6th Class

1. 6th Class • Attendance sheet • Start audio recording • Review • Civil Litigation • Debt • Covenant • Trespass • Trespass vi et armis • Trespass on the Case • Assumpsit & Ejectment • Procedure • Chancery • Reading for next class • Ethelbert’s laws, especially 10, 14, 16, 31, 73-85

2. Review I: Property Law • Before Henry II • Most property litigation in feudal or manorial courts, not royal courts • Procedure in royal courts not fixed, experimental • Writs • Cases in royal court started with writ (letter) • Eventually, each kind of dispute had its own separate writ (form letter) • E.g. Writ of Right • Henry II • New writs for swifter resolution of property disputes • Novel disseisin, mort d’ancestor • Grand Assize • Novel disseisin cases show • Uniform procedure • Uniform legal principals • De facto royal regulation of feudal courts • Weakens power of feudal lords

3. Debt I • Loans are simplest form of contract • Creditor gives debtor money, debtor has a legal obligation to repay • Loan can also be of “fungibles” (grain, barley, malt, etc.) • Obligation is to return thing of same kind, not the same thing itself • Before the late 12th century, loans were enforced in local courts • Starting in late 12th century, writ of debt available in royal courts • Writ of debt could also be used for more complex transactions • Such as obligation to pay money for goods • As long as amount of obligation was fixed (“sum certain”)

4. Debt II • Proof depended on whether there was a written contract • If the promise was oral • Proof was by compurgation • Defendant prevailed if he could find 12 oath helpers who would swear that there had been no loan or that the loan had been repaid • By at least the 16th century, oath helpers could be hired • If the promise was written • Writing was conclusive proof, unless • Defendant could prove that the writing was fraudulent • Debtor was supposed to have writing (“deed”) returned or canceled on repayment • If he did not, creditor could collect again • Usury (any interest) was violation of Church Law, but usurious loans were enforced in royal court

5. Covenant • From late 12th century, writ of covenant could be used to enforce any sort of contract • Even where promise is not fixed amount of money • E.g. builder promises to build house • By 1300, only available for written contracts

6. Trespass vi et armis • In any society, people do things that they should not do • Enter onto land that is not theirs, hit people, take their stuff • Later called “torts” • Sometimes these wrongs are handled by the criminal law • If the victim wants, these wrongs can sometimes be handled by civil law • In which case, the victim gets compensation • Before the mid-13th century, torts generally litigated in local courts • Starting in mid-13th century, trespass vi et armis writ makes litigation possible in royal court • “vi et armis” means with “force and arms” • Writ initially intended to address serious violence • But royal forum so popular, that force requirement becomes fictional • 1466 case alleged that the defendant entered neighbor’s land to collect thorns that had fallen after the defendant had trimmed his hedges on boundary of his land • Trespass means “wrong” • Procedure very favorable to plaintiff • Mesne process. Defendant imprisoned or bailed • Trial by jury

7. Trespass on the Case • Even with fictions, there were limits to the ability to claim “vi et armis” • If I give my horse to a workman to make and fit horseshoes, and the workmen injures my horse by accident • Bailment. Bailee (shepherd) fails to guard sheep • In modern terms, negligence not intentional act • Starting in 14th century, royal courts start issuing trespass on the case writs for these situations • No allegation of “vi et armis” • But writ contains details of case, so called “trespass on case,” or simply “case”

8. Assumpsit & Ejectment • Trespass on Case, like Trespass vi et armis, is very procedurally advantageous to plaintiff • Imprisonment or bail of defendant • Jury trial • No written contract required • Plaintiffs would like these procedural advantages in cases involving property and contract • Claim that dispossession from property or violation of contract are “wrongs” remediable by trespass on case writs • Assumpsit – trespass on case for breach of contract • From 14th century • Ejectment – trespass on case for property disputes • From 16th century • Courts initially resisted • Each situation had its own writ. Allowing assumpsit or ejectment writs, meant that there were two writs for many types of cases • But eventually relented • Writ of right, petty assizes, debt, covenant, became rare

9. Procedure • Procedure on writs discussed today is a little different from that on petty assizes or writ of right • I. Plaintiff’s attorney procures writ from Chancery in Westminster • II. Sheriff arrests or bails defendant and orders him to appear in Westminster • III. Pleading in Westminster • Either legal resolution in Westminster (writ no good) or factual question for jury (Was there a contract? Did the defendant breach it?) • IV. Trial in countryside (“nisi prius”) • V. Entry of Judgment in Westminster • Post-trial motions • 3 common law courts – King’s Bench, Common Pleas, Exchequer • 4 judges on each court • Court specified in writ, chosen by plaintiff • Originally courts had separate jurisdictions • Common Pleas. Debt, writ of right, trespass • King’s Bench. Trespass • Exchequer. Cases involving debts to king • But by 16th century jurisdictions overlapping • All 3 courts could hear trespass cases

10. Chancery • So far we have been discussing “common law” procedure • Enforced in royal common law courts • Chancery has three roles in litigation • I. Issues writs • II. From 14th century, hears some cases • Where common law gives no remedy • Trusts, wills • III. Intervention in common law cases • Discovery. One party needs document possessed by other • Injunctions. Orders to stop litigation in common law court • If creditor collecting twice, because debtor forgot to have deed canceled • If obligation patently unfair • £3000 penalty for delivery of goods 1 day late • Chancery procedure • No jury • Judge decides • often based on interviews (depositions) taken by others or written answers to questions (interrogatories) • Only one judge, so slow

11. 3 Assumpsit Cases • 1) Did the law change between 1409 and 1532? If you think it did not change, how are the three cases consistent with each other? If you think the law did change, described the change. • 2) How would you describe the reasoning in these cases? Is it inductive, deductive, by analogy, from precedent, other? • 3) How would you describe the interaction and relationship between lawyers and judges.

12. Winterbottom; Donoghue • 1) Are these cases primarily based on precedent or policy? • 2) How are these cases different from the 3 assumpsit cases? How are they similar? • 2) How are these cases similar to modern cases? How are they different? • 3) What did you find interesting, surprising, or puzzling?