|
|
|
Actions of Covenant, 12001330
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 (197273). |
|
| 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. 13131314, 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 127172.90
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 127981.93
In actions of replevin, wager of law did not appear much beyond
the Lincolnshire Eyre of 127172.94
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 13291330, 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 13131314, 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 124344 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
| |