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.