 (Mich. 1224); 13 CRR, no. 59 (Pas. 1227). 11 E.g., 11 CRR, no. 1675 (Trin. 1224); 12 CRR, no. 394 (Hil. 1225); 12 CRR, no. 2423 (Pas. 1226); 13 CRR, no. 1745 (Pas. 1229); BNB, no. 638 (Mich. 1231); 15 CRR, no. 437 (Mich. 1233) (defendant attached, not summoned). 12 E.g, 16 CRR, no. 293 (Hil. 1238); 18 CRR, no. 209 (Trin. 1242); KB26/143, m. 10d (Mich. 1250); JUST 1/701, m. 8 (Oxfordshire, 1261); JUST 1/365, m. 38 (Kent, 1271); JUST 1/622, m. 23 (Northamptonshire, 1285); JUST 1/408, m. 26 (Lancashire, 1292). 13 For the general suggestion that the writing requirement had something to do with the decline or fictionalization of suit, see Simpson, History, 12–13, and Baker, Introduction, 363. 14 Pollock and Maitland, History of English Law, 2:217. 15 David Ibbetson, "Words and Deeds: The Action of Covenant in the Reign of Edward I," Law and History Review 4 (1986): 83–84. 16 Ibbetson, Historical Introduction, 24–28. 17 JUST 1/739, m. 20d (Shropshire, 1292). 18 A case on the Kent eyre of 1241 might be possible evidence against the statement in the text. JUST 1/359, m. 16d (Kent, 1241). Robert de Slegh sued Alexander de Ores for ejecting him from a leasehold Alexander had granted to Robert's brother, Thomas. Defendant entered a denial. There follows a space of about two inches in which the writing is illegible. The next line begins with the court awarding defendant his law. Unfortunately, I could not determine whether defendant denied the covenant or the breach. 19 Failure to acquit: 9 CRR, p. 253 (Mich. 1220); JUST 1/80, m. 3d (Cambridgeshire and Middlesex, 1235); JUST 1/699, m. 16 (Oxfordshire, 1247); JUST 1/778, m. 41d (Hampshire, 1256); JUST 1/701, m. 7 (Oxfordshire, 1261); JUST 1/701, m. 14d (Oxfordshire, 1261); KB26/171, m. 65d (Mich. 1261); JUST 1/998A, m. 7d (Wiltshire, 1268). Waste: JUST 1/1026, m. 25 (Worcestershire, 1275). Denial of estovers: JUST 1/404, m. 9d (Lancashire, 1246). 20 Shropshire Eyre, no. 119 (1256). The case is discussed below, 11. 21 CP40/81, m. 22d (Hil. 1277). 22 JUST 1/457, m. 17 (Leicestershire, 1284). 23 Pollock and Maitland, History of English Law, 2:217; Simpson, History, 10. F. M. Nichols, ed., Britton (Oxford: The Clarendon Press, 1865), 1:416. 24 Baker, Introduction, 337–40, 353–55. 25 Pollock and Maitland, History of English Law, 2:116–17, 121–22; H. G. Richardson, The English Jewry under Angevin Kings (London: Methuen, 1960), 85; Richard H. Bowers, "From Rolls to Riches: King's Clerks and Moneylending in Thirteenth-Century England," Speculum 58 (1983): 67. 26 G. D. G. Hall, ed., Tractatus de Legibus et Consuetudinibus Regni Angliae Qui Glanvilla Vocatur (Oxford: Oxford University Press, 1965), 126. 27 Donald Sutherland, The Assize of Novel Disseisin (Oxford: The Clarendon Press, 1973), 12–13, 32–33. 28 Pipe Roll, 22 Henry II 192 (1186); Pipe Roll, 3 Richard I 27 (1191); Pipe Roll, 5 Richard I 10 (1193) ("pro habendo recto de ix m vel de vadio suo"); Pipe Roll, 9 Richard I 98 (bis), 158, 214. Richardson, English Jewry, 112–13. 29 Hilary Jenkinson, "A Money-Lender's Bonds of the Twelfth Century," in H. W. C Davis, ed., Essays in History Presented to Reginald Lane Poole (Oxford: The Clarendon Press, 1927), 206–7 (III), 208–9 (VII). 30 Robert C. Stacey, "Jewish Lending and the Medieval English Economy," in A Commercialising Economy: England 1086 to c.1300, ed. Richard H. Britnell and Bruce M. S. Campbell (Manchester: Manchester University Press, 1995), 92. 31 Simpson, History, 19–20; Pollock and Maitland, History of English Law, 2:113–14. 32 E.g., JUST 1/1045, m. 27 (Yorkshire, 1246); KB26/143, m. 4d (Mich. 1250); JUST 1/778, m. 4d (Hampshire, 1256); KB26/171, m. 63 (Mich. 1261); JUST 1/82, m. 15d (Cambridgeshire, 1261); JUST 1/178, m. 23d (Devon, 1265–70); CP40/8, m. 21 (Hil. 1275). 33 S. J. Bailey, "Warranties of Land in the Thirteenth Century," Cambridge Law Journal 8 (1944): 275–84; S. J. Bailey, "Warranties of Land in the Reign of Richard I," Cambridge Law Journal 9 (1946): 193–98. 34 E.g., JUST 1/1045, m. 41 (Yorkshire, 1246); JUST 1/231, m. 9d (Essex, 1248); JUST 1/273, m. 16d (Gloucestershire, 1248); JUST 1/318, m. 2d (Hertfordshire, 1248); KB26/143, m. 4d (Mich. 1250); JUST 1/1046, m. 48 (Yorkshire, 1251–52); JUST 1/361, m. 4 (Kent, 1255); JUST 1/872, m. 9d (Surrey, 1255); JUST 1/778, m. 4d (Hampshire, 1256); JUST 1/82, m. 15d (Cambridgeshire, 1261); KB26/194, m. 8 (Mich. 1269); JUST 1/365, m. 47d (Kent, 1271); CP40/24, m. 25d (Trin. 1278); JUST 1/914, m. 54 (Sussex, 1279); JUST 1/1005A, m. 13d (Wiltshire, 1281); JUST 1/622, m. 11d (Northamptonshire, 1285); JUST 1/1101, m. 32 (Wiltshire, 1289); CP40/110, m. 256d (Mich. 1295); CP40/138, m. 70d (Pas. 1301); CP40/139, m. 169 (Mich. 1301); CP40/163, m. 186 (Trin. 1306); CP40/162, m. 230d (Hil. 1307); CP40/180, m. 156d (Hil. 1310). 35 S. F. C. Milsom, The Legal Framework of English Feudalism (Cambridge: Cambridge University Press, 1975), 8–35. 36 JUST 1/1045, m. 27 (Yorkshire, 1246); JUST 1/778, m. 38 (Hampshire, 1256) (original lessee was plaintiff's uncle); JUST 1/642, m. 4d (Northumberland, 1256); JUST 1/701, m. 8 (Oxfordshire, 1261); JUST 1/365, m. 39 (Kent, 1271); JUST 1/133, m. 7d (Cumberland, 1278–79) (original lessee was plaintiff's brother); CP40/69, m. 151 (Mich. 1287) (original lessee was plaintiff's brother); CP40/80, m. 171 (Mich. 1289); JUST 1/1085, m. 3d (Yorkshire, 1293–94) (original lessee was plaintiff's brother); CP40/144, m. 133d (Mich. 1302); CP40/163, m. 310 (Trin. 1306). In one case, plaintiff claimed under a lease made to his grandfather. 15 CRR, no. 1662 (Pas. 1236). 37 KB26/171, m. 63 (Mich. 1261); JUST 1/622, m. 50d (Northamptonshire, 1285). 38 S. E. Thorne, "English Feudalism and Estates in Land," Cambridge Law Journal 17 (1959): 193; Milsom, Legal Framework, 164–76; Joseph Biancalana, "For Want of Justice: Legal Reforms of Henry II," Columbia Law Review 88 (1988): 484–514. 39 JUST 1/231, m. 14 (Essex, 1248); JUST 1/361, m. 13 (Kent, 1255); JUST 1/778, m. 10 (Hampshire, 1256); JUST 1/365, m. 38 (Kent, 1271); CP40/5, m. 80 (Mich. 1274); JUST 1/495, m. 12 (Lincolnshire, 1281–82); CP40/64, m. 77 (Mich. 1286); CP40/153, m. 253 (Mich. 1305). 40 JUST 1/914, m. 7 (Sussex, 1279); JUST 1/1076, m. 31d (Yorkshire, 1279–81); JUST 1/183, m. 10d (Devon, 1281–82); JUST 1/622, m. 7d (Northamptonshire, 1285); CP40/141, m. 168d (Hil. 1302); CP40/161, m. 82 (Trin. 1305); CP40/162, m. 230 (Hil. 1307). In two cases, the defendant, lessor's heir, explained that the lord of the fee had ejected plaintiff and had given the land to the lessor's widow in dower. JUST 1/200, m. 7d (Dorset, 1244); JUST 1/982, m. 15 (Westmoreland, 1278–79). 41 Shropshire Eyre, no. 119 (1256), noted in the text above at note 20. 42 YB (RS) 21–22 Edw. I 456 (Middlesex, 1294); Spark v. Anon., 2 Kent Eyre, 27 SS 44 (1313–14); Wakefield v. Prioress of Hampole, YB Mich. 12 Edw. II, 65 SS 53 (1318); YB Hil. 12 Edw. II, 70 SS 89 (1319). 43 I am grateful to Paul Brand for raising this point in conversation. 44 Michael Sheehan, The Will in Medieval England from the Commission of the Anglo-Saxons to the End of the Thirteenth Century (Toronto: Pontifical Institute, 1963), 107–19; Charles Donahue, "What Causes Fundamental Legal Ideas? Marital Property in England and France in the Thirteenth Century," Michigan Law Review 78 (1980): 72–78; Biancalana, "For Want of Justice," 512–15 (mort d'ancestor prevented last wills of land and death-bed transfers). 45 9 CRR, p. 253 (Mich. 1220); 14 CRR, no. 1652, BNB, no. 581 (Trin. 1231); 14 CRR, no. 2437 (Pas. 1232); JUST 1/80, m. 3d (Cambridgeshire and Middlesex, 1235); JUST 1/80, m. 4 (Cambridgeshire and Middlesex, 1235); JUST 1/231, m. 28d (Essex, 1248); JUST 1/778, m. 41d (Hampshire, 1256); JUST 1/701, m. 7 (Oxfordshire, 1261); JUST 1/701, m. 14d (Oxfordshire, 1261); JUST 1/1050, m. 21d (Yorkshire, 1268); JUST 1/787, m. 44d (Hampshire, 1280–81); CP40/158, m. 248d (Hil. 1306). A writ of covenant sometimes used by freeholds in lieu of a writ of mesne. CP40/178, m. 133d (Trin. 1309). 46 For plaints, see 2 RCR, p. 236 (Pas. 1200); 4 CRR, pp. 111–12 (Pas. 1206), 4 CRR, p. 220 (Mich. 1206). For early writs see 4 CRR, p. 93 (Pas. 1206); 7 CRR, pp. 183–84 (Trin. 1214). For later cases see, e.g., 12 CRR, no. 174 (Hil. 1225); 12 CRR, no. 2627 (Pas. 1226); 13 CRR, no. 35 (Pas. 1227); 13 CRR, no. 426 (Hil. 1228); 13 CRR, no. 2744 (Hil. 1230); 14 CRR, no. 1165 (Hil. 1231). The writ apparently had both a precipe and an ostensurus quare form. 47 Warranty of Charter: e.g., 7 CRR, p. 320 (Hil. 1215); 8 CRR, pp. 145 (Mich. 1219); 9 CRR, pp. 75–76 (Trin. 1220); Gloucs., no. 173 (1221); Gloucs., no. 506 (1221); JUST 1/1042, m. 23 (Yorkshire, 1231); JUST 1/1042, m. 27d (Yorkshire, 1231), BNB, no. 657 (1231). De fine facto: 7 CRR, p. 269 (Mich. 1214); 8 CRR, pp. 220–21 (Hil. 1220); 14 CRR, no. 644, BNB, no. 447 (Mich. 1230); 14 CRR, no. 1371, BNB, no. 546 (Pas. 1231); 15 CRR, no. 1642 (Pas. 1236); 18 CRR, no. 1147 (Hil. 1244); JUST 1/233, m. 6 (Essex 1254); JUST 1/483, m. 68 (Lincolnshire 1271–72). 48 JUST 1/233, m. 35 (Essex 1254). 49 In a few cases it appears that plaintiff lost for lack of a writing showing that defendant was bound to acquit him. CP40/55, m. 40 (Mich. 1284); CP40/75, m. 99d (Mich. 1288); JUST 1/134, m. 31d (Cumberland, 1292–93). But the record without a report might be misleading. A record of a case in 1287 says that plaintiff lost because he "nichil speciale ostendit" that defendant was bound to acquit him. CP40/69, m. 77d (Mich. 1287). But the report shows Chief Justice Weyland willing to accept an allegation that defendant was seised of the same service from plaintiff that was owed the chief lord. 2 Earliest English Law Reports 298 (1287). 50 JUST 1/1026, m. 19d (Worcestershire, 1275); JUST 1/112, m. 25 (Cornwall, 1284); JUST 1/622, m. 16 (Northamptonshire, 1285); JUST 1/328, m. 20d (Hertfordshire, 1287); JUST 1/134, m. 31 (Cumberland, 1292–93); YB (RS) 21–22 Edw. I 108 (1293); YB (RS) 33–35 Edw. I 480 (Pas. 1307). 51 A case on the Lincolnshire Eyre of 1271–72 might be an exception to the statement in the text. JUST 1/483, m. 17 (Lincolnshire, 1271–72). In this case a widow claimed that she ought to hold seven acres of defendant for her life at a specified rent and that defendant ejected her. She did not plead that defendant demised the land to her or that she had been seised under the demise; she let those facts be inferred from her claim of ejectment. Defendant denied that he had demised the land to her for her life and waged his law. The parties settled. Defendant for himself and his heirs conceded the land to plaintiff and her heirs for 6 shillings per year for all suits of court. The settlement strongly suggests that the case was not about a demise from a life tenant but rather about the services owed by plaintiff. If there had been such an agreement, defendant could, absent a written covenant, wage his law. (For a case in which a lord brought covenant for customs and services, namely suit of court, see JUST 1/175, m. 24 [Devon, 1244].) 52 Actions for rent are, e.g., JUST 1/561, m. 48d (Norfolk, 1280); JUST 1/1050, m. 81 (Yorkshire, 1268); JUST 1/365, m. 55 (Kent, 1271); JUST 1/365, m. 71d (Kent, 1271); JUST 1/802, m. 15d (Staffordshire, 1272); CP40/11, m. 21 (Mich. 1275); JUST 1/148, m. 15d (Derbyshire, 1281); JUST 1/48, m. 18d (Berkshire, 1284); JUST 1/832, m. 32 (Suffolk, 1286–87); CP40/110, m. 180 (Mich. 1295). Actions for damage to the property are, e.g., JUST 1/80, m. 24 (Cambridgeshire and Middlesex, 1235); JUST 1/818, m. 42 (Suffolk, 1240); JUST 1/359, m. 18d (Kent, 1241); JUST 1/872, m. 30 (Surrey, 1255); JUST 1/778, m. 24d (Hampshire, 1256); JUST 1/82, m. 8 (Cambridgeshire, 1261); JUST 1/495, m. 3d (Lincolnshire, 1281–82); CP40/138, m. 142d (Pas. 1301); CP40/141, m. 168d (Hil. 1302); CP40/144, m. 112 (Mich. 1302); CP40/149, m. 257d (Mich. 1304); CP40/180, m. 305d (Hil. 1310). 53 See, for instance, JUST 1/5, m. 7 (Bedfordshire, 1262); JUST 1/1026, m. 25 (Worcestershire, 1275). 54 By analogy to debt, for which see below, 22 and notes 98–100. 55 Fifoot, History and Sources, 258; Note [Patrick Philbin], "Proving the Will of Another: The Specialty Requirement in Covenant," Harvard Law Review 105 (1992): 2005 and n. 35. 56 CP40/149, m. 158 (Mich. 1304). 57 YB (RS) 32–33 Edw. I 197 (Pas. 1304); BL Hargrave Ms. 375, f. 10v; LI Misc. Ms. 738, f. 27r. I am grateful to Paul Brand for transcriptions of the unpublished reports. 58 One cannot, however, rule out the possibility that the plea roll clerk simply failed to complete the entry. 59 Good suit: BL Hargrave Ms. 375, f. 10v; LI Misc. Ms. 738, f. 27r. Promise to make a writing: YB (RS) 32–33 Edw. I 197 (Pas. 1304). 60 BL Hargrave Ms. 375, f. 10v; LI Misc. Ms. 738, f. 27r. 61 YB (RS) 32–33 Edw. I 197 (Pas. 1304). In a second report, Justice Hengham asked defendant whether he claimed by purchase or by inheritance. BL Hargrave Ms. 375, f. 10v. In the third report Justice Bereford asks that question of defendant. LI Misc. Ms. 738, f. 27r. 62 Bedfordshire Eyre, no. 161 (1247); JUST 1/699, m. 13 (Oxfordshire, 1247); JUST 1/273, m. 31d (Gloucestershire, 1248). 63 See below, 53–54, and notes 271–76. 64 JUST 1/134, m. 7 (Cumberland, 1292–93). 65 The two printed reports, YB (RS) 32–33 Edw. I 295 (Trin. 1304) and YB 4 Edw. II, 42 SS 171 (1311) are, as David Ibbetson suspected, reports of the same case. Ibbetson, "Words and Deeds," 91, n. 102. The plea roll record appears at CP40/149, m. 257d (Mich. 1304) and a third report of the case at BL Add. Ms. 31826, f. 345v. 66 YB (RS) 30–31 Edw. I 310 at 314 (Mich. 1303); YB (RS) 33–35 Edw. I 244 (Trin. 1306); Dammary v. Gorges, YB Pas. 13 Edw. II, 70 SS 107 at 108, 110–11, 112, 112–13 (1319). 67 CP40/149, m. 257d (Mich. 1304). 68 Statute of Gloucester, 6 Edw. I, c. 5, 1 Statutes of the Realm 48 (1278); YB 4 Edw. II, 42 SS 171 at 173 (1311). The statute contemplated actions by the heir, which might not always fit actions against tenants of a term of years. Nevertheless, even in such actions plaintiff's count included the claim that the waste was done to his disinheritance. JUST 1/1046, m. 35 (Yorkshire, 1251–52); JUST 1/148, m. 1d (Derbyshire, 1281); CP40/55, m. 37d (Mich. 1284); CP40/64, m. 47d (Mich. 1286); CP40/75, m. 139d (Mich. 1288). 69 The latter point was made by defendant. BL Add. Ms. 31826, f. 345v. 70 In the first half of the century, a lease that mentioned the subject at all was likely to prohibit waste (JUST 1/80, m. 24 [Cambridgeshire and Middlesex], 1235; JUST 1/818, m. 42 [Suffolk, 1240]; JUST 1/872, m. 30 [Surrey, 1255]; CP40/138, m. 142d [Pas. 1301]) or require the lessee to maintain the property at his own cost (13 CRR, no. 997 [Mich. 1228]; JUST 1/778, m. 24d [Hampshire, 1256]; CP40/141, m. 168d [Hil. 1302]). Later, a clause requiring the lessee to return the property in the same state as he had received it seems to have become fairly standard. JUST 1/82, m. 8 (Cambridgeshire, 1261); JUST 1/363, m. 11d (Kent, 1262–63); JUST 1/779A, m. 12 (Hampshire, 1272); CP40/11, m. 21 (Mich. 1275); JUST 1/787, m. 36d (Hampshire, 1280–81); JUST 1/495, m. 3d (Lincolnshire, 1281–82); CP40/64, m. 61d (Mich. 1286); CP40/144, m. 112 (Mich. 1302). A lease might, of course, exempt the lessee from liability in the event that buildings were damaged by storms or were already in a dilapidated condition. CP40/110, m. 180 (Mich. 1295). If the covenant had no provision against waste, a lessor had to use a general writ of waste. JUST 1/359, m. 18d (Kent, 1241). 71 BL Add. Ms. 31826, f. 345v. 72 CP40/149, m. 257d (Mich. 1304). 73 This point is made by David Ibbetson. Ibbetson, "Words and Deeds," 90–91; Ibbetson, Historical Introduction, 26–27. 74 YB 4 Edw. II, 42 SS 171 at 172 (1311). 75 Ibid. at 173; YB (RS) 32–33 Edw. I 296 at 298 (Trin. 1304). 76 JUST/408, m. 40 (Lancashire, 1292) (access); CP40/164, m. 113d (Trin. 1307) (access); Bedfordshire Eyre, no. 309 (1247) (enclosure); JUST 1/909A (Sussex, 1248) (enclosure); CP40/144, m. 337d (Mich. 1302) (apportionment). 77 CP40/101, m. 49d (Trin. 1293) (surety); JUST 1/682, m. 102 (Nottinghamshire, 1329–30) (release of prisoner); CP40/110, m. 71 (Mich. 1295) (coparticipant); JUST 1/929, m. 25d (Sussex, 1288) (sea wall). 78 CP40/110, m. 109d (Mich. 1295). 79 Buckland v. Leanore, 2 Kent Eyre, 27 SS 9 (1313–14) (mill); 11 CRR, no. 1675 (Trin. 1224); 12 CRR, no. 1915 (Hil. 1226) (bell tower); Anon., 2 London Eyre 286 (1321) (cartload of hay); JUST 1/23, m. 93 (Bedfordshire, 1330–31) (wound). 80 Bare word: JUST 1/1045, m. 29d (Yorkshire, 1246); JUST 1/56, m. 21d (Buckinghamshire, 1247); Berkshire Eyre, no. 272 (1248); JUST 1/567, m. 53 (Norfolk, 1257). Neither suit nor writing: BNB, no. 1129 (1234); JUST 1/3, m. 6d (Bedfordshire, 1240); JUST 1/359, m. 13d (Kent, 1241). In two cases the clerk combined the two expressions: "Nichil ostendit nisi simplex dictum suum, nec cartam, nec aliquid." JUST 1/561, m. 37d (Norfolk, 1250); JUST 1/561, m. 51d (Norfolk, 1250). Nothing: JUST 1/872, m. 6 (Surrey, 1255). No suit: JUST 1/979, m. 2d (Westmoreland, 1256). 81 Pollock and Maitland, History of English Law, 2: 609–10, 637–40. For suit as witnesses in dower cases, see Joseph Biancalana, "Widows at Common Law: The Development of Common Law Dower," The Irish Jurist, n.s., 23 (1988): 316–22. 82 JUST 1/872, m. 6 (Surrey, 1255). 83 JUST 1/979, m. 2d (Westmoreland, 1256). 84 12 CRR, no. 495 (Trin. 1225); 16 CRR, no. 1838 (1241); JUST 1/175, m. 32d (Devon, 1244); JUST 1/404, m. 2d (Lancashire, 1246); JUST 1/1045, m. 34d (Yorkshire, 1246); Bedfordshire Eyre, no. 70 (1247); Berkshire Eyre, no. 444 (1248); KB26/172, m. 20d (Pas. 1263); JUST 1/1050, m. 20 (Yorkshire, 1268); JUST 1/483, m. 17 (Lincolnshire, 1271–72). 85 JUST 1/763, m. 31d (Somerset, 1280); JUST 1/408, m. 31d (Lancashire, 1292). 86 JUST 1/60, m. 5d (Buckinghamshire, 1272). In this case defendant disputed the seal. The case was going to be sent to a jury without witnesses to the charter, because all the witnesses were dead. The parties settled. For cases in which the authenticity of a charter was tried by inspection of the seal, see 1 CRR, p. 97 (Hil. 1199); 8 CRR, pp. 54–55 (Mich. 1219); BNB, no. 237 (Hil. 1224); BNB, no. 584 (Trin. 1231); BNB, no. 744 (Hil. 1233). The authenticity of the seal was frequently tried by a jury including witnesses to the charter. 87 E.g., JUST 1/699, m. 10d (Oxfordshire, 1247) (jury finds seal appended "invito" defendant); JUST 1/1085, m. 3d (Yorkshire, 1293–94) (jury agrees with defendant that seal on specialty not defendant's). 88 12 CRR, no. 2024 (Hil. 1226); 12 CRR, no. 2423, BNB, no. 1739 (Pas. 1226); 17 CRR, no. 2236 (Pas. 1443); CP40/69, m. 105d (Mich. 1287); CP40/110, m. 256d (Mich. 1295). For a few of the many cases in which the authenticity of a charter was tried by witnesses to the charter added to the jury, see, e.g., 1 CRR, p. 45 (Pas. 1198); 1 CRR, pp. 151–52 (Hil. 1200); 5 CRR, p. 277 (Trin. 1208); 11 CRR, no. 1322 (Hil. 1223); BNB, no. 412 (Trin. 1230). The witnesses had to have been at the making of the charter, which was not always the case. BNB, no. 222 (Hil. 1224); BNB, no. 1891 (1227). Attaint would not lie against a jury that included witnesses to a charter. YB (RS) 20–21 Edw. I 108, 111 (Herefordshire, 1292). In at least one case the witnesses alone served as the jury. 6 CRR, p. 61 (Mich. 1210). 89 9 CRR, p. 253 (Mich. 1220); JUST 1/80, m. 3d (Cambridgeshire and Middlesex, 1235); JUST 1/404, m. 9d (Lancashire, 1246); JUST 1/699, m. 16 (Oxfordshire, 1247); Berkshire Eyre, no. 450 (1248); JUST 1/909A, m. 16 (Sussex, 1248); JUST 1/778, m. 41d (Hampshire, 1256); KB26/171, m. 30d (Mich. 1261); KB26/171, m. 65d (Mich. 1261); JUST 1/701, m. 7 (Oxfordshire, 1261); JUST 1/701, m. 14d (Oxfordshire, 1261); JUST 1/998A, m. 7d (Wiltshire, 1268); JUST 1/1026, m. 25 (Worcestershire, 1275). 90 JUST 1/483, m. 17 (Lincolnshire, 1271–72). 91 JUST 1/1026, m. 25 (Worcestershire, 1275). 92 For cases of mesne in which defendant waged his law, see, e.g., 13 CRR, no. 2608, BNB, no. 350 (Hil. 1230); 15 CRR, no. 70, BNB, no. 811 (Mich. 1233); 17 CRR, no. 1770 (Hil. 1243); JUST 1/482, m. 15 (Lincolnshire, 1245); JUST 1/614B, m. 11d (Northamptonshire, 1247); JUST 1/7699, m. 31 (Oxfordshire, 1247); JUST 1/561, m. 26d (Norfolk, 1250); JUST 1/872, m. 15 (Surrey, 1255); JUST 1/778, m. 3 (Hampshire, 1256); JUST 1/701, m. 2d (Oxfordshire, 1261); JUST 1/955, m. 1 (Warwickshire, 1272); JUST 1/1005, pt. 1, m. 9 (Wiltshire, 1281); JUST 1/245, m. 63d (Essex 1285); JUST 1/245, m. 70d (Essex, 1285); JUST 1/929, m. 17 (Surrey, 1288). 93 For cases enforcing final concords in which defendant waged his law, see, e.g., 3 CRR, p. 61 (Mich. 1203); 6 CRR, p. 152 (Mich 1211); BNB, no. 1101 (Pas. 1225); 14 CRR, no. 305 (Trin. 1230); 17 CRR, no. 654 (Mich 1242); JUST 1/699, m. 24 (Oxfordshire, 1247); JUST 1/273, m. 11d (Gloucestershire, 1248); JUST 1/273, m. 33d (Gloucestershire, 1248); JUST 1/273, m. 34 (Gloucestershire, 1248); JUST 1/1046, m. 33 (Yorkshire, 1251–52); JUST 1/872, m. 69 (Surrey, 1255); JUST 1/872, m. 28d (Surrey, 1255); JUST 1/820, m. 25 (Suffolk, 1257); JUST 1/874, m. 6 (Surrey, 1261–62); JUST 1/57, m. 2d (Buckinghamshire, 1262); JUST 1/877, m. 37 (Surrey, 1279); JUST 1/1067, m. 7d (Yorkshire, 1279–81). 94 For cases of replevin in which defendant waged his law see, e.g., 1 CRR, pp. 146–47 (Hil. 1200); 3 CRR, p. 200 (Mich. 1204); 8 CRR, pp. 28–29 (Mich. 1219); 13 CRR, no. 2113, BNB, no. 333 (Pas. 1229); JUST 1/1046, m. 29 (Yorkshire 1251–52); JUST 1/383, m. 31 (Essex, 1254); JUST 1/701, m. 1d (Oxfordshire, 1261); JUST 1/483, m. 57 (Lincolnshire, 1271–72). 95 Written grant: 15 CRR, no. 14 (Hil. 1233); JUST 1/1045, m. 12d (Yorkshire, 1246); KB26/169, m. 8 (Mich. 1260); JUST 1/178, m. 12 (Devon, 1269–70); JUST 1/1062, m. 36(1) (Yorkshire, 1279–81); JUST 1/763, m. 18d (Somerset, 1280); JUST 1/787, m. 29 (Hampshire, 1280–81); JUST 1/709, m. 2 (Oxfordshire, 1285); JUST 1/408, m. 27 (Lancashire, 1292). Seisin of rent: JUST 1/912A, m. 14d (Sussex, 1262); JUST 1/178, m. 9d (Devon, 1269–70); JUST 1/178, m. 23d (Devon, 1269–70); CP40/5, m. 27d (Mich. 1274). In a case in 1286, defendant tried to insist that plaintiff produce a "factum speciale" or a "conventionem." JUST 1/68A, m. 15 (Buckinghamshire, 1286). The parties settled. Plaintiff lost if he had neither suit nor writing nor allegation of seisin. JUST 1/1046, m. 53d (Yorkshire, 1251–52); KB26/165, m. 9 (Pas. 1260); JUST 1/82, m. 19 (Cambridgeshire, 1261); JUST 1/5, m. 15 (Bedfordshire, 1262). 96 JUST 1/778, m. 12d (Hampshire, 1256). 97 In one case defendant denied that the rent was in arrears and the case went to a jury. CP40/11, m. 11 (Mich. 1275). In other cases, in which plaintiff had a writing, defendant lost because he could not produce an acquittance that the rent had been paid. JUST 1/178, m. 12 (Devon, 1269–70); JUST 1/84, m. 5d (Cambridgeshire, 1272); CP40/75, m. 75 (Mich. 1288). In one case, plaintiff demanded an acquittance. JUST 1/763, m. 18d (Somerset, 1280). The parties settled. 98 Cases in which defendant lost because he did not produce suit in support of his claim to have paid the debt are 3 CRR, p. 220 (Mich. 1204); 5 CRR, pp. 25–26 (Hil. 1207); 12 CRR, no. 518 (Trin. 1225); 17 CRR, no. 2395 (Pas. 1243); KB26/143, m. 17 (Mich. 1250); JUST 1/300C, m. 10d (Hereford, 1255); JUST 1/5, m. 20d (Bedfordshire, 1262). The production of suit by defendant to prove payment was probably borrowed from local courts, for which see Robert Henry, Contracts in the Local Courts of Medieval England (London: Longmans, Green, 1926), 29–30. 99 JUST 1/561, m. 42d (Norfolk, 1250) (plaintiff has writing); JUST 1/778, m. 10d (Hampshire, 1256) (plaintiff has writing); JUST 1/820, m. 22 (Suffolk, 1257); JUST 1/82, m. 3d (Cambridgeshire, 1261) (plaintiff has writing); JUST 1/82, m. d (Cambridgeshire, 1261) (plaintiff has writing); JUST 1/60, m. 14d (Buckinghamshire, 1272); CP40/26, m. 82d (Mich. 1278) (plaintiff has writing). 100 JUST 1/84, m. 7 (Cambridgeshire, 1272); JUST 1/84, m. 11d (Cambridgeshire, 1272); JUST 1/779A, m. 19d (Hampshire, 1272); CP40/9, m. 41 (Pas. 1275); CP40/51, m. 21d (Mich. 1283); JUST 1/48, m. 5d (Bedfordshire, 1284); JUST 1/47, m. 13 (Buckinghamshire, 1284); JUST 1/245, m. 69d (Essex, 1285); CP40/64, m. 94d (Mich. 1286); CP40/69, m. 34 (Mich. 1287); CP40/82, m. 111d (Pas. 1290); YB (RS) 33–35 Edw. I 330 (Mich. 1306); YB Mich. 4 Edw. II, 22 SS 145 (1310). An early instance of the court requiring defendant to produce a written acquittance is recorded at JUST 1/954, m. 44 (Warwickshire, 1262). 101 12 CRR, no.734 (Mich. 1225); 14 CRR, no. 1876, BNB, no. 613 (Trin. 1231) (defendant loses for lack of suit). 102 8 CRR, pp. 154–55 (Mich. 1219); KB26/195, m. 32d (Mich. 1268). 103 CP40/15, m. 89d (Trin. 1276). 104 JUST 1/483, m. 47d (Lincolnshire, 1271–72); JUST 1/763, m. 53d (Somerset, 1280); JUST 1/832, m. 18d (Suffolk, 1286–87); YB (RS) 33–35 Edw. I (Hil. 1306). Defendant could also make a general denial and put himself on a jury. CP40/153, m. 180 (Mich. 1305). An earlier case of defendant pleading payment and putting himself on a jury is recorded at JUST 1/820, m. 23 (Suffolk, 1257). 105 E.g., JUST 1/238, m. 8 (Essex, 1272); CP40/14, m. 121d (Mich. 1276); JUST 1/914, m. 14 (Sussex, 1279); CP40/54, m. 14 (Trin. 1284); JUST 1/48, m. 5d (Berkshire, 1284); CP40/95, m. 134 (Trin. 1292); CP40/130, m. 246 (Mich. 1299); CP40/139, m. 184 (Mich. 1301); CP40/141, m. 147 (Hil. 1302); YB (RS) 32–33 Edw. I 14 (Hil. 1304); CP40/152, m. 68 (Trin. 1304); CP40/152, m. 175 (Trin. 1304); CP40/156, m. 136 (Trin. 1305); CP40/153, m. 95 (Mich. 1305); CP40/161, m. 497d (Mich. 1306); CP40/173, m. 219d (Mich. 1308); CP40/173, m. 359 (Mich. 1308); CP40/178, m. 274d (Trin. 1309); CP40/183, m. 73 (Mich. 1310); YB Mich. 12 Edw. II, 65 SS 24 (1318). 106 E.g., 12 CRR, no. 553 (Trin. 1225); 13 CRR, no. 1610 (Hil. 1229); 17 CRR, no. 439 (Mich. 1242); JUST 1/200, m. 3 (Dorset, 1244); JUST 1/233, m. 7 (Essex, 1254); JUST 1/872, m. 19d (Surrey, 1255); JUST 1/912B, m. 2d (Sussex, 1262); JUST 1/1050, m. 9d (Yorkshire, 1268); JUST 1/178, m. 8 (Devon, 1269–70). 107 Dunman v. Weldon, The Eyre of Northamptonshire, 1329–1330, ed. Donald Sutherland, Publications of the Selden Society, vols. 97, 98 (London: 1981, 1982), vol. 1, 476 at 477 (1329–30). 108 JUST 1/668, m. 13 (Nottingham, 1280–81); CP40/113, m. 15 (Trin. 1296); CP40/152, m. 54 (Trin. 1304); CP40/164, m. 153 (Trin. 1307). Similarly denials that defendant "in nullo denario ei tenetur occasione predicta": CP40/153, m. 77 (Mich. 1305); CP40/164, m. 74d (Trin. 1307). 109 Defendant denies owing "the aforesaid money" ("predictam pecuniam"): JUST 1/982, m. 10d (Westmoreland, 1278–79); JUST 1/1062, m. 40 (Yorkshire, 1280); CP40/158, m. 192 (Hil. 1307). Defendant denies being bound to plaintiff as alleged: CP40/101, m. 136d (Trin. 1293) ("sicut ei imponitur"); CP40/178, m. 291 (Trin. 1309) ("prout queritur"). Defendant denies "in nullo denario tenetur" CP40/83, m. 135 (Trin. 1290). 110 Walewayn v. Rem, 2 Kent Eyre, 27 SS 38 (1313–14). 111 JUST 1/763, m. 31d (Somerset, 1280); JUST 1/408, m. 31d (Lancashire, 1292). 112 CP40/47, m. 129 (Mich. 1283). 113 JUST 1/457, m. 17 (Leicestershire, 1284). 114 JUST 1/877, m. 18 (Surrey, 1279). 115 JUST 1/403, m. 90d (Lancashire, 1292). 116 Baker, Introduction, 362; Fifoot, History and Sources, 257–58; Milsom, Historical Foundations, 248; Robert Palmer, The County Courts of Medieval England (Princeton: Princeton University Press, 1982), 208; Ibbetson, "Words and Deeds," 71–76; Ibbetson, Historical Introduction, 24; Note [Philbin], "Proving the Will of Another," 2001. 117 See above, 14–17, and notes 55–75. 118 Robert Palmer suspected that there were two cases but did not sort out the records and reports. Palmer, "Covenant, Justicies Writs, and Reasonable Showings," American Journal of Legal History 31 (1987): 103–4. 119 YB (RS) 20–21 Edw. I 222 (1292). 120 YB (RS) 20–21 Edw. I 487 (1292). 121 JUST 1/740, m. 34d (Shropshire, 1292); A. K. A. Kiralfy, A Source Book of English Law (London: Sweet and Maxwell, 1957), 181; J. H. Baker and S. F. C. Milsom, Sources of English Legal History, Private Law to 1750 (London: Butterworths, 1986), 282–84. 122 JUST 1/739, m. 35 (Shropshire, 1292). 123 If Richard Sturmy was the same person as Richard Scurrye, one surmises the following transaction. Corbet loaned the horse to Sturmy/Scurrye who, for that reason, entered into the indemnity agreement with Folyot. When the horse died, Corbet sued Sturmy/Scurrye who sued Folyot. 124 Ibbetson, "Words and Deeds," 79. 125 For the suggestion that this was the reason for the requirement, see Simpson, History, 12. 126 See Simpson, History, 75–80. 127 See Milsom, Historical Foundations, 257–62. 128 For the introduction of trespass writs, see S. F. C. Milsom, "Trespass from Henry III to Edward III," in Studies in the History of the Common Law (London: Hambledon Press, 1985), 1–90. 129 Biancalana, "For Want of Justice," 514–31. 130 Biancalana, "Widows at Common Law," 284–305. 131 Ibid., 318–22. 132 Ibid. 133 Note [Philbin], "Proving the Will of Another," 2014–20. 134 2 London Eyre, 86 SS 352 at 353 (1321). 135 Ibid., 286. 136 Cambridge University Library Ms. Ee6, 18, f. 70v. 137 Ibid. Philbin cited BL Add. Ms. 38126, m. 34v, another report of the case the record of which is CP40/136, m. 13d (Hil. 1301). 138 4 CRR, p. 25 (Trin. 1205); JUST 1/300A, m. 3 (Herefordshire, 1221); KB26/132, m. 9d (Hil. 1244); KB26/149, m. 2 (Trin. 1253); KB26/171, m. 58d (1261); CP40/81, m. 58d (Hil. 1290). Frequently the case went to a jury without the plea roll entry mentioning that suitors were added to the jury. 1 CRR, p. 233 (Trin. 1200); 3 CRR, p. 203 (Mich. 1204); 5 CRR, p. 27 (Hil. 1207); 5 CRR, p. 224 (Trin. 1208); 6 CRR, pp. 37–38 (Pas. 1210); 15 CRR, no. 68, BNB, no. 737 (Hil. 1233); 16 CRR, no. 2069 (Pas. 1242); JUST 1/333, m. 34 (Essex, 1254); JUST 1/82, m. 6d (Cambridgeshire, 1261); CP40/82, m. 7 (Pas. 1290). 139 London v. Tynten, YB Mich. 2 Edw. II, 19 SS 145 (1308–9); Pilsdon v. Pilsdon, YB Trin. 8 Edw. II, 41 SS 182 (1315). 140 KB26/171, m. 58d (1261). 141 BL Add. Ms. 31826, f. 303v. The note does not contemplate plaintiff producing suit in covenant as it does in debt. 142 The view expressed by David Ibbetson that the writing requirement in covenant was "more the result of accident than a product of a piece of conscious law-making" is hard to maintain in light of the evidence of the conscious removal of suit and wager of law from a number of actions in addition to covenant. Ibbetson, Historical Introduction, 24. 143 See above, 20–21, and notes 92-97. 144 See above, 22–24, and notes 98–110. 145 Palmer, County Courts, 229. 146 Ibid., 232–34. 147 Ibid., 234. 148 Statute of Gloucester, 6 Edw. I, c. 8, 1 Statutes of the Realm 48 (1278). Palmer, County Courts, 235–38; John Beckerman, "The Forty-Shilling Jurisdictional Limit in Medieval Personal Actions," in Legal History Studies 1972, ed. Dafydd Jenkins (Cardiff: University of Wales Press, 1975), 110–17; Milsom, Historical Foundations, 244–45. 149 Palmer, County Courts, 251–53. 150 The suggestion in the text reverses the chronology of a suggestion once made by Milsom that the writing requirement in covenant was adopted for the same purpose as the forty-shilling jurisdictional limit: to reduce the influx of cases into the royal courts. Milsom, Historical Foundations, 214. If the writing requirement for all cases of covenant was in place at or before the adoption of the statutory forty-shilling rule, then the forty-shilling rule might not have been extended to covenant because the writing requirement already raised the bar for entry into the royal courts. 151 For a quite different view, see Palmer, County Courts, 198–219; Palmer, "Covenants," 99–117. 152 John Beckerman, "Procedural Innovation and Institutional Change in Medieval English Manorial Courts," Law and History Review 10 (1992): 209. 153 JUST 1/231, m. 10d (Essex, 1248). 154 For wager of law by plaintiff in covenant, see above, 22 and notes 101–3. 155 CP40/11, m. 114 (Mich. 1275). 156 CP40/81, m. 48d (Hil. 1290), BL Add. Ms. 31826, f. 93v (defendant in detinue ousted from wager of law "quia predictus contractus fuit adeo manifestus"); YB (RS) 20–21 Edw. I 304 (1292); Lewes v. Multon, BL Add. Ms. 31826, f. 96v; Aran v. The Abbot of Gloucester, BL Add. Ms. 31826, f. 150r., BL Add. Ms. 31826, f. 227v: "De contractu dunt pays peut aver pleyne conisance le defendant ne deit pas estre receu a le alayement en contre la syute arame tot dient acune gent que syute arame ne amene nul home forque a la ley." For later occurrences of the argument, see YB (RS) 32–33 Edw. I 200 (Pas. 1304); Abbot of Grace Dreu v. Anon, YB (RS) 33–35 Edw. I 331 (1306); Randolph v. The Abbot of Hailes, 2 Kent Eyre 32 (1313–14); Stapleton v. The Abbot of St. Albans, YB Hil. 10 Edw. II, 54 SS 18 and 198 (1317); Beaum v. Kydale, YB Pas. 12 Edw. II, 70 SS 146 at 147 (1319) (Bereford, C.J.). 157 Waste: JUST 1/5, m. 7 (Bedfordshire, 1262); JUST 1/1026, m. 25 (Worcestershire, 1275). Estovers: JUST 1/404, m. 9d (Lancashire, 1246). Conveyance: KB26/171, m. 30d (Mich. 1261). Bell tower: 11 CRR, no. 1675 (Trin. 1224), 12 CRR, no. 1915 (Hil. 1226). Mesne: JUST 1/80, m. 3d (Cambridgeshire and Middlesex, 1235); JUST 1/778, m. 41d (Hampshire, 1256); JUST 1/701, m. 7 (Oxfordshire, 1261); JUST 1/998A, m. 7d (Wiltshire, 1268). Wager of law in mesne was rather odd. In an action of mesne, defendant could deny that plaintiff had been distrained by a superior lord because of defendant's failure to acquit the tenements of the service owed the superior lord. Defendant's wager of law could not go to whether a third party distrained plaintiff. It had to go to whether defendant had paid a third party the services owed for the tenements. But wager of law proved denials, not assertions, that a party had performed an act. An assertion of an action performed usually required suit or a jury trial. If defendant produced suit, however, plaintiff would not be able to wage his law to deny receipt of the service because plaintiff could not wage his law to deny that a third party had received the services. 158 See above, 19, 20, and notes 84, 89. 159 Ibbetson, Historical Introduction, 25, also observed that plaintiffs in covenant frequently produced written covenants. 160 JUST 1/175, m. 32d (Devon, 1244) (allegation of contract for a grant in fee farm with no term stated); JUST 1/1045, m. 34d (Yorkshire, 1246); Bedfordshire Eyre, no. 70 (1247); Berkshire Eyre, no. 444 (1248). 161 See below, 51, and notes 264–66. 162 15 CRR, no. 1758 (Pas. 1236); JUST 1/622, m. 23 (Northamptonshire, 1285). 163 18 CRR, no. 757 (1243–44); JUST 1/56, m. 22d (Buckinghamshire, 1247). 164 11 CRR, no. 1115 (Mich. 1223) (plaintiff brings covenant, admits he had been seised by grantor-defendant until disseised by him, and is told to bring novel disseisin). 165 One could claim commons by specialty or as appendant to lands of which the claimant was seised. See YB 2 Edw. II, 17 SS 55 (1308–9); Abbot of Warden v. Cheny and Northbrook, YB Trin. 5 Edw. II, 33 SS 146 (1312); Alsop v. Abbot of Burton-Upton-Trent, YB Pas. 7 Edw. II, 39 SS 115 (1314); Charneles v. Parson of Partney, YB Mich. 11 Edw. II, 61 SS 64 (1317). 166 Pleseley v. Spalding, YB Mich. 4 Edw. II, 22 SS 52 (1310); YB Mich. 4 Edw. II, 22 SS 145 (1310); Bere v. Anon. YB Hil. 4 Edw. II, 26 SS 29 (1311). 167 De Donis Conditionalibus, 13 Edw. I, c. 1, 1 Statutes of the Realm, 71–72 (1285). 168 CP40/96, m. 216d (Mich. 1292), BL Add. Ms. 31826, ff. 59–60, BL Harley Ms. 25, ff. 81v–82v. 169 CP40/135, m. 330d (Mich. 1301), BL Stowe Ms. 386, f. 127; YB Mich. 8 Edw. II, 37 SS 204 (1314); YB Hil. 14 Edw. II, f. 424 (1321); YB Hil. 17 Edw. II, f. 526 (1324); YB Mich. 18 Edw. II, f. 571 (1324); YB Trin. 18 Edw. II, f. 621 (1325). 170 15 CRR, no. 1365 (Hil. 1235). 171 JUST 1/561, m. 51 (Norfolk, 1250). The entry says that plaintiffs proffered "nullum scriptum nec aliquod ostendunt." Plaintiff had demanded whether plaintiffs "aliquam cartam vel scriptum habeant," which demand excludes suit. 172 JUST 1/275, m. 34d (Gloucestershire, 1268–69). 173 JUST 1/1050, m. 78 (Yorkshire, 1268); JUST 1/84, m. 8 (Cambridgeshire, 1272). 174 CP40/95, m. 25 (Trin. 1292). 175 It was a good objection to a charter to say that the grantee never had seisin under the charter. E.g., 5 CRR, p. 272 (Trin. 1208); 8 CRR, pp. 7–8 (Mich. 1219); 13 CRR, no. 2073 (Pas. 1229); YB (RS) 20–21 Edw. I 32 (Hereford, 1292); De la Sale v. Bloxham and Miltcombe, YB Mich. 6 Edw. II, 34 SS 35 (1312–13). 176 JUST 1/84, m. 8 (Cambridgeshire, 1272). 177 JUST 1/1045, m. 32 (Yorkshire, 1246). 178 8 CRR, pp. 92–93 (Mich. 1219); 15 CRR, no. 1365 (Hil. 1235); JUST 1/84, m. 8 (Cambridgeshire, 1272). 179 1 Early English Law Reports 180 (1284). 180 Milsom, Legal Framework, 30–33, 129. 181 9 CRR, p. 253 (Mich. 1220); JUST 1/80, m. 3d (Cambridgeshire and Middlesex, 1235); JUST 1/701, m. 14d (Oxfordshire, 1261); KB26/171, m. 65d (Mich. 1261); JUST 1/787, m. 44d (Hampshire, 1280–81). 182 JUST 1/80, m. 4 (Cambridgeshire and Middlesex, 1235); JUST 1/701, m. 8 (Oxfordshire, 1261); JUST 1/1050, m. 21d (Yorkshire, 1268); YB (RS) 33–35 Edw. I 136 (Hil. 1306). 183 JUST 1/80, m. 4 (Cambridgeshire and Middlesex, 1235). 184 4 CRR, p. 93 (Pas. 1206); Bedfordshire Eyre, no. 136 (1247); KB26/169, m. 17 (Mich. 1260); JUST 1/5, m. 4d (Bedfordshire, 1262) (sheriff to distrain defendant to acquit plaintiff in future); JUST 1/363, m. 28d (Kent, 1262–63); JUST 1/1050, m. 15 (Yorkshire, 1268); JUST 1/483, m. 5d (Lincolnshire, 1271–72); JUST 1/238, m. 34 (Essex, 1272); JUST 1/84, m. 10 (Cambridgeshire, 1272); JUST 1/763, m. 15 (Somerset, 1280); JUST 1/325, m. 8 (Hertfordshire, 1287) (sheriff to distrain defendant to acquit plaintiff in future). 185 12 CRR, no. 2423, BNB, no. 1239 (Pas. 1226); 15 CRR, no. 1662 (Pas. 1236); 17 CRR, no. 1147 (Mich. 1242); JUST 1/1045, m. 41 (Yorkshire, 1246); Berkshire Eyre, no. 9 (1248); JUST 1/231, m. 14 (Essex, 1248); JUST 1/273, m. 16d (Gloucestershire, 1248); JUST 1/318, 2d (Hertfordshire, 1248); Shropshire Eyre, no. 297 (1256); JUST 1/701, m. 8 (Oxfordshire, 1261); KB26/194, m. 8 (Mich. 1269); JUST 1/178, m. 18d (Devon, 1269–70); JUST 1/183, m. 10 (Devon, 1281–82); JUST 1/183, m. 10d (Devon, 1281–82); CP40/49, m. 20 (Pas. 1282); CP40/69, m. 151 (Mich. 1287); JUST 1/408, m. 51 (Lancashire, 1292). BL Add. Ms. 31826, f. 233r. In one case, plaintiff received damages although the term had not expired. CP40/144, m. 187d (Mich. 1302). In this case, defendant admitted the lease and the ejectment but disputed only the annual value of the land. The judgment was in accordance with the sheriff's valuation. It might well have been the case that the parties had agreed on damages, in effect defendant lessor buying out the lessee, but could not agree on the amount. 186 JUST 1/701, m. 8 (Oxfordshire, 1261). 187 CP40/11, m. 36 (Mich. 1275); JUST 1/1011, m. 32 (Wiltshire, 1289); CP40/148, m. 143 (Trin. 1303); YB (RS) 32–33 Edw. I 474 (Pas. 1305). BL Add. Ms. 31826, f. 237r. 188 JUST 1/302, m. 46d (Herefordshire, 1292) (lost by judgment); CP40/11, m. 36 (Mich. 1275) (lessor alienated); BL Ms. 31826, f. 233 (sets forth the rules in both the case where the lessor has the land and the case where the lessor has alienated the land). 189 JUST 1/359, m. 24 (Kent, 1241). 190 YB Mich. 7 Edw. III, f. 65, pl. 67 (1333); YB Mich. 47 Edw. III, f. 12, pl. 11 (1373); YB Mich. 47 Edw. III, f. 24, pl. 61 (1373). 191 Early Registers of Writs, 93, 285. 192 BNB, no. 1140 (1235); JUST 1/174, m. 8d (Devon, 1238). For the possible origin of the writ, see Milsom, "Trespass," 5–6. For later cases, see JUST 1/820, m. 9 (Suffolk, 1257); JUST 1/912A, m. 15 (Sussex, 1262); JUST 1/1050, m. 57 (Yorkshire, 1268); JUST 1/483, m. 52 (Lincolnshire, 1271–72); JUST 1/982, m. 5 (Westmoreland, 1278–79); CP40/47, m. 63 (Mich. 1283); JUST 1/956, m. 20 (Wiltshire, 1285); CP40/144, m. 168 (Mich. 1302); CP40/144, m. 299d (Mich. 1302); YB (RS) 30–31 Edw. I 282 (Cornwall, 1302); CP40/162, m. 181 (Hil. 1307); CP40/180, m. 99 (Hil. 1310). 193 Early Registers of Writs, xv, n. 2, 93, 285. 194 S. E. Thorne, ed. and trans., Bracton de Legibus et Consuetudinibus Angliae (Cambridge: Harvard University Press, 1968, 1977), 3: 161–62. 195 The relationship between the two writs has been unclear since the fourteenth century. For two attempts to clarify their relationship, see Milsom, "Tresspass," 5–6, and M. S. Arnold, "Fourteenth Century Promises," Cambridge Law Journal 35 (1976), 323–25. 196 CP40/47, m. 63 (Mich. 1283); YB 4 Edw. II, 42 SS 181 (1310–11); YB Mich. 33 Hen. VI, f. 42, pl. 19 (1454). A note at BL Add. Ms. 31286, f. 235v explains that plaintiff recovers the term unless it has expired, in which case he recovers damages. 197 Bracton, 3: 161–62. 198 Early Registers of Writs, 93, 285. 199 E.g., CP40/11, m. 36 (Mich. 1275); JUST 1/457, m. 7 (Leicestershire, 1284); JUST 1/622, m. 41 (Northamptonshire, 1285); CP40/212A, m. 144 (Mich. 1315). 200 JUST 1/779A, m. 30d (Hampshire, 1272); CP40/5, m. 16d (Mich. 1274); JUST 1/1062, m. 28d (Yorkshire, 1281); CP40/64, m. 124d (Mich. 1286). 201 JUST 1/1067, m. 35d (Yorkshire, 1279–81); JUST 1/1005, pt. 1, m. 13d (Wiltshire, 1281). 202 JUST 1/363, m. 25d (Kent, 1262–63); YB Hil. 46 Edw. III, f. 4, pl. 12 (1373). 203 See Milsom, "Trespass," 4–8. 204 Early Registers of Writs, 241, 285–86. 205 Bracton, 3: 161–62. 206 JUST 1/3, m. 9 (Bedfordshire, 1240). 207 JUST 1/408, m. 90 (Lancashire, 1292). 208 In Brancastre et al. v. Master of Royston, YB Pas. 6 Ric. II 208 (1383), Yearbooks of Richard II: 6 Richard II, ed. Samuel Thorne, Michael Hager, Margaret Thorne, and Charles Donahue (Cambridge, Mass.: The Ames Foundation, Harvard Law School, 1996). Chief Justice Bereford said that plaintiff in ejectione firme did not recover his term as he would in covenant. Six years later, however, a plaintiff did recover his term. Arnold, "Fourteenth Century Promises," 325. And so Fairfax thought in 1467. YB Pas. 7 Edw. IV, f. 5, pl. 16 at f. 6 (1467) (per Fairfax). 209 JUST 1/616, m. 3d (Northamptonshire, 1261–62); YB (RS) 30–31 Edw. I 142 (Cornwall, 1302); BL Add. Ms. 31826, ff. 281v–282. 210 Berenger v. Barton, YB 4 Edw. II, 42 SS 198 (1310–11). 211 BNB, no. 847 (Pas. 1234). 212 KB26/171, m. 63 (Mich. 1261). 213 Early Registers of Writs, 93. 214 See below, 51, and note 264–66. 215 Warton v. Farnel, YB Pas. 4 Edw. II, 26 SS 148 (1311). 216 13 CRR, no. 1959 (Pas. 1229); JUST 1/175, m. 15d (Devon, 1238). 217 13 CRR, no. 1959 (Pas. 1229); CP40/64, m. 109 (Mich. 1286); CP40/149, m. 130 (Mich. 1304). 218 JUST 1/174, m. 15d (Devon, 1238). 219 2 CRR, pp. 203–4 (Pas. 1203); 10 CRR, pp. 73–75 (Pas. 1221); 18 CRR, no. 710 (1243–44); JUST 1/5, m. 5 (Bedfordshire, 1262); Early Registers of Writs, 239–40. The writ could also be used against the grantor of the wardship. 12 CRR, no. 1844 (Hil. 1226). 220 JUST 1/1046, m. 48 (Yorkshire, 1251–52); JUST 1/408, m. 26 (Lancashire, 1292). 221 16 CRR, no. 293 (Hil. 1238). 222 JUST 1/929, m. 25d (Sussex, 1288); CP40/110, m. 71 (Mich. 1295); CP40/110, m. 109d (Mich. 1295). 223 JUST 1/929, m. 25d (Sussex, 1288). 224 CP40/110, m. 109d (Mich. 1295). 225 JUST 1/683, m. 102 (Nottinghamshire, 1329–30). 226 11 CRR, no. 1675 (Trin. 1224), 12 CRR, no. 1915 (Hil. 1226). 227 Buckland v. Leonore, 2 Kent Eyre 9 (1313–14). 228 Pessindenne v. Potter, 2 Kent Eyre 12 (1313–14). 229 Bedfordshire Eyre, no. 61 (1247); JUST 1/82, m. 8 (Cambridgeshire, 1261); JUST 1/363, m. 8 (Kent, 1262–63); CP40/138, m. 142d (Pas. 1301). In one case the court awarded damages for defendant-lessee's failure to acquit plaintiff-lessor against creditors and for his failure to work the land. JUST 1/82, m. 9d (Cambridgeshire, 1261). 230 JUST 1/561, m. 48d (Norfolk, 1250); JUST 1/822, m. 32 (Suffolk, 1286–87). 231 JUST 1/68A, m. 10 (Buckinghamshire, 1286). 232 E.g., BNB, no. 946 (Pas. 1224); CP40/19, m. 16d (Pas. 1277); JUST 1/323, m. 30 (Hertfordshire, 1278); JUST 1/1062, m. 40 (Yorkshire, 1279–81); CP40/75, m. 166 (Mich. 1288); JUST 1/302, m. 14 (Herefordshire, 1292); CP40/179, m. 262d (Mich. 1309). 233 See W. H. Dunham, ed., The Casus Placitorum and Reports of Cases in the King's Court, 1272–1278, Publications of the Selden Society, vol. 69 (1950), 41 (if lessee dies within term or term expires debt is the proper writ). 234 JUST 1/818, m. 40d (Suffolk, 1240); 17 CRR, no. 1318 (Hil. 1243); 17 CRR, no. 2029 (Pas. 1443); JUST 1/361, m. 13 (Kent, 1255); JUST 1/82, m. 9d (Cambridgeshire, 1261). 235 Scott Waugh, "Tenure to Contract: Lordship and Clientage in Thirteenth-Century England," English Historical Review 101 (1986): 830, n. 2. 236 JUST 1/361, m. 5 (Kent, 1255). 237 JUST 1/818, m. 40d (Suffolk, 1240); 17 CRR, no. 2029 (Pas. 1443). 238 17 CRR, no. 1318 (Hil. 1243). 239 Defendant to writ of annuity denies arrears and court awards payment of arrears to the date of judgment: JUST 1/482, m. 23 (Lincolnshire, 1245); KB26/169, m. 8 (Mich. 1260); JUST 1/178, m. 12 (Devon, 1269–70); JUST 1/84, m. 5d (Cambridgeshire, 1272); CP40/11, m. 11 (Mich. 1275); JUST 1/1062, m. 18 (Yorkshire, 1279–81); CP40/75, m. 75 (Mich. 1288); JUST 1/408, m. 27 (Lancashire, 1292); YB (RS) 21–22 Edw. I 410 (Middlesex, 1294); YB (RS) 33–35 Edw. I 406 (Hil. 1307). See Henkeston v. Gosfield, YB Mich. 3 Edw. II, 19 SS 125 (1309). Defendant denies annuity and court orders that plaintiff is to have seisin of the rent plus arrears and damages. JUST 1/482, m. 28 (Lincolnshire, 1245); KB 26/169, m. 67d (Mich. 1260); JUST 1/912A, m. 13 (Sussex, 1262); JUST 1/912A, m. 14d (Sussex, 1262); JUST 1/1050, m. 20d (Yorkshire, 1268); JUST 1/178, m. 9d (Devon, 1269–70); JUST 1/178, m. 23d (Devon, 1269–70); JUST 1/238, m. 4 (Essex, 1272); CP40/8, m. 12d (Hil. 1275). 240 CP40/75, m. 166 (Mich. 1288); YB (RS) 21–22 Edw. I 34 (1293); YB (RS) 21–22 Edw. I 110 (1293); Gerwyn v. Barton, 2 Kent Eyre 28 (1313–14); 2 Kent Eyre 33 (1313–14); LeGros v. Histon, 2 London Eyre 243 (1321). 241 YB Mich. 10 Edw. II, 52 SS 156 (1316). 242 18 CRR, no. 1756 (Mich. 1245); JUST 1/318, m. 28 (Hertfordshire, 1248); JUST 1/1046, m. 23d (Yorkshire, 1251–52); JUST 1/872, m. 6 (Surrey, 1256); JUST 1/718, m. 16 (Hampshire, 1256); JUST 1/82, m. 1d (Cambridgeshire, 1261); JUST 1/365, m. 88 (Kent, 1271); CP40/15, m. 89d (Trin. 1276); CP40/19, m. 39 (Pas. 1277); JUST 1/323, m. 11 (Hertfordshire, 1278); JUST 1/914, m. 6 (Sussex, 1279); JUST 1/763, m. 31d (Somerset, 1280); JUST 1/1005, pt. 1, m. 90 (Wiltshire, 1281); CP40/153, m. 436 (Mich. 1305). 243 But the writ of annuity could also be used to recover an annual rent in kind. E.g., JUST 1/538, m. 1d (Middlesex, 1274); CP40/110, m. 28 (Mich. 1295); CP40/121, m. 55 (1297). 244 JUST 1/778, m. 16 (Hampshire, 1256); CP40/19, m. 39 (Pas. 1277). 245 JUST 1/914, m. 6 (Sussex, 1279); JUST 1/1005, pt. 1, m. 90 (Wiltshire, 1281). 246 JUST 1/318, m. 28 (Hertfordshire, 1248). 247 Plaintiffs produced writings in many cases of annuity including the following: JUST 1/787, m. 29 (Hampshire, 1280–81); JUST 1/709, m. 2 (Oxfordshire, 1285); CP40/75, m. 75 (Mich. 1288); CP40/93, m. 19 (Pas. 1292); JUST 1/408, m. 27 (Lancashire, 1292). Plaintiff relied on seisin in the following cases: JUST 1/361, m. 14 (Kent, 1255); JUST 1/912A, m. 14d (Sussex, 1262); CP40/8, m. 12d (Hil. 1275); YB (RS) 33–35 Edw. I 478 (Pas. 1307). A note in 1294 said that plaintiff could either produce a writing or plead that defendant was seised of plaintiff's homage. YB (RS) 21–22 Edw. I 514 (Middlesex, 1294). Whether plaintiff's allegation that he had been seised of the annuity was sufficient was debated in JUST 1/68A, m. 15 (Buckinghamshire, 1286) without judgment rendered on the point. According to one school of thought that emerged in the 1280s, plaintiff had to proffer a writing. 1 Earliest English Law Reports 144 at 145 (1284) (Brompton, J.). 248 YB Mich. 4 Edw. III, f. 57, pl. 5 (1331), 7 Edw. III, f. 65, pl. 67 (1334). 249 Ibid. 250 See above, 35–38, and notes 160–79. 251 JUST 1/818, m. 7 (Suffolk, 1240); JUST 1/359, m. 24 (Kent, 1241); JUST 1/1045, m. 34d (Yorkshire, 1246); Bedfordshire Eyre, no. 70 (1247); Berkshire Eyre, no. 444 (1248); JUST 1/561, m. 32 (Norfolk, 1250); JUST 1/561, m. 51 (Norfolk, 1250); JUST 1/872, m. 19 (Surrey, 1255); JUST 1/998A, m. 19d (Wiltshire, 1268); JUST 1/483, m. 17 (Lincolnshire, 1271–72). 252 JUST 1/709, m. 11d (Oxfordshire, 1285). 253 17 CRR, no. 853 (1242). 254 JUST 1/359, m. 24 (Kent, 1241). 255 Bedfordshire Eyre, no. 382 (1247). 256 Statute of Wales, 12 Edw. I, c. 10, 1 Statutes of the Realm 66 (1284). 257 JUST 1/622, m. 23 (Northamptonshire, 1285). 258 JUST 1/709, m. 11d (Oxfordshire, 1285). 259 JUST 1/408, m. 61 (Lancashire, 1292). 260 JUST 1/275, m. 34d (Gloucestershire, 1268–69). 261 15 CRR, no. 1365 (Hil. 1235). So the case was read in Note [Philbin], "Proving the Will of Another," 2003–4. 262 G. J. Turner and T. F. T. Plucknett, eds., Brevia Placitata, Publications of the Selden Society, vol. 66 (1947), 204. 263 JUST 1/1063, m. 11 (Yorkshire, 1279–81); 1 Earliest English Law Reports 180, CP40/55, m. 90 (Mich. 1284). 264 a) JUST 1/982, m. 24d (Westmoreland, 1278–79); JUST 1/622, m. 3 (Northamptonshire, 1285); JUST 1/622, m. 23 (Northamptonshire, 1285); CP40/80, m. 71 (Mich. 1289) (plaintiff may not recover freehold because writ of covenant is "breve de trangressione"); JUST 1/134, m. 7 (Cumberland, 1292–93); YB (RS) 21–22 Edw. I 182 (1293); YB (RS) 21–22 Edw. I 494 (Middlesex, 1294). BL Add. Ms. 31826, ff. 235v, 303v.      b) In the following cases the argument appears in the reports but not in the records. CP40/144, m. 337d (Mich. 1302), LI Misc. Ms. 738, f. 35r, BL Hargrave Ms. 375, f. 76v, BL Harley Ms. 25, f. 198v; CP40/149, m. 158 (Mich. 1304), YB (RS) 32–33 Edw. I 199–201; LI Misc. Ms. 738, f. 27r; BL Hargrave Ms. 375, f. 10v; CP40/158, m. 157 (Hil. 1306), LI Misc. Ms. 738, f. 47r, BL Hargrave Ms. 375, f. 138r, BL Harley Ms. 25, f. 197r; CP40/162, m. 195 (Hil. 1307), BL Hargrave Ms. 375, f. 178r; BL Harley Ms. 35, f. 197v. I am grateful to Paul Brand for providing me with transcriptions of all the above cited unpublished reports. 265 JUST 1/982, m. 24d (Westmoreland, 1278–79). 266 JUST 1/622, m. 3 (Northamptonshire, 1285); JUST 1/622, m. 23 (Northamptonshire, 1285); JUST 1/134, m. 7 (Cumberland, 1292), BL Add. Ms. 31826, f. 324; BL Add. Ms. 31826, f. 235v. 267 JUST 1/622, m. 3 (Northamptonshire, 1285). 268 JUST 1/709, m. 11d (Oxfordshire, 1285). 269 YB (RS) 21–22 Edw. I 598 (1294). 270 The four cases are cited above in note 264, b). The search of the plea rolls for the Court of Common Pleas covered the following plea rolls: CP40/138 (Pas. 1301); CP40/139 (Trin. 1301); CP40/141 (Hil. 1302); CP40/144 (Mich. 1302); CP40/148 (Trin. 1303); CP40/145 (Mich. 1303); CP40/152 (Trin. 1304); CP40/149 (Mich. 1304); CP40/155 (Pas. 1305); CP40/156 (Trin. 1305); CP40/153 (Mich. 1305); CP40/158 (Hil. 1306); CP40/159 (Pas. 1306); CP40/163 (Trin. 1306); CP40/161 (Mich. 1306); CP40/162 (Hil. 1307); CP40/164 (Trin. 1307); CP40/173 (Mich. 1308); CP40/178 (Trin. 1309); CP40/179 (Mich. 1309); CP40/180 (Hil. 1310); CP40/183 (Mich. 1310). The plea rolls CP40/140 (Mich. 1301) and CP40/168 (Mich. 1307) were unfit for production. 271 JUST 1/134, m. 7 (Cumberland, 1292–93). This case is discussed in Ibbetson, "Words and Deeds," 74. 272 BL Ms. Harley 25, f. 197v. 273 For lords demanding entry fines after Quia Emptores until 1315, see J. M. W. Bean, The Decline of English Feudalism, 1215–1540 (Manchester: Manchester University Press, 1968), 88–92. 274 CP40/149, m. 158 (Mich. 1304), YB (RS) 32–33 Edw. I 199–201, LI Misc. Ms. 738, f. 27r, BL Hargrave 375, f. 10v. The case is discussed above, 14–15. 275 JUST 1/739, m. 18 (Shropshire, 1292), BL Add. Ms. 31826, f. 324. This case is discussed in Ibbetson, "Words and Deeds," 74. 276 YB (RS) 22–22 Edw. I 494 (Middlesex, 1294). 277 CP40/144, m. 337d (1302), LI Misc. Ms. 738, f. 35r, BL Hargrave Ms. 375, f. 76v, BL Harley Ms. 25, f. 198v. 278 CP40/95, m. 25 (Trin. 1292). 279 CP40/162, m. 195 (Hil. 1307), BL Hargrave Ms. 375, f. 178v. 280 YB Pas. 18 Edw. II, f. 602 (1325). 281 Statute of Marlborough, 52 Hen. III, c. 6, 1 Statutes of the Realm 20–21 (1267). The statute prohibited terms of years at no rent until the time when the child was likely to be of age and then at a rent so high that no one would want to hold them at the stated rent. 282 CP40/158, m. 157 (Hil. 1306), YB 33–35 Edw. I 139 (Hil. 1306); LI Misc. Ms. 738, f. 47r, BL Hargrave Ms. 375, f. 138r, BL Harley Ms. 25, f. 197r. 283 W. T. Barbour, "The History of Contract in Early English Equity," in Oxford Studies in Social and Legal History (Oxford: Oxford University Press, 1914), 4: 120–23. 284 The authorities on conditional bonds are A. W. B. Simpson, "The Penal Bond with Conditional Defeasance," in Legal Theory and Legal History (London: Hambledon Press, 1987), 111–114; Simpson, History, 90–126; Palmer, English Law, 62–91. 285 JUST 1/802, m. 33d (Staffordshire, 1272). Later cases are CP40/80, m. 71 (Mich. 1289); CP40/153, m. 133 (Mich. 1305). 286 JUST 1/375, m. 82 (Kent, 1293–94). 287 CP40/75, m. 38d (Mich. 1288). 288 CP40/121, m. 295–295d (Mich. 1297); CP40/158, m. 188d (Hil. 1306). 289 CP40/183, m. 308d (Mich. 1310). 290 JUST 1/622, m. 52d (Northamptonshire, 1285). 291 CP40/145, m. 142 (Mich. 1303). 292 Hotot v. Rychemund, YB Mich. 4 Edw. II, 22 SS 199 (1310). 293 Glanvill, 126.

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