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English Legal History
3/16/2009
Outline
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TORT AND CONTRACT:
THE ORIGINS OF THE ACTION OF TRESPASS AND CASE
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1.
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Property, tort and contract in modern legal thought
Anglo-American law traditionally makes a sharp distinction
between real property, property in land, and personal property, property in
chattels, like a watch. The law of torts is divided into two broad
categories, intentional torts, like assault, and negligence, like an auto
accident. Contracts are imagined as promises made legally binding because
they involve a bargained for exchange, normally of a promise for a counter
promise.
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2.
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Trespass takes over (dates approximate at best)
1300—debt, detinue, covenant, account, and trespass vi et armis
1370—trespass vi et
armis—>action on the case
1500—action on the case in assumpsit
substitutes for covenant
1550—trespass vi et armis in ejectment substitutes
for real actions
1600—action on the case in assumpsit
substitutes for debt
1600—action on the case in trover substitues for detinue
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3.
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Where shall we seek the origins of trespass?
Anglo-Saxon origins of trespass
Mid–13th century origins of trespass
18th century origins of trespass
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4.
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Trepass—the tyranny of a word
“forgive us our tespasses”
felonious or non-felonious (trespass—>misdemeanor)
plea of the crown or not (contra pacem, usually vi et armis
public proceedings (indictment) vs. private proceedings
(appeal)
appeal of felony vs. appeal of trespass
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5.
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Early 14th century obscurity
Ferrers v.
Dodford (1307), Mats, p. VII–18
Humber Ferryman (1348), Mats, p. VII–19
Brainton v. Pinn (1372), Mats.,
p. VII–23
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7.
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Late 14th century developments
The Miller’s Case (1367), Mats. p. VII–20
Innkeeper’s Case, (1369), Mats. p. VII–21
Waldon v.
Marshall
(1370), Mats., p. VII–23
The Farrier’s
Case (1372), Mats., p. VII–23 (again)
Surgeon’s Case (1375), Mats., p. VII–24
Berden v. Burton (1382), Mats., p. VII–24
Anon. (1390), Mats., p. VII–27
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8.
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Explanations
Inflation
The decline of the county
The problem of capias
The Black Death
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See below for the text of the
cases we will be discussing. We may not be able to discuss all of them in
class, but they are good for self-testing.
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1.
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Entries 16 & 18 (p. IV–31) in the Polstead saga: “Walter de Grancurt
brings a plea against Hugh de Polestead about why (ostensurus quare)
he made his grandaughter a nun.”
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2.
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Writ of trespass from the register (p. VII–17): “If A. shall give you
security for pursuing his claim, then put by gage and safe pledges B. that
he be before our justices at Westminster on the octave of St. Michael to
show wherefore (ostensurus quare) with force and arms (vi et armis) he made an assault upon
the same A. at N. and beat wounded and ill-treated him so that his life was
despaired of, and other outrages there did to him, to the grave damage of
the same A. and against our peace (contra
pacem).”
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3.
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Ferrers v. Dodford (1307 Mats,
p. VII–18): “whereas lately the king had by his letters ordered his beloved
and faithful John de Ferrers to come quickly to him with horses and arms on
his Scottish expedition to assist him with his aforesaid expedition and the
same John, getting ready to come to the aforesaid parts, had bought at
Dodford a certain horse for a certain great sum of money from the aforesaid
John, vicar of the church of Dodford, trusting in the same John’s words,
for he put that horse up for sale under guarantee, affirming by corporal
oath taken at Dodford before trustworthy men that the same horse was
healthy in all its limbs and unmaimed.”
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4.
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The Humber Ferryman, (1348 Mats., p. VII–19): “John de [Bukton]
complains by bill that [Nicholas atte Tounesende] on a certain day and year
at B. upon Humber had undertaken to carry his mare in his boat across the
River Humber safe and sound, and yet the said [Nicholas] overloaded his
boat with other horses, as a result of which overloading his mare perished,
wrongfully and to his damage.”
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5.
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Brainton v. Pinn (1290, Mats.,
p. VII–17): “Why they burnt the houses of Walter at Howley and his goods
and chattels to the value of 200 pounds. (bill)
“By their foolishness and lack of care and through a badly guarded candle
they burned the aforesaid houses, along with all his goods. (count)
“If any damage happened to the houses and other goods of that Walter
through fire or other means, that was by accident and not by any lack of
care or wickedness on their part.” (plea)
The steward of the plaintiff did not let the defendants put out the candle.
(jury verdict)
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6.
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Rattlesdene v. Grunestone (1317, Mats., p. VII–19: “The defendants drew out a great part of that
wine from the aforesaid tun ... with force and arms, to wit, swords and
bows and arrows etc., and filled up that tun with salt water in place of
that wine thus drawn out, whereby the whole of the aforesaid wine perished
etc.”
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7.
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The Farrier’s Case (1372, Mats., p. VII–22): ““Trespass was
brought against a farrier for that he had lamed his horse, and the writ
contained the words ‘Why he fixed a nail in the foot of his horse in a
certain place by which he lost the profit of his horse for a long time’,
etc.
“Persay. He has brought a writ of trespass against us and it does
not contain the words vi et armis: judgment of the writ.
“Finchedon, C.J. He has brought his writ on his case so his
writ is good.
“Persay. The writ should say vi et armis or ‘he wickedly
fixed it’, and it has neither the one nor the other: judgment. Also he has
not supposed in his count that he bailed us the horse to shoe; so otherwise
it should be understood that if any trespass was done, it should be against
the peace; wherefore judgment.
“And then the writ was adjudged good, and issue was joined that he shod the
horse, without this, that he lamed it, etc.”
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8.
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The Miller’s Case (1367, Mats. p. VII–20): “A writ of trespass
on the case was brought against a miller, and the plaintiff counted that, whereas
he was accustomed to grind his grain at the mill of T. for himself and his
ancestors for all time without fee (toll) and he had brought his grain
there to be ground, the defendant came and took two bushels’ weight with
force and arms, etc. And the writ
ran: That whereas the aforesaid John, etc, and his ancestors from a time
the memory of which runneth not to the contrary could grind without fee
(toll), etc., the aforesaid defendant, etc., impeded the aforesaid
complainant from grinding without fee (toll) by force and arms, etc.
“Cavendish. You see well how the writ runs, that he will not
suffer him to grind without fee (toll), and he has declared in his count
that he took a fee (toll); and in this case he should have a general writ
that he carried off the corn with force and arms, and not this writ:
judgment of the writ.
“Belknap. The writ is taken on my matter, and, if he has taken a
fee (toll) where he should not have taken it, I shall have a writ against
him.
“THORPE,
C.J. You shall have quod permittat
against the tenant of the soil and thus it shall be tried, and not on a
writ against the defendant. [Quod
permittat: ‘The king to the sheriff
greeting. Command B. that justly
etc. he permit A. to grind his demesne wheat at the mill of the said B.
quit of multure as he ought to do, as he says. And if he does not etc. Witness etc.’ Early
Registers of Writs, G.D.G. Hall, ed. (SS no. 87, 1970) CC 120 at 96.]
“Belknap. If a market be set up to the nuisance of my market, I
shall have against him such a writ of quod
permitat; but if a stranger disturbs folks (gents) so that they cannot come to my market, I shall have
against him such a writ as this and shall make mention of the
circumstances; and so here I shall have a writ of trespass against him,
because I cannot have quod permittat.
“WICHINGHAM,
J. Suppose he had taken all your grain (corn) or the half of it, should you
have such a writ as this, because he had taken more than he should take by
way of toll? You should not have it, but a common writ of trespass; and so
you shall have here. Therefore take
nothing by your writ.”
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9.
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The Innkeeper’s Case (1368, Mats. p. VII–21): “Trespass was brought
by one W. against one T., an innkeeper, and his servants; and he counted
that, whereas throughout the whole kingdom of England it was the custom and
use, where a common inn was kept, that the innkeeper and his servants
should keep the goods and chattels which their guests had in their rooms
within the inn while they were lodged there, the said W. came there on such
a day, etc., into the town of Canterbury to the said T. and there lodged
with him together with his horse and other goods and chattels, to wit,
clothes, etc. and twenty marks of silver in a purse, and he took a room
there and put these goods and chattels and the silver in the room, and then
went into the town for other things; and while he was in the town, the said
goods and chattels and silver were taken out of his room by evildoers
through the default of the innkeeper and his servants in keeping them,
wrongully and against the peace, to his damage, etc. And he had a writ on all the matter
according to the case.
“And the innkeeper demanded judgment, because he had not alleged in his
count, nor in his writ, that he had delivered to him the goods and silver,
nor that the goods were taken by them, so that he had supposed no manner of
blame in them; and also he had delivered to him a key of his room to keep
the goods therein; and he asked judgment if this action lay; and on this
matter they demurred.
“And it was adjudged by KNIVET, CJ, that the plaintiff should recover against
them. And the court taxed the
damages, and he will not get the damages just as he counted them.”
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10.
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Waldon (1370, Mats., p. VII–22): “William Waldon
brought a writ against one J. Marshall [the word means horse doctor, i.e.,
veternarian], and alleged by his writ that the aforesaid John took in his
hand the horse of the aforesaid William to cure it of its infirmity, and afterwards
the aforesaid John so negligently did his cure that the horse died.
“Kirton. We challenge the writ, because it makes mention of contra
pacem, and in his count he has counted of his cure so negligently so
that the horse died, so that he should not have said ‘against the peace.’
“And the judges were of opinion that the writ was ill framed. And then the writ was read, and he had
not said contra pacem in the writ, and the writ was held to be good.
“Kirton. Because he has counted that he had undertaken to cure his
horse of his malady, for which he should have had an action of covenant,
judgment of the writ.
“Belknap. That we cannot have without a deed (a writing under seal);
and this action is brought because you did your cure so negligently that
the horse died, wherefore it is right to maintain this special writ
according to the case; for we can have no other writ.
“Kirton. You could have a writ of trespass, that he killed your
horse, generally.
“Belknap. A general writ we could not have had, because the horse
was not killed by force, but died by default of his cure. ...
“And then the writ was adjudged good. ...”
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11.
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The Farrier’s Case, (1372, Mats., p. VII–22) (again).
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12.
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The Surgeon’s Case (1375, Mats., p. VII–24): “A man brought a
writ of trespass on his case against one J. M., surgeon, and the writ ran
thus, that, whereas the plaintiff’s right hand was wounded by one T. B.,
the defendant undertook to cure him of his malady in his hand, but that by
the negligence of the said J. and his cure, the hand was so injured that he
was maimed wrongully and to his damage.
And note that in this writ there was no mention in what place he
undertook, etc., but in his count he declared that he undertook in London
in Tower Street in the parish of B.
And the writ was not vi et
armis nor contra pacem, etc.
“Gascoigne. He did not undertake to cure him of the malady, as
he has alleged: ready to wage our law.
“Honnington. This is an action of trespass and of a matter which
lies within the cognisance of the country, in which case wager of law is
not to be granted: wherefore, for default of answer, we demand judgment and
pray our damages.
“CAVENDISH,
C.J. This writ does not allege ‘force and arms’ nor ‘against the peace,’ so
that wager of law is to be allowed. ...
And this is the opinion of the whole court. ...”
[The case was then adjourned.]
“Afterwards he waived the tender of law and said that he did not undertake
to cure his hand: ready, etc.
“Issue was joined on this.
“Gascoigne. Now, Sir, you see well that the writ does not
mention in what place he undertook to cure him, so that the writ is
defective in this matter, for the court cannot know from what neighbourhood
the jury shall come.
“Persay. He has not defined the place in his writ; wherefore we
demand judgment of the writ.
“Honnington. Because we have assigned in our count the place
where he undertook our cure, therefore, though it is not mentioned in the
writ, it is yet sufficient to bring together the jury from the place where
we have affirmed the undertaking to have been made. Wherefore judgment if our writ be not
good.
“CAVENDISH,
C.J. At this stage it is seasonable to challenge the writ for that he has
not assigned the place of the undertaking, because it is necessary to
summon the jury from that place; but if he had waged his law according to
our first issue, then it would not have been necessary to have assigned a
place in the writ. Moreover, this
action of covenant of necessity is maintained without specialty, since for
every little thing a man cannot always have a clerk to make a specialty for
him. ...
“And then, because the place was not named in the writ where the cure was
said to have been undertaken, the action abated. And the plaintiff was in mercy.”
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13.
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Berden v. Burton (1382, Mats.,
VII–24): “A man brought a writ of trespass against Davy Houlgrave
and Thomas de Burton and twelve others for his house burnt and broken, his
servants beaten and maltreated, twelve oxen and a hundred sheep taken and
driven off, and other goods and chattels taken and carried away, and other
wrongs etc., to his damage etc. …
“And as to the arson of the houses, the defendants showed how after the
distress, which was taken in the morning, some of the servants came after
the defendants, and others remained inside the manor; thus the burning
which was done was by reason of the negligence of the servants inside, who
should have watched the fire. And
they asked judgment whether etc. And
he also showed the court that he came at the third hour with the constable
of the town without any more people.
Holt (for the plaintiff). We say that they came with a great
assembly and multitude of armed men and entered the manor and in the
morning before sunrise, broke the doors and then entered the hall and
threatened the servants, with the result that the servants were in fear of
death and let the fire lie unattended and did not dare to return. Thus it was the fault of the defendants
that the manor burned. And we ask
judgment etc.
“Burgh. Now we ask
judgment on the writ, for you notice how they have alleged by their writ
how we burned their house in fact, and now they have pleaded nothing on
that point but show how we were the cause of the burning, in which event
they ought to have had an action on their case and not this action. And we ask judgment etc., upon their
admission etc.
“BELKNAP,
C.J. I also believe that the writ is
improperly framed, for you ought to have brought your special writ upon
your case, since it was not their intention to burn them, but the burning
happened by accident. Even though it
stemmed from their act, still it was done against their will. It is as if you broke my close and
entered therein, and my animals went away through this opening and fled, so
that I lost them forever; while you know nothing of this, I shall never
have a writ of trespass against you alleging that you drove off my animals,
but I really think that I shall have a general writ of trespass for
breaking my close, with no mention of the driving away of the animals, and
everything will be accounted for in the damages for the breaking of the
close, for by the breaking of the close all the damage occurred and has
been fully effected. And,
furthermore, if you break my houses, and you go away, and then other
strangers carry off my goods without your knowledge, I shall have a writ of
trespass against you for the breaking into my houses etc. and recover
everything in damages, as above.
But, if you should be knowledgable or plotting or willingly present
when the trespass is done, you shall be adjudged a principal feasor, for in
trespass no one is an accessory etc.
“And then Holt said that they
came in the morning with certain assemblies of people, as above, and broke
the doors and entered and took some straw and fired it in order to see
around them, and the straw, while afire, threw sparks on the ground. Thus they burned etc.
“BELKNAP,
C.J. Now you are speaking to the
point, for by the firing of the straw the houses were burned; thus they are
as principal feasors. And then a day
was given, as above.
“And in this case it was also agreed that if your house be next to my house
and my house is burned and your house as well by the accident of my house,
you shall never have a writ against me alleging that I have burned your
house, but rather a special writ upon your case. And, also, if I lie in your house and
place a candle on the wall, and the candle falls on the straw, so that your
house is burned, you shall have a special writ.
“And later the parties reached an agreement etc.”
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14.
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Anon. (1390, Mats., p. VII–27): “In trespass
brought against a man and wife, Woodrow
counted of a horse killed at a certain place with force and arms.
“Gascoigne. We protest that we do not admit coming with force
and arms, for we say that the wife had the horse as a loan from the
plaintiff to ride to a certain place, and we ask judgment whether he can
maintain this action against us.
“And this was held a good plea.
“Woodrow, for the plaintiff: The truth of the matter is that the
wife had the horse as a loan to ride to a certain town; and we say that she
rode to another town, whereby the horse was enfeebled to the point of
death; then she brought him back to the place named, and there the husband
and wife killed him; and we demand judgment.
“Gascoigne. And now we demand judgment of his writ, which says
‘with force and arms,’ for upon his own showing he ought to have had a writ
on his case. (Quod nota).
“So Woodrow said, we wish to
imparl.”
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