VIII.A. Rex v. B (circa 1280s)

BL Add. 31826, fol. 63.

A writ of entry ad terminum qui preteriit

The king brought a writ of entry against B. and claimed a manor with the appurtenances as his right and heritage in which he did not have entry unless by the lease which Eleanor, Queen of England, made thereof to one William his father at term of life etc.

And they denied tort etc.

Bereford.[1] We are not held to answer to this writ, because we understand that there is a common law in England; and on the common law thus there is a common writ of form. And we understand that the king wants himself to proceed by the common law and by a writ of common form. And this writ is not of common form, inasmuch as it makes no mention of any reversion,[2] whereof we ask judgment of this writ.

Thornton. We understand that there is made sufficient mention of the reversion, inasmuch as we have shown -- and this by writ -- that the tenements which are now in demand were given to your ancestors, after which term by the form of the gift the reversion is supposed [to be] to the heir of the donor. Wherefore it seems to us that we have sufficiently made mention of the reversion in our writ.

Kellawey.[3] We ask judgment of this writ altogether, for the reason that, whereas you claim in your writ the manor of Cherbaston, we cannot render your claim, because the manor that we hold is called Kerbauston. And we ask judgment of your writ.

Gyselham. This exception ought to be put before view of the land. And by asking your view you have affirmed our writ. And we ask judgment if he is now able to come to such an exception to abate our writ.

Kellawey. Sir, if we ought now to vouch in this plea and our warrantor come and ask by what [he should be bound], and we put forward his deed or the deed of his ancestor, he would demand judgment of our bad voucher, because we had vouched him to warrant such tenements in Cherbaston and we have never had anything in Cherbaston. Wherefore we ask judgment of this writ, etc.

1. Could one have any kind of writ, with any variations one wanted? Note that Bereford and Thornton, here pleaders, were to become quite important. Bereford became chief justice of the court of common pleas; Thornton, chief justice of the court of king's bench. Two exceptions are drawn to this writ; what are they? Note that Bereford's assertion about there being a common law might seem impertinent to the king, but it did not affect his career: he became a chief justice. It was true that there was a common law and that the king was expected to follow it, even though it might here have been bent somewhat.

2. What is the significance about the defendant having already asked the view? "View" was the defendant's chance to have pointed out to him, on the land, the precise land being claimed. One asked for the view during the case, and it required an adjournment from one term to the next. It was only available if the defendant had more than one tenement in a vill or the plea was only for a portion of the tenement.

3. What is the role of precedent? What kind of argument is Kellawey's last argument? Common law at this point did not rely on precedent at all, but on analogy.

4. This is all there is to this report. We do not know if Kellawey's argument was successful or not. Reporters did not particularly care about the trial; they often also did not report the straightforward pleading that appeared finally in the record. What does this indicate about the reporters? The reporters seem to have been apprentice lawyers who sat in in court to listen to the experts. They were only interested in the arguments, not the outcome. Once they knew what could be pleaded, the resolution of what the factual situation actually was, was uninteresting: they only needed to learn how to plead.

VIII.B. Geoffrey v. Poynant (1290-1294)

BL Add. 31826, fol. 71b

A writ of entry ad terminum qui preteriit

Henceforth, the pleaders are designated as being pleaders for the plaintiff [P] or for the defendant [D]; justices are indicated as [J]. These designations do not appear in the documents.

One John Geoffrey and Gilbert brought a writ of entry against William Poynant on the seisin of one Ralf and said "in which he has not entry etc., if not by the lease which the same Ralf made thereof at a term which has expired etc."

William defended etc., and said that he had entry not at term but rather in fee and by the deed of that same Ralf.[4] And he put forward a deed which attests this. And we ask judgment.

Kingsheved [P]. Sir, we tell you that he entered into these tenements at a term of 10 years. And see here his deed which attests this, wherefore we want to aver that after he entered these tenements he never changed his estate.

Mettingham. [J] Let us first be at one concerning his writings.⁵ You grant well that the deed which William proffered is the deed of your ancestor, and you, William, grant well that the writing concerning the term which they put forward is your deed such that you cannot deny that you entered in his tenements at term, but that you say that, within your term, Ralf made you a deed of feoffment and by that you think to bar them from action.[6]

Covintry [P]. By this deed that they put forward they cannot bar us, because we tell you that William entered into the tenements at term such that the free tenement and the right reposed in the person of the lessor,[7] wherefore we tell you that after the bailment at term he never came into the countryside whereby they could deliver the seisin of those tenements, nor did they send any man;[8] wherefore on that deed never was any seisin delivered to him, rather he all the time continued his estate of a term -- the fee, free tenement, and right reposing all the time in the person of the lessor. And we ask judgment if without livery of seisin to him any estate can accrue to him by this deed.

Mettingham [J]. Much more in this case can you void a quitclaim[9] than a feoffment. Because I think that he in whose person the free tenement and the right rest can enfeoff and can then demand nothing against that feoffment, but you cannot deny that in the person of Ralf on the day of the feoffment rested the fee and the free tenement and the right whereby he could enfeoff. Now, every quitclaim supposes in itself that he is seised to whom the right is quitclaimed, because I can void the quitclaim which I have made if I can aver that at the time of the making of the quitclaim and afterwards I remained seised.

Covintry [P]. Sir, he must show how seisin was delivered to him, because I think that if I make my deed to you of one carucate of land and you by virtue of this deed put yourself in the tenements without livery of seisin from me, that I will recover against you by a writ of novel disseisin.[10]

Mettingham [J]. If you had bailed me a tenement at term and afterwards you come here before justices and acknowledge the tenements to be my right, I think that you will be foreclosed forever, and so the seisin will not be delivered to you by writ, nor by letter.[11]

Mutford [D]. There is no need in this case for us to answer to the livery of seisin, because livery of seisin is only a corporeal comprehension[12] and the fee and the right and the free tenement accrues by the feoffment. Wherefore, the livery of seisin in this case would only be a corporeal comprehension, which we have by way of the term,[13] which is acknowledged.

. . .

Mettingham [J]. Because we have understood -- and this is law -- that each thing not corporeal can pass by way of deed which attests this, and because fee and right and free tenement are things not corporeal, and moveable and not immoveable, they ought to pass by way of deed.[14] And you have acknowledged the deed which attests this. So this court adjudges that John Geoffrey and Gilbert take nothing by their writ, but be in mercy etc., and William adieu etc.

VIII.C. Anon (1310)

SS. 20:118 (YB 3 Edward II)

A writ of entry cui in vita

A. brought the cui in vita against H. saying "into which he had no entry save by [X], to whom her husband, whom [in his life she could not contradict], demised."

Herle [D]. Her husband never was seised so that he could make a lease.

Malberthorpe [P]. You do not answer us, for your answer is of double meaning: either that he was never seised[15] or that he was seised in our right, so that by the common law he could make no lease.[16]

Herle was driven to plead over.

Herle [D]. Whereas she says that her husband leased to [X], he never leased to him, ready etc.

Malberthorpe [P]. That amounts to this: that [X] never entered by him. Therefore, you ought to give us a good writ.

Herle [D]. I am pleading not to your writ, but to your action:[17] for it is your husband's lease that gives you action and this lease we traverse. Judgment.

Malberthorpe [P]. Our husband leased to [X].

Issue joined.[18]

So note that in a writ of entry one can traverse the entry without giving a good writ.

Why does one worry about pleading in a way that might carry different meanings? Would that not just get ironed out at trial? Not at all. All the argument was supposed to be done during pleading, so that the job at trial was supposed to amount only to submitting the previously specified question to the jurors, who were supposed to have already figured out their answer, since they were notified of the question by the writ venire facias. By the 1290s other things were happening at trial before the jurors, as with informal submission of evidence, but without rules of evidence or much supervision. Pleaders only took down this kind of procedure once or twice over more than a century, so we know almost nothing of what went on before the jury.