XII.

Relational Obligations
Hypothesis: The elemental legal categories of twelfth century England were wrongs
(unilaterally involuntary, damage producing occasions) and relational obligations.
Relational obligations were, of course, obligations that arose from a voluntary relationship,
not from a promise. You will tend immediately to equate the actions of debt, detinue, and
covenant with obligations deriving from a promise to pay or to do. That later becomes so; it
was not so originally. With tenures, of course, one can easily speak of relational obligations
in the twelfth century: they concentrated on maintaining the expectations that arose out of
the relationships between the parties, rather than analyzing rights vested "in" one party or
the other, the equivalency of what was given or gotten. In just this way, the relationship of
buying-selling, lending-borrowing, leasing, suretyship, and agency were socially
recognized relationships with obligations that the law sought to maintain. The proper
remedy was standing to the relationship, not damages. Thus, the writ of account brought by
a manorial lord against his estate manager called a bailiff sought to make the bailiff stand to
his obligation: the remedy in the writ of account was that the bailiff would account. The
result of the account was a debt, but one which the lord might have to sue for
independently: account was to make the bailiff account, not to make him pay. In a similar
way, detinue in lending situations was primarily to enforce the obligation of the borrower to
return the goods; in covenant the remedy was to make the defendant stand to the agreement
he had made; in debt the debtor was to pay. The central idea was not promise, but relational
obligation.

XII.A. The Manner of Pleading in Lincoln: Materials #186.

In the first place, know that the pleas of the city of Lincoln are held by the bailiff and at
least two attending judges on Mondays.

...

[Pleas of wound/blood]

Know further that he who complains of a wound and blood is supposed to pledge his faith
in the bailiff's hand, and if he wants to find pledges to the bailiff that he will follow his
complaint, the bailiff is supposed then immediately to put the other by pledges. If the
complaint is of wound and blood and he does not want to find pledges, he is supposed to
take his body. If the complaint is not of such matters nor (BUT?) of shame or debt, then he
is supposed to summon him.

...

On the next Monday, if both appear in court, the complainant will make his complaint in
these words
[Count for assault]

I complain of such a one, that when I went about my home in the peace of God and the
peace of the city (or when I was in my home during the day or night or whatever he want to
say, he will say), that W. came and violently put hands on me and threw me to the ground
and beat and wounded me and gave me a wound and bloodshed and made off with 20s. in
money from me and in shame and he inflicted abuses that I did not want to have for 100s.
Wherefore I seek that right be done me for love of God and king.

Immediately the other will respond or will consult his counsel. If immediately, he will
defend the peace of God and the peace of the city and injury and the violent putting of
hands and that he beat or wounded him and that he gave him a wound or bloodshed and the
sum of money and the shame etc., word for word and say that he is ready to do whatever
the consideration of the court shall impose on him, as if a Frenchman immediately law will
be adjudged and he will pledge his faith in the hand of the bailiff and in the hand of the
complainant to do his law and he will do it with the third hand and will find pledges to do
his law or his body will remain in custody until they are found. If in fact he does not make
(his faith) in the hand of the bailiff or of the adversary but goes from court, he will fall in
the mercy of the reeve.

Likewise, if he shall have pledged his faith in the hand of the bailiff or of the adversary
before the judgment of the court, he will fall in the mercy of the bailiff. If in fact he will not
defend as a Frenchman, he will make his law with the twelfth hand. If the complainant ask
for sureties before judgment, he will have them, and he will name six.

Likewise, if he does not defend blood or wound fully, he will be put by consideration of the
court in the prison of the lord king for fully 40 days. If in fact he defends blood etc., and not
the shame or word for word he will fall in the mercy of the bailiff and will recover his plea
by mercy.

Likewise, know that if anyone answer for the defendant, if he respond badly or well, the
defendant will be asked if he grants that which he said for him. If he grants it, the other is
quit; if not, he will remain in the mercy of the bailiff. And the defendant will immediately
defend or the other for him. The complainant in fact is well able if he wants to make his
attorney in court to take his law.

...

[Pleas of debt]

Likewise, know that if anyone complains in court of a debt, he is immediately supposed to

find pledges to follow his complaint if he wants. The debtor, however, will be summoned
by judgment of court. If therefore he appears in court on the next Monday at the first
summons and the complainant make his complaint solely of a debt, the debtor if he wants
will request his reasonable summonses. If he is supposed to have them, they will be
adjudged him immediately. And he will have three summonses.
Further, if he does not appear in court after three summonses, he will be distrained by
judgment of court. If in fact after he is distrained he does not appear in court, he will be
distrained better and be distrained a third time.

Likewise, after he is distrained a third time, if he does not appear in court, the complainant
or his attorney will request distress by gage and pledges if he wants. Hence, if the (debtor)
will find pledges, the (complainant) will have them by judgment of court. If he wants, the
complainant in fact can well make his attorney in court to prosecute his complaint to win or
lose. If the debtor comes in court and asks for his distress by gage and pledges, he will have
them outside by judgment of court if he finds pledges. And a certain day will be given him
to appear in court to answer and to be rightfully condemned. And in fact on the day he can
make himself to be essoined if he wants, etc., as above. Truly, on the next Monday he must
appear in court to warrant his essoin or to defend himself.

Likewise, know that after his reasonable summonses have been adjudged and he appears
afterwards in court (after) the first or second summons, for another cause or complaint, and
the complainant or his attorney makes his complaint, the debtor must answer immediately.

Likewise know that the claimant makes his claim in these words,

[Count in debt]

I complain of this N. that he owes me and unjustly detains 20s. of money wherefore I am
damaged to the value of a half mark in the peace of God and of the city. Hence I ask you for
love of the lord king make for me to have right.

Hence if the debtor immediately defends the peace of the city and injury and the debt of
20s. and damage and loss of a half mark etc., word for word and says that he is ready to do
etc, as if a Frenchman. If the other wants to prove, law will be adjudged and he will do it
with the third hand. If in fact he wants to prove, he will say these words,

[Creditor's claim to prove the debt]

You unjustly defend this, for I will have at the day and term what I must and within a
sufficient proof that you granted me this debt, to wit 20s., and this I am ready to do etc.

Immediately his proof will be adjudged and a certain day will be given him to come to
prove this.

At the beforeestablished day he must come in court so fortified, to wit, with three law-
worthy men who will conduct themselves in this manner before the bailiffs and judges.
They will be asked nothing, but one of them will begin by saying thus,

[Form of creditor's suit's proof]

I appear here at a true, not a false demand. I was present, and I saw, and I heard that N.
granted 20s. which he owed him. And this I am ready to do etc.

And thus the other two must say everything word for word that the first said. If all those
three concord in one and all say one thing, immediately all will swear touching the
sacrosanct gospels in court and say these words,

[Oath of creditor's suit]

Hear this, lord bailiff, that so help us God and these saints that that which we have said
before in court is true and a true and faithful proof.

Then the claimant and the debtor together with the prover(s) will withdraw until the suit is
adjudged. After the suit is in fact adjudged, all will be called into court and the judgment
will be adjudged before them and it will be given such that the claimant fully proved the
whole debt upon the debtor and the debtor will remain in the mercy of the bailiff. Further, a
certain day will be given the debtor for acquitting the debt. Hence, if he shall not have
acquitted the debt at this established day, by judgment of the court he will be well
distrained for payment of the aforementioned debt.

Likewise, know that if the first of the provers does not accord with the others concerning
the debt or other things and not fully say that he is ready to do etc, or if one of them shall
not be present at the assigned day before the bailiffs and judges, the proof will be adjudged
false and not true and the debtor will go away quit from that suit and the claimant will
remain in the mercy of the bailiff.

...

[Method for compurgating]

Likewise, know that this is the way of making law in the court of the city of Lincoln, such
to wit that a male, if he defends as a Frenchman, will make law with the third hand; but if
he defends as an Englishman with the twelfth hand; if the English defendant is married,
with the twelfth married hand. Likewise, any woman whatsoever is supposed to make law
with the twelfth female hand.

Further, know that the assailant who is put by pledges is supposed to appear in court before
the bailiff on the day of law so fortified such to wit if he is supposed to make law with the
third hand that he have with him 2 men who are called "wahtes" standing beside him before
the bailiff ready and prepared to make law with him, but if he is supposed to make with the
twelfth hand, thus he must have them ready with him. Likewise, if the complainant is
present there he will be asked if he wants to receive his law or, saving the right of the
bailiff, to concord with the other by licence of the bailiff. Moreover, the other will be asked
if he wants to make law or to concord with the other. Hence if both want to concord and are
concorded, the complainant will remain in the mercy of the bailiff. Hence if they do not
want to concord, he must make law, but if he make law he is quit from that suit and the
complainant is in mercy.

Likewise, remember that if anyone complains of wound and blood and the defendant on the
day of law does not appear in court before the bailiff to make law and does not make
himself to be essoined, and the complainant is there present and says that he is ready and
prepared to take his law, the other will be called and called again. And if he does not come
and the other requests his judgment, a certain day, to wit the next Monday, will be given
him to have his judgment. On the same day of law indeed the bailiff's serjeant will be
ordered to distrain the assailant and his pledges to come to court on the next Monday to
hear his judgment. On that Monday he will have (it) such, to wit, that the assailant will be
attainted and his body will be put by judgment of the court into the lord king's prison for a
full 40 days, and his pledges will remain in the mercy of the bailiff.

Likewise, know that if the defendant on the day of law appears to make his law on the day
of law in court before the bailiff and does not have with him fully the "whactes" or if one of
them does not want to make law, the defendant will be attainted by that suit and his body by
judgment of court will be put in the lord king's prison for 40 days, but his pledges will go
quit.

Further, if the assailant on the day of law in court before bailiff and judges will appear well
fortified with his "whactes" and will say that he is ready to make his law, if the complainant
is not present there he will be called and called again. But if he does not come while the
court is sitting nor makes himself to be essoined and the assailant asks for his judgment, on
that day he is quit of one of the "whactes," he will leave, and the complainant will remain in
mercy of the bailiff. Similarly his pledges to prosecute his complaint will remain in mercy.
Similarly on the other day of law if the assailant appears and the complainant does not, he
will lose the other of the "whactes." But if on the third day of law the complainant comes,
the assailant will make law with his sole hand. But if he make it, the assailant is quit,
similarly also the complainant from the complaint. Likewise, if on the third day the
complainant neither comes nor makes himself to be essoined, the assailant will withdraw
without day and the complainant will be distrained to appear on the next Monday to hear
his judgment and by judgment of court he will remain in the mercy of the bailiff.

Further, know that on the day of law if the complainant and defendant both appear in court
and do not want to concord, the defendant must so come to make law and with his
"whactes" genuflect before the bailiff and judges and before the book, and he will hold his
hand above the book and his "whacti" will stand beside him. And one of the judges will
weigh the law, and the other will say everything word for word that the judge shall say.
Hence, thus he will begin,

[Form of compurgation]

Hear this, lord bailiff, that I am free as I made in the court of the lord king, so help me God
and these saints.

Afterwards he is supposed to swear and say,

Hear this, lord bailiff, that I lead my "whacti" to a faithful oath, not false, so help me God
and these saints.

Likewise a third time he is supposed to swear and say,

Hear this, lord bailiff, that I did not assail the same N. nor wound him nor make bloodshed
nor inflict shame or injury or abuse on him (if he made his complaint concerning all these
things) nor did I make off with a monetary sum from him (if he made his complaint of debt)
as he said against me in the court of the lord king, so help me God and these saints.

Afterwards he will kiss the book and will rise by licence of the bailiff; and if he rise from
the book before the order of the bailiff or of some judge and the bailiff shall request his
judgment, by judgment of the court he will remain in the mercy of the bailiff. Likewise, if
one of his "whacti" arise before the order of the court or of the bailiff, by judgment of the
court, judgment having been requested, he will remain in the mercy of the bailiff. It will be
similar also with the defendant. Afterwards indeed the "whacti" are supposed to swear and
say,

Hear this, lord bailiff, that this oath that he made is true and not false as we know, so help
us God and these saints.

But each one is supposed to swear this by himself and immediately they are supposed to
kiss the book and rise by order of the court. And the defendant will go quit from that suit
with his "whacti" by judgment of the court, and similarly the complainant etc.

1. "Bailiff" was the name applied both to estate managers and to executive officers of
courts.

2. This treatise treats of only two kinds of pleas: debts and wrongs. What conclusion would
you draw from that?

3. Find the count -- the formal statement of the plaintiff's claim -- in debt and the procedure
following. Examine the text very closely for the following:

a. what is the nature of the claim?

b. who proves? Note that at common law in the time of Glanvill the claimant in debt could
prove the debt also. Lincoln's procedure here is thus not aberrant, but remained like the
common law had been at origins.

c. In the phrase "law will be adjudged" what does "law" mean? "Law" in this context means
compurgation: group swearing as a form of proof. When one "waged" his law, he promised
to come at another day to "make" his law; "making" one's law was compurgation.
d. why the differences in proof between "Frenchmen" and "Englishmen"? What are the
differences?

XII.B. A. v. W. (1293-1297)

Harvard MS 162, fol. 190a

Court of common pleas

One A. brought a writ of debt against W. and said that he wrongly detained from him 10
marks etc.

Howard [D]. What do you have of the debt?

Spigurnel [P]. Good suit.[1]

Howard [D]. Do you have anything else to bind us to the debt?

Spigurnel [P]. No.

Howard [D]. Sir, he claims a debt of 10 marks from us and shows nothing to the court to
bind us, neither writing nor tally[2] nor anything else, except their breath. We ask judgment
if they ought to be answered.

Spigurnel [P]. We have tendered suit, to which they have not at all answered; judgment of
them as undefended.

Bereford [J]. Answer to their suit.

Howard [D]. They have nothing else except their suit, which we pray to be examined.

Spigurnel [P]. There is no need, because suit only serves to attest that which the party has
said and to make the party answerable.

Bereford [J]. The defendant can choose one of three ways, either to put himself on the
countryside,[3] or to be at his law,[4] or to put himself on your suit which you have
tendered, which is as of much value as the countryside.[5] And they have consented to the
examination of the suit which you have tendered, which is at their peril, and you do not
have it as you have tendered. Thus this court adjudges that you be in mercy etc.

1. What is a tally?

2. What is "suit"? How is it related to the plaintiff's proof in XIIA?

3. Do you understand the defendant's options as explained by Bereford? If plaintiff only has
suit, can he force defendant to a jury? No, it is a defendant's option to go to a jury if the
plaintiff only has suit; the defendant can avoid a jury by choosing compurgation. Only if
the plaintiff has specialty (= a written bond under seal) can the plaintiff force the defendant
to put himself on a jury.

XII.B.1: Anon v. Warein (1343)

YB Mich 17 Edward III, fol. 48, pl. 14

Court of common pleas

You have been accustomed now to litigation about real property in which even by the late
twelfth century there was a great deal of substantive law argued in court. In debt the
character of pleading is different, in that there is little substantive law (what constitutes a
debt?). The most important point in a debt case is what the creditor has to evidence the
debt. Thus the two different varieties of debt are different not because they are founded on
different kinds of relationships, but rather only because in one the plaintiff can present
specialty to evidence the debt (=debt on an obligation ['obligation' meaning specialy],
whereas in the other the plaintiff only has suit, that is, two people (either actually there in
the thirteenth century, or there only by allegation by early in the fourteenth century)(=debt
on a contract ['contract' meaning a transaction (not an agreement) such as a buying, selling,
lending, borrowing). Do not be fooled by this usage of the word 'contract': that word is now
used for agreements, whereas then the word meant a transaction. Be sure you understand
the difference.

The difference between debt on an obligation and debt on a contract, the difference that it
made whether one had specialty or only suit, was in the form of proof that followed. If the
plaintiff had specialty, the defendant had but two possible replies: (1) the specialty is a
forgery (=not my deed) or (2) I have repaid as proven by your written acquittance under
your seal. The debtor could not allege repayment unless he had the written acquittance. The
only issue that could go to the jury was whether the specialty was forged (or, after ca. 1380,
whether the debtor was illiterate so that he had not known what the specialty said so that it
was, similarly, not his deed). Thus there was no possible discussion about the nature of a
debt and thus little chance for the development of a body of substantive law. In debt on a
contract substantive discussion was usually avoided by the defendant's plea: I owe nothing.
That issue does not specify why he did not owe: was it repayment? no debt having been
contracted? a subsequent oral forgiveness by the creditor? the creditor's acceptance of a
lesser amount for full payment? a collateral transaction between the two that cancelled out
the debt? We simply do not know, and neither did the court. Since all such issues were
submerged in the general issue of debt ("he owes nothing"), not much substantive law could
emerge.
Debt was brought against J. Warein canon of the church of St. Peter of York of a certain
debt, part by obligation, part by contract.[6]

Richemund [D]. As to the obligation we cannot deny; as to the remainder, what do you
have of the debt?

Moubray [P]. Good suit.

Richemund [D]. Let the suit be examined at our peril.[7]

Moubray [P]. Do you want that for your response?

Richemund [D]. Yes, because you take suit in this case of contract in place of proof of the
action.

Moubray [P]. Suit is only tendered by form of count.8 Wherefore, judgment etc.

Shardelow [J]. One has heard that suit in such a case was examined, and this opinion was
afterwards reproved.[9]

Shareshull [J]. Yes, that same justice who examined the suit for the issue saw that he erred.
[And thus he condemned his own opinion.][10]

Gaynesford [D]. In a plea of land when one tenders suit it is only form, but in a plea which
is founded on contracts which need witnessing, there is the suit such witness that without
suit the party is not answerable if the matter is challenged.

Shareshull [J]. Indeed, it is not so; wherefore deliver yourself.

Richemund [D]. No money does he owe, ready etc.

Moubray [P]. To this you will not arrive, because you have tendered a different issue for the
whole, etc.[11]

Richemund [D]. You said that the first was not an issue, wherefore from your plea you give
me the advantage.

And nevertheless Kelshull [J] awarded that the plaintiff recover the entire debt and
damages taxed by the court etc.

Moubray [P]. He is a clerk against whom we have answered and he came by the bishop,
wherefore we pray a writ of fieri facias to the bishop.[12]

And nevertheless the writ issued to the sheriff. Quaere.

1. Is examination of suit any longer possible? Can you summarize what has happened to
suit?

2. Why did the defendant here lose?

XII.C. John de C. v. Robert de T. (before 1309)

Harvard MS 162, fol. 191

One John de C. brought his writ of debt against Robert de T. and claimed against him
[[sterling]]10 of silver, in which he was held to him by reason of a loan.

Burton [D]. What have you of the debt?

Herle [P]. See here a written and sealed tally.

Burton [D]. No money does he owe you, ready to do against you and your suit etc.[13]

Herle [P]. To this you will not arrive, because we have put forward a deed which attests our
claim, which deed they have not denied.[14] Judgment if against their own deed they ought
to arrive at their law.

Burton [D]. If we will be barred by the tally from the law, it seems that it would work
against specialty, which cannot be. And we ask judgment.

Herle [P]. It is not so, because in the one case it bars the party from the law, in the other
case from the law and the averment, wherefore etc.

Inge [D]. The seal does not prove the sum of the debt, because it is possible that the writing
was taken off and enlarged and the notches were made larger; we ask etc.

Toudeby (ad idem) [D]. It is not in this case as it would be between a lord and a bailiff,
because the bailiff will be held by the sealed tally to his lord to render his account of
moneys received, but in this case of debt there is nothing which binds the party, as an
obligation to be obliged to the debt nor a certain reason to pay the debt but only that one
such received so much by reason of a loan, the which sum could be changed by erasure or
by new writing, judgment.

Herle [P]. as before. We have put forward a sealed tally which attests the reason and the
sum, the which they do not deny. And we ask judgment if they ought to arrive at the law.

Hengham [J]. Do you want the law?

Herle [P]. If you adjudge it, we want it.

Hengham [J]. We tell you by judgment: if you refuse it you will take nothing etc.

Herle [P]. By your judgment, we want it.

And the defendant had day to perform his law etc.

1. Debt was intensely focused on proof. What is the analysis here about the relationship
between a tally and the form of proof?

XII.D. Anon. (1338)

Fifoot, p. 247

Court of common pleas

A writ of debt was brought against one; and he counted that the plaintiff, by covenant
between him and the defendant, had been made his attorney for ten years, taking twenty
shillings for every year, which were in arrear.

Pole [D]. This count begins with a covenant and ends with an owing;15 we ask judgment of
such a count as not warranted.

From this objection he was ousted.

Pole [D]. He has nothing showing the covenant.

Shareshulle [J]. If one were to count simply of a grant of a debt, he would not be received
without specialty; but here you have his service for his allowance, of which knowledge may
be had, and you have quid pro quo.

Wherefore Pole waged his law that he owed him nothing; and the other counterpleaded it.

The court to Gayneford [P]: Will you receive the law at your peril?

Wherefore he received the law.

1. What does Pole's first objection mean?

2. Pay close attention to Shareshulle's comment. Specialty means "deed under seal". Does
every debt involve "consideration"? Consideration comes later in time. When there is
specialty, what analysis is there to the basis of the debt? Debt on a specialty is called "Debt
on an obligation." Debt without specialty is called "Debt on a contract". In this phrase,
"contract" means "transaction" like a buying, selling, leasing, etc. Why the "quid pro quo"
analysis? What does it show about the nature of law, compared to the original hypothesis?

3. What does the swearing that "he owed him nothing" mean? Does it mean that he paid
already? that he never owed? that there has been some collateral misfeasance that would
seem to justify the debtor in cancelling his debt? With such a general issue, will the justices
ever have to confront complicated factual situations? In debt on an obligation, the
defendant had to plead to the specialty: either he had to present a written acquittance or
allege a forgery. Will this present the justices with complicated factual situations, such as
those you found in property coming up in novel disseisin? What does all this have to do
with the nature of the law of debt?

XII.E. The Forty-Shilling Rule

The forty-shilling rule: all cases brought in lower courts (county, hundred, although not
borough courts) in debt or detinue worth 40s or more must be brought by writ, not by
plaint.

These documents relate to a complicated legal change that greatly enlarged the jurisdiction
of the king's court. Through most of the thirteenth century the king's court jurisdiction was
largely in matters of real property. In trying to resolve problems with bias in lower courts,
the king's court backed into a major jurisdiction in debt and detinue. This is the pattern:

1. 1274: Edward I launched a massive inquiry into local corruption. Those inquiries
revealed that people thought that the presiding officers of local courts (county, hundred,
liberty) were often partial when a friend, ally, or relative was a litigant. That bias might not
result in a wrong judgment (the writ of false judgment already provided for that
possibility), but could uselessly delay the suit or otherwise cause unjust impediments to a
worthy plaintiff or similar problems to an innocent defendant.

2. 1274-75: Instead of prosecuting all former sheriffs and other local officers, removal
procedures were instituted to allow parties in county courts to remove suits into the king's
court when the presiding officer of the lower court was biased. These new removal
procedures applied to actions of debt, detinue, trespass, and replevin. The writ pone
removed suits of debt, detinue, and replevin into the king's court that had begun in the
lower courts by virtue of a royal writ. Before 1278 there was no writ for initiating suits in
lower courts in trespass. The writ recordari removed suits of debt, detinue, replevin, and
trespass into the king's court that had begun in the lower courts by plaint. The writ pone
required the sheriff to return not only the pone but also the writ that had begun the dispute;
the case then began all over again in the king's court, disregarding any process that had
occurred in the lower court. Since there was no original writ in a removal by recordari, the
recordari required the sheriff to return both the recordari and a record of the suit as it had
been prosecuted thus far in the lower court. The king's court then could carry on the suit
from that point if it chose. The king's court jurisdiction in trespass, begun by a standardized
writ, was only about a decade old; this new removal process brought in cases from lower
courts that apparently seemed less significant, and sufficiently so as to cause a problem.

XII.E.1. Statute of Gloucester, c. 8 (1278)

It is likewise provided that sheriffs shall hold pleas of trespass in the county courts as they
used to. And that no one from now on shall have a writ of trespass before justices[16]
unless he declares on oath that the goods taken away were worth at least 40s. And if he
complains of battery, he shall declare on oath that his complaint is true. For wounds and
mayhems one shall have a writ as one used to have it. And it is granted that defendants may
make attorneys in such pleas where there is not an appeal [= private prosecution of felony],
so that if they are convicted of the trespass in their absence it shall be required of the sheriff
that they be taken and have the penalty that they would have had if they had been present
when judgment was given. And if the plaintiffs in such a trespass henceforth cause
themselves to be essoined after the first appearance, let there be an adjournment until the
coming of the justices, and the defendants meanwhile shall be in peace in such pleas and in
other pleas where attachments and distresses lie. And if the defendant causes himself to be
essoined of the king's service and does not carry his warrant at the day given him by his
essoiner, let him render damages to the plaintiff for his journey of 20s, or more at the
discretion of the justices, and nevertheless be grievously in the king's mercy.

3. This is a statutory retreat, sending the more trivial of such cases back into the county
courts. Around 1281 a similar action was taken by the justices, mandating that the justices
would accept no pleas in debt or detinue worth less than 40s. For technical reasons (the
sheriff could not tell the value of the suit in a plaint, only in a suit brought by writ)
maintenance of this jurisdictional limit and maintenance of the option for avoiding bias in
important cases dictated that pleas for debt and detinue in lower courts for 40s. or more had
to be brought by writ. XII.E.2 shows the enforcement of that rule.

XII.E.2. Gobaud v. Prior of Spalding (1296)

CP40/112, m. 131

common law; court of common pleas

Clement, prior of Spalding, was attached to answer John Gobaud concerning a plea why,
whereas pleas of debt in the king's kingdom which attain or exceed the sum of 40s ought
not to be pleaded without royal writ,[17] the same prior held a plea without writ in his court
of Spalding concerning a debt of 100s which Gomulda who was the wife of Reginald le
Mariner of Spalding, John Cluny, Roger Richardesman, and Reginald Chese exacted from
the aforementioned John Gobaud in the same court against the custom of the king's
kingdom and against the prohibition etc.[18] And whereof the same John by his attorney
complains that, when the abovesaid prior held the abovesaid plea in his abovesaid court
concerning the abovesaid debt and the same John on [18 March 1295] at Spalding in open
court within the same vill in the presence of John de Cotoun, Simon de Upton, and John de
Upton delivered to the same prior a royal prohibition that he not hold the plea any further
etc., the same prior, spurning that prohibition, nevertheless held that plea in the same court
until the same John was condemned judicially by the same court in the abovesaid debt
against the custom etc., and to the damage of the same John and in manifest contempt of
the lord king etc., whereof he says that he has suffered loss and damage and has damage to
the value of [[sterling]]10. And thereof he produces suit etc.

And the prior by his attorney comes and denies force and injury etc. And he says that he
ought not respond thereof to this writ,[19] because he says that that writ is a certain new
writ, newly conceived, and never used in the chancery of the king until this time, for he
says that that writ is neither founded on any statute, nor is according to the common law,
nor has been ordained,[20] wherefore he seeks judgment etc.

Day is given to them to hear their judgment here at the quindene of John the Baptist.[21]

XII.E.3. Early Registers of Writs, p. 115 (1320s)

Note. It should be known that when there is a plea of debt of, or above, 40s without a writ
of the lord king in the county court or in the court of some individual, then there ought not
to issue a writ of false judgment[22] for a debt of this kind, nor a recordari, nor a writ of
execution of judgment, because it is abolished from use; but there shall be a prohibition
against holding this kind of plea.

4. There were two writs that removed cases from county court into the king's court.
Recordari removed cases begun by plaint, that is, not by writ, and proceeded by having the
county court send a written record of the procedure to the king's court. Pone removed cases
begun by viscontiel writ in the county court. The procedure by pone has two relevant
points. The first is that, when the person removing the case was the defendant, the reason
for the removal was stated in the writ, as that the plaintiff was related to the sheriff who
presided over the county. The second is that the procedure only demanded the forwarding
of the viscontiel writ, thus voiding all procedure and pleading taken up to that time in
county.

5. In the 1290s the allegation of bias became non-traversable,[23] such that any defendant
in debt/detinue could remove the case brought by writ into king's court, even if jury verdict
had been rendered, if judgment had not been given. The nature of the removal procedure
was that all process was nullified and the case started over. Would you, as lawyer or
plaintiff, bring a serious case of debt in county court then? Could you?

6. County courts thus became relatively unimportant courts. This change was not intended
straightforwardly: it was the result of the court working hard to overcome bias on the part
of presiding officers of lower courts. The result was that the king's court, even though it
obviously did not want the jurisdiction, became the primary forum for most[24] important
cases of debt and detinue. This nicely parallels the way in which parliament had come to
be, since 1257, a forum for handling issues of interest to the whole country. In both politics
and law, central institutions served to unite the country and make the central institutions of
increasing importance to many even ordinary people.

DETINUE - The name of an action for the recovery of a personal chattel in specie.

This action may be considered: 1. With reference to the nature of the thing to be recovered;
2. The plaintiff's interest therein; 3. The injury; 4. The pleadings; 5. The judgment.

The goods which it is sought to recover, must be capable of being distinguished from all
others, as a particular horse, a cow, etc., but not for a bushel of grain. Detinue cannot be
maintained where the property sued for had ceased to exist when the suit was commenced.

To support this action, the plaintiff must have a right to immediate possession, although he
never had actual possession; a reversioner cannot, therefore, maintain it. A bailee, who has
only a special property, may nevertheless support it when he delivered the goods to the
defendant, or they were taken out of the bailee's custody.

The gist of the action is the wrongful detainer, and not the original taking. The possession
must have been acquired by the defendant by lawful means, as by delivery, bailment or
finding, and not tortiously. But a demand is not requisite, except for the purpose of entitling
the plaintiff to damages for the detention between the time of the demand and that of the
commencement of the action.

The plaintiff may declare upon a bailment or a trover; but the practice, by the ancient
common law, was to allege, simply, that the goods came to the hands, etc., of the defendant
without more. The trover, or finding, when alleged, was not traversable, except when the
defendant alleged delivery over of a chattel actually found to a third person, before action
brought, in excuse of the detinue. Nor is the bailment traversable, but the defendant must
answer to the detinue. In describing the things demanded, much certainty is requisite,
owing to the nature of the execution. A declaration for 'a red cow with a white face,' is not
supported by proof that the cow was a yellow or sorrel cow.

In this action the defendant frequently prayed garnishment of a third person, whom he
alleged owned or had an interest in the thing demanded; but this he could not do without
confessing the possession of the thing demanded, and made privity of bailment. If the
prayer of garnishment was allowed, a sci. fac. issued against the person named as
garnishee. If he made default, the plaintiff recovered against the defendant the chattel
demanded, but no damages. If the garnishee appeared and the plaintiff made default, the
garnishee recovered. If both appeared, and the plaintiff recovered; he had judgment
against the defendant for the chattel demanded, and against the garnishee a judgment for
damages, and a fi. fa. in execution. The verdict and judgment must be such that a special
remedy may be had for the recovery of the goods detained, or a satisfaction in value for
each parcel, in case they, or either of them, cannot be returned. The judgment is in the
alternative, that the plaintiff recover the goods or the value thereof and his damages for the
detention and full costs, if he cannot have the goods themselves. This action has yielded to
the more practical and less technical action of trover.