X.A.1. Adam v. Goodknave

One Adam complained that he was disseised of one messuage and 111/2 acres of land in Leverton by John Goodknave, who did not come. Therefore, let the assize be taken by his default.

Huntingdon, for John in evidence to the assize, said that at one time this same Adam who now complains to have been disseised held the same tenements which are now in demand from one Geoffrey the Merchant, who enfeoffed him to hold these tenements from him. And after this feoffment came a great flood of water and covered this abovesaid land, by which submersion there was so much damage that he was not at all able to hold this land profitably. And he went to Geoffrey his lord and wanted to have rendered him all the lands he held of him, except these lands which are now in demand. And Geoffrey did not want to receive them unless he rendered all the lands. Wherefore Adam rendered him all the land in this form: "Geoffrey, I render you all the lands which I hold from you in Leverton." Geoffrey: "Render me the deeds of your feoffment." Adam: I do not know where they are, but as soon as I have them I will return them to you." After which render, [Geoffrey] enfeoffed this John of this messuage and of the 111/2 acres of land. And thus John has entry by Geoffrey and by his livery and not by disseisin.

The assize came and said word for word as Huntingdon had said.

Middleton [P]. Sir, if you please, inquire from the assize if Adam remained in these tenements after this render.

Berewick [J]. That is not of great significance.

--And nevertheless he inquired.

The Assize: No.

Mutford in secret [said] to Goldington: If the tenant by his grant renders to his lord the tenements which he holds of him by these words --"Sir, I render all the lands and tenements which I hold of you"--if the lord agrees to this render, immediately the free tenement goes to the lord.

Goldington. That is true if the tenant not remain in the tenements after the render.

Ormesby [J]. Adam brings this assize against John concerning a novel disseisin etc. And it is found by the assize that he did not disseise him. Wherefore this court considers that Adam take nothing by his writ but rather be in mercy and that John go adieu without day.

1. When the defendant in an assize of novel disseisin does not appear, the assize is taken by his default: that is, he cannot object. Does this mean that nothing is said on his behalf?

2. What you have in this document is a yearbook report. The record would not record that Huntingdon had said anything. This is one of the very few reports that reveal the character of evidence. It follows clearly that we know very little of what happened at nisi prius.

3. What is the character of evidence as revealed here? Are there any rules of evidence? Is Huntingdon a witness? No, he is a pleader. Is he put under oath to give evidence? Is there a cross-examination?

4. From other matter, it seems probable that evidence had not been presented to the assize in this manner for more than maybe a decade at this time. Is the jury still expected to be self-informing?

X.B. Lawyers: Master William v. Bishop of Rochester (ca. 1290s)

Lincolns Inn, Misc. 87, fol. 24v.

One Master William brought a writ of annuity against the bishop of Rochester where it was alleged that in such a writ brought etc., they were to the countryside, which passed for the bishop. But because no judgment was made on the verdict of the inquest etc., it was adjudged that he answer further, by Mettingham [J]. And then a deed was proffered that attested that the annuity was given to William for his whole life, so that he be attendant to the business of the bishop where there was something to be done.

Est [D]. He has been against us at three places (and he named them) and thus is the cause of the annual rent defeated.

Huntingdon [P]. It behoves you to say when, that is, which day and which year, because even if your exception were right, we would not be foreclosed from the arrears except after the cause of the forfeiture and will still have the arrears from the time before.

Sutton [D]. It is not necessary, because you have an action only by the deed if there is default, but the cause[1] of the deed is that you attend to our business, whereas you have been against us, and often you have been requested to come to our counsel, whereas you have not come.

Gosford [P]. This would be a hardship, where we had served well and loyally ten or twelve years, that we should lose all our work for one forfeit which we are supposed to have made thereafter.

Malberthorpe [D]. How is that? Do you want to recover by a deed that has been defeated by your own action?

Huntingdon [P]. It would be right for us to have our arrears from the time before the forfeiture, because that which has been earned cannot be forfeited by a subsequent trespass; judgment etc.[2]

Mettingham [J]. Answer to his allegation that you have been against him.

Huntingdon [P]. Never against him after the making of the deed, ready etc.

Est [D]. You must aver that you have always been ready to come to counsel us as the deed specifies.

Huntingdon [P]. Always ready when we have been reasonably summoned, ready etc.

Therefore, a jury.

1. What, from this case, is a lawyer's obligation? Whose obligation does that remind you of? Is it not like a knight's obligation: never fight against me and always come if summoned to help me?

3. Different cases (see, for instance, #166 in the materials) refer to the annuity having been given for "service, aid and counsel." Is that not reminiscent of giving homage? Why does a lawyer get a fee?

4. In the reign of Edward I (1272-1307) it is finally established that a lawyer has obligations both to client and court, although his obligation to client is prior. Is "lawyer as hired gun" a modern concept; "lawyer as hired lance"?

5. The writ of annuity or annual rent, from Early Registers of Writs, p. 76 (1260s): The writ of annuity is made whenever one person owes another an annual rent so that that rent does not issue from any tenement. And if it does not issue from any tenement, then it cannot and ought not to increase or diminish: as when one receives twenty shillings from the chamber of any one or even from a tenement until it is provided for him further. If, however, that rent should issue from a tenement in such a way that that tenement can revert by escheat to the lord and the rent is withheld from the same lord, then let the writ of customs and services be issued to him "as in rents, arrears, and others things". And it can also be pleaded in the county court.

"The king to the sheriff, greeting. Command B. that justly etc., he render to A. one hundred marks which are in arrears to him from the annual rent of a hundred pounds which he owes, as he says, and if he does not etc. Witness etc."

X.C. Marriage

X.C.1. Draycote v. Crane (1332-3): Ecclesiastical court case

Helmholz, Marriage Litigation in Medieval England, pp. 201-203. (My translation)

Note: This is a case in an ecclesiastical court; note the difference in procedure.

In the name of God, Amen. Alice daughter of Richard de Draycote in Crophill Butler seeks that William Crane of Bingham be adjudged to her in marriage, because they contracted marriage in turn by words of mutual present consent express. And afterwards, six years having elapsed, they ratified that contract, on which there is public fame in the vill of Crophill abovesaid and in the neighboring places. The abovesaid intends and the said Alice seeks jointly and separately, saving always the benefit of law in all things.[3]

John de Draycote was sworn, examined, and diligently interrogated[4] whether he had notice of Alice de Draycote in Crophill Butler and of William Crane of Bingham and from what time. He says that he knew the woman from her childhood; he knew the man from the time he was eight years old and more. Asked whether he knew of any marriage contract ever entered into between Alice and William, he says yes. Asked what he knows to depose on this, he says that he was present, saw, and heard when the said William accepted the said Alice by hand by saying thus: "Here I accept you, Alice, as my legitimate wife to have and to hold until the end of my life if holy church permit this, and I give you my faith of this." The woman answered immediately to the same William "William, here I accept you as my legitimate husband to have and to hold until the end of my life if holy church permit this, and I give you my faith of this." Asked concerning the place, time, day, hour of the day, and those present, he says that in the home of Henry de Kyketon at Crophill Butler on the feast of St. John the Evangelist near Christmas in the 8th year last near nightfall. Concerning the day indeed on which that feast occurred, he does not remember because of the lapse of time. Those present were the contracting parties, the deponent, Elizabeth Crane, Adlina daughter of Robert de Crophill, cowitnesses with Henry de Kyketon and Felicia his wife who have entered the way of all flesh. Asked the age of the contracting parties at the time they entered into the contract between them, he says that the man was at that time thirteen years and more; the woman was almost fourteen years. Asked how he knows this, he says that he learned it from the relation of Alice de Kyketon, mother of Alice, from whom it was inquired concerning the age of the woman. Concerning the age of the man, from the relation of his godmother who raised him from the baptismal font. Asked about the clothes of the contracting parties and in what part of the house they contracted and whether they were standing or sitting, he says that the man wore a tan-colored tunic and a green hat; the woman, a black tunic and a particolored hat. And they sat in the southern part of the house near the fire. Asked about his reason for having been there then, he says that he was there in the house of his mother as one of the family. Asked about the fame, he says that on the abovesaid matters there was public voice and fame in the vill of Crophill and the neighboring places.

Hugh Wodecok of Bingham was sworn, examined, and interrogated whether he had notice of William Crane of Bingham and Alice de Draycote of Crophill and from what time. He says that he knew the man from the time he was eighteen; he has not known the woman, as he says. He was then questioned on the first article, which is such: "In the first place, William intends to prove that if there was ever any marriage contract between the same William and the said Alice -- which he does not confess -- the aforementioned William at the time of this kind of contract was less than twelve years old and was considered such." He says that he heard from a certain Elizabeth Crane that a certain marriage contract was entered into between the same William and the same Alice around Christmas nine years ago; this same witness, however, was not present at that contract. He also says that the aforementioned William at the time of this contract was eleven years old and no more. Asked how he knows this, he says that he knows this by his fellows in the vill of Bingham and by a certain one his own daughter who is of age and by the public fame of the place which holds this. He was then asked on the second article, which is such: "The said William likewise intends to prove that if any marriage contract was entered into between the same William and the same Alice at any time, as it seems to be proved judicially by the witnesses of the same Alice -- which, however, the same William does not confess -- that aforementioned William before and after the time of such contract was refusing and contradicting and unwilling, nor to this time has he consented to the same Alice as his legitimate wife, but he has always dissented. He says that he heard from the aforementioned William and from others who were present then that he was brought by fear to thus contract with the said Alice by a certain Elizabeth Crane, who wanted to cut off his ear if did not do it. He, however, did not see this, because he was not present. Also, he says that from the said time of the contract till now he has always heard the same William contradicting and refusing, and he saw him always fleeing the company of that woman in all places in which he saw them. And on the abovesaid matters there is public voice and fame.

Simon Couper of Bingham was sworn etc. Asked concerning notice of William Crane of Bingham and Alice de Draycote, he says that he has known the man since he was twenty years old and more; he has not known the woman. Asked on the first article, he says that it contains the truth and he agrees with the first witness, excepting this that the abovesaid William at the time of such contract was eleven years old and more. And this he knows from the relation of others and from the fame of the place, which holds this. He says, however, that he had not attained the age of twelve at the time of such contract. To the second and third articles he agrees.

William Machon' of Bingham was sworn etc. Asked concerning notice of William Crane and Alice de Draycote, he says that he knew the man from the time he was twenty years old; the woman, for half a year. Questioned, he agrees on the three articles.

In the name of God, Amen. Having heard and understood the merits of the matrimonial case before us, the official of the lord archdeacon of Nottingham, the case moved between Alice daughter of Richard de Draycote of Crophill Butler actor appearing personally on the one side and William Crane of Bingham accused appearing by Adam de Sewale clerk his procurator on the other side, we decide as in the purport contained in the following words to the given libellus:

In the name of God, Amen etc. The suit having been legitimately contested by negative words to the same, the oath offered by the parties having been said concerning the challenges and concerning the truth, the witnesses produced having been sworn, examined, and their testimony publicized, days having been given to talk with the witnesses, to talk over their testimony, and to put all things together consistent with the facts, and the order of law which is required in this case having been observed in all things, because we have found that the said Alice has sufficiently and legitimately proved her intention brought before us in judgment, we have adjudged judicially and definitively the aforementioned William as the legitimate husband to the same Alice.

1. We are used to matrimonial suits being for divorce. Most medieval matrimonial suits were to prove marriage. Can you see anything here which would sponsor such suits?

2. Ecclesiastical courts did not follow the writ system, that is, an original document which alone provided jurisdiction to the court. The closest analogue, the libel, merely set forward the plaintiff's claim; it was not a superior's order to his court to hear the case. What difference would that entail?

3. Is this solely a civil suit? Note that the parties themselves (last paragraph) had had to take an oath to tell the truth. Self-incrimination possibilities? The church court has been found to be reasonably flexible, in that the lawyers seem actually to put, at least occasionally, a superior value on the parties' salvation and avoidance of sin rather than on legal technicalities. If the court was working for the parties' spriritual good, self-incrimination was not an evil, but a good (not a position here advocated). Medieval ecclesiastical law did maintain that there was no need to expose oneself, but once accused, it was a duty for the greater glory of God to confess: moreover, it was a benefit to one's salvation.

X.C.2. Pastrel v. Amory (1308): Court of common pleas

SS.17.33

A writ of entry causa matrimonii prelocuti

One Muriel brought a writ of entry against one Gilbert, saying "into which he had no entry, save through Thomas, to whom she demised by reason of an agreed-upon marriage."

Passeley [D]. True it is that the tenements were in the seisin of one Muriel, who gave them to one Thomas and his assigns to hold for the life of Muriel, rendering to her 2m yearly, and to the chief lord [by the accustomed services], and that this was done by this writing. Judgment, whether she can have an action, since her own deed proves that the tenements were given for a cause other [than that mentioned in her writ].[5] And, further to affirm our estate, Muriel released and quitclaimed her right.

Westcote [P]. By which of these two allegations will you abide?

Passeley [D]. We put forward the deed to traverse the cause [of the gift]; for whereas you say that we have no entry save by reason of an agreed-upon marriage, your deed proves the contrary; and then the quitclaim is evidence to affirm our estate.

Willoughby [P]. You must hold to one of the two, for each may take a different issue.

Passeley [D]. If I only used the writing [and not the release], I should suppose [the existence] of a reversion [in Muriel]. So it behoves me to aid myself by [the writing] to disprove the cause of the demise as stated in the writ, and then it behoves me to affirm my estate by [the release].

Westcote [P]. Whatever deeds they may put forward, we are ready [to aver] that the tenements were given as we have said.

Passeley [D]. Your deed or not your deed?

Westcote [P]. Where the tenements are given for such a cause as aforesaid one would not say in the writing "This gift is conditional"; so, if I be not admitted to aver the cause against the charter and the writing, it would follow that gifts of tenements for such a cause would never be established.[6]

Bereford [J]. Confess the deed and then betake yourself to your objections.

Westcote [P]. That would be another way of pleading.

So the cause pends.

1. What is the situation that lies behind this writ, entry causa matrimonii prelocuti?

2. You see here another complicated argument about doubleness of issue.

3. Look again at Westcote's second last statement. Why would one not put in the deed that it was conditional? That would be the obvious thing to do. That one would not must indicate some legal maneuver: what is it?

4. The next case might help.

X.C.3. Jordan v. Neel (1286): Justices Itinerant (common law)

JUST 1/210, m. 1d.

[John Jordan brought an assize of mort d'ancestor on the seisin of Walter Jordan, his brother, against William Neel and Edith, his wife. Neel objected that Jordan had a still older brother who was still alive and also that Walter Jordan had not died seised. The jury verdict follows:][7]

The jurors say on their oath that the abovesaid John is next heir of the abovesaid Walter, on whose death etc., and as to the article of the writ -- "if the same Walter died seised etc.," -- they say that matrimony was agreed upon between the abovesaid Edith and the abovesaid Walter the first husband of the same Edith. And after the parties consented to that marriage, the same Walter one month before the marriage celebrated between them gave the abovesaid tenements to the abovesaid Edith to hold to herself and her heirs and he put her in seisin. Asked what kind of esplees the same Edith took from the abovesaid tenements before he married her, they say that she took vegetables in the garden of the abovesaid messuage to make her pottage thereof and she remained in the abovesaid messuage, without this that the same Walter returned to her in the same messuage or had any goods in it. Asked also if the same Edith took any profit in the abovesaid lands, they say no. Asked at what time this was done, they say that it was done immediately after Michaelmas.[8] Asked also if before the livery of seisin to the abovesaid Edith the same Walter gave his faith to her by words which make marriage, they say no, but by common friends the marriage was agreed upon thereof between them, and it was secured that at the end of the abovesaid month the abovesaid Walter would marry the abovesaid Edith.

And because it is found by that assize that the marriage had been agreed upon thereof between friends and that it was secured before the abovesaid feoffment and a certain time had been set to celebrate the same marriage between them in the presence of the church, to wit, at the end of the abovesaid month and thus in the hope of resuming the same tenements at a certain time [to wit] at the time [he married] her, that that feoffment was not simple and that the abovesaid Walter of whose death etc., died seised of the abovesaid tenements in his demesne as of fee, it is considered that the abovesaid John recover seisin thereof by view of the recognitors and William and Edith his wife be in mercy etc. No damages, because the lands are improved etc.

1. This is a case of the deceased husband's brother against widow and her new husband. The marriage, thus, had gone to completion, so that all conditions considered appended to the marriage had been fulfilled. The feoffment was nevertheless undone. Why? Was there not a sufficient establishment of seisin? Or was it something about the grant? The grant was considered void, not simply voidable. The difference is that the law considered that the grant had simply been ineffective from the very beginning, not just capable of being defeated.

2. If a grant conditioned on a marriage was not simply voidable but void, what would the existence of a deed saying that the feoffment had been conditional on the marriage have done, as in the previous case? Would it not have made such a deed absolutely useless?

3. How then did one protect against the man or woman, as grantee, simply taking the fee and then not marrying? What if one made out two deeds, one conditional and one unconditional? Who would keep which? What would happen then after the marriage? What would happen if the marriage failed to materialize?[9]

4. This type of transaction is essential in the history of the use, the antecedent to the modern trust. Make sure you figure out the reason why one would make contradictory deeds and the role such deeds would have in enforcing conditions.