Introduction: Original writs

VIII. ORIGINAL WRITS (fn. 1)

It was mentioned above (fn. 2) that the first step in the levying of a final concord was for the demandant to obtain a writ from the chancery; for by an ordinance, probably of the time of Henry II, none could bring an action in the king's courts of common law without the king's writ. An original writ was properly a writ which originated or began a suit-at-law, but it became the practice to call any writ that issued out of the chancery an original writ although it might not originate litigation. These original writs were of many different kinds, and each kind led to a particular form of action. When once the writ had been chosen, the procedure of the case was settled, and could not be changed. To choose a writ was therefore in effect to choose a form of action. References to the several kinds of actions which are recorded in this volume will be found in the Index of Subjects under the word Pleas.

Of the writs which originated actions-at-law leading to final concords the most important was—

(1) The writ of right.

This writ was the foundation of a proprietary action. (fn. 3) The king by the writ of right bade the feudal lord of whom the land was held do full right between the parties to the suit, threatening him, in case of failure of justice, with the interference of the sheriff. The question decided by the action was: 'Which of the two parties has the greater right?' Several concords mention actions begun in seignorial courts by writ of right. Such an action was a solemn occasion, and a full attendance of the lord's tenants was required. (fn. 4) The demandant was compelled to offer battle by the body of his champion in support of his claim; but the tenant, the party in possession, might refuse battle and put himself instead upon the grand assize; that is, he could claim to have the question of the greater right settled by the verdict of a jury of his neighbours. (fn. 5) Sometimes in the thirteenth century, and even later, the dispute was decided by battle, (fn. 6) a method which, as men supposed, left the judgement in the hands of God; but the tenant generally preferred to submit his cause to the judgement of man by putting himself upon the grand assize. When he elected to do this, the jurisdiction of his lord's court came automatically to an end, and the action was ipso facto removed to the king's court. In that case the tenant was granted a day until the next court to enable him to get a writ of peace prohibiting his lord from holding the plea in his court until the coming of the king's justices; (fn. 7) and the demandant proceeded to procure a writ of choosing the grand assize, which bade the sheriff summon four knights of the neighbourhood to choose at least twelve knights to be the recognitors in the grand assize. (fn. 8)

Besides an appeal by the tenant to the grand assize, there were other means by which an action might be removed from the seignorial court. The feudal lord might decide to remit the plea to the king's court; or he might give the demandant a licence to plead there. (fn. 9) Or, if the lord, according to the allegation of the demandant, was either unable or unwilling to do full right between the parties, the sheriff could send the serjeant to remove the case to his own county court by virtue of the words in the original writ which threatened the lord with the sheriff's interference: 'unless you will do this [i.e. full right] let the sheriff of Lincolnshire do it that we hear no more clamour thereupon for want of right.' (fn. 10) In Blackstone's (fn. 11) day the sheriff issued a writ called a tolt for this purpose on the application of the demandant, but the editor has not met with the form which was used in the thirteenth century. The tenant was not entitled to a writ of tolt from the sheriff, but he could obtain an original writ of recordari facias (cause a record to be made), ordering the sheriff to remove the suit from the lord's court into the king's court. (fn. 12) Or, after judgement had been given in the seignorial court, if either of the litigants considered that he had been unfairly treated, he could procure an original writ de falso iudicio (of false judgement) bidding the sheriff go to the court (accedas ad curiam), cause a record of the plaint to be made, and send four suitors of the court to bear the record before the king's justices. (fn. 13)

If the action had been begun in, or had been removed into the court of the county, it could be transferred into the king's court if the tenant chose to put himself upon the grand assize; or by a writ of pone, (fn. 14) commanding the sheriff to put (ponere) the plea before the royal justices. This writ could be obtained by the demandant as a matter of course, but the tenant had to give a reason, such as, for instance, the partiality of the sheriff. And after judgement had been given, it was open to either party to sue out a writ de falso iudicio. (fn. 15)

When the land in dispute was held in chief, that is immediately of the king, the suit was begun in the king's court by a writ of right close, called a praecipe in capite. (fn. 16) In this case it was necessary for the demandant to obtain a further writ commanding the justices to permit a fine of the land to be levied before them. (fn. 17)

(2) The writ of novel disseisin.

This writ originated the popular and convenient assize of novel disseisin. (fn. 18) As explained above, it could not lead to a final concord if the litigation was fictitious. (fn. 19)

(3) The writ of mort d'ancestor. (fn. 20)

This writ originated the possessory action known as the assize of mort d'ancestor. If A, who was not a mere life-tenant, died in actual possession of a free tenement, this assize enabled his heir to obtain possession, even though some other person might have a better right to the land than the dead man had. The questions submitted to the jury were, 'was A seised in his demesne as of fee on the day whereon he died?' 'Is the plaintiff his next heir?' (fn. 21) If anyone wished to prove a better right to the land than that of the dead man's heir, the assize of mort d'ancestor would not help him: his remedy lay in the more solemn and cumbrous action originated by a writ of right.

(4) The writ of darrein presentment. (fn. 22)

This writ led to the possessory action known as the assize of darrein presentment. If a church fell vacant, and two persons claimed the advowson, that is the right of presenting a parson, it was important that the dispute should quickly be settled; for after six months, the right of filling the vacancy would lapse to the bishop; and meanwhile the flock would be left without a shepherd. The assize of darrein presentment provided a speedy remedy. A jury was summoned to declare who it was who presented the last parson, and the assize gave that patron or his heir the right of presenting again. The question of the greater right could not be raised in an assize of darrein presentment: that question could be dealt with later and at leisure by an action originated by a writ of right of advowson.

(5) The writ iuris utrum. (fn. 23)

In the twelfth century the church had established the principle that disputes about land which had been given in frank almoign, that is land held by services of a purely religious nature, (fn. 24) should be decided in the courts christian, that is the ecclesiastical courts. Sometimes, however, a preliminary question would arise, 'Is this land alms, or is it lay fee ?' The writ iuris utrum directed the sheriff to summon twelve free and lawful men to recognize (recognoscere) or decide whether (utrum) it was alms or lay fee. The assize utrum at first settled nothing about the greater right of either party; but later it became an action by which a parson could recover his right to land, and thus it came to be known as 'the parson's writ of right.' (fn. 25)

The two writs which were most commonly used when men wished to convey land by way of final concord were:

(6) The writ of covenant or praecipe. (fn. 26)

With the exception of the writ of warranty of charter this was the most popular writ during the greatest part of the reign of Henry III, and by the end of the reign it had begun to oust even the writ of warranty of charter. In the time of Edward III scarcely any other writ was used to lead to a fine; and the majority of actions of covenant relating to land were brought merely in order that they might be compromised. The writ was commonly called a praecipe from its cardinal word. The procedure which it instituted seems to have been cheap and expeditious. (fn. 27) The writ directed the sheriff to command A to hold to B the covenant made between them; and the action of covenant was brought on the ground of a breach of covenant, whether real or feigned, on the part of A. The practice of the thirteenth century decided that there must be a sealed writing as evidence of the covenant. Professor Maitland observes that '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.' (fn. 28)

(7) The writ of warranty of charter. (fn. 29)

A grantee generally had the right to call upon the grantor to 'warrant, acquit, and defend' him in possession of his land. Promises of warranty were often inserted in charters of the twelfth century, and almost invariably in those of the thirteenth; and an action of warranty of charter could be brought by the grantee to compel the grantor to fulfil his promise to 'warrant, acquit, and defend' him in possession of his tenement. (fn. 30)

Two other writs were not uncommon:

(8) The writ of customs and services. (fn. 31)

If a tenant denied or disavowed the customs and services due from his tenement to his lord, or disputed their nature or quantity, the lord might proceed by way of distraint or, failing that, he had the remedy of a writ of customs and services, which originated an action near akin to a suit begun by writ of right. It decided the question whether the lord or the tenant had the greater right. The lord, as demandant, was bound to offer battle; the tenant might refuse it, and put himself upon the grand assize. If, however, the lord could shew that he had recently been seised of the customs and services which the tenant disavowed, he had a cheaper and speedier remedy; for he could bring an assize of novel disseisin on the ground that he had recently been disseised of his right. (fn. 32)

(9) The writ of mesne. (fn. 33)

The action originated by this writ is explained below. (fn. 34)

Occasionally the following writs were-used:

(10) The writ of neifty. (fn. 35)

This writ bade the sheriff deliver to the claimant his fugitive villein, whom he asserted to be his born serf (natiuus), unless the villein had taken refuge in the royal demesne. If, however, the fugitive asserted that he was a free man, the sheriff's power ceased, and the serf could obtain the next-mentioned writ.

(11) The writ of proving his freedom. (fn. 36)

The writ de probanda libertate bade the sheriff put the case before the king's justices at the next assize. (fn. 37)

(12) The writ of keeping a fine. (fn. 38)

The writ de fine tenendo, de tenendo fine facto, of keeping a fine made, (fn. 38) led to an action by which a person who had infringed the terms of a final concord could be compelled to observe and perform them. Payments for this writ appear upon the Pipe rolls as early as 1173–4, (fn. 39) and Glanvill preserves the form. (fn. 38) It was common in the time of Richard I and John. (fn. 40) By the reign of Richard II it had disappeared, and it had become the custom to use the writ of Scire facias to enforce the covenants of a final concord. (fn. 41)

In very many of the final concords prior to the end of Henry III's reign the nature of the writ is not specified, but where it is defined we get the following results, the commonest writs being named in the order of their popularity:

i. a.d. 1195–1216—mort d'ancestor (very often), grand assize, warranty of charter, darrein presentment.

ii. a.d. 1245–1272 (fn. 42) —warranty of charter (very often), covenant (often), mort d'ancestor (often), grand assize, darrein presentment, utrum, keeping a fine.

For the later period we get the following results:

iii. 1–8 Edward I (fn. 42) —warranty of charter 50, covenant 16, mort d'ancestor 1, darrein presentment 1, unspecified 35.

iv. 1–5 Edward II (fn. 42) —covenant 164, warranty of charter 45, unspecified o.

v. 1–6 Edward III (fn. 42) —covenant 223, warranty of charter 6, unspecified o.