London Possessory Assizes: A Calendar. Originally published by London Record Society, London, 1965.
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The rolls here calendared are preserved in the Corporation of London Records Office and contain the record of assizes of novel disseisin and mort d'ancestor held before the sheriffs and coroner of London at various dates between 1340 and 1451. They consist of five rolls ('Rolls of mort d'ancestor' AA, BB, CC, DD and EE) and seventeen individual pleas formerly part of a single roll, here called roll [FF]. (fn. 1) Individual pleas for the years 1317, 1380 and 1470, together with seven for the period 1583–1603, are calendared in Appendix I.
Roll AA, covering the years 1340–67, consists of 58 membranes (fn. 2) (most of which measure roughly 8 × 30 inches) filed together at the head. The roll has recently been repaired but the original numbering of most of the membranes in a fourteenth- or fifteenth-century hand suggests that they have been in their present order since that period. (fn. 3) Although the arrangement is roughly chronological, there is much displacement and duplication (fn. 4) of entries, while one membrane (fn. 5) records proceedings in the court for foreigners held before Richard Smelt, sheriff, in 1355. Roll BB consists of 30 membranes covering the years 1359 and 1369–84. The first 21 membranes are about 9½ inches wide and vary in length from 8 to 32 inches while the remaining membranes vary in both length and width. (fn. 6) The order of the first 21 membranes would appear to be that in which they were placed in the late fourteenth or early fifteenth century, (fn. 7) but the thongs at the head of the roll indicate that the remaining membranes were added subsequently. Roll CC contains pleas for the years 1400 and 1409–12 and consists of 13 membranes varying in width from 8½ to 12 inches and in length from 15 inches to 5 feet. The endorsement on m.13d. would suggest that at least one membrane is missing for 22 Richard II while m.1 may have been added at a later date. Roll DD covers the years 1400–1408 and consists of 34 membranes in no apparent order and varying in width from 8 to 12½ inches and in length from 8 to 28 inches. Holes at the heads of rolls CC and DD suggest that some membranes may have been removed from other rolls. Roll EE (fn. 8) covering the years 1423–35 consists of 40 membranes varying in width from 9 to 13 inches and in length from 8½ to 30 inches and arranged in roughly chronological order. (fn. 9) Roll [FF] at one time contained at least eighteen separate pleas. The surviving membranes, which cover the years 1441–51, are now scattered. (fn. 10) From the position of holes at the head of the membranes (fn. 11) and the numbers entered upon them in a post-medieval hand it is clear that they were formerly part of a single roll. When a plea occupied more than one membrane the membranes were attached head to foot (although in two instances they are now detached) (fn. 12) so that each plea had only one number assigned to it.
It would appear that many of the membranes in Roll AA contain the full record of proceedings, including separately entered respites and essoins which are not to be found in later rolls. Rolls CC, DD, EE and [FF] differ from the first two rolls in that they are collections of individual pleas rather than full court records. Not more than one plea is entered upon any one membrane in the later rolls (with one exception) and a lengthy plea is usually continued on a fresh membrane rather than on the dorse.
Although some of the gaps which appear in the records must no doubt be ascribed to loss or destruction, it is unlikely that they ever formed a perfect series. In the fourteenth century sheriffs were supposed to deliver up their rolls of assize (which, judging from the evidence of roll AA, must originally have been kept in duplicate) to the City chamberlain at Michaelmas, on the termination of their period of office; but this rule despite a number of ordinances for its enforcement, made between 1303 and 1356, (fn. 13) would seem to have been more honoured in the breach than in the observance. The endorsements which appear on many of the rolls show that even where the records found their way into the hands of the appropriate authority, it was only after the lapse of months, or even years. (fn. 14) The sheriffs were accustomed to retain the records of their court in their own hands, in case their judgments should be questioned by proceedings in error or by the itinerant justices. (fn. 15) It seems probable that they were equally reluctant to part with rolls of assize because they or their heirs (fn. 16) might be distrained to produce the record of an assize in the Husting.
Unfortunately, the rolls offer no evidence of the persons who wrote them. At a meeting of the court of aldermen on 10 May 1447 four aldermen reported on a conversation with John Markham, one of the king's justices and formerly an undersheriff of London, about a damaged paper (papirum fractum) containing the tenor of an assize of fresh force between John Fortescu and John Brune. They reported that they had spoken to Markham and that when he saw the paper he had said that it was written by his clerk. The clerk confirmed this and said that, on leaving office, he had left in the custody of his successor a record which contained the tenor of the writing on the paper, and that the record had been made and recorded at the time when he was clerk to the undersheriff. (fn. 17) This, together with the evidence of the endorsements on the later rolls, suggests that some efforts had been made by the sheriffs, through the agency of their undersheriffs, to ensure that the record of assizes held during their term of office was preserved. The undersheriffs (many of whom were to become distinguished members of the legal profession) (fn. 18) appear to have been responsible, in the fifteenth century, for bringing the record of assizes into the Husting.
The deficiencies of the official enrolments can to some extent be supplied from other sources. Where, for instance, proceedings in error were instituted, the record of the original action had to be exhibited in court, and so, if not enrolled elsewhere, is recoverable from the Husting of Common Pleas rolls. (fn. 19) In the same way, cases in which the mayor and commonalty, in the capacity of landholder, had a direct interest, might be entered in the Letter books, or at least noticed there. (fn. 20) Again, the successful party to an action might, for his own convenience, obtain a copy of the record. One such document (fn. 21) for 1317 is to be found filed with title deeds relating to property in the parish of St. Nicholas Shambles. The presence of pleas of assize in monastic cartularies suggests that copies were sometimes filed with the deeds relating to a particular property and afterwards copied into the cartulary. (fn. 22) In some instances, the copy obtained was an official exemplification of the record. (fn. 23)
Even where the record itself is not recoverable, some idea of the number and nature of the assizes held can be formed from the plaints entered in the Husting and in congregations of the mayor and aldermen—the former enrolled on the rolls of the Husting of Common Pleas or Pleas of Land and from 1448 onwards summarised in the Husting books, the latter often entered on the Plea and Memoranda rolls. (fn. 24) During the fourteenth century and the first half of the fifteenth it was not unusual for fifteen to twenty plaints of intrusion to be entered in one year although the number was often considerably less. Unfortunately it is not possible to make precise estimates but between 1450 and 1520 not more than two or three plaints of intrusion were entered in the Husting annually and after 1520, until the early years of the seventeenth century, more than one a year was exceptional. (fn. 25)
Development of the City procedure
The City of London early developed a possessory procedure of its own. This is said to have been already fully established at the date of the issue by Henry II of the first of his possessory assizes (Novel Disseisin, 1166?); and, having been explained to the king and his justices, to have received their approval and confirmation. (fn. 26) According to the earliest extant description of the City action, which can be dated between 1206 and 1216, (fn. 27) the sheriff, on complaint of the disseisee, assembled 'per iudicium' the alderman and neighbours of the venue, and enquired of them on oath and by their fealty to the king, whether the plaintiff had been disseised without a judgment. If the verdict was in his favour, the sheriff restored him forthwith to possession, and put the disseisor under pledge to appear before the justices itinerant at their next coming. The roll of the eyre of 1244 describes the procedure used in pleas of intrusion at that date as follows. A distinction is now drawn between assizes of novel disseisin and assizes of mort d'ancestor. (fn. 28) In the case of the former, complaint is made by the injured party to the sheriffs in the Husting, 'vel in curia', within forty weeks, and the plaint is referred, on a day appointed, to a jury of neighbours assembled on the site of the disseisin, in the presence of the alderman of the ward and one at least of the sheriffs, with or without the presence of the defendant or his bailiff. If the verdict is unfavourable to the defendant he is attached by twelve sufficient pledges to appear before the justices at the next iter to answer to them for his trespass, while the plaintiff's seisin is restored and he is awarded appropriate damages. The king's chamberlain is responsible for the enrolment, for the information of the justices, of the amount of such damages, and of all attachments made. (fn. 29) In the case of assizes of mort d'ancestor complaint is made to the sheriffs by the dispossessed heir within a year and a day, and the truth is ascertained by verdict of the alderman and venue in their presence. (fn. 30)
During the thirteenth and early fourteenth centuries the powers of the king's justices in relation to pleas of intrusion in the City were on several occasions in dispute. Under John the citizens reported that the hearing of assizes at the Tower 'per vim et voluntatem justiciariorum' had made it necessary for them to seek confirmation of the customs conceded by Henry II. (fn. 31) In 1244 they contended that such pleas came within the purview of the justices itinerant only in case of default of justice in the Husting. (fn. 32) None the less plaints brought by Ralph and Agnes la Justice against John Clerk le Chapeler, (fn. 33) and by the prior of St. Mary Spital against Christine, relict of Stephen de Blounnie, (fn. 34) were heard during the eyre (the defendants assenting), the one by a jury of twelve aldermen (sic) assembled in the presence of the justices in a church adjoining the site of the alleged disseisin, the others by a jury of the venue summoned to the Tower. During the iter of 1276 the citizens successfully upheld the principle that they were not bound to answer concerning any tenement within the liberty of the City, unless the person impleaded vouched a foreigner to warranty; (fn. 35) but they admitted that the justices were entitled to take cognizance of disseisins made after the summons of the eyre. (fn. 36) Two years later the Statute of Gloucester conceded that in London disseisees should in future recover their damages forthwith, instead of awaiting the next session of the justices at the Tower and provided that two barons of the Exchequer should visit the City each year to amerce disseisors. (fn. 37) In spite of this the whole question of the City's privilege was reopened at the great iter of 1321. The citizens reiterated and elaborated the claims put forward in 1276, supporting their arguments by reference to the rolls of the previous eyre; but the justices refused to recognize without further consideration the City's exclusive jurisdiction in pleas of land, and the matter was accordingly shelved. (fn. 38) On 30 June, upon complaint by the citizens that the distractions caused by the eyre were hindering the efficient government of the City, all bills and assizes pending at the Tower were quashed and annulled and the justices were ordered to confine themselves to the hearing of pleas of the Crown and proceedings 'quo warranto'. (fn. 39) On 1 July they were commanded to adjourn 'coram rege' all suits which could not conveniently be concluded before the end of the iter, (fn. 40) which terminated abruptly three days later. In the end, however, the 'quo warranto' proved too difficult even for the King's Bench, and the City's case concerning its own liberties had to be settled by a higher authority. In 1327, in response to a petition from the mayor and commonalty in parliament, the citizens were granted 'per ipsum regem et totum consilium parliamenti' a charter (fn. 41) which gave them all and more than all they had claimed before the justices in eyre. Neither in the petition nor in the charter is the question of pleas of land expressly mentioned but the City's claim may safely be held to be covered by the general confirmation of liberties and free customs concerning which 'clamia adhuc pendent coram nobis indecisa'. (fn. 42) Twenty years later, in January 1341, Edward III ordered a new iter at the Tower, having been baulked by the opposition of the citizens of his intention to hold an enquiry at Guildhall into the misdemeanours of his ministers. The session began on 5 March, and continued with various adjournments until 17 May. On 3 June the citizens obtained a formal release from the iter upon payment of a fine of 500 marks. (fn. 43) The rolls on which the proceedings are recorded show that the justices held a number of assizes in respect of disseisins committed 'infra summonicionem itineris'. (fn. 44) After 1341 there was no further session of the itinerant justices at the Tower, and the City's jurisdiction in questions of possession was henceforward independent of external interference and control.
In the meantime the procedure in possessory actions in the City had been undergoing gradual modification. One tendency of the period was the increasingly close and prominent association of the king's chamberlain or coroner with the sheriffs in the holding of assizes. In 1276 we read of an assize taken before the king's chamberlain alone, but this was quashed by the justices on the ground that there had been no sheriff present, and the principle was re-affirmed that pleas of intrusion in the City ought to be held before one at least of the sheriffs, and in the presence of the alderman of the ward in which the disseisin had been committed—no reference being made to the chamberlain. (fn. 45) Again in the record of an assize of novel disseisin held in 1291, (fn. 46) there is mention of the sheriffs, but of no other official. On the other hand, an entry in Letter book C under the year 1305, expressly states that, according to the custom of the City, pleas of intrusion are heard before the sheriffs and the coroner, (fn. 47) and these are named as the presiding officers in the record of an assize of the following year produced in the Husting in the course of proceedings on a writ of error. (fn. 48) The reply sent in June 1338 by Henry Darcy, then mayor, to an enquiry from the City of Oxford concerning the procedure used in London in possessory actions, adds the statement that 'saunz un des viscountes et coroner ne poet le play estre tenuz'; (fn. 49) and an entry for 1342 on the rolls here calendared confirms that in the first half of the fourteenth century the presence of the coroner was considered essential for the holding of assizes. (fn. 50) Actually, however, the officials who appear in the rolls as coroners were deputy-coroners appointed by royal writ to act in the place of the king's chamberlain or butler, (fn. 51) and the fact that as royal officials they were not amenable to the City authorities seems to have rendered unpopular their association with a procedure which the City regarded as peculiarly its own. In the last year of the reign of Edward III and the first of his successor the commonalty petitioned unsuccessfully for the right to appoint and remove their own coroner, (fn. 52) but in 1399 it was conceded, in consideration of the delay caused by the frequent absences of the coroner and his deputy on the king's business, that the sheriffs might in future proceed alone to the taking of assizes, provided that they had first made formal proclamation in writing for the coroner or his deputy to attend. (fn. 53) In the fifteenth century, therefore, assizes were normally held by the two sheriffs, 'presencia coronatoris non exspectata'. (fn. 54) In 1478, however, the City was at last granted the right to appoint its own coroner, (fn. 55) so that in the Tudor assizes here calendared that official is once more present. (fn. 56) Of the presence of the alderman, which thirteenth-century custom had required, the rolls afford no indication.
From a familiar entry in Liber albus (fn. 57) which, since it appears also in Ricart's Kalendar, is probably of early fourteenth-century date, (fn. 58) we learn that assizes of novel disseisin were taken weekly at Guildhall on Saturdays (fn. 59) (except during Lent etc. when the licence of the bishop of London was necessary). (fn. 60) The plaintiff made complaint at the Monday session of the Husting, or at a congregation of the mayor and aldermen in the Chamber. There the bill embodying his plaint was enrolled, and a second bill de intrusione drawn by the common clerk and forwarded to the sheriffs. On the following Wednesday the sheriff's serjeant summoned by view of two freemen of the City, whose names he endorsed on the bill, the tenants or defendants named therein, to appear at the Guildhall on the next Saturday. (fn. 61) The recognitors comprising the jury of assize were impanelled by the sheriffs, or in special circumstances by the mayor and aldermen, on the Friday preceding the day fixed for the taking of the assize. (fn. 62) There were, however, certain inconveniences attaching to the practice which allowed a bill to be entered on Monday, and the assize to be taken on the Saturday following, and in 1393 it was accordingly provided that in future no plaint should be heard within fifteen days of the first attachment of the defendants, and that the jury should be impanelled two or three days before the hearing so that the parties might inform themselves of the names of those serving. (fn. 63) Assizes of mort d'ancestor were held fortnightly, the procedure being similar to that followed in assizes of novel disseisin. (fn. 64)
Scope of the possessory actions in the City
The scope of the possessory actions in London extended to rents as well as to lands and tenements. (fn. 65) Under the former head were included not only 'tenurial' rents, or rents-service, but also 'non-tenurial' rents, comprising both rents-charge (commonly known in the City as quit-rents), which could be levied by distress, and rents-seck, which could not. The purchase of rents was a favourite way of investing money at a time when the taking of interest was frowned on by the Church as usury; and gifts of rent were a convenient method of endowing religious and other foundations, for those whose wealth or piety fell short of a gift of land. Adverse claimants to a rent, as to a tenement, could have recourse either to an action by writ of right patent in the Husting, (fn. 66) or to the more summary procedure of an assize of novel disseisin (fn. 67) (locally known as an assize of fresh force). (fn. 68) In addition the assize of fresh force came to be used as an alternative procedure to an action by writ of gavelet in the Husting, (fn. 69) for the recovery of rent in arrears. An ordinance of 1345 (fn. 70) laid down that an 'assize of rent' should lie in cases where the tenant whose rent was in arrear obstructed the taking of distresses, or recovered those taken, or where the unsuccessful plaintiff in an action de namiis iniuste captis nevertheless repudiated the obligation to payment of the rent for which the distraint had been levied. (fn. 71) Several early entries on the rolls (fn. 72) in which the defendant alleges that City custom does not permit an assize of novel disseisin to be taken concerning rents suggest that this ordinance marked an innovation in City practice, but such a conclusion is negatived by the evidence of the rolls of the iters of 1321 and 1341. Eighty-one pleas of novel disseisin appear on the rolls for 1321, about half of which were concerned with rents. (fn. 73) Of the ten assizes (fn. 74) taken before the justices in 1341 eight were about rents, (fn. 75) of which in four cases the plaintiffs successfully claimed to have been disseised in consequence either of the defendant's refusal to permit distraint (fn. 76) or of his 'rescue' (rescussus) of the distress taken. (fn. 77) It would seem, therefore, that the ordinance of 1345 was intended merely to define and tighten up a wellestablished procedure. (fn. 78) Of the fifteenth-century pleas here calendared more than two-thirds were concerned with rents, of which the overwhelming majority were rents-charge.
Recourse to the possessory actions was, strictly speaking, restricted to freeholders, (fn. 79) but creditors were considered to enjoy a freehold in rents or tenements assigned to them under the terms of the Statutes of merchants in settlement of debt. (fn. 80)
Pleading in possessory actions
Maitland has shown (fn. 81) that in possessory actions there need be no pleading. The question to be put to the jurors had been formulated before the defendant appeared, and could be answered by a simple 'yes' or 'no'. It soon became usual, however, for the court to require of the plaintiff some explanation of his case, while the defendant established the right, as an alternative to a flat denial, to plead an 'exception', alleging some reason why the assize should not be held. To this the plaintiff was entitled to make a 'replication', which in turn could be met by a 'triplication' and so ad infinitum. In practice, therefore, pleading was often both elaborate and prolonged, the parties supporting their arguments by the production of the relevant charters or other documents, or occasionally by the evidence of witnesses. (fn. 82) In assizes of mort d'ancestor the defendant was further permitted to vouch a warrantor not named in the writ (or bill). As time went on, and terms such as 'freehold' and 'disseisin' acquired an increasingly technical meaning, more and more scope was afforded the professional pleader, (fn. 83) whose object it was to evade the main question at issue by raising points of law and incidental questions of fact. The pleading in possessory actions became, in fact, the more complicated and colourable in that there was a fixed question for the jurors which had to be evaded.
Exceptions are classified by Bracton (fn. 84) as 'dilatory' and 'peremptory', the former being preliminary in character and temporary in effect, the latter being directed at the very heart of the plaintiff's case, and, if established, perpetually barring him from the action contemplated. Under the former head are included exceptions against the jurisdiction of the court, the person of the judge, the form or content of the writ (or bill), (fn. 85) the person of the plaintiff, (fn. 86) or the composition of the jury; (fn. 87) under the latter come exceptions alleging that the plaintiff's 'estate' in the tenement in view is not a freehold, that he has never been in seisin of it, (fn. 88) that another action concerning the same tenement is pending under a higher writ, (fn. 89) or that the period of limitation prescribed for the entering of the plaint has been exceeded. (fn. 90)
The defendant pleading an exception had to be prepared to prove his case, and the easiest method of proof was to refer the questions of fact raised in the course of the pleading to the jury of recognitors empanelled to answer the formulated question—in short, in Maitland's phrase, to convert the 'assisa' into a 'jurata'. If the exception failed the defendant was adjudged the disseisor, and became liable to amercement, as well as to the payment of damages to the disseisee. (fn. 91) The Statute of Gloucester provided that these should include the plaintiff's costs, as well as the estimated value of the issues of the tenement in view, (fn. 92) and in the fifteenth century costs and damages are entered separately on the roll. (fn. 93) If it were further shown that the disseisin had been done 'by force and arms' the defendant would be committed to prison until he made fine for his breach of the king's peace. (fn. 94) The bringing of frivolous exceptions by defendants simply as a means of delaying the proceedings was condemned by the Statute of Westminster II, which also decreed that a defendant 'failing of his record' should pay double damages. (fn. 95) A statute of Richard II imposed a similar penalty upon disseisors who, with the object of delaying or defeating justice, alienated the property of which they had obtained unlawful possession either 'to lords or other great men to have maintenance' or to persons unknown to the disseisee, who was thus debarred from naming them in his plaint. (fn. 96) In 1 Henry IV the penalty was increased to treble damages. (fn. 97)
The plaintiff against whose plaint a successful peremptory exception was entered was, as we have seen, permanently debarred from recourse to a similar action in respect of the same tenement. The success of a dilatory exception merely invalidated the particular action concerning which it was pleaded. (fn. 98) The unsuccessful plaintiff was in all cases liable to amercement, and he who named among the defendants persons who could not be shown to have participated in a proved disseisin was amerced for a false plaint as far as they were concerned. (fn. 99) If any tenement named in the bill was found in the course of the action not to be in the tenure of the defendant the plaintiff possessed, and appears occasionally in the rolls as exercising, the right to 'abridge his plaint', (fn. 100) i.e. he might ask that the tenement in question be excluded from consideration by the court, and that the defendant be required to answer to the rest. The exercise of this privilege does not appear, however, to have absolved him from amercement in respect of the abridgement made. The plaintiff who perceived, while the action was in progress, some error or defect in his case which promised to prove fatal to it, might avoid a judgment of exclusion by getting himself non-suited, i.e. before the verdict was delivered he might, through his legal representative, cause himself to be called, and, failing to appear in answer to the summons, be adjudged 'non prosecutus'. (fn. 101) Interesting examples of the employment of this device occur in the rolls in 1376 and 1409. (fn. 102) Parties dissatisfied with a judgment had a remedy by writ of error in the Husting of Common Pleas, (fn. 103) or, in the last resort, could sue in Chancery for a commission of justices at St. Martin le Grand. (fn. 104) Two cases of arbitration in fresh force pleas—one by the recorder in 1424 (fn. 105) and the other by the mayor and aldermen in 1432 (fn. 106) appear to be unique, but are of considerable interest as showing that a practice which was common in actions arising in City courts in the later Middle Ages extended even to the possessory assizes.
If in the course of the pleading in a possessory action a question was raised which could not be determined in the City courts, or if, in an assize of mort d'ancestor, the defendant vouched a foreigner to warranty, the plaintiff might sue to have the record removed into the king's court, but after the foreign plea or foreign voucher had been there determined, the entire process was remanded to the sheriffs and coroner to be concluded in accordance with City custom. (fn. 107) Where the king was found to have, by escheat or otherwise, an interest in premises concerning which a plaint of intrusion had been entered, a writ de procedendo had to be sued out by the plaintiff before the assize could be held, (fn. 108) and after the jurors had given their verdict the court had to obtain the authority of the Crown to proceed to judgment in a writ de procedendo ad indicium. (fn. 109) In like manner, where the interests of the corporation were involved, the court was required to take counsel with the mayor and aldermen before giving judgment. (fn. 110)
The position of women in relation to pleas of land in the City is well illustrated in the rolls. In many cases the women who appear as parties in the actions recorded are heads of religious houses, in others they are spinsters or widows who, as 'femes soles', were capable of suing and being sued in as full a sense as any man. The married woman as 'feme covert' was 'sub virga viri sui', and enjoyed less freedom than her unmarried sister. None the less, in all litigation concerning her land she was required to appear with her husband before the court, and the Statute of Westminster laid down as a precaution against collusive alienation by the husband, that if in a plea concerning his wife's land the husband made default, the wife might be admitted to defend her right. (fn. 111) The rolls afford a number of examples of the exercise by married women of this privilege, (fn. 112) a case of particular interest being the assize brought by Richard Lyons against John Wiltshire and Alice his wife in 1380. (fn. 113)
Like the 'feme sole' the infant could sue and be sued, and minors, male or female, figure in the records in the role both of plaintiff and defendant. (fn. 114) Such infant litigants, being incapable of appointing attorneys, had to appear before the court in their proper persons, although, like their elders, they might state their case by the mouth of a professional pleader. Small children had of necessity to be accompanied by a responsible adult, and there is evidence that they were sometimes legally represented by their guardians, or by persons admitted by the court to act in that capacity for the particular occasion. (fn. 115)
Later modifications of the scope of the London possessory actions
In principle the possessory assizes were concerned exclusively with seisin, and pleas of proprietary right were rigidly excluded. The lawful tenant in fee of a property might be ejected by a person possessing no title at all; but if, having allowed the ejector to establish a de facto seisin (fn. 116) the owner re-ejected him without a judgment, he rendered himself liable to amercement as his disseisor. This point is illustrated in the assize brought during the iter of 1244 by the prior of St. Mary Spital against Christine, widow of Stephen de Blounnie, in respect of a messuage outside Bishopsgate. In the course of the pleading it was shown that the messuage in question was the marriageportion of the defendant and had been wrongfully alienated by her husband; but because the plaintiff had been duly put in seisin by the alienee she was technically guilty of a disseisin in entering upon his possession, and the jury returned a verdict for the prior. (fn. 117) A further illustration is afforded by the assize brought in 1352 by Thomas Arnald and Margery his wife, and Muriel, daughter of Roger of Higham Ferrers, against Thomas de Oxenford and others concerning a messuage in the parish of St. Mary Aldermanbury. Here the ancestors of the defendant, who held in fee tail under the terms of a devise, had made a grant in fee simple to the ancestor of the plaintiffs. The plaintiffs, holding in virtue of this grant, were subsequently ejected by the defendant, claiming under the entail. Although the plaintiffs had no title in law, the court held that their ejectment by the defendant must be adjudged a disseisin, and awarded them damages accordingly. (fn. 118) The consistent enforcement of the principle that seisin must be protected, whether rightful or wrongful, required however in Maitland's famous phrase, a greater measure of 'the lawyerly courage which prevents hard cases from making bad law' than was normally available in the Middle Ages. Already in Bracton's day it was established that if a disseisor enfeoffed another the injured party might proceed against both disseisor and feoffee; while in 1285 the Statute of Westminster II extended the capacity of the assize to protect the owner by allowing its use against a tenant for years or a guardian who had aliened in fee, and also against their feoffees. (fn. 119)
By the fourteenth century, if not earlier, the instinct to do 'substantial justice' had already considerably modified the scope of the possessory actions, which were being increasingly used to confirm title as well as to protect seisin. In 1356 retiring sheriffs were exhorted to deliver their rolls of assize as promptly as possible into the City chamberlain's custody 'issint qe les gentz quount recouerez lour droit par tiels assises puissent alegger record de les dites roules en saluacion de lour droit si mestier est'. (fn. 120) The successful party in an action might for his further protection obtain from the mayor and aldermen an exemplification of the record, which would serve him in future as a kind of title deed. (fn. 121) There is even evidence that assizes of fresh force were sometimes collusively brought by disseisors to establish a prima facie title to the lands or tenements of which they had obtained unlawful possession. In 1323 complaint was made that a practice had lately arisen in the City whereby disseisors lawfully re-ejected by those upon whose seisin they had intruded, brought pleas of intrusion against their ejectors, and through the ignorance or connivance of the jurors, obtained a verdict without being required to produce any evidence in support of the facts alleged. For the amendment of this evil it was ordained that in future juries might be examined before the mayor or two or three aldermen concerning all the facts of the case, and, more particularly, concerning the nature of the plaintiff's interest in the tenement in view, and the means by which it had been acquired. (fn. 122) The surviving records afford no evidence that the machinery thus devised was ever put into operation, (fn. 123) but the tendency for the court to enquire more closely into the plaintiff's 'estate' in the premises with which the action is concerned is abundantly illustrated. In assizes of rents-charge and rentsseck the plaintiff was required, as of course, to show his title, and explain the manner of the disseisin complained of, (fn. 124) while even in assizes of land a similar course might be adopted in cases where the defendant failed to appear. (fn. 125) Where an assize was brought by an ecclesiastical person the jury had further to declare whether there had been any fraud or collusion between the parties with intent to defeat the Statute of mortmain. (fn. 126) Thus the plaintiff's case came in the later Middle Ages to depend to an ever-increasing extent upon title, with the result that the assizes fell, in Maitland's phrase, 'into the ruck of the real actions', and shared in their decline at the beginning of the modern period. Largely superseded by the action of trespass in ejectment under the Tudors, they were eventually abolished by the act of 3 & 4 William IV, c.27, sec. 36.
Meanwhile, in common law practice, the period of limitation had gradually lengthened, the year 1242 fixed by the Statute of Westminster I, (fn. 127) finally remaining without alteration until 1540 (fn. 128)—so that the 'novelty' of the disseisin ceased to be of any practical significance. In London a prolonged attempt was made to enforce the traditional forty weeks' limitation in assizes of fresh force. An ordinance of 1384 re-affirmed 'qe ceux qi ne sount pas seisis et disseisis deins xl semaignes proscheins devaunt la bille dassise de frisceforce purchace, soit-il de tenement ou de rente, pledent par bref en hustenge.' (fn. 129)
There is a gap in the rolls at this date which makes it impossible to judge how far this enactment was effective during the closing years of the fourteenth century; but when the entries are resumed in 1400 it is clear that it has completely broken down. In the records of the fifteenth century the period of limitation appears not as the forty weeks of ancient custom, but as forty days. (fn. 130) The formulae used are 'post primam transfretacionem domini Henrici filii Regis Johannis in Vasconiam [the common law limitation] et infra quarentenam' and 'infra quadraginta dies proximos ante diem levacionis bille huius assise'. (fn. 131) This change, so far from indicating a tightening up of the older procedure, suggests rather that in City custom, as at common law, the period of limitation had degenerated into a mere legal fiction. Certainly the fact that the disseisins recorded in Rolls CC and DD are almost uniformly alleged to have occurred on a Thursday—the Thursday before the suing-out of the bill—can scarcely be explained as pure coincidence. In assizes of mort d'ancestor the year and day of earlier tradition has been superseded as far back as 1275 by the common law period of limitation, viz. the year of the coronation of Henry III. (fn. 132)
An attempt has been made in the Index to this volume to provide a key to the more interesting and important matters contained in the rolls here calendared. It may be useful, however, to record at this point a few general observations on their contents. It is of some significance, for instance, that the great majority of the actions terminated in favour of the plaintiff. Defendants seldom obtained a verdict, although they might be sine die as the result of a successful dilatory exception, or of the plaintiff's failure to prosecute his suit. Incomplete entries are the exception rather than the rule, and should probably be ascribed in most cases to clerical carelessness. (fn. 133) The appointment of lovedays is occasionally noted on the rolls, but agreement of the parties out of court is unusual. (fn. 134) Analysis of the existing data shows that while the summary character of the process was reasonably well maintained during the fourteenth century, although respites through default of recognitors, (fn. 135) and adjournments by consent of the parties, (fn. 136) or to enable the court to seek legal advice, (fn. 137) are not infrequent, it had been largely lost by the beginning of the century following. Some indication of the growing complexity of the proceedings is afforded by the cases of arbitration mentioned above, (fn. 138) and by the practice, in the Tudor pleas, of granting respite to the defendant on his first appearance; (fn. 139) while its complete formalisation is clear from the numerous fictitious personages named as summoners of the recognitors or pledges to prosecute. (fn. 140)
The proportion of assizes of mort d'ancestor to assizes of fresh force or novel disseisin is remarkably small. No more than four of the former are included among the actions here calendared, (fn. 141) although several were taken before the itinerant justices in 1276. (fn. 142) Mort d'ancestor had never either the popularity or the adaptability of novel disseisin, and in London its scope was still further limited by the fact that all land in the City was devisable. (fn. 143) Of the two other possessory actions instituted by Henry II—the assize of darrein presentment and the assize utrum—the former was reserved for the justices of the Bench, (fn. 144) and the latter appears to have been taken in the Husting, except when a general eyre was in session at the Tower. (fn. 145)
The subject of damages is well illustrated in the rolls. The largest sums awarded are £268 in an action of novel disseisin (fn. 146) and £300 in a case of mort d'ancestor, (fn. 147) although in a further instance where double damages were awarded owing to the defendant's failing of his record, the sum totalled 400 marks. (fn. 148) There is little to indicate the principle upon which the assessment was based, although, as we have seen, the Statute of Gloucester laid down that both the profits of the land and the costs of the action should be taken into account. (fn. 149) In assizes of rent the arrears due were included. (fn. 150) Roll CC affords an instance of the increase, at the suit of the plaintiff, of the damages awarded; (fn. 151) and from the middle of the fifteenth century an incrementum which might amount to several times the combined value of the damages and costs was commonly allowed to the successful plaintiff. (fn. 152) On the other hand, the damages assessed were on one occasion remitted by the court in consideration of improvements effected by the defendants during their occupancy of the premises, (fn. 153) while remissions by the plaintiffs themselves are of common occurrence. (fn. 154) Occasionally the sum awarded was, on the plaintiff's instructions, distributed among the officers of the court. (fn. 155) After 1278 it was no longer necessary for the successful party to an assize to await the next visit of the king's justices before recovering his damages, (fn. 156) and if the defendant failed to pay up, the plaintiff could, under the terms of the Statute of Westminster II, either sue out a writ of fieri facias to the sheriff to levy the sum due from the debtor's lands or chattels, (fn. 157) or by an alternative writ (of elegit) secure delivery of the chattels and half the tenements of the debtor to hold pending satisfaction. (fn. 158)
The records in general throw little direct light upon the quality of the justice dispensed by the sheriffs and coroner but evidence of corrupt practices and of irregularities of procedure, though scanty, is not entirely wanting. In 1382 a sheriff was accused by the defendants in an assize of novel disseisin of having packed the jury with friends of the plaintiff, although the charge was not substantiated. (fn. 159) The ordinance of 1323 charges jurors with culpable negligence, if not with actual corruption, (fn. 160) while that of 1384 refers to the prevalent abuse of the process of fresh force and orders that it be set right in accordance with ancient custom. (fn. 161) In the later Middle Ages 'maintenance' seems to have been a common evil. An inquest of 1378 (fn. 162) returned the names of Nicholas, renter of the hospital of St. Bartholomew, Simon Macchyngge, John Squier and Henry Bosele as maintainers in plaints of novel disseisin taken in the City. A special machinery was set up by the Statute of Richard II to deal with disseisors who enfeoffed lords and other great men of the realm in order to have maintenance, (fn. 163) and the frequent re-enactments of this statute in the first half of the fifteenth century suggest that the evil was recurrent. Isolated instances of what appears to be calculated delay of justice occur in the records, (fn. 164) and attempts were from time to time made by the Crown to move the City courts in such cases. Such scattered examples of injustice or defective administration hardly suffice, however, to efface the general impression of utility and popularity of the possessory actions which is left on the mind of the reader by a perusal of the surviving City records.