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Words and Deeds: The Action of Covenant in the Reign of Edward I

Published online by Cambridge University Press:  28 October 2011

David J. Ibbetson
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Extract

The action of covenant before the reign of Edward III is a subject of considerable mystery. By the time that the Year Books come to the fore in the last decade of the thirteenth century, it has become a relatively scarce form of action in the royal courts, and consequently our sources of information are fairly scanty; in addition, by this time, the restrictions which limited the potential of covenant as a general contractual remedy are already firmly in evidence, with the result that the development of these restrictions is not easily visible. There is, though, a considerable amount of additional material in the rolls of the Justices in Eyre in the reign of Edward I, and in some of the multifarious tracts on pleading which proliferated in the later years of the thirteenth century and which have remained for the most part in manuscripts which have not been systematically examined by legal historians.

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Articles
Information
Law and History Review , Volume 4 , Issue 1 , Spring 1986 , pp. 71 - 94
Copyright
Copyright © the American Society for Legal History, Inc. 1986

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References

1. Maitland, F.W., ‘The History of the Register of Writs’ in Fisher, H.A.L., ed., The Collected Papers of Frederick William Maitland, 2 vols., (Cambridge, 1911) ii, 141Google Scholar; Pollock, F. and Maitland, F.W., The History of English Law 2nd. ed., 2 vols. (Cambridge, 1968) ii, 216–17Google Scholar; Fifoot, C.H.S., History and Sources of the Common Law: Tort and Contract (London, 1949) 255Google Scholar and the references there cited.

2. All of the cases of covenant in Bracton's Note Book concern land or land-related rights.

3. Pollock, & Maitland, , History of English Law, supra note 1 at ii, 217Google Scholar. Practically every case in the eyre rolls of Edward I concerns a lease.

4. Bodleian Library, MS Bodley 559 fol. 78 at fol. 83v; British Library (hereafter B.L.) MS Harleian 5213 fol. 184v. at fol. 193, Bodleian Library, MS Additional 107 fol. 156v. at fol. 163v. Tradition dates this tract to the later years of Edward III (Holdsworth, W.S., The History of English Law 16 vols. (London, 1903–1966) ii, 522Google Scholar), but all of these manuscripts are significantly different from the printed text and appear to have been written in about 1300; there is a later copy of the same text in Bodleian Library, MS Rawlinson C 897 fol. 11 v. The same association between the action of covenant and real property is made in Fet Asaver (Woodbine, G.E., ed., Four Thirteenth Century Law Tracts, (New Haven, 1910) 87Google Scholar), where it is listed with Quare Ejecit, Quo Jure, Warrantia Carte and Quare Impedit as a ‘plai de tere’.

5. Fol. 100 (Henry of Bracton, On the Laws and Customs of England, ed., Thome, S.E., 4 vols. (Cambridge, Mass., 1968–1977) ii, 286Google Scholar.)

6. Curia Regis Rolls (hereafter C.R.R.), 16 vols. to date (London, 1922- ) i, 357, 401Google Scholar. Flower, C.T., Introduction to the Curia Regis Rolls Selden Society, 62 (London, 1944) 285Google Scholar.

7. C.R.R xii, 1915; Flower, Curia Regis Rolls, supra note 6 at 286–88.

8. 12 Edward I: Statute of Wales, c. 6.

9. Hall, G.D.G. and de Haas, Elsa, eds., Early Registers of Writs Selden Society, 87 (London, 1970) 108–311Google Scholar.

10. Ibid. at 232–34, writs numbered 533, 535, 536, 537, 539, 540, 542, 543, 545.

11. Ibid., writs 538, 541.

12. Ibid., writ 534.

13. Shanks, Elsie and Milsom, S.F.C., eds., Novae Narrationes, Selden Society, 80 (London, 1963) B. 189–95, 282Google Scholar; C. 273–79B.

14. Public Record Office, London, Eyre Rolls (hereafter JUST: references throughout to records in this series give the county of the eyre and the date): JUST 1/1026 m. 18d. (Worcester, 1275); JUST 1/983 m. 14d. (Westmorland, 1279); JUST 1/668 m. 4d. (Nottingham, 1280); JUST 1/148 m. 15d. (Derby, 1281); JUST 1/1005 m. 91 (Wiltshire, 1281); JUST 1/495 m.22 (Lincoln, 1281); JUST 1/48 m. 18d. (Berkshire, 1284); JUST 1/956 m. 3d. (Warwicks, 1285); JUST 1/832 m.32 (Suffolk, 1286). See also Y.B. 21–22 Edw. I in Horwood, A.J., ed., Year Books of the Reign of King Edward I, 5 vols., Rolls Series (London, 1863–1879) ii, 136Google Scholar; Y.B. Hil. 10 Edw. II in M.D. Legge and Sir William Holdworth, eds., Selden Society, 54 (London, 1935) 4.

15. B.L. MS Additional 31826 fol. 324. The report is not dated, but the record of the case is found in the rolls of the Shropshire Eyre of 1292: JUST 1/739 m. 18. The names of the judge and counsel are the same as those whom we know to have been at this eyre.

16. The plaintiff's claim is that the land was leased (‘bailla’) to the defendant, but the arguments of counsel allow little room for doubt that the initial transfer was of the fee.

17. The record of the case states that it was adjourned to the Staffordshire Eyre, but there is no reference to it amongst the foreign pleas on the roll of that eyre.

18. JUST 1/495 m.60d. (Lincolnshire, 1281).

19. JUST 1/622 m.23. In a report which seems to be of this case the defendant objects that the action does not lie because' … y1 voet recoverer franc tenement’: Cambridge University Library MS Dd 7.14 fol.393v.

20. JUST 1/134 m.7 (Cumberland, 1292).

21. B.L. MS Lansdowne 467 fol.176v (infra, note 60): ‘Item potest dicere quod non tenetur tali brevi respondere desicut intendit perquirere feodum per istud breve de convencione.’ For earlier references, Flower, Curia Regis Rolls supra note 6 at 285. See also Y.B. 21 & 22 Edw. I supra note 14 at ii, 182 per Asseby; Ibid. at 494 (Middlesex Eyre 1294); B.L. MS Additional 5925 fol.133 (1306); Y.B. Pas. 18 Edw. II 602 per Aldeburgh.

22. JUST 1/133 m.26 (Cumberland, 1284); JUST 1/408 m.61 (Lancashire, 1292); Sayles, G.O., ed., Select Cases in the Court of King's Bench Selden Society, 57 (London, 1938) 160Google Scholar.

23. JUST 1/1026 m. 18d. (Worcestershire, 1275).

24. JUST 1/1076 m.17 (Yorkshire. 1280).

25. Weinbaum, Martin, ed., The London eyre of 1276, London Record Society, 12 (London, 1976) 103- pl.488Google Scholar.

26. Infra at 90–91.

27. Buckland v. Leanore in Bolland, W.C., Maitland, F.W., Harcourt, L.W.V., eds., Year Book of the Eyre of Kent (1313–1314), Selden Society, 27 (London, 1912) 9Google Scholar.

28. JUST 1/622 m.23 (Northamptonshire, 1285).

29. Infra at 92.

30. Glanvill x.3 (Hall, G.D.G., ed., The Treatise on the Laws and Customs of England called Glanvill (London, 1965) 117)Google Scholar.

31. Maitland, F.W., ed., Three Rolls of the King's Court in the Reign of King Richard the First, A.D. 1194–1195, Pipe Roll Society, 14 (London, 1890) 53Google Scholar.

32. Ames, J.B., Lectures on Legal History (Harvard, 1913) 98Google Scholar, described by Fifoot as ‘categorical inaccuracy’ (History and Sources, supra note 1, at 257) Simpson, A.W.B., A History of the Common Law of Contract (Oxford, 1975) 10Google Scholar.

33. Pollock, and Maitland, , History of English Law, supra note 1 at ii, 219–20Google Scholar. Plucknett, T.F.T., A Concise History of the Common Law 5th ed. (London, 1956) 632, 634Google Scholar, follows Holdsworth (History of English Law; supra note 4 at iii, 217) in claiming that this is supported by Bracton's equation of stipulatio with a deed under seal, but I find no evidence for this in Bracton. Bracton, fols.99b–100, (Thorne, ed., supra note 5 at ii, 284–86) casts no doubt on the actionability of oral stipulationes, following Justinian's Institutes 3.19.17 in treating writing as near-conclusive evidence that an oral agreement had been made. Although this passage is very heavily Romanised, it is reasonable to assume that it does not greatly misrepresent the Common Law of the mid-thirteenth century.

34. Fifoot, History and Sources, supra note 1 at 255–56; Stoljar, S.J., A History of Contract at Common Law (Canberra, 1975) 5–6Google Scholar.

35. Excepciones contra Brevia B.L. MS Lansdowne 467 fol. 176v (infra note 60). If the defendant did deny the deed and the jury found against him, he might be imprisoned: B.L. MS Egerton 656 fol. 192 (transcribed by Beckerman, J.S., ‘Customary Law in Manorial Courts in the Thirteenth and Fourteenth Centuries’ (Unpublished dissertation, London, 1972)Google Scholar; Pugh, R.B., Imprisonment in Mediaeval England (Cambridge, 1968) 13Google Scholar. There are examples in the Eyre of Derbyshire of 1269 (Lugard, H.E., ed., Calendar of the cases for Derbyshire from eyre and assize rolls (Derby, 1938) 121Google Scholar), Y.B. 20 & 21 Edw. I, supra note 14, at i, 110; 330 (forgery of tally). See also Ibid., 180 (plea that the covenant had been made dum non compos mentis).

36. Glanvill x.12 (Hall, ed., see supra note 30, at 127). There is a valuable note on the pleading of charters in G.E. Woodbine's edition of Glanvill (New Haven 1932) 256–57. The rule that one could not wage one's law against a sealed document meant that (in theory at least) actions on sealed deeds could not be heard in manorial courts where wager of law was the invariable method of trial: Beckerman, ‘Manorial Courts’, supra note 35 at 284–85.

37. Fowler, G.H. ed. Calendar of the Roll of the Justices on Eyre, 1247 Bedfordshire Historical Record Society, 21, (Apsley Guise, 1939) pl. 177Google Scholar. See too pl. 382, where the covenant was denied and the action went to trial by jury.

38. Clanchy, M.T. ed. The roll and writ file of the Berkshire Eyre of 1248 Selden Society, 90 (London, 1973), pl. 444Google Scholar; see too C.R.R. xvi, 1838 (1241).

39. This type of alimentary agreement was apparently not uncommon at the end of the thirteenth century, giving rise to the writ of cessavit under c. 4 of 6 Edward I: Statute of Gloucester (see Plucknett, T. F. T., The Legislation of Edward I (Oxford, 1949) 90–91)Google Scholar. This situation is exemplified in the Early Registers of Writs; supra note 9, at 232 writ numbered 530.

40. Landon, L., ed., Somerset Pleas from the Rolls of the Itinerant Justices, Somerset Record Society, 44 (1929) 210Google Scholar. There are in addition a number of cases where the defendant admitted the covenant and then waged his law on the breach; but we cannot rely at all on these since they contain nothing inconsistent with the existence of a sealed deed: Berkshire Eyre, 1248 supra note 38 at pl. 450; Curia Regis Roll 140 m.15d (Pollock and Maitland, History of English Law supra note 1 at ii, 220n.); JUST 1/1026 m.25 (Worcester 1275). By the start of the reign of Edward II in even this situation it was argued (unsuccessfully) that no averment of performance could be allowed, and a sealed acquittance was necessary: Y.B. 4 Edw. II in G.J. Turner, ed., Selden Society, 42 (London, 1925) 27.

41. de la Dun v. Bassett (1234) in Maitland, F.W., ed., Bracton's Note Book (London, 1887) 1129Google Scholar; Berkshire Eyre, 1248 supra note 38, at pl. 272; Harding, Alan, ed., The roll of the Shropshire Eyre of 1256; Selden Society, 96 (London, 1981), pl. 119Google Scholar.

42. C.R.R. xv, 1073. I assume that this is the case cited by Maitland (Pollock and Maitland, History of English Law, supra note 1 at ii, 220n.) as Curia Regis Roll 115 m.7, although the quotation he gives does not appear in the record of the case (which is accurately printed). The identification is hampered by the fact that the membranes on the roll have been reordered since Maitland's time: this case is now on Public Record Office, KB 26/115B m.9, which, according to the editors of the printed edition corresponds with the old Roll 115 m.7 (C.R.R. xv, pp. ix–xii).

43. Baker, J.H., An Introduction to English Legal History, 2nd. ed. (London, 1979) 264–65Google Scholar; Milsom, S.F.C., Historical Foundations of the Common Law, 2nd. ed. (London, 1981) 246Google Scholar.

44. Baker, Introduction to Legal History, supra note 43 at 265; Milsom, Historical Foundations, supra note 43 at 248; Simpson, History of Contract, supra note 32 at 12.

45. Thayer, J.B., A preliminary treatise on Evidence at the Common Law (London, 1898) 10–16Google Scholar; Simpson, History of Contract, supra note 32, at 12.

46. Coke, Edward, A Booke of Entries (London, 1614) 110–117vGoogle Scholar.

47. Simpson, History of Contract, supra note 32 at 11.

48. 6 Edward I: Statute of Gloucester, c. 8. For the forty shilling limit, see Beckerman, J.S., ‘The Forty Shilling Limit in Medieval English Personal Actions’ in Jenkins, Dafydd, ed. Legal History Studies 1972 (Cardiff, 1975) 110Google Scholar; Palmer, R.C., The County Courts of Medieval England (Princeton, 1982) 235–38, 251–59Google Scholar.

49. The Rolls Series Year Books contain only twenty-one actions of covenant out of a total of about 1,250 actions. L.O. Pike's figures for the Common Pleas rolls of Trinity term 16 Edw. III and the two following terms reveal a total of thirty-one covenant actions (a number of which would presumably be the first formal step in the levying of a fine) out of a total of 1,391 pleas: Horwood, A.J. and Pike, L.O., eds. Year books of the reign of King Edward III, 15 vols., Rolls Series, (London, 1883–1911) xv, pp. xxxix–xlGoogle Scholar.

50. The viscontiel writ of covenant in the Irish Register of the 1220s and its associated note (Early Registers of Writs, see supra note 9 at 16) include a specific statement that the annual value of the tenement in issue was no more than forty shillings, but apart from this there is no reference to such a monetary limit in the action of covenant.

51. Palmer, County Courts, supra note 48 at 198–211.

52. Reviews of Palmer's study by Brand, P. A., 99 Law Quarterly Review 159, 160 (1983)Google Scholar; and by Biancalana, J., Law and History Review 1 (1983) 313, 315CrossRefGoogle Scholar; 52 University of Cincinnati Law Review 994, 1013–14 (1983)Google Scholar.

53. A rather different hypothesis is that of E. Meijers (‘La théorie des Ultramontani concernant la force obligatoire et la force probante des actes sous seing privé’ in Feenstra, R., ed., Etudes d'Histoire du Droit (Leiden, 1966) 52, 61Google Scholar), postulating that there is a connexion between the English rules relating to deeds and the teachings of the thirteenth century Orleans civilian Jacques de Revigny, whose views on the contracting of obligations litteris were highly unorthodox. There were links between the English administration and the law school at Orleans in the thirteenth century, and if Revigny's unorthodoxy had taken the form of holding that oral agreements should not be binding, it would be easy to postulate a relation between these and the English rules; but this was not Revigny's thesis. His argument was merely that any agreement whatsoever could be enshrined within an obligatio litteris, with the result that its scope was equivalent to the stipulatio: Ibid. at 57–9. It is hard to imagine any civilian taking a stance requiring writing to ground on obligation in the light of the emphasis on verbal contracts in the Corpus luris Civilis.

54. Natura brevium (1544) fol. 122.

55. Registrum Brevium tarn originalium quam judicialium 4th ed. (London, 1687), fol. 165vGoogle Scholar. ‘Non debet fieri breve de conventione per legem mercatoriam, quia placitum de conventione non valeat sine facto, et quilibet debet judicari secundum factum suum et non per alium legem, etc’.

56. The earliest examples I have seen of Registers containing this regula are Bodleian Library, Oxford, MS e Mus. 198 fol. 104v and MS Rawlinson C 667 fol. 97; the former of these is dated by Hall to around 1333 and the latter to about 1340 (Early Registers of Writs, supra note 7 at cxiii).

57. Y.B. 20 Edw. III, supra note 49 at xv, 148; Kiralfy, A.K.R., A Source Book of English Law (London, 1957) 181Google Scholar.

58. Infra at 87.

59. Fifoot, History and Sources, supra note 1 at 255–56; Stoljar, History of Contract, supra note 34 at 5–6.

60. Cambridge University Library MS Dd 7.6 fol. 151v; other copies of the same tract are in B.L. MS Harleian 1120 fol. 152v, MS Lansdowne 467 fol. 173v, Bodleian Library, MS Additional A 107 fol. 152, and Cambridge University Library, MS Dd 7.4 fol. 11 v. An approximate date for the main body of the text can be deduced from the short section on waste: the Statute of Gloucester (6 Edward I) c. 5 seems to be in force, but not Westminster II (13 Edward I) c. 14, which is alluded to in an insertion totally contradictory to the sentences which precede it. There is another reference to Westminster II in the section on the assize Utrum, but again this may be parenthetical; the section on formedon makes no mention of the statute. The text of this tract is completely different from the Exceptiones ad Cassandum Brevia printed by Woodbine, Thirteenth Century Law Tracts, supra note 13 at 163–83, which is entitled in some manuscripts as ‘Exceptiones contra Brevia’.

61. fol. 153: ‘Ad breve de convencione potest dicere quid habet de convencione et si nichil habet petere iudicium … Item potest petere iudicium desicut narretur per certum terminum et certus terminus non ponitur in scripto. Item si quis habet visum scripti de convencione non potest dedicere ei quod non tenetur respondere tali brevi vel narracioni.’

62. ‘Potest petere quid habet de debito et si nichil habet potest petere iudicium.’

63. I have interpreted ‘terminus’ in its usual meaning of ‘lease’, rather than ‘term of a contract’; if the latter were taken it is hard to make sense of the exception, especially as the courts might be willing to allow the pleading of parol terms in actions brought on written agreements: Y.B. 20 & 21 Edw.I, supra note 14, at i, 258, 366.

An early example of a case where this exception was raised may appear in the Wiltshire Eyre of 1281 (JUST 1/1005 m. 13d), where it was apparently successfully argued that an oral agreement to make a lease was only a prelocucio and not binding. See also JUST 1/457 m. 17 (Leicester 1284), where, in an action brought on a lease, the defendant referred to the deed proffered by the plaintiff as the ‘fundamentum brevissui’.

64. C.4.66.1. Johannes Bassianus may have doubted whether writing was always necessary or only to impose non-standard terms: ‘Lectura Azonis et magni apparatus ad singulis leges duodecim librorum Codicis Justiniani’ (Paris, 1581) at C. 4.66.1. Azo himself is equivocal in the Lectura, observing merely that in practice contracts of emphyteusis are in writing; but in his vastly more influential Summa Codicis no such doubts appear as he takes the orthodox line that writing was always necessary: ‘Celebratur iste contractus scriptura interveniente, non aliter’.

65. Y.B. 4 Edw. II, supra note 40 at 181; cf. B.L. MS Additional 31826 fol. 71. The termor had a sufficiently strong proprietary interest to be allowed a writ of entry against his own sub-lessee (Bracton fol. 326 (Thorne, ed., supra note 5 at iv, 42)), and Britton (ed., F.M. Nichols, 2 vols [Oxford, 1865]; i, 417) treats him as equally deserving of protection against an ouster as a freeholder was.

66. Bracton, fol. 220, 220b (Thorne, ed., supra note 5 at iii, 161,162).

67. Adam of Eynsham, Magna Vita Sancti Hugonis Farmer, H. and Douie, D., eds. 2 vols., (London, 1961–1962) ii, 87Google Scholar: … relinquuntur ad firmam, quod emphitosim nuncupant’; Gascon Register A ed., Cuttino, G.P., 3 vols., (London, 1975–1976) i, 158Google Scholar. For other references to the use of emphyteusis and related words in English sources in the context of leases, see the forthcoming fascicule of the Mediaeval Latin Dictionary; I am grateful to Mr. R. Sharpe for enabling me to consult this before its appearance in print. The seventeenth century antiquarian Sir Henry Spelman treats emphyteusis as having been a popular equivalent to a lease: Glossarium Archaeologicum, 2nd ed. (London, 1664).

68. On Accursius, see Haskins, G.L., ‘Three documents relating to Accursius’ 54 Law Quarterly Review 87 (1938Google Scholar). For Roman Law in England generally in this period, Barton, J.L., Roman Law in England (Ius Romanum Medii Aevi, part V, 13.a: Milan, 1971) 18–28Google Scholar.

69. The corollary of this was that it ceased to be associated with leases; effect was freely given to oral leases, except of course by the action of covenant: Pollock and Maitland, History of English Law, supra note 1 at ii, 219–20.

70. Bateson, M., ed., Borough Customs Selden Society, 21 (London, 1906) lxxx, 182Google Scholar (Grimsby Charter, 1259). SirBlackstone, William, Commentaries on the Laws of England, 4 vols. (Oxford, lot, . ed., 1765–1769) ii, 448Google Scholar, refers to the Germanic parallels to this, although Maitland was more sceptical: Pollock and Maitland, History of English Law, supra note 1 at ii, 188. Etymologically, this is the origin of the phrase ‘to strike a bargain’.

71. Lücke, H.K., ‘Striking a Bargain’ 1 Adelaide Law Review 293, 295–99, (1962)Google Scholar; Henry, R.L., Contracts in the Local Courts of Medieval England (London, 1926) 228Google Scholar.

72. Henry, Contracts in Local Courts, supra note 71, at 227–41, 244. For an anthropological discussion of this ritualised mode of contracting, see Mauss, M., The Gift trans, by Cunnison, I., (London, 1966) esp. at 59–62Google Scholar.

73. Howard, G.E., A History of Matrimonial Institutions (Chicago, 1904) 278Google Scholar; Sheehan, M.M., ‘The Formation and Stability of Marriage in Fourteenth-Century England: Evidence of an Ely Register’ Medieval Studies xxxiii (1971) 228, 236–37Google Scholar; Henderson, W.G., ed., Manuale et Processional ad Usum Insignis Ecclesiae Eboracenis Surtees Society, 63 (Durham, 1875), 157–69Google Scholar. This can be seen from the words of the service: ‘Ego hoc annulo desponso te, in corpore meo honoro, de isto argento et ceteris bonis supra jam dictis vel definitis te doto.’ Homans, G.C., English Villagers of the Thirteenth Century (New York, 1960) 171Google Scholar, concludes that ’[t]he gift of the money and the ring in fact determined the name of the ceremony at the Church door. The groom made the gift to his bride as a wed, that is, a gage or pledge, of the fulfillment of the marriage contract. In the words of the old ballads, he wedded her with a ring. The ceremony was a wedding.’

74. Ibid., at 167, citing a Constitution of Bishop Richard Poore of Salisbury attributed to 1217 (Powicke, F.M. and Cheney, C.R., eds., Councils and Synods 2 vols. (Oxford, 1964) i, 87Google Scholar), which forbade that: ‘anyone encircle the hands of a young woman with a ring of rush or of any other material, vile or precious, in jest in order to fornicate with her the more freely, lest while he (or she) thinks he jests he avoid the honors of marriage’. For the purpose of local (as opposed to national) inheritance customs children born to parents who had plighted their troth in this formal way might be treated as legitimate: Homans, supra note 73 at 164–65.

75. Helmholz, R.H., Marriage Litigation in Medieval England (Cambridge, 1974) 45Google Scholar. Sheehan, ‘Formation and Stability of Marriage’, supra note 73 at 247, and Howard, Matrimonial Institutions, supra note 73 at 278, point to the importance of the joining of hands and the delivery of pledges, cf Furnivall, F.J., ed. Child Marriages, Divorces and ratifications etc. in the Diocese of Chester Early English Text Society, Old Series 108, (London, 1897)) xlviii–xlixGoogle Scholar, on whether the passing of tokens could be taken as evidence of a betrothal.

76. Hughes, D.O., ‘From Brideprice to Dowry in Mediterranean Europe’, Journal of Family History iii (1978) 262, 267Google Scholar.

77. Timbal, P.C., Les Obligations Contractuelles dans le droit français des 13e et 14e siècles d'après la jurisprudence du Parlement, 2 vols., (Paris, 1973) i, 24–31Google Scholar; Pertile, A., Storia del Diritto Italiano 6 vols., (Turin, 1892–1893) iv, 466, 471Google Scholar.

78. Ibid. at iv, 470 n. 41a.

79. Espinar, R.F., ‘La Compraventa en el Derecho medieval español’ Anuario de Historia del Derecho Español xxv (1955) 293, 443–46, 471–85Google Scholar.

80. Beugnot, A. A., ed., Assises de Jérusalem, 2 vols., (Paris, 1841) ii, 148Google Scholar: ‘Et autel raison est se tu me proumis a prester deniers ou autre aver, et tu n' en pris ni gages, ni pleges, ni chartre saelee, la raison coumands que celuy, se il vout, il n' en est tenus de rien prester mei, par dreit ne par l'assise. Mais se celui resut le gage ou prist les pleges, la raison juge que celuy est puis tenus de prester mei se que il m' a promis de prester, par la seurte qu' il en a receue, et ce est dreit.’ See also ii, 34, 81.

81. Infra at 90–93.

82. Somerset Pleas supra note 40 at 210.

83. JUST 1/408 m.31d. This may be an earlier stage in the pleadings of Y.B. 21 &22Edw. I, supra note 14 at ii, 484 (Middlesex Eyre 1294), where the plaintiff did in fact produce a deed, and the defendant argued that the action was improper since the plaintiff was endeavouring to recover the fee.

84. The record uses the ambiguous ‘dedit’, but the transaction probably involved a lease of land at a low rent (or no rent) on the condition that the lessee bring the land into cultivation. An analogous lease, this time for fourteen years with a condition that the lessee would build on the land, is the subject of litigation in Y.B. 21 & 22 Edw. I, see supra note 14 at ii, 110.

85. Corbett v. Mercury (infra, note 87); cf Y.B. 21–22 Edw. I, supra note 14 at ii, 620.

86. B.L. MS Additional 5925 fol. 162 (1303); Y.B. 32 & 33 Edw. I, supra note 14 at iv, 198 (B.L. MS Hargrave 375 fol. lOv, Lincoln's Inn MS Miscellaneous, 738 fol. 27). In one of a series of treatises on the Court Baron substantially dating from the early fourteenth century (B.L. MS Hargrave 336 fol. 26 at fol. 34) one hypothetical exception to an action of covenant is that it is not contained in a deed: ‘Nous nentendons mye qe per suyte bone devez estre respondu qar covenaunt est qe commence en especialtie a qe nulle ley nous mette a respondre per suyte bone.’ This is rejected: Court de Baron nest pas semblable a court du Roy … nous dions qe de petite chose qest taillie entre voisyn e voisyn home sera respondu sanz especialtie en court baron.’

87. Y.B. 20 & 21 Edw. I, supra note 14, i, 222, 487; Kiralfy, Source Book, supra note 57 at 181.

88. The later rule was that only debt would lie if a fixed sum was claimed, but there were exceptions to this, and it was anyway not firmly settled by 1300: Simpson, History of Contract, supra note 32 at 17–18, 70.

89. For the forty shillings rule, see supra note 48.

90. This is the argument advanced by the plaintiff's counsel.

91. Arnold, M.S. ‘Fourteenth Century Promises’ 35 Cambridge Law Journal 321, 329 (1976CrossRefGoogle Scholar) observes that it was very unusual in the fourteenth century to claim rent by an action of covenant; this was more usual in the thirteenth century. In Y.B. 20 & 21 Edw. I, supra note 14 at i, 138, 140, the argument is advanced that debt and covenant are alternative remedies for the nonpayment of rent due on a lease for years.

92. JUST 1/133 m.13d.

93. Y.B. Pas 5 Edw. II in C. Bolland (ed.), Selden Society, 31 (London, 1915) 216.

94. Cam, Helen M., ed., The eyre of London, 14 Edward II, A.D. 1321, part ii, Selden Society, 86 (London, 1969) 235–43Google Scholar. See also Hand, G.J., English Law in Ireland, 1290–1324 (Cambridge, 1967), 72Google Scholar.

95. The eyre of London, 1321, supra note 94 at 286.

96. Ibid. at 287. It may be that the import of Falstaff's remarks is that a deed was not essential where a thing was claimed, and not, as at first sight he appears to be saying, that it was not necessary when there was an agreement of small value. Cf. Ibid. at 276, where the delivery was made within the jurisdiction of the Eyre; an action was allowed without the plaintiff producing any specialty, and the defendant was allowed to wage his law.

97. Bracton fols. 15b, 16d, 1819b (Thorne, ed., supra note 5 at ii, 62, 64, 69–72). Glanvill 1.3 (Hall, ed. supra note 30 at 4) refers to debt as a proprietary claim.

98. Simpson History of Contract, supra note 32 at 75–80. An action of debt might have been available to recover money which had been prepaid in this situation: Y.B. 21 & 22 Edw. I supra note 14 at ii, 598; Jackson, R.M.The History of Quasi-Contract (Cambridge, 1936), 18–24Google Scholar; Novae Narrationes, supra note 13 at clxxvi–clxxvii.

99. Clanchy, M.T., From Memory to Written Record, England 1066–1307 (London, 1979) 53–57, 65–67Google Scholar.

100. Y.B. 32–33 Edw. I, supra note 14 at iv, 296.

101. It is not clear whether the requirement that the defendant should answer stems from the fact that the deed remained with him or from some other cause.

102. Y.B. 4 Edw. II, supra note 65 at 171, 192; Novae Narrationes supra note 13 at B195, C279; B.L. MS Lansdowne 476 fol. 186 (Register of Writs, c1330). One manuscript attributes the case to 30 Edward I, and it is possible that it is a report of the same case as that reported in Y.B. 32 & 33 Edw. I, supra note 14 at iv, 296.

103. Y.B. 4 Edw. II, supra note 65 at 173. See too JUST 1/1026 m.25 (Worcester 1275), JUST 1/495 m.3d (Lincolnshire 1281).

104. The normal practice was to create a lease by means of an indented deed, on which either party could bring an action of covenant. If, as might happen, it was created by a deed poll of the lessor he would be liable to the lessee but would not himself have any action against the lessee on the agreement: Natura Brevium, Bodleian Library, MS Bodley 559 fol. 83v, B.L. MS Harleian 5213 fol. 193, Bodleian Library. MS Rawlinson C 897 fol. 11. For the use of documents in the context of land transactions in the thirteenth century, see Clanchy, From Memory to Written Record, supra note 99 at 36–37.

105. Y.B. 32–33 Edw. I supra note 14 at iv 198, B.L. MS Hargrave 375 fol. lOv, Lincoln's Inn MS Miscellaneous 738 fol. 27. Hengham's remarks only appear in the report in B.L. MS Hargrave 375 fol. lOv. There was also some difficulty perceived about whether an action of covenant could be used in order to recover a freehold tenement: supra at 75–76.

106. Novae Narrationes, supra note 13 at B189–191, 282; C224.

107. Ibid. at clxxxix; for precedents see C280–283. Confusion between the two writs is well evidenced by the Register in Bodleian Library, MS Tanner 400 fol. 35, where writs which we would call ejectio firme are interspersed with those we would recognise as quare ejecit under the same heading.

108. The eyre of London, 1321, supra note 94 at 353.

109. Kiralfy, Source Book, supra note 57 at 184, although it is not clear in this case whether or not there was a deed.

110. Milsom, S.F.C., ‘Trespass from Henry III to Edward III’ 74 Law Quarterly Review 561, 564–66, (1958)Google Scholar. But cf. Kiralfy, Source Book, supra note 57 at 184 (Nottinghamshire Eyre 1329).

111. Humber Ferry Case (1348) in Simpson, History of Contract, supra note 32 at 623; Milsom, ‘Trespass from Henry III to Edward III’, supra note 110 at 570–71.

112. Y.B. Hil. 16 Edw. III, supra note 49 at vii, 54; Y.B. 48 Edw. III 25. Bereford C.J. urged the use of trespass in this type of situation in Y.B. Pas. 12 Edw. II in J.P. Colles and T.F.T. Plucknett, eds., Selden Society, 70 (London, 1952). 107, 108.

113. Novae Narrationes supra note 13 at C. 180–184. In principle the lessor could eject the lessee at the end of the term, but if he had acquiesced for a long time in the wrongful occupation, his ouster might itself have constituted an unlawful disseisin: Sutherland, D.W., The Assize of Novel Disseisin (Oxford, 1973) 100Google Scholar.

114. Arnold, ‘Fourteenth Century Promises’, supra note 91 at 324–25. By the end of the Middle Ages it was common learning that covenant would only lie in these circumstances if there was a deed; Coke, Edward, The first part of the Institutes of the lawes of England: or a Commentarie upon Littleton 1st ed. (London, 1620) 46aGoogle Scholar.

115. Milsom, ‘Trespass from Henry III to Edward III’, supra note 110 esp. at 585–88.