XIII.A. Glanvill's writ of debt/detinue: Glanvill, X.2-3 (ca. 1188)
The king to the sheriff, greeting. Command N. to render to R., justly and without delay, 100 marks which he alleges that he owes him and which, he complains, he is unjustly withholding from him. And if he does not do so, summon him by good summoners to be before me or my justices at Westminster on the third Sunday after Easter, to show why he has not done so. And have there the summoners and this writ. Witness etc.
The cause of the debt may be loan for consumption, or sale, or loan for use, or letting, or deposit or any other just cause of indebtedness.
1. Is there any difference in legal analysis between a claim for money owed and for a thing to be returned? Today lawyers consider a claim for money as a contractual claim, that is, an obligation between people. A claim for a thing to be returned, however, seems a matter of property, an allegation of the plaintiff's relationship to a thing. In Glanvill no such difference appears. The easiest explanation is that the two claims were made with an identical writ because the claims seemed to them identical. That is possible if the claims were considered relational obligations like twelfth century claims to land: the personal relationship (narrowly defined and socially recognized) was primary, and people were expected to stand to the obligations of relationships. Remember the change that would happen to land claims over the following century culminating in Quia emptores, in which obviously the lords were unconcerned any longer with the relationships but with the incidents, concerned thus more with individuated rights than with the personal relationship. In the twelfth century, however, the relationship had been primary.
2. What is the difference between this writ and the writ of first summons for land in Glanvill (Glanvill I.6, see III.A. in the materials)? The lack of difference between the precipe of first summons and the writ of debt/detinue in Glanvill would reinforce the analysis made just above.
XIII.B. A Viscontiel Writ of debt/detinue from the 1220s
Early Registers of Writs, Hib.38.
A "viscontiel" writ is directed to a sheriff (in French, "viscont") directing him to hold a plea in his court (the writ would still be directed to him if the case involved one in a liberty; the sheriff would simply make out a copy [called a "return"] and send it to the liberty bailiff to have that liberty hold the case). This kind of writ was thus not "returnable" because it was not returned into the king's court; it stayed out.
The king to the sheriff, greeting. We command you to justice B. that justly and without delay he render to A. 20s which he owes him, as he says, if he can reasonably show that he ought to render it to him. That we may not hear any further complaint thereof for want of justice etc.
In the same manner a writ issues for a deed which he has entrusted to him, or for a shield, or for a horse, or chattels to the value of 40s without payment. Because, if the debt or the value exceeds 40s, there is added this clause in the writ:
After receiving security from him for the third part of the first pence to the king's use.
1. Once again, what is the difference between debt and detinue? Modern law sees a great deal of difference between a claim for 20s (of ordinary money) and a claim for personal property like a shield. Glanvill seemed to see absolutely no difference.
2. Why is there such a writ to begin such a case in county court? We began by hypothesizing that county courts were omnicompetent unless for some specific reason the case belonged elsewhere. We can dismiss completely the idea that it gave the court jurisdiction: the county certainly had jurisdiction to handle such pleas without writ (and continued to have it until regulated in part by the 40s rule in the late thirteenth century, as treated above). Likewise, plaintiffs did not simply like writs: as indicated in the document, they cost the plaintiff. In truth, we cannot prove the reason why plaintiffs purchased viscontiel writs in the beginning, but we can proffer a reasonably good guess. The king's court around 1200 wanted to get rid of simple cases; in Glanvill cases of debt in which the plaintiff had specialty (proof of the debt written and under seal) seemed to be incredibly easy. The viscontiel writs probably encouraged plaintiffs to resort to lower courts by removing the case from county custom [in which, perhaps, specialty served to increase the number of oathhelpers necessary or establish who proved] and to give the case the procedure of the king's court even though the case was now in county [thus specialty would preclude the debtor from making any answer except (a) that he had paid, proven by a written acquittance, or (b) that the specialty was forged.] By this explanation, thus, the viscontiel writ was valuable because it carried better procedure; it was made available to lessen pressure on the king's court by shifting litigants to lower courts. The tendency here is to show that the king's court did not expand because the government wanted to; expansion was not a craftily designed expedient to increase royal finances and power.
XIII.C. Wulghes v. Pepard (1310)
Selden Society, 26:13-14
Master John Pepard was summoned to answer Robert of Wulghes clerk on a plea [the terms of the writ:] that he render to him a certain book of the price of 100s. which he unlawfully detains from him etc. [the terms of the count:] And whereupon Robert by Henry of Gothmundele his attorney says that, whereas on [22 July 1305] at Wifamcoote [Warwickshire] he delivered to Master John a certain book of his which is called "The Holy Grail" of the price of 100s to guard and at Robert's will to redeliver to him etc., Master John though he was often asked to deliver that book to him still detains and has always hitherto refused to deliver it and still refuses. Whereupon he says that he is injured and has damage to the value of [[sterling]]10. And thereof he produces suit etc.
And Master John by Robert of Lychefeld his attorney comes and defends tort and force when etc., and well he denies that the book ever came into his custody, and that he detains from him the book as Robert asserts; and this he is ready to defend against him and his suit as the court shall award. Therefore it is awarded that he wage his law thereof to him 12 handed etc. And let him come here with his law on the quindene of Hilary. Pledges of the law: Robert of Lychefeld and Roger of Podymor of the same county. And the attorney of Master John is told that he cause his lord to come here in his own person at the aforesaid term etc.
Afterwards at that day came Robert by Henry his attorney and offered himself on the fourth day against Master John on the aforesaid plea, and Master John did not come. And he had a day here at this day after he appeared in court, and he waged his law to him thereof etc., as appears above etc. Therefore it is awarded that Robert recover against him the aforesaid book of the price aforesaid and his damages against him as undefended etc., and that Master John be in mercy etc.
Damages: 10 pounds, whereof 40s to the clerks.
1. What is the remedy in detinue? As with all relational obligations, the objective was to make the defendant stand to his obligation, to do what he had committed to do. In this case, that obligation was the return of the physical thing. Detinue thus aimed to recover the physical thing, not to recover the value of the thing as damages. What if the defendant were to return the book? It was and remained firm law in detinue that return of the book, even if damaged, terminated the suit. That rule appears even in the general issue of detinue: "I do not detain."
2. The method of proof here was compurgation: group oath-taking. This particular case is typical of fourteenth-century cases. Defendants never (that I have seen) lost if they showed up to compurgate with their compurgators, but they often defaulted and thus lost. It seems thus that compurgation was an acceptable method of proof. If the defendant could get eleven people to back him up and go with him to Westminster to take the oath, then he would win. But in a substantial number of cases the plaintiff could not so persuade his friends. This does not, of course, mean that the right person often won. A poor defendant might not be able to get people to go; but it seems likely that some defendants could not get compurgators because people did not believe him. All this is different from a jury, because a jury does not have to be chosen and persuaded to come by the defendant: it is compelled by court order through the sheriff, and the sheriff chooses the jurors.
XIII.D. Montfort v. Basset (1310)
Selden Society, 26:14-15; common law
Hawise the widow of John de Montfort, John, and William, the executors of the will of William de Montfort, were summoned to answer Robert Montfort, clerk, the brother and heir of William, for this that they detain from him 5 charters, and he named the manors contained in the charters, and one letter of covenant.
[D]. See, here is the lady. She has come on behalf of herself and the other executors and is ready to render the charters.
Stanton [J]. Count.
Denham [P]. This shows you etc.
Cambridge [D]. Hawise defends tort and force, and see here the charters.
Stanton [J]., to Denham. Are these the charters which you demand?
Denham [P]. Yes, sir.
Stanton [J]. Receive them from her on their behalf.
And so they did.
Detinue of charters is a special subset of detinue, particularly important because of the importance of specialty in debt or for evidence of property in land. The conceptualization of detinue of charters is the same as in detinue; both aim for the return of the physical thing.
XIII.E. Anon. (1343)
Rolls Series, 17-18 Edward III, p. 2; common law
If the primary remedy of detinue of charters is return of the charters, what happens when the defendants cannot or would not return the deeds, either because they were destroyed or because the defendants would suffer severe loss if the plaintiffs got control of the deeds? Judgments on verdicts in detinue of charters are very rare; the following case represents the resolution of the justices on the question prior to the Black Death. The Black Death here, as with many other matters, was a point of crucial change. With detinue of charters, the reason for the influence of the Black Death was that, with the death of a third of the population and the consequent volume of inheritances, charters were absolutely crucial but often by successive deaths in inappropriate hands.
In detinue of a writing it was pleaded to the country on a traverse of the detinue, and now it is found by verdict that the charter has been burnt by the defendant.
Shardelow [J]. The plaintiff is possibly in such a case that he suffers disherison [=disinheritance] unless he has the charter, because in some actions a party is not entitled to an answer without showing a specialty; or even where he was possibly tenant, and had warranty, and his specialty was lost, his land would be lost without any recovery of the value, and therefore it seems that regard must be had to this, and enquiry made as to the value of the land included in the charter etc.
But afterwards Shardelow said that the issue is only on the detinue, which detinue is found, and therefore the court adjudges that the plaintiff do recover the charter, and damages assessed at one half mark, and that the defendant be distrained to give up the charter.
What sense does Shardelow's judgment make, given that the jury had already determined that the charter had been destroyed? Obviously, none. Continued distraint would put pressure on the defendants, but relatively little if they were not possessed of lands themselves. The government yet did not yet accord an overwhelming priority to compelling the return of the deeds to the appropriate hands.
XIII.F. White v. Vicar of Holbeach (1344-45)
Rolls Series, 18-19 Edward III, pp. 460-65.
court of common pleas
The straightforward use of detinue of charters is getting the return of deeds or writings back from an inappropriate holder. Detinue of charters, however, could easily be manipulated to serve others purposes. Suppose that two parties wanted to go to arbitration and make sure that the other would abide by the award. They could each make out a bond for a set sum to the other, each rendering their bond into the hands of a neutral party on the directions to return the deeds to their owners if both sides kept to the award, but, in case of default, to give both deeds to the non-defaulting party. The court engineered procedures to give effect to this manipulation of the action.
William White brought a writ of detinue of writing against the vicar of Holbeach, who alleged that he received the writings on condition to render them to the plaintiff or to another person, and he did not know whether the conditions had been kept or not, and prayed a scire facias [that is, a writ to the sheriff to notify the relevant party that he might be affected by what was happening and should come into court to object if he so wanted] against the other person etc. And the other person was warned and appeared in person, and he said that William did not appear against him either in person or by attorney, and prayed that the writings might be delivered to him.
Moubray [P]. On this original writ the plaintiff appears by attorney against the vicar, and that ought to be sufficient for this plea.
Willoughby [J]. No, the vicar is delivered by his answer.
Moubray [P]. The plaintiff appears by attorney against the person who is warned.
Skipwyth [D]. He could not be appearing by attorney before we had interpleaded, but would be appearing in person; and we cannot appoint an attorney against him; why then should he be able to appoint an attorney against us?
Thorpe [P]. Certainly he cannot. When anyone pleads in the manner in which the defendant did in this plea, the court will tell the plaintiff's attorney that he must have his principal on another day in person. But the record does in fact purport that "the same day" was given to the plaintiff's attorney when the scire facias issued, and, as Moubray said, that William has appointed his attorney against the person who is warned. And we tell you that we have kept the covenants on our part, and that they have been broken on his part, for the covenants were that, in order to set at rest a dispute between them, they should submit themselves to four arbitrators, and in case the arbitrators could not agree, they were to stand by the award of an umpire; and as security for these covenants four knights bound themselves by two obligations to us and to him severally in [[sterling]]100 (and these are the obligations which are now demanded) on condition that if one of us should fail to keep the condition the obligations should be delivered to the one in whom no fault should be found. (And Thorpe made profert of an indenture in witness of the fact.) And we stood by the decision of the umpire elected by consent of the parties, and you would not abide by his award; therefore we pray that the obligations be delivered to us.
Skipwith [D]. Now it is necessary that the knights who are bound, and to whose charge and damage the writings are to be delivered, should be warned, for they are properly parties to this covenant.
Stonore [J]. They are not so, but the parties between whom the dispute was are parties to this covenant, and the knights have bound themselves foolishly.
Thorpe [P]. The knights have nothing to discharge them but the good faith of the person who has the obligations in his keeping; therefore it is quite right that they should be made parties before the obligations are delivered up.
Willoughby [J]. That does not seem to us to be so; therefore answer.
Skipwith [D] took exception to the writ of scire facias on the ground that it was not warranted by nor in accordance with the record. And afterwards he took the issue that the person who was named as umpire did not arbitrate, ready etc.
And the other side said the contrary.
Is this situation concerned with a detention, or the enforcement of an agreement? How can it properly be litigated in detinue of charters? Why is it not litigated in debt? The ultimate enforcement, of course, would come after the nondefaulting party got hold of the other's obligation. Thereon he could bring a suit of debt against him, to which the other could have no effective answer.
In this way the court allowed a narrow range of matters to be enforced by manipulation of the law, primarily arbitrations and leaseholds. Arbitrations, in traditional opinion, have been seen as illustrating dissatisfaction with the law: resort to non-legal mechanisms for resolving disputes because the law was too slow or too corrupt. On the contrary, arbitration probably thrived precisely because it was supported by this kind of legal mechanism that made the parties live up to the award. Instead of showing dissatisfaction with the law, arbitration is an example of the law supporting diverse mechanisms for dispute resolution.
The other major use of thus putting obligatory bonds into escrow was leasehold arrangements. The real property writs did not protect leaseholds. As will appear later, the law did not provide very good protection for leases in a straightforward way until later. Nevertheless, this mechanism from early in the fourteenth century allowed leaseholders or landlords a fair amount of security. The agreement protected could either be the leaseholder's quiet enjoyment of the tenements or the landlord's right to receive the tenement back in as good condition as it had been.
What is the importance of the history of detinue of charters? You should be able to see in detinue of charters (a) the way in which courts and litigants allowed common law remedies to be manipulated (different from fictions, because the deeds actually were deposited in the neutral third hand); (b) the way in which the state, by judicial action, provided increasing benefits to society by furthering more efficient methods of dispute resolution (most cases of arbitration in which such arrangements were used would not have come into litigation).