Lecture IV.

III. 1189-1272.

This, our third period, extending from the death of Henry II to the accession of Edward I, is a period of rapid growth, as we learn from Bracton's treatise. New writs are freely invented, though towards the end of Henry III's reign this gives rise to murmurs and the barons seek to obtain a control over the king's writ-making power. There is now a large store of original writs which are writs of course (brevia de cursu), that is to say, they may be obtained from the subordinate officers of the royal chancery on payment of fees, the amount of which is becoming fixed. A Register of these writs of course has been formed and is kept in the chancery. The earliest Register known to me is one of 1227. In the Cambridge University Library we have two other Registers of Henry III's reign; Registers of Edward I's reign are common in MS. The size of the Register is rapidly increasing.

Litigation about land is still chiefly conducted by the proprietary action begun by writ of right, and the two possessory actions of Novel Disseisin and Mort d'Ancestor. When the tenement in question is held in chief of the Crown, instead of a writ of right there is a Praecipe in capite---but the lords have succeeded in getting a provision inserted in Magna Carta to the effect that such a writ as this, which at once summons the tenant before the king's court, shall not be used if the tenement is held of a mesne lord who has a court---in that case the action must be by writ of right (breve de recto tenendo) commanding the lord to do justice. But this victory of feudalism is illusive. Between the proprietary action and the possessory assizes there is growing up a large and popular group of brevia de ingressu--- "Writs of Entry". The characteristic of a writ of entry is that it orders the tenant to give up the land or answer the demandant's claim in the king's court---thus far following the form of the Praecipe in capite, but goes on to add that there is some specified and recent flaw in the tenant's title---he only had entry into the land, e.g. by the feoffment of a husband who was alienating his wife's inheritance, or by the feoffment of an infant, or by the feoffment of an abbot without consent of the monks, or by the feoffment of one who had disseised the demandant. This flaw, this recent flaw, in the tenant's title is suggested in order to take the case outside the rule that litigation about proprietary rights in land should be begun in the lord's court. The flaw must be recent. If the land has changed hands several times since the unlawful entry then no writ of entry is applicable and there must be a writ of right. The various writs of entry therefore are very numerous---there is one applicable to almost every conceivable case in which a tenant has come to the land by some title in which a recent flaw can be pointed out---we hear, for example, of a form of action as a writ of entry sur disseisin in the per, a writ of entry sur disseisin in the per and cui [For the form of these writs of entry see the Select Writs, below]. In 1267 the Statute of Marlborough, which in many ways marks the end of feudalism, in effect abolished the restrictions on the formation of writs of entry--but it only did this by adding to their number. If since the unlawful entry the land had passed through several hands a writ of entry in the post might be used---the demandant might allege that the tenant only had entry post (after) a disseisin committed by someone without showing how the land had passed from the disseisor to the tenant.

The words of the Statute (cap. 29) were as follows: Provisum est eciam, quod si alienaciones illae, de quibus breve de ingressu dari consuevit, per tot gradus fiant, quod breve illud in forma prius usitata haberi non possit, habeat conquerens breve de recuperanda seisina, sine mentiona graduum, ad cujuscunque manus per hujusmodi alienaciones res illa devenerit, per brevia originalia per consilium domini Regis providenda.

"It is provided also, That if those alienations (whereupon a writ of entry was wont to be granted) hap to be made in so many degrees that by reason thereof the same writ cannot be made in the form beforetime used, the plaintiffs shall have a writ to recover their seisin, without making mention of the degrees, into whose hands soever the same thing shall happen to come by such alienations, and that by an original writ to be provided therefor by the council of our lord the King [This is the translation given in the Statutes at Large].

We are accustomed to regard the English real actions as a hopeless tangle---this is the result of the writs of entry. If we place ourselves at the death of Henry II the situation is really very simple. Let us review the position. If a proprietary action is to be brought for land it must be begun by Praecipe quod reddat (after Magna Carta, 1215, this is only permissible where the demandant claims to hold in chief of Dominus Rex) or by Breve de recto tenendo. In either case thc demandant will have to allege that the land is jus et haereditatem suam---will have, i.e. to rely upon proprietary right. He will have a proprietary, petitory, droiturel action, in the language of the Roman Law a vindicatio rei. Besides this there are two possessory actions, each of narrow scope and analogous to the possessory interdicts: (1) The Novel Disseisin, which is the English counterpart of the Roman Interdict Unde Vi and is probably derived from that source immediately through the actio spolii of the Canon Law.

It has a narrow limit; A complains that X has disseised him---that this very X has ousted this very A from seisin. If that be so then, without any discussion of "right", A ought to be put back into seisin--- salvo jure cujuslibet. (2) The Mort d'Ancestor: B has died seised as of fee---not necessarily "as of right"---he had, or behaved as having, heritable rights, A is his next heir, but, before A could enter, X entered. If this be so, X is to be turned out of seisin and A placed in seisin of that land. As I understand there was a good Roman analogy for this too, the haereditatis petitio possessoria, but it is doubtful whether this was known to the lawyers of Henry II.

These possessory assizes are marked off from the proprietary action, first by a summary royal procedure, in which essoins are reduced to a minimum, and secondly by their short periods of limitation.

Then come the writs of entry invented in the tirne of Richard, John, and Henry III. A writ of entry is, as we have seen, a writ of praecipe suggesting a recent flaw of a particular kind in the tenant's title. Their object seems to have been to evade feudal jurisdiction, probably on the theory that they are in a certain sense possessory and therefore do not fall to the lords. The demandant relies on a recent seisin, hence these writs are confined within "the degrees", that is to say they are competent only if the tenant is first, second or third faulty possessor [Here Professor Maitland has in mind the writs of entry sur disseisin or on intrusion; in other instances, "the degrees" stretched only to the second faulty possessor, e.g. where the tenant C is alleged to have entered per B cui A the husband (cui invita) or the idiot (dum con compos) or the doweress or life tenant (ad communem legem etc.). In these cases A cannot be said to be a faulty possessor, in that of the idiot or infant he may even be thc demandant himself---it would perhaps be more accurate in the text to say "if the tenant is first,

second or third from the creator of the flaw in the title".]. Even this limit is removed by the Statute of Marlborough after which a writ of entry can be used if it can be said that the tenant came to the land after some faulty or wrongful entry.

It is these writs which make the history of our forms of action so very complex and unintelligible. Are they proprietary, are they possessory? The answer seems to be that in their working they are proprietary, in their origin possessory or quasi-possessory, since the justification for litigation in the king's court lies in the notion that the demandant has recent seisin on his side.

The result of this, as to substantive law, is that we seem to get a tertium quid between property and possession, between jus and seisina. To this I shall recur.

In what I have just said I have been compelled to contradict Blackstone. He treats the writs of entry as older than the assizes. "In the times of our Saxon ancestors, the right of possession seems only to have been recoverable by writ of entry [Comm. III, 184]. "Thus Henry II probably in the twenty-second year of his reign gave the assizes of novel disseisin and mort d'ancestor." In this last statement there is I think a small mistake. Blackstone refers these two assizes to the Council held at Northampton in 1176. Now it is very possible that the Mort d'Ancestor was created on that occasion, and that we have the words which created it in an instruction to the itinerant justices, some words of which Bracton cites in a note and the whole of which will be found in the Select Charters. But the Novel Disseisin seems about ten years older---we have not got the text of the ordinance which created it, but on the Pipe Roll for 12 Henry II we begin to have entries of fines inflicted pro disseisina super assisam Regis. There can I think be little doubt that the ordinance was made at the Council of Clarendon in 1166. But this mistake is small compared with that of supposing that the writs of entry are older than the assizes, and I need hardly say that it is nonsense to suppose that our Saxon ancestors knew anything about writs of entry. As to their date, we must start with the fact that Glanvill gives no writ of entry, though (X, 9) he has got just one writ which might easily be converted into a writ of entry ad terminum qui praeteriit. The Registers of the early years of Henry III give two such writs, the writ of entry ad terminum qui praeteriit and the writ cui in vita, and on a Patent Roll of 1205, there is a writ of entry sur disseisin, a writ for the disseisee against the heir of the disseisor, followed by a writ which directs that this henceforward shall be a writ of course (Rot. Pat. i. 32); before the middle of the century we find almost all the writs of entry in use, except those which were afterwards given by statute. The truth is that the writs of entry presuppose the assizes. Suppose that X has disseised A and that X is still in seisin, there is no writ of entry applicable to this simple case, because it is a case for an Assize of Novel Disseisin. If X dies and his heir Y enters then there is a writ of entry for A against Y, because there cannot be an assize, for an Assize of Novel Disseisin can only be brought against a disseisor. It is true that very late in the day we do find a writ of entry covering the ground of the Assize of Novel Disseisin, "the writ of entry in the nature of an assize"; but I do not believe that this writ appears until very late times, until Richard II's reign, when the procedure by way of assize has become more clumsy than the procedure by writ of entry---more clumsy because more antiquated. I have been compelled to insist on this point, because Blackstone's theory turns the whole history of seisin upside down.

Meanwhile a number of other gaps are being filled up with new writs. For instance, the Assize of Mort d'Ancestor, as we have seen, lies only when the claimant can assert that the person who has just died in seisin, and whose heir he is, was his father, mother, sister, brother, uncle, aunt. It had been sufficient to provide for the common cases; if the dead person was the claimant's grandfather or cousin the assize could not be used. Thus gap was filled up in 1237 by the action of Aiel, Besaiel and Cosinage, though the lords resisted these new inventions. So again the group of writs relating to advowsons has received additions, and there is another group relating to wardships and marriages. Here again we see the line between proprietary and possessory actions; besides the proprietary writ of right of ward there is the possessory action of ejectment of ward.

There are also writs for settling disputes between lord and tenant---writs relating to easements, writs relating to rights of common. Very frequently there is one writ which is deemed possessory and one which is deemed proprietary or droiturel---thus there is an assize of nuisance and a writ quod permitrat prosternere for the abatement of nuisances which cannot be brought within the terms of the assize. The group of actions relating to land and to the so-called incorporeal hereditaments is a very large one---but the forms which hereafter will deserve attention are the possessory assizes, the writs of entry, and the writ of right. They form a sort of hierarchy of actions---the writs of entry seem to bridge the gulf between possession and property, between seisin and right. This, as we shall hereafter see, is a very remarkable feature of English Law.

An illustration of the important results of the invention of new writs may be found in the remedies granted to termors. Slowly a practice has arisen of letting land for terms of years. At first the termor's right is regarded as a merely contractual right---his only remedy is an action of covenant against his lessor---indeed in the first half of the thirteenth ccntury we seldom find the action of covenant used for any other purpose. If ejected by his lessor, the termor can recover; the land by action of covenant; if disturbed or ejected by anyone else his one remedy is to obtain by the same action damages from the lessor who has contracted that he shall enjoy the land during the term. He is not regarded as having any right in the land, or any seisin, i.e. possession, of the land, he has only, as we should say, jus in personam. But about 1237, as it would seem, a new writ was given him, the quare ejecit infra terminum which would enable him to recover the land from any person who ejected him, at least if that person claimed under the lessor. Bracton thought that it would enable him to recover against any ejector; but the form which came into use supposed that the defendant was a purchaser from the lessor, and it seems to have been held that it could not be brought against a mere stranger to the title. We are even told who invented this writ; it was William Raleigh, the chief justice. There is no legislation, no intention to give a new right, merely a new remedy; but as you see the character of the old right is being changed, it is ceasing to be a merely contractual jus in personam. In a few years we have Bracton discussing the problem whether the termor is not seised of the land. Undoubtedly his lessor is seised, and if the termor be ejected by a third person the lord can recover the land from that third person as from one who has disseised him;---but the terrnor also is getting protection--what are we to say, can two persons at one and the same time be seised or possessed of the same acre in two different rights? Bracton hesitates---Roman law points one way, English practice another. In course of time in the fifteenth century there will be a differentiation of terms, the termor will be possessed, the freeholder will at the same time be seised. Our law thus has on its hands the very difficult task of working two different sets of possessory remedies---the ancient set which protect seisin, the more modern set which protect possession. Then "seised" will come to imply the right to use the assizes competent to the freeholder, "possessed" will imply the right to use the writ of trespass.

Meanwhile the actions which came to be known as personal make their appearance. The oldest seems to be "Debt-Detinue", which appears already in Glanvill. I say "Debt-Detinue"---originally men see little distinction between the demand for a specific chattel and the demand for a certain sum of money. Gradually this action divides itself into two, Detinue for a specific chattel, Debt for a sum of money---this differentiation takes place early in the thirteenth century. As in Detinue the judgment given for the plaintiff awards him either the chattel itself, or its value; and, as the defendant thus has the option of giving back the chattel or paying its value, Bracton is led to make the important remark that there is no real action for chattels---an important remark, for it is the foundation of all our talk about real and personal property. To Debt and Detinue we must now add Replevin, the action for goods unlawfully taken in distress. This action we are told was invented in John's reign---another tradition ascribed its invention to Glanvill. Covenant also has appeared, though during the first half of the thirteenth century it is seldom used except in cases of what we should call leases of land for terms of years. Gradually the judges came to the opinion that the only acceptable evidence of a covenant is a sealed writing, and one of the foundations of our law of contract is thus laid. Account appears in Henry III's reign; but it is very rare and seems only used against bailiffs of manors.

But the most important phenomenon is the appearance of Trespass---that fertile mother of actions. Instances of what we cannot but call actions of trespass are found even in John's reign, but I think it clear that the writ of trespass did not become a writ of course until very late in Henry III's reign. Now trespass is to start with a semi-criininal action. It has its roots in criminal law, and criminal procedure. The historical importance of trespass is so great that we may step aside to look at the criminal procedure out of which it grew. The old criminal action (yes, action) was the Appeal of Felony (appellum de felonia). It was but slowly supplanted by indictment---the procedure of the common accuser set going by Henry II, the appeal on the other hand being an action brought by a person aggrieved by the crime. The appellant had to pronounce certain accusing words [See, for example, Bracton, fo. 138a, for the accusation by a brother in an appeal of murder (reciting that the appellor and his brother, the murdered man, were in the peace of God and of our Lord the King at such a place and on such a day) where the words vi et armis do not appear but are replaced by setting out the detail of the assault and the mortal wounding with a sword]. In each case he must say of the appellee fecit hoc (the murder, rape, robbery or mayhem) nequiter et in felonia, vi et armis et contra pacem Domini Regis.

He charges him with a wicked deed of violence to be punished by death, or in the twelfth century by mutilation. The procedure is stringent with outlawry in default of appearance. The new phenomenon appears about the year 1250, it is an action which might be called an attenuated appeal based on an act of violence. The defendant is charged with a breach of the king's peace, though with one that does not amount to felony. Remember that throughout the Middle Ages there is no such word as misdemeanour---the crimes which do not amount to felony are trespasses (transgressiones). The action of trespass is founded on a breach of the king's peace: with force and arms the defendant has assaulted and beaten the plaintiff, broken the plaintiff's close, or carried off the plaintiff's goods; he is sued for damages. The plaintiff seeks not violence but compensation, but the unsuccessful defendant will also be punished and pretty severely. In other actions the unsuccessful party has to pay an amercement for making an unjust, or resisting a just claim; the defendant found guilty of trespass is fined and imprisoned. What is more, the action for trespass shows its semi-criminal nature in the process that can be used against a defendant who will not appear---if he will not appear, his body can be seized and imprisoned; if he cannot be found, he may be outlawed. We thus can see that the action of trespass is one that will become very popular with plaintiffs because of the stringent process against defendants. I very much doubt whether in Henry III's day the action could as yet be used save where there really had been what we might fairly call violence and breach of the peace; but gradually the convenience of this new action showed itself. In order to constitute a case for Trespass vi et armis, it was to the last necessary that there should be some wrongful application of physical force to the defendant's lands or goods or person---but a wrongful step on his land, a wrongful touch to his person or chattels was held to be force enough and an adequate breach of the king's peace. This action then has the future before it.

Meanwhile trial by jury is becoming the normal mode of trying disputed questions of fact. The older modes of trial are falling into the background. In Debt and Detinue and some other cases there still is compurgation. The obsolescence of this ancient mode of proof, however, is a g.adual process. It cannot be explained by rationalistic statements such as that in Debt and Detinue the cause of action is one peculiarly within the knowledge of the defendant. We must look rather to the historical order of development of the various actions. Debt and Detinue are formulated at an early period; Trespass is the product of a later age. But the permissibility of this old mode of proof in Debt and Detinue is of great importance---it sets men on attempting to substitute for them, even within their own sphere, forms of action in which there will be trial by jury. And so with the forms of trial appropriate to the assizes. Though in a large sense this may be called a sub-form of trial by jury, still it is an archaic sub-form and men try to evade it; they would glady, if they could, use actions of trespass instead of the novel disseisin, and the mort d'ancestor. In these old assizes the question for the recognitors was formulated in the original writ; in the newer forms the procedure was more flexible---a jury was only called in after the parties to the action had by their pleadings come to some issue of fact---it was not called in until pleading had decided what exactly was the real point of dispute.

IV. l2l2-1307.

The reign of "the English Justinian" may be treated as a period by itself---a period of statutory activity. Statutes made by king and parliament now interfere with many details both of substantive law and of proccdure. A number of new actions are given by statute, e.g. the De Donis gives the issue in tail of "formedon in the descender"; this is a well-known and typical example. The whole system stiffens. Men have learnt that a power to invent new remedies is a power to create new rights and duties, and it is no longer to be suffered that the chancellor or the judges should wield this power. How far the process of crystallisation had gone, how rigid the system was becoming, we learn from a section of the Statute of Westminster II, 13 Edw. I c. 24 (1285). Men have been obliged to depart from the Chancery without getting writs, because there are none which will exactly fit their cases, although these cases fall within admitted principles. It is not to be so for the future---Et quotienscumque de cetero evenerit in Cancellaria quod in uno casu reperitur breve et in consimili casu cadente sub eodem jure et simili indigente remedio, concordent clerici de Cancellaria in brevi faciendo vel atterminent querentes in proximo parliamento et scribant casus in quibus concordare non possunt et referant eos ad proximum parliamentum et de consensu jurisperitorum fiat breve ne contingat de cetero quod curia diu deficiat querentibus in justicia perquirenda. "And whensoever from henceforth it shall fortune in the Chancery, that in one case a writ is found, and in like case falling under like law, and requiring like remedy, is found none, the clerks of the Chancery shall agree in making the writ; or adjourn the plaintiffs until the next Parliament, and let the cases be written in which they cannot agree, and let them refer them until the next Parliament, and by consent of men learned in the law, a writ shall be made, lest it might happen after that the court should long time fail to minister justice unto complainants." In after times we hear complaints that the Chancery made but little use of the permission thus given to it; but for my own part I doubt whether it enjoyed or was intended to enjoy any very considerable liberty. It may vary the old writs---but it is not to invent new rights or new remedies---in consimili casu cadente sub eodem jure et simili indigente remedio. But when we say that but little use was made of this Statute there is one great exception. It is regarded as the statutory warrant for the variation of the writs of trespass so as to suit special cases, until at length---about the end of the Middle Ages---lawyers perceive that they have a new form "Trespass upon the special case" or "Case". Specialised forms of this branch off forming (1) Assumpsit, so important in the law of Contract, (2) Trover, (3) Deceit, (4) Action upon the Case for words---slander and libel. It is worth noting that a writ issued by the Chancery is not necessarily a good writ. The justices may quash it as contrary to law, and in the later Middle Ages the judges are conservative; they hold the writ bad not merely if it does not suit the case but if it contravenes what they deem legal principle. At any rate the tale of common law (i.e. non statutory) actions was now regarded as complete [Notandum. Registrum Brevium---printed by Rastell 1531, Medieval Register MS. (there are many in the University Library). The earliest seen by me is a Register sent by Henry to Ireland---it contains about fifty writs. There is an early Register of Henry III in the University Library (CUL II.vi.13). This book has grown to perhaps fifty times its bulk when printed under Hen. VIII; there is the work of four centuries in it. There are Commentaries; the Old Natura Brevium and Fitzherbert's Natura Brevium published 1534 (Fitz. ob. 1538). His work which Coke called "an exact work exquisitely penned" ran through many editions. The theme of the expounder is not the nature of rights but the nature of writs]. The king's courts had come to be regarded as omnicompetent courts, they had to do all the important civil justice of the realm and to do it with the limited supply of forms of action which had been gradually accumulated in the days when feudal justice and ecclesiastical justice were serious competitors with royal justice.

Lecture V.

V. 1307-1833.

A period lasting from 1307 to 1833 is enormously long, still I do not know that for our present purpose it could be well broken up into sub-periods. Our interest must be chiefly concentrated on the action of trespass. We may perhaps draw a map of the ground.

I have tried to assign dates in a rough way to the various developments of trespass; but you should understand that this, from the nature of the case, must be a somewhat arbitrary proceeding. So continuous is legal history that the lawyers do not see that there has been a new departure until this has for some time past been an accomplished fact; their technical terminology will but slowly admit the fact that a single form of action has become several forms of action.

From Edward I's day onwards trespass vi et armis is a common action. We may notice three main varieties---unlawful force has been used against the body, the goods, the land of the plaintiff; so we have trespass in assault and battery, trespass de bonis asportatis, trespass quare clausum fregit. These are the main varieties, but the writ can be varied to meet other cases and sometimes states the facts of the particular case pretty fully, e.g. the defendant has not only assaulted the plaintiff, but has imprisoned him and kept him in prison so many days, or again, the defendant's dog has bitten the plaintiff's sheep. But for a while it seems essential that there should be some unlawful force, however slight, something that can by a stretch of language be called a breach of the peace. Now, among other things that the writ of trespass can do is that it can protect possession of land. If B trespasses on the land which A possesses, A can recover damages from B by a writ of trespass quare vi et armis---B has broken A's close and the king's peace. A can recover damages, but if B proceeds to eject A, though A may recover damages he cannot recover possession of the land by this writ. If A wants to recover possession he must bring an assize or a writ of entry, or a writ of right. Now the possession which is thus protected by the quare vi et armis is something different from the seisin which is protected by the assizes. The action of trespass grows up in an age in which the letting of land for terms of years has become a common practice---and if land be so let to a farmer and a stranger trespass, it is the termor, not the free-holder, who will be able to complain that the stranger has entered and broken his close. Indeed, after some little hesitation, it is admitted that if the lessor without justification enters the land demised to the termor, the termor will be able to bring a writ of trespass against him, albeit the lessor has only entered on land of which he himself is seised. Thus we are coming to have two protected possessions, the old possession or seisin protected by the assizes, the new possession protected by the writ of trespass. The two terms become specified. We may, I think, fix upon the middle of the fifteenth century as the time of the specification. Littleton, who wrote between 1474 and 1481, in section 324 says in effect that a termor is not seised but is possessed. But in section 567 he himself slips into speaking of the termor as seised.

So again, the holder in villeinage now gets protection. The assizes did not protect him; they did not protect him against mere strangers, much less against his lord. The assize of novel disseisin required that the plaintiff should be disseised de libero tenemento suo. To have extended the royal protection to holders in villeinage would have been too bold a measure even for Henry II. The view of the king's court was that the lord of the manor was seised of the villein tenements. If a stranger ejects one of the villein tenants it is the lord not the tenant who is disseised. The tenant's remedy was an action in the lord's court, and so long as the manorial courts were efficient tribunals the tenant in villeinage, even though personally a villein, was, I think, very fairly and efficiently protected against all but his lord. Times had changed when the action of trespass became common at the end of the thirteenth century. The new action was based on violence and breach of the peace. The mere tenant at will was allowed that action, was allowed to call the land clausum suam. Putting the rights of the tenant in villeinage at their lowest, he was still a tenant at will, and as such should have the action of trespass against all but the lord. Then in the middle of the fifteenth century we begin to hear hints that he may bring trespass even against his lord. In 1457 we hear such a hint; and in 1467 and 1481 it is definitely said that the copyholder---that is the new name for the tenant in villeinage, shall have an action against the lord if ejected contrary to the custom of the manor. This, of course, is an enormously important step.

Thus there are many persons protected in possession by the writ of trespass who are not seised. But the protection thus given is only that of an action for damages---one cannot recover possession by means of such an action. However, just at the end of the Middle Ages there comes a change. The special form of a writ of trespass applicable to the case of an ejected lessee is known as a writ de ejectione firmae, it calls on the defendant to answer quare vi et armis intravit [unum mesuagium] quod M demisit praedicto A ad terminum qui nondum praeteriit et ipsum A ejecit de praedicta firma sua . . . contra pacem nostram. It is just a writ of trespass vi et armis. Now, at the very end of the fourteenth century it seems perfectly settled that this writ will only give damages and will not restore the plaintiff to the land (Pasch. 6 Ric. II, Fitz. Abr. Ejectione firmae, pl. 2). On the other hand, about the middle of the fifteenth century, lawyers certainly speak as though possession might be recovered by this writ (Pasch. 7 Edw. IV (1467), fo. 6, pl. 16; Mich. 21 Edw. IV (1481), fo. II, pl 2). A judgment of 14 Hen. VII, in error, however, seems to have been necessary to decide the point finally (Fitz. N. B. 220, 1491-2). Thus it became settled that judgment might be given that the plaintiff do recover his term, and a writ might go to the sheriff bidding him put the plaintiff in possession--habere facias possessionem. This step may have been easier because there was an older writ---quare ejecit infra terminum---whereby a termor might recover possession from persons claiming under the lessor.

To sum up for a moment. Early in the reign of Henry III the termor's remedy was an action of covenant [Bracton, fo. 220, and Cambridge Register, circ. 1237].

Raleigh invented the writ of quare ejecit infra terminum. Bracton thought it would enable the termor to recover contra quoscunque dejectores [Bracton, fo. 220]. However (and this is a good instance of inflexibility) the writ actually settled supposed the ejector to have bought from the lessor. It was then held that the writ only lies against those claiming under the lessor.

Then Trespass comes into use---and one specialised form of trespass quare vi et armis, is trespass de ejectione firmae---this lies against all, but only for damages.

[Fitzherbert (N. B. I98 A) begins a confusion which has misled later writers. He supposes ejectione firmae to be older than quare ejecit infra terminum---which is not true. He also supposes trespass primeval---this certainly is not true.]

The action of trespass de ejectione firmae becomes the Action of Ejectment, and the common means of recovering possession of land, no matter the kind of title that the claimant asserts. What makes this action of ejectment so interesting is the process whereby the freeholder acquires the termor's remedy. Why did he want it? The reasons are twofold, first the dilatoriness of the old proprietary or droiturel action with their essoins, vouchers, and possible trial by battle or the grand assize, and secondly the rudeness of the old possessory actions, each with its narrow formula (a process which confines the jurors to the answering of questions of pure fact, a process carried out under cover of a highly technical system of pleading which sets many traps for the litigant). But this step is only made under cover of an elaborate fiction. It may occur to you to ask why so elaborate a fiction is necessary. Has not the principle been conceded that possession may be recovered in an action for trespass? A claims land against X, why should he be compelled to say that he, A, demised the land to John Doe, who was ejected, and bring the action in John Doe's name---why should it not be enough, in an action of trespass, to say that A himself was ejected? The answer to that is I think this--if you are a freeholder claiming land you should bring a writ of entry, or a writ of right. If you, being freeholder, have been ejected, that is a disseisin, you should bring the assize of novel disseisin. The law has provided you with abundant remedies, both proprietary and possessory---you must use them. If to us it seems that such an answer as this is unsatisfactory we should try to look at the matter from X's point of view. Has he not, so to speak, a vested interest in the maintenance of the old procedure? You are proposing to use against him an action in which he may be imprisoned and outlawed, while, supposing that he is in the wrong, the law has provided other forms of action which do not permit this procedure against his person. Arguments of this kind have had a considerable influence on the course of our legal history, and have produced very odd results---a newer, and perhaps less common right, is sanctioned by a modern and comparatively rapid action, while older, and perhaps commoner, rights are protected only by old and clumsy remedies.

However, in the present case, as is well known, a dodge was discovered by which the action of ejectment (ejectione firmae) could be made generally available as a means of enabling any claimant to recover possession of land. Blackstone has described this dodge fully and well [Comm. III, 201]. You are in possession of land of which I say that I am the true owner, the tenant in fee simple. If this is correct I have as a general rule a right to enter. Mark, "as a general rule"; for there are exceptions--the cases where the entry is "tolled", of which hereafter. I do in fact enter and then and there make a lease for years to a third person, John Doe. John Doe stays on the land until ousted by you, and then brings the action, trespass in ejectment or, briefly, ejectment. To succeed in his action he must prove (1) my right to enter, (2) the lease, (3) his entry under the lease and (4) his ouster by you. When all this is proved he recovers his term with damages. Upon this form there is a variation. I put John Doe as tenant upon the land and he is ousted not by you but by a fourth person, William Stiles. Doe then has the action of ejectment against Stiles, but there is a rule that no plaintiff shall proceed in ejectment without notice being given to the person actually in possession and an opportunity being given him to appear as a defendant if he pleases. Where Doe sues Stiles, Stiles informs you of the action and you, if you do not want to see the land adjudged to Doe, defend the action in Stiles's stead. In the end my title as against you is put in issue in the action.

Then the Court in effect says "Here is an action in which any title can be tried. Why not abbreviate the process by supposing that things have been done which in fact have not been done ?" The ultimate outcome is that, bringing my action in the name of Doe (for on the record I am merely the "lessor of the plaintiff"), I tell of (1) a lease to Doe, (2) an entry and (3) an ouster by Stiles, the "casual ejector". I then send you a notice purporting to be signed by "your loving friend, William Stiles" to the effect that he claims no interest but advises you to defend; and the Court will only allow you to defend in place of Stiles the action that I bring in the name of Doe if you will agree to confess at the trial the lease, entry and ouster and leave the trial to go upon the merits of the title only.

The development of this action is a long story and about such a matter it is hard to fix any dates--one cannot tell the exact moment at which a proceeding becomes fictitious---but I believe we may say that during the Tudor reigns the action of ejectment became the regular mode of recovering the possession of land. A few improvements remained to be invented under the Stuarts, and the perfection of the action is attributed to the Lord Chief Justice Rolle of the Upper Bench during the Commonwealth; but already in the day of James I Coke expressed his deep regret that the assizes and real actions were going out of use. That is in the Preface to 8 Rep., in which book Coke reports two assizes of Novel Disseisin, one writ of dower and a formedon in the remainder. Blackstone still says that "the plaintiff ought to be some real person, and not merely an ideal fictitious one who hath no existence, as is frequently though unwarrantably practised"[Comm. III, 203].

It is worth while to notice the form taken by the title of the action. The action which would today be known as Atkyns v. Horde was entitled Doe on the demise of Atkyns v. Horde or, briefly, Doe dem.

Atkyns v. Horde, Atkyns appearing as the "lessor of the plaintiff".

The real actions never went quite out of use until they were abolished by statute in 1833 and a few were brought in the nineteenth century. There were to the last certain cases---possible rather than probable---in which a man was entitled to the possession of land but could not bring an action of ejectment for it. The basis of the action of ejectment was the right of the "lessor of the plaintiff" to enter upon the land. The action presupposes that the plaintiff has not merely a better right than the defendant but a right to enter on the defendant and it was possible that a man had the former and not the latter.

To understand these exceptional cases we must go back to the strict possessory protection of seisin to the days when, at all costs, force was forbidden. An ejector must be re-ejected at once or never, in Bracton's time, infra quatuor dies. The Roman owner turned out by armed force may only repossess himself by armed force there and then---non ex intervallo sed ex continenti---otherwise he must have recourse to the interdict unde vi [Dig. 43, 16, 3, 9]. In the later Middle Ages, however, this strict possessory protection was gradually relaxed in favour of a doctrine that the man with the better right (the true owner) generally has a right to enter. The older rule becomes a string of exceptions to the newer rule. Certain events are said to "toll" (i.e. to take away) the entry of the true owner---to leave him with a right only to bring an action, a writ of entry. The story is a very difficult one to explain here and one which is hardly for beginners. For example it may however be said that (1) a descent cast to an heir tolls entry and (2) a discontinuance (in particular, a tortious feoffment in fee simple) turns a right of entry into a right of action. So, then, to the end there were some exceptions to what had become the general rule that title to land could be made good in Ejectment.

I have said "to the end", that is to say until 1833. As we have seen the action of ejectment, with all its fictions, was spared from the wholesale abolition of real and mixed actions made by the Real Property Limitation Act of 1833, and it was reformed by the Common Law Procedure Act of 1852 [15 and 16 Vic. c. 76, sec. 168ff]. The fictitious procedure was abolished, the real claimant was to sue in his own name, John Doe disappeared. The action thus remodelled was in use until 1875. Since that time we have had in the old sense no forms of action---an action for the recovery of land, an action, i.e. to obtain possession of land, can be brought by any person entitled to possession, no matter the nature of his title, be it freehold, leasehold, copyhold.

Let us recall the accepted definition of the words real, personal, and mixed as applied to actions; meaning, that is to say, actions of which the result is the recovery of the thing or of damages or of both, respectively: and let us examine in somewhat greater detail into the personal actions.

We may say that they were nine in number, (1) Replevin, (2) Detinue, (3) Debt, (4) Accounts (5) Covenant, (6) Trespass, (7) Case, (8) Trover, and (9) Assumpsit.

Replevin we may quickly put aside, its importance in the Middle Ages was very great, but it was not capable of much development. It is an action founded upon a wrongful distraint---the distrainee offers security that he will contest the distrainor's rights in court, and thereupon the distrainor is bound to surrender the goods---usually cattle. If he does not do so the sheriff is to raise the posse comitatus and retake them. An action beginning thus with a demand for replevin (i.e. that the goods be "repledged" pending action) becomes the normal mode of trying the rightfulness of distraint, and such actions are of very common occurrence in the Middle Ages.

A procedure for securing the delivery of goods by way of replevin still exists---the registrar of the County Court playing the old part of the sheriff. A few instances of replevin used to recover goods though not taken by way of distress are known. These occur late in the day, and are not important in relation to general theory.

Detinue. This is a very old action. The defendant is charged with an unjust detainer (not, be it noted, an unjust taking)---injuste detinet. This action looks very like a real action. The writ originating it bears a close similarity with the writ of right (praecipe in capite), but in the first place the mesne process is not in rem, and in the second (and this is very important) the defendant when worsted is always allowed the option of surrendering the goods or paying assessed damages. The reason of this may perhaps be found partly in the perishable character of medieval moveables, and the consequent feeling that the court could not accept the task of restoring them to their owners, and partly in the idea that all things had a "legal price" which, if the plaintiff gets, is enough for him.

This option leads Bracton to say that there is no real action for chattels, and this sentence is the starting-point of the fashion which teaches us to say that goods and chattels are not "real" but "personal" property.

Behind all this probably lies the time when the doctrine is current that mobilia non habent sequelam, which doctrine, though never in the mouth of English lawyers, runs through French law down to modern times. If I let my goods go out of my possession with my will and consent I am to have no action against any third hand---a bailee of my bailee, or even a taker from my bailee. When I put my trust in the promise of my bailee I have that promise in exchange for my ownership, as the German proverb has it, "where one has put his trust there must he seek it again". But the English law never reached a full conformity with this theory. Modern English law is, on the other hand, highly favourable to owners of chattels. Subject to the ancient exception about sales in market overt, and to modern statutory exceptions (now embodied in the Factors Act, 1889, and the Sale of Goods Act, 1893), ownership is never lost by acts of others than the owner. But this is clearly not the starting-point---of old the property in moveables is not so intense as property in land; and archaic law finds difficulty in giving two rights in the one thing, one to the owner and another to his bailee. At any rate, however this may be, the terminology became fixed---there is no "real" action for moveables, and therefore chattels are not "real property".

Here we must note the great defect of the action for Detinue---a defect which it shares with its sister Debt---the defendant may wage and make his law, in other words, may resort to the compurgatory oath. Attempts have been made to rationalise and explain this fact. It has been said that debt and detinue were matters more particularly within the knowledge of the parties, and so on, but the simple explanation is that detinue and debt were older than trial by jury [They appear in very early registers]. But wager of law was abolished in 1833 by 3 and 4 Will. IV, c. 42, sec. 13.

Debt. An action for a fixed sum of money due for any reason, and own sister to Detinue. Here also we have a praecipe quod reddat (1) terram, (2) catalla, (3) pecunia are the writs of right (for land), of detinue, and of debt respectively.

Its first and chief use was for the recovery of money lent---a sense in which the word "recovery" is still used. The difference between commodatum and mutuum---the loan to be returned and the loan to be repaid---was hardly seen. It is hardly seen today by the vulgar. "My money at the bank", is a phrase in common use. Another use of the action of debt was for the recovery of the price upon a sale, and another the recovery of rent due. There were other causae debendi, and gradually the progress towards generalization got to be expressed in the phrase that debt would lie for a fixed sum of money if there were a quid pro quo or, later, if there were "consideration". Thus Debt originally conceived as recuperatory, like Detinue, becomes capable of being used for the enforcemerst of contracts of sorts. One limitation, however, remained---the untranscendible limit---the claim must be for a fixed sum. Debt cannot be used to obtain compensation for breach of contract. And, further, debt can always be met by wager of law, which becomes more and more absurd. It is never forgotten that the action of debt is not necessarily based on contract---it serves for the recovery of statutory penalties, of forfeitures under by-laws, of amercements, and of monies adjudged by a court to be due.

Account. The action of Account is another praecipe, originally granted against manorial bailiffs. Praecipe quod reddat compotum. Auditors were appointed to supervise the account. At a later stage it was extended to some other classes, thus it could be used between partners, but partnership is uncommon and unimportant in the England of the Middle Ages. A few modern instances of its use are recorded, but the common law action of account remains at a low level of development because of the fact that it was in practice superseded by the equitable jurisdiction of the Chancellor, who in the Bill for account had a more modern remedy operating under a more favourable and convenient procedure.

Covenant. This actlon is also an old one. Its writ directs quod conventio teneatur. The earliest use of the action is for the protection of the termor; at one time it is the lessee's only remedy. It early sends off a branch which is reckoned a real action because land is recovered [This action of Covenant Real was abolished in 1833], in other cases the action results in money being obtained. It appears for a time as if covenant might be of general use wherever there is an agreement (conventio), might become, in fact, a general action for breach of contract; but the practice of the thirteenth century decides that there must be a sealed writing. A sacramental importance was attached to the use of the seal---collatio sigilli---and it was finally adopted as the only acceptable evidence of a covenant. Thus we come to the English formal contract, the Covenant under Seal. One curious limitation appears, and is maintained until the seventeenth century; Covenant cannot be brought for the recovery of a debt, though attested under seal. This action remains useful but in its own narrow sphere.

Lecture VI.

Trespass. All the other personal actions branch out from one, namely Trespass. Trespass appears circa 1250 as a means of charging a defendant with violence but no felony. The writ, as we have seen, contains the words vi et armis contra pacem, the procedure is enforced by a threat of outlawry, imprisonment is resorted to by way of mesne process, and the vanquished defendant is punished for his offence. He is not merely in misericordia, he is liable to a capias pro fine. There is a trifurcation, the writ varying according as the violence is done (1) to land, (2) to the body, or (3) to chattels. Speaking of trespass to land let us once more remember how trespass quare clausum fregit sends out the action for ejectment as a branch.

Trespass to the body (assaults and batteries) covered the whole ground of personal injury, and no great development was possible here. Trespass to goods, trespass de bonis asportatis is an action which results in damages, never return of the goods, for carrying goods off from the plaintiff's possession---and therefore the bailee can bring it [On this subject See: Holmes, The Common Law, sub. tit. Possession and Bailment].

I have already said that the writ-making power wielded by the king and his chancellor was gradually curbed by our parliamentary constitution, and in Edward I's day it has become necessary to tell the Chancery that it is not to be too pedantic, but may make variations in the old formulas when a new case falls under an old rule. Some use was made of this liberty, but slowly and cautiously; it had not been intended that the chancellor should legislate. Thus we find one new writ of entry devised which is distinctly ascribed to the freedom of action left to the Chancery by the Statute of Westminster II, c. 24---it is the writ of entry in consimili casu [The writ of entry called ad communem legem lay where the flaw in the tenant's title originated in an alienation by a doweress or by a tenant by the curtesy, or for life or in tail, in excess of her or his powers (e.g. in fee) and lay only where the doweress, etc., was dead. The Statute of Gloucester c. 7 gave the remainderman an action by writ of entry, called in casu proviso, during the life of the alienor but only in case of alienation by a doweress. After the Statute of Westminster II the writ of entry in consimili casu was given during the life of the alienor to the remainderman in the other cases (F.N.B. 205, 206, 207)]. But the most important use made of this liberty consisted in some extensions of the action of trespass. Gradually during Edward III's reign we find a few writs occurring which in form are extremely like writs of trespass---and they are actually called writs of trespass---but the wrong complained of does not always consist of a direct application of unlawful physical force to the body, lands, or goods of the plaintiff; sometimes the words vi et armis do not appear. Sometimes there is no mention of the king's peace. Still they are spoken of as writs of trespass, they appear in the Chancery Register as writs of trespass, mixed up with the writs which charge the defendant with violent assaults and asportations. The plaintiff is said to bring an action upon his case, or upon the special case, and gradually it becomes apparent that really a new and a very elastic form of action has thus been created. I think that lawyers were becoming conscious of this about the end of the fourteenth century. Certain procedural differences have made their appearance---when there is vi et armis in the writ, then the defendant if he will not appear may be taken by capias ad respondendum or may be outlawed---this cannot be if there is no talk of force and arms or the king's peace. Thus Case falls apart from Trespass---during the fifteenth century the line between them becomes always better marked. In 1503 (19 Hen. VII, c. 9) a statute takes note of the distinction; the process of capias is given in "actions upon the case". Under Henry VIII Fitzherbert in his Abridgment and his Natura Brevium treats of the Action sur la Case as something different from the action of trespass---each has its precedents. The title of Case covers very miscellaneous wrongs---specially we may notice slander and libel (for which, however, there are but few precedents during the Middle Ages, since bad words are dealt with by the local courts, and defamation by the ecclesiastical courts), also damage caused by negligence, also deceit.

Case becomes a sort of general residuary action; much, particularly, of the modern law of negligence developed within it. Sometimes it is difficult to mark off case from trespass. The importance of the somewhat shadowy line between them was originally due to the fact that where vis and arma were not alleged there was no imprisonment in mesne process, nor was the defeated defendant liable to the judgment quod capiatur pro fine.

The judgment quod capiatur pro fine was abolished, formally, in 1694 (5 and 6 W. and M. c. 12), but had long before this been a mere form. The act recited that "whereas in actions of trespass, ejectment, assault, and false imprisonment upon judgment entered against the defendant the courts do (ex officio) issue out process against such defendant for a fine to the Crown, for a breach of the peace thereby committed, which is not ascertained, but is usually compounded for a small sum by some officer of the court, but never estreated into the Exchequer, which officers do very often outlaw the defendants for the same to their very great damage", and the act proceeded to prohibit the issue of the writ of capias pro fine and to substitute a fixed payment of 6s. 8d. to be paid in the first place by the plaintiff on signing judgment but to be recovered by him as costs from the defendant.

Greater uniforrnity was introduced, partly by statute and partly by fiction, but still the distinction had to be observed. The plaintiff must sue either in case or in trespass, and upon the accuracy of his claim depended the success of his action. The well-known case of Scott v. Shepherd (2 W. Bl. 892 and 1 Sm. L.C.) turns upon this distinction, and is worth reading as illustrating the narrowness of the margin between the two. Even as late as 1890 parties in a case of wounding by a glancing shot fired from the defendant's gun are still arguing as to the appropriateness of trespass or case, the plaintiff contending, though without success, that in trespass negligence is immaterial and the defendant is liable for inevitable accident [Stanley v. Powell, 1891, 1 Q.B. 86]. In 1875 Lord Bramwell (then Bramwell B.), in the case of Holmes v. Mather [L.R. 10 Ex. 261], had explained the distinction thus:

"If the act that does the injury is an act of direct force, vi et armis, trespass is the proper remedy (if there is any remedy), where the act is wrongful either as being wilful or as being the result of negligence. Where the act is not wrongful for either of these reasons no action is maintainable, though trespass would be the proper form of action if it were wrongful."

Sub-forms of Case become marked off, e.g. Case for negligence, for deceit, for words (slander and libel); but two great branches were thrown out which gain an independent life, and are generally important, viz. Assumpsit and Trover.

Assumpsit. The most curious offshoot of Case is Assumpsit and the great interest of this action lies in the fact that it becomes the general form by which contracts not under seal can be enforced by way of action for damages. Under the old law the contracts are formal, or "real", the form required being the instrument under seal, the bond or covenant, and the "real" contracts---the word "real" being used in the sense of general jurisprudence---are protected by Debt-Detinue without it being seen that contract is the basis. Gradually however within the delictual action of Case various precedents collect in which the allegation is made that the defendant had undertaken to do something and then hurt the plaintiff either in his person or in his goods by doing it badly---by misfeasance.

Further, an important element in this progress is the idea of breach of contract as being deceit---the plaintiff suffers detriment by relying on the promise of the defendant. This point is brought out by Ames in the Harvard Law Review [2 H.L.R. pp. 1 & 53] in two masterly articles which should be read at length.

The having undertaken (assumpsit) to do something, makes its appearance as part of the cause of action in various writs upon the case. Thus we find an early group of cases, from Edward III's reign, in which the plaintiff seeks to recover compensation for some damage done to his person or goods by the active misconduct of the defendant, but still the defendant cannot be charged with a breach of the peace, as the plaintiff has put his person or his goods into the defendant's care. The defendant, for example, is a surgeon, and has unskilfully treated the plaintiff or his animals so that he or they have suffered some physical harm. In such cases we find an assumpsit alleged. It is necessary to allege that the defendant undertook the cure---had it not been so, according to the notions of the time, it might well have been urged that the harm was occasioned by the plaintiff's own folly in going to an inexpert doctor. A little later, in the fifteenth century, we have actions against bailees for negligence in the custody of goods intrusted to them, and here also it was necessary to allege an assumpsit. Again, there is another class of cases in which an undertaking is alleged---a seller has sold goods warranting them sound, and they have turned out unsound; the cause of action is regarded not as breach of contract, but as deceit. Thus in divers directions the law was finding materials for a generalisation, namely, that breach of an undertaking, an assumpsit, for which there was valuable consideration was a cause of action.

Gradually the line between mis-feasance and non-feasance was transcended, and gradually lawyers awoke to the fact that by extending an action of tort they had in effect created a new action by which parol contracts could be enforced. It is, I think, about the beginning of the sixteenth century that they begin to regard Assumpsit as a different form from Case, a form with precedents of its own and rules of its own. Then begins a new struggle to make Assumpsit do the work of Debt. Plaintiffs wish for this result because they desire to avoid that wager of law which is allowed in Debt, and defendants may fairly argue that according to the law of the land they are entitled to this ancient mode of proof. Professor Ames's article gives the stages of this struggle. Through the sixteenth century, an actual express agreement alone gives rise to Assumpsit, and therefore if Assumpsit is to be used to enforce a debt, for example for the price of goods sold and delivered, a new promise---a promise to pay that debt---must be alleged and proved. However, in 1602, Slade's case (4 Rep. 92b) decides that Assumpsit may be brought where Debt would lie, and thenceforth Assumpsit supplants Debt as a means for recovering liquidated sums. In that case such a new promise had been alleged and the jury by a special verdict had found the bargain and sale to be proved but that "there was no promise or taking upon him, besides the bargain aforesaid" [Rep. IV. 92a]. Upon this finding the case was argued in the King's Bench and the action in Assumpsit was held to lie, the Court resolving that "Every contract executory imports in itself an assumpsit, for when one agrees to pay money or to deliver anything, thereby he assumes or promises to pay or deliver it" [Rep. IV. at p. 94a]. Thenceforth the proof of the new promise becomes unnecessary. This form of Assumpsit takes the name of Indebitatus Assumpsit.

Some seven years later we have this action extended from cases of express executory contract to cases where the original bargain was an implied contract, in the sense that a contract is really to be implied from the facts of the case, for example, cases of actions for quantum meruit.

Lastly, at some date between 1673 and 1705, Indebitatus Assumpsit is extended to actions upon Quasi-Contracts in which the element of contract is purely fictitious.

As we have already seen, this action of Assumpsit, which at least seems to us as of delictual origin, becomes the general mode of enforcing contracts even when a sum certain has to be recovered, and thus Assumpsit becomes a rival to and a substitute for Debt in which latter action the defendant may still wage his law. For some reason Debt was brought as late as 1824 in the case of King v. Williams, 2 B. and C. 538, when the defendant, although the court refused to assist him even to the extent of telling him how many helpers he needed, produced eleven helpers (jurare decima manu) and the plaintiff withdrew. Wager of law was, however, not formally abolished until 1833 [3 and 4 Will. IV, c. 42, sec. 13].

Trover. One other great branch is thrown out by Case, namely Trover. For the history of this action see Ames's articles in the Harvard Law Review [11 HLR 277, 374]. This also is an action for damages based upon a fictitious loss and finding and a subsequent conversion to the use of the defendant. Here there is no trespass, the defendant may be a perfectly innocent purchaser from the original wrongdoer; and there is no "recuperation"---the gist of the action is the conversion.

I believe that Trover begins to appear about the middle of the sixteenth century. Gradually it begins to supplant Detinues in which there is wager of law, and it becomes the normal mode of trying the title to moveable goods. The plaintiff charges that he was possessed of goods, that he lost them, that the defendant found them and converted them to his use. The court will not permit the defendant to dispute the loss and finding, but obliges him to answer the charge of conversion.

Since the provisions of sec. 78 of the Common Law Procedure Act of 1854, the old option, between paying the value of the chattel and restoring it to the successful plaintiff, is not necessarily left to the defendant, the court may order the restitution of the chattel. This statute has removed the original basis for the use of the terms by which we call lands real and chattels personal property; but the terms were adopted long ago and are likely to endure. The yet abiding distinction between lands and chattels lies in the two systems of intestate succession applicable to them.

Thus, by the beginning of the eighteenth century, Trespass and the various branches that it had thrown out had come to be the only forms of action that were in very common use. Trespass in ejectment, or ejectment, served the purpose of most of the real actions, though, as already said, there were occasions on which the latter had to be used. Assumpsit covered the old province of Debt, and a much larger province as well. Trover covered, and more than covered, the old province of Detinue. Trespass vi et armis still served for all cases in which the defendant had been guilty of directly applying unlawful force to the plaintiff's body, goods or chattels. Case covered the miscellaneous mass of other torts. Of the old actions Replevin maintained itself as the proper action against a distrainor. Covenant remained in use for the enforcement of promises under seal. The province of Account was gradually annexed by the Court of Chancery, and brought within the sphere of its equitable jurisdiction; and the use of the common law writs of dower, too, was to a great extent superseded by the relief given to the doweress in Courts of Equity, where new and valuable rights were given to her and to her personal representatives against the heir and his representatives which could not have been enforced by any process of the common law [See, for example, Bamford v. Bamford, 5 Hare 203, and Williams v. Thomas, 1909, 1 Ch. 713, by Cozens-Hardy, M.R., at p. 720].

After 1833, when wager of law was abolished, Debt and Detinue were occasionally brought; but there was no longer much need for them, their place having been well filled by Assumpsit and Trover.

Lecture VII.

Before parting with the forms of action a little should be said about attempts to classify them. Let me first remind you of a few sentences of Justinian's Institutes which have had a very important effect; omnium actionum . . . summa divisio in duo genera deducitur: aut enim in rem sunt aut in personam, Lib. IV. 6. ' 1 [The leading division of all actions whatsoever, whether tried before a judge or a referee, is into two kinds, real and personal; that is to say the defendant is either under a contractual or delictual obligation to the plaintiff in which case the action is personal, and the plaintiff's contention is that the defendant ought to convey something to, or do something for him, or of a similar nature; or else, though there is no legal obligation between the parties, the plaintiff asserts a ground of action against someone else relating to some thing, in which case the action is real. Thus a man may be in possession of some corporeal thing, in which Titius claims a right of property and which the possessor affirms belongs to him; here if Titius sues for its recovery the action is real (Moyle, II, 176, translating Institutes IV.6.i)]. In a later chapter Justinian recognises a class of actions which are mixed, i.e. partly real, partly personal, IV. 6. 20.

Then there is another and a cross division of actions, some are rei persequendae causa comparatae, others are poenae consequendae causa comparatae, others belong to both these classes, IV. 6. 16.

Along with this we must take the classification of the obligations which are enforced by actiones in personam, III. I 3; these are ex contractu aut quasi ex contractu, ex maleficio aut quasi ex maleficio.

Now these famous distinctions have at various times attracted English lawyers, and attempts were made to impose them upon the English materials, attempts which have never been very successful.

Such phrases as criminal and civil, real and personal, possessory and proprietary, contractual and delictual are apparent already in Glanvill and prominent in Bracton's work, who makes use of them on the whole with great intelligence. These divisions of actions never, however, well fit the native stuff; they always cut across the form of the writs. A good example of this difficulty is seen in Trespass. It comes of penal stock, the defendant is liable to imprisonment, in the Middle Ages it covers all crimes short of felony---yet it is the ordinary civil action to recover damages for stepping on the land of another. Again, as we have seen, we have the writs of Entry standing between the indubitably proprietary and the indubitably possessory actions---this distinction is long regarded in England as a matter of degree, some writs are more "in the right" than others.

Bracton says, however, that there is no action in rem for moveable goods (fo. 102b)--- "At first sight it may appear that the action should be both real as well as personal, tam in rem quam in personam, since a particular thing is claimed, and the possessor is bound to give it up, but in truth it will be merely in personam, for he from whom the thing is claimed is not absolutely bound to restore the thing, but is bound in the disjunctive to restore the thing or its price, and by merely paying he is discharged, whether the thing be forthcoming or no. And therefore anyone who claims a moveable for whatever cause, be it as having been carried off, or has having been lent, is bound to state its price, and count thus >I demand that such an one restore to me such a thing, of such a price', or >I complain that such an one detains from me, or has unjustly robbed me of such a thing of such a price', and if the price be not named the vindicatio of a moveable thing is bad." The chattels of the middle ages were, I take it, both of a perishable kind and of a kind the value of which could be easily appraised; if the plaintiff got the precium of his ox he got what would do as well as his ox. However, this remark, which made the reality or personality of the action depend not on the nature of the right asserted by the plaintiff but on the result of the judgment, has had results which as I think are much to be regretted. In the first place it is the origin of all our talk about real and personal property. The opinion comes to prevail that the action is real if a favourable judgment gives possession of lands, tenements and hereditaments, personal if damages are awarded and mixed if both lands and damages are recovered. Gradually the terms things real and things personal begin to make their appearance and to supplant the old, and surely far better terms terrae et tenementa on the one hand, bona et catalla on the other. The law of intestate succession is in time made the test of realness and personalness; we are deprived of the legitimate use of a valuable pair of terms, because they have been put to an illegitimate use, and we have to talk about a term of years as a chattel real, but personal property. That is not all---having said that every action in which a chattel or its value is claimed is personal, are we not compelled to say that every such action is either founded on contract or founded on tort? Yes, that conclusion has been drawn, it is expressly drawn by Blackstone. The result of this has been to extend our notion of tort far beyond the Roman notion of maleficium. A chattel is stolen from me, and you in good faith buy it from the thief. I demand it from you, you require that I should prove my title in an action; my action is personal, and since it obviously is not founded on contract, it must be founded on tort. What is the tort? I think we are obliged to say that the mere possessing of a moveable thing by one who is not entitled to possess it is a tort done to the true owner. It would surely have been far more convenient if we could have said that the owner's action is in rem, that he relies merely on the right of ownership, and does not complain that the possessor, who came by the thing quite honestly, has all along been doing him a wrong. The foundation for all this was abolished by the Common Law Procedure Act of 1854 which enabled a judge to order execution to issue for the return of a chattel detained without giving the defendant the option of paying the value assessed. (The effect of that section is now represented in the existing rules of court.) But I think we must still say that an action whereby an owner claims his chattel is an action founded on tort.

The attempt to distribute our personal forms under the two heads of contract and tort was never very successful or very important. In late days it was usual to put under the heading of Contract the following: Debt Covenant, Account, and Assumpsit; under the head of Tort---Trespass, Trover, Case, Replevin. Some writers put Detinue on one side of the line and some on the other. The truth was that (1) in substance Detinue might be an action founded on a contract or might be an action ex maleficio, or again might be an action founded on proprietary right which it would have been well could we have called real, while (2) in form Detinue was almost indistinguishable from Debt and both were closely allied to the writ of right; the law of the twelfth century to which these forms referred us saw little distinction between "Give me up that piece of land for it is mine", "Give me up that ox for it is mine", "Give me up those £10 which are mine because I lent them to you". In each case the claimant demands (petit) what is or ought to be his---the distinction between "is" and "ought to be" being hardly discerned. In very old cases we find a creditor called a demandant not a plaintiff, he is petens not querens. We have no longer to classify the forms, for they are gone; but I think that we still are obliged to say that every action for a chattel is founded on tort if it be not founded on contract, and thus to make our conception of tort considerably wider than our neighbour's notion of a delict.

Then as to land there have been difficulties. We have already noticed how Bracton says that there is no actio in rem for moveable goods. But he knew too much about Roman law to say that an action is in rem merely because the result of it is that the claimant will thereby obtain possession of land. Thus he says that the Novel Disseisin is a personal action founded on tort, it is in personam though the judgment will restore the plaintiff to the land. The plaintiff is not relying on a real right, but is merely complaining of a tort. His test of the "reality" of an action is much rather the mesne than the final process. By mesne process is meant the procedure against a contumacious defendant for compelling him to plead. If the mesne process is merely against the person, by attacking him or seizing his body, then the action is in personam. If the procedure is against the thing in dispute the action is in rem. In the Novel Disseisin you proceed against the person; in a writ of right you proceed against the thing---the land is seized into the king's hand, and if the defendant, or rather tenant, remains contumacious, it is adjudged to the demandant. Gradually, however, as the influence of Roman law becomes weaker a different test is adopted, an action is real if it gives the person the very thing that he wants. Now the action of ejectment did this from Henry VII's day onwards but it did not receive the name of a real action, or of a mixed action for a very long while---it had been developed out of a purely personal action, the action for trespass, and if you will look at Blackstone's definitions you will see that they are carefully framed so as to keep ejectment out of the "real" class [Comm. III, 117]. I am not certain that it ever became correct to speak of ejectment as either real or mixed until the statute of 1833 abolished all real and mixed actions "except" ejectment and some others, thus speaking as though ejectment were either real or mixed. The truth is that this classification never fitted our law very well. One of the actions abolished in 1833 as "real or mixed" was an action of covenant real, i.e., an action founded on a covenant to convey or let land---an action in which a plaintiff could obtain judgment for the land, a judgment not for damages but quod conventio teneatur. To call an action based on covenant, or contractual right, a real or mixed action must of course seem very strange to students of "general jurisprudence"; but it was the logical result of making the distinction turn on the answer to the question whether the plaintiff demands land or damages or both.

I do not see why at the present day under the Judicature Act an action for the recovery of land wherein the plaintiff relies merely on his proprietary right should not be called "real"; but historically it is doubtless the representative of the action of ejectment and I see no reason for trying to reintroduce a distinction which has never fitted our law very well. The abiding influence of the history of ejectment is, I think, this, that if I am possessing land which you have a better right to possess I am incurring a liability to you for damages. You will read in Blackstone (III, 205) of the action for mesne profits. By means of piling fiction on fiction our courts came to the doctrine that when a plaintiff had recovered the land in an action of ejectment he could then proceed to treat the defendant's possession as one long continued trespass, and sue him in an action for mesne profits in which he could recover not only compensation for any damage done to the land, but compensation for loss of enjoyment. This doctrine still holds good, though its fictitious supports have been kicked away, and though nowadays one can get the land and the damages in one and the same action. But the result is that, however honest the wrongful possessor may be and however plausible may be the title under which he is possessing, he is doing a continuous wrong to him who has a better right to be in possession and will have to pay damages for it. Some modern judges have regretted the severity of our law against bona fide possessors holding under faulty titles, but it is the natural and abiding result of the disuse and abolition of the old real actions.

On the whole the lesson of this part of our legal history should be that it is dangerous to play with foreign terms unless we know very well what we are about.

It is worth while to consider for a moment why I am troubling you with these matters which might be called details of mere obsolete procedure. I must refer you again to Sir Henry Maine's good saying, "Substantive law is secreted in the interstices of procedure." So important in the past was this fact that the great textbooks take the form of treatises on procedure. Fitzherbert's book is called De Natura Brevium---and even at a much later date, indeed until quite recently, textbooks take the form of discussions as to when a man can bring this or that action---trespass, trover, detinue, or assumpsit. This dependence of right upon remedy it is that has given English law that close texture to which it owes its continuous existence despite the temptations of Romanism. As an illustration of the importance of this past history in forming the law of the present consider the question---why do we talk today of "real" and "personal" property? Any answer to this question must speak to us of obsolete forms of action.

And now to go back. We have seen a gradual process of formal decay which set in soon after the death of Edward I in 1307, and together with this formal decay a vigorous but contorted development of substantive law brought by fiction within the medieval forms. This is a long process; we may say that it even extends from 1307 to 1875. In this development there are two stages.

(1) The stage of evasory fiction, the last days of which are well described by Blackstone. During this stage a few relatively modern actions are made to do substantially all the duty of the courts---these actions are Trespass and its progeny. Again steps were dropped out of the procedure and merely replaced by the supposition that they had been taken. Thus the original writ was omitted, unless Error be brought upon the record, in which case, the record must be duly made up.

This stage is complicated by a process which slowly makes the courts of King's Bench and Exchequer competent courts for most practicable actions. The original distribution of jurisdiction between the courts was as follows. Communia placita---ordinary civil suits between subject and subject---belong to the Common Bench or Court of Common Pleas; Placita coronae, including, be it noticed, trespass vi et armis, to the King's Bench. The Court of Exchequer, as the financial court, has the duty of getting in the king's debts, but this includes getting in debts due to the king's debtor. The King's Bench and Exchequer have already therefore a footing in the field of civil actions and this footing they proceed to improve.

The King's Bench adopted the following fiction. Suppose for example that an action of debt is to be begun. First an action of trespass is begun and the defendant is arrested. He is thus in the custody of the marshal of the King's Bench and the court has jurisdiction in cases against its prisoners. Then follows a declaration in Debt by the plaintiff against this prisoner of the King's Bench.

The Exchequer fiction for the same purpose was known as a quo minus. The plaintiff pretends to be the king's debtor and alleges that he is being kept out of money due to him by the defendant whereby the less (quo minus) he is able to pay his debt to the king.

If we look for the motive which induced this stealing of business we may find it in the fact that the staff of the courts and to some extent the judges are paid by fees derived from the litigants. This result was also partly due to the fact that the serjeants had the exclusive right of audience in the court of Common Bench. The serjeants were created by royal writ---a man was appointed to the "state and degree" of serjeant-at-law, an honour entailing, at least until the days of George III, an expensive banquet upon his creation. He became a member of the "Order of the Coif." Until the passing of the Judicature Act by custom all judges appointed must first be admitted serjeants-at-law, a custom which is believed to have had its origin in the terms of an Edwardian statute [14 Edw. III. 16. Dealing only with Nisi Prius Commissions it says that one of the Commissioners must be either a judge of K.B. or C.P., Chief Baron of the Exchequer or a serjeant sworn. Under this a puisne Baron of the Exchequer would not be qualified unless he were a serjeant-at-law.]. After the Judicature Act they disappeared. Now there were practitioners before the other courts, the Barristers (originally known as "apprentices") who were interested in diverting business from the court in which serjeants alone had the right of audience to those in which they themselves could be heard. By such means our archaic procedure is being adapted to modern times but in an evasory and roundabout way by means of fictions.

(2) A new stage began in 1832 with the Unification of Process Act of that year [2 and 3 Will. IV, c. 33]. So far no destruction of the forms of action was attempted, but the original and the mesne process are henceforward to be statutory and uniform in all personal actions.

In the following year the statute 3 and 4 Will. IV, c. 27, by sec. 36 abolished all the Real and Mixed actions excepting ejectment, quare impedit and the two writs of dower (the writ of right of dower and the writ of dower unde nihil habet): and in the same year the statute c. 42, sec. 13 made Debt and Detinue practicable and gave them a new lease of life by abolishing wager of law.

Still the forms of action remaining have to be kept apart and each must be used only within its proper precedents---trespass, case, assumpsit, trover, ejectment, debt and detinue.

The next great step was taken by the Common Law Procedure Act, 1852, sec. 3. Under this statute no form of action is to be mentioned in the writ, which is for the future to be a simple writ of summons. But even after this act the form of action remains of vital importance to the pleader for each action retains its own precedents, and although the choice of the proper form of action need no longer be made in the choice of writ it is merely deferred until the declaration.

The last great step comes with the Judicature Acts of 1873-5, the statutes effecting the fusion of equity and law. By these statutes and by the Rules of the Supreme Court made thereunder a new code of civil procedure was introduced, largely dependent for its working upon wide discretionary powers allowed to the judges. Henceforward not only is the writ a simple writ of summons but there are no longer any "forms of action" in the old sense of the phrase.

The plaintiff is to state his case, not in any formula put into the king's mouth but in his own (or his adviser's) words endorsed upon the writ, and his pleader is to say not upon what form of action he relies but merely what are the facts upon which he relies. Some differences there are in the procedure due to differences in the nature of the action, of the facts relied upon and of the rights to be enforced. Thus in some cases there is and in others there is not a right to a trial by jury, in some cases there is a right to special procedure for judgment by default if the claim is for a liquidated sum, and so forth. Much there is for practitioners to study in the Judicature Acts and the Rules of the Supreme Court, but it is no longer possible to regard any form of action as a separate thing.

This results in an important improvement in the statements of the law---for example in textbooks--for the attention is freed from the complexity of conflicting and overlapping systems of precedents and can be directed to the real problem of what are the rights between man and man, what is the substantive law.

Select Writs.

Beginning With Those Relating to Land.

Praecipe in Capite

Rex vicecomiti salutem. Praecipe X quod juste et sine dilatione reddat A unum mesuagium cum pertinentiis in Trumpingtone quod clamat esse jus et haereditatem suam et tenere de nobis in capite et unde queritur quod praedictus X ei injuste deforciat ut dicit. Et nisi fecerit, et praedictus A fecerit te securum de clamore suo prosequendo, tunc summone eum per bonos summonitores quod sit coram justiciariis nostris apud Westmonasterium [i.e., in the Court of Common Pleas] tali die ostensurus quare non fecerit. Et habeas ibi summonitores et hoc breve

[F.N.B. 51. Fitzherbert's Natura Brevium was published in 1534. (Fitzherbert ob. 1538.) When quoted F.N.B. without a date, the edition of 1553 is referred to. The translations added here and there for the assistance of the student are taken from the English edition of 1794, which preserved the paging of the edition of 1553].

The King to the sheriff greeting. Command X that justly and without delay he render to A one messuage with the appurtenances in Trumpington which he claims to be his right and inheritance, and to hold Of us in chief and whereof he complains that the aforesaid X unjustly deforceth him. And unless he will do this, and (if) the aforesaid A shall give you security to prosecute his claim, then summon by good summoners the aforesaid X that he be before our justices at Westminster [on such a day] to show wherefore he hath not done it. And have there the summoners and this writ.

Breve de recto

Rex K [a bishop, baron or other lord of manor] salutem. Praecipimus tibi quod sine dilatione plenum rectum teneas A de uno mesuagio cum pertinentiis in Trumpingtone quod clamat tenere de te per liberum servitium [unius denarii per annum] pro omni servitio, et quod X ei deforciat. Et nisi feceris, vicecomes de Cantabrigia faciat, ne amplius inde clamorem audiamus pro defectu recti [Bract. fo. 328a. F.N.B. 1G].

The King to K greeting. We command you that without delay you do full right to A of one messuage with the appurtenances in Trumpington which he claims to hold of you by free service of [so much] per annum for all service, of which X deforceth him. And unless you will do this, let the sheriff of Cambridge do it that we may hear no more clamour thereupon for want of right.

Assisa Novae Disseisinae

Rex vicecomiti salutem. Questus est nobis A quod X injuste et sine judicio disseisivit eum de libero tenemento suo in Trumpingtone post ultimum reditum domini regis de Brittannia in Angliam (or other period of limitation). Et ideo tibi praecipimus quod, si praedictus A fecerit te securum de clamore suo prosequendo, tunc facias tenementum illud reseisiri de catallis quae in ipso capta fuerint et ipsum tenementum cum catallis esse in pace usque ad primam assisam cum justiciarii nostri ad partes illas venerint. Et interim facias xii liberos et legales homines de visneto illo videre tenementum illud et nomina illorum imbreviari. Et summoneas eos per bonos summonitores quod sint ad primam assisam coram prefatis justiciariis nostris, parati inde facere recognitionem. Et pone per vadium et salvos plegios praedictum X vel ballivum suum, si ipse inventus non fuerit, quod tunc sit ibi auditurus recognitionem illam. Et habeas ibi summonitorum nomina, plegios et hoc breve [Bract. fo. 179a. F.N.B. 1534, 69, where the wording has become slightly different].

The King to the sheriff greeting. A hath complained unto us that X unjustly and without judgment hath disseised him of his freehold in Trumpington after the last return of our lord the king from Brittany into England. And therefore we command you that, if the aforesd A shall make you secure to prosecute his claim, then cause that tenement to be reseised and the chattels which were taken in it and the same tenement with the chattels to be in peace until the first assize when our justices shall come into those parts. And in the mean time you shall cause twelve free and lawful men of that venue to view that tenement and their names to be put into the writ. And summon them by good summoners that they be before the justices aforesd at the assize aforesd, ready to make recognizance thereupon. And put by gages and safe pledges the aforesaid X or, if he shall not be found, his bailiff, that he be then there to hear that recognizance. And have there the (names of the) summoners, the pledges, and this writ [F.N.B. 177E].

Assisa de Morte Antecessoris

Rex vicecomiti salutem. Si A fecerit te securum de clamore suo prose quendo tunc summoneas per bonos summonitores xij liberos et legales homines de visneto de Trumpingtone quod sint coram [It might be "apud Westmonasterium" or coram dilectis et fidelibus nostris O. et P. (special commissioners)] justiciariis nostris ad primam assisam cum in partes illas venerint, parati sacramento recognoscere si B pater, (mater, frater, soror, avunculus, amita) [Beyond these "degrees" writs of aiel bezaiel and cosinage introduced by William Raleigh were used. For their forms see F.N.B. 220, 221] praedicti A fuit seisitus in dominico suo ut de feodo de uno mesuagio cum pertinentiis in Trumpingtone die quo obiit, et si obiit post [period of limitation], et si idem A ejus haeres propinquior sit. Et interim praedictum mesuagium videant et nomina eorum inbreviari facias. Et summone per bonos summonitores X qui mesuagium praedictum tenet quod tunc sit ibi auditurus illam recognitionem. Et habeas ibi summonitores et hoc breve [Bracton, fo. 253b].

The King to the sheriff greeting. If A shall make you secure, &c. then summon, &c. twelve free and lawful men of the neighbourhood of Trumpington that they be before our justices at the first assize when they shall come into those parts, ready to recognise by oath if B father [mother, brother, sister, uncle, aunt,] of the aforesd A was seised in his demesne as of fee, of one messuage with the appurtenances in Trumpington the day whereon he died, and if he died after [the period of limitation] and if the same A be his next heir: and in the mean time let them view the messuage, and cause their names to be put in the writ, and summon by good summoners X who now holds the aforesaid messuage, that he may be there to hear that recognizance; and have there the summoners and this writ [F.N.B. 195E].

Brevia de Ingressu

Rex vicecomiti salutem. Praecipe X quod juste et sine dilatione reddat A unum mesuagium cum pertinentiis in Trumpingtone quod clamat esse jus et haereditatem suam et in quod praedictus X non habuit ingressum nisi---

a. per W qui illud ei dimisit qui inde injuste et sine judicio disseisivit eundem A [or B patrem ejusdem A cujus haeres ipse est] post [time of limitation].

b. per W cui V illud dimisit qui inde injuste etc., as above.

c. post disseisinam quam T inde injuste et sine judicio fecit B patri ejusdem A cujus haeres ipse est post [time of limitation] et unde queritur.

d. per K quondam virum ipsius A qui illud ei dimisit, cui ipsa in vita sua contradicere non potuit, ut dicit.

e. per W cui K quondam vir ipsius A qui illud ei dimisit, cui ipsa in vita sua contradicere non potuit, ut dicit.

f. post dimissionem quam K quondam vir ipsius A, cui ipsa in vita sua contradicere non potuit, inde fecit T ut dicit et unde queritur.

g. per W cui praedictus A illus dimisit dum non fuit compos mentis.

h. per W cui praedictus A illud dimisit dum fuit infra aetatem.

i. per W cui B pater praedicti A cujus haeres ipse est illud dimisit ad terminum qui praeterut.

Et nisi fecerit summone eum per bonos summonitores quod sit coram justiciariis nostris apud Westmonasterium tali die ostensurus quare non fecerit. Et habeas ibi nomina summonitorum et hoc breve.