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Warranties of Land in the Reign of Richard I1

Published online by Cambridge University Press:  16 January 2009

S. J. Bailey
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The reign of Richard I offers certain advantages to those who would A study the land law of that time. Glanvill's De Legibus shows the law as it stood immediately before the reign began; and, five years later, the earliest surviving rolls of the Curia Regis show the King's Justices applying it. These rolls have been printed and so are easily available. They carry the story from the summer of thé year 1194 to the end of the century and beyond. Unfortunately, however, they present certain difficulties. In those days, a plea of land before the King's Justices was ordinarily a lengthy matter, extended by essoins and adjournments over several terms or even years. And when one attempts to trace such a plea to its substantial hearing or to judgment one often fails. Perhaps the roll of the crucial term is missing, or the Justices have adjourned the case from Westminster into the Eyre—whereof few records survive. Perhaps the official scribe has so spelled or altered or contracted the names of the parties as to defy recognition; or the case may have ended prematurely by the death of a party or by some compromise not discoverable among the Feet of Fines. Meanwhile, moreover, one is conscious that these records of the law administered by the King's Justices tell us little or nothing of Shire Court and Court Baron, wherein much of the litigation still lay.

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Research Article
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The Cambridge Law Journal , Volume 9 , Issue 2 , July 1946 , pp. 192 - 209
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Copyright © Cambridge Law Journal and Contributors 1946

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References

2 ‘Glanvill's De Legibus is admittedly one of the most clear, straightforward and logical in arrangement of all the books on English Law’: see the preface to Woodbine's edition, p. vii. See also Winfield, , Chief Sources of English Legal History, 256–268.Google Scholar

3 For a list of the printed rolls of Richard I, see 1 C. R. R. p. viii; 7 C. R. R. p. v. The earliest (Trinity, 1194) is printed in 14 P. R. S., with an introduction and table of actions by Maitland. Others are in C. R. R. vols. 1, 7; 24 P. R. S.; and 1 Palgrave. The collection Piacitorum Abbreviatio is sometimes helpful; but it assigns wrong regnal years or reigns to many of the pleas of this period.

4 The printed rolls include a few Eyre Rolls for the summer or autumn months of 1194, 1195, 1198, 1199. Of the pleas at Westminster, the more serious gaps are between Mich. 1194 and Hil. 1196, between Trin. 1196 and Easter 1198, and between Easter 1198 and Hil. 1199.

5 E.g., John fitz William may become John of Winchester. Isabel of Ford may become Isabel the wife of Robert, or Isabel the daughter of Roger. The description of the land may provide a clue, but this is frequently omitted or obscured by variants in spelling. The printed rolls are well indexed for names and places. Indexes of subject are lacking or unhelpful in legal matters, apart from C. R. R.

6 The complete series of Feet of Fines for the reign of Richard I has been printed by P. R. S.; but only thirteen of them are earlier than October, 1194.

7 Glanvill omits the methods of determining pleas in Shire Court and Court Baron, on the ground that their customs are so numerous and various: Bk. 12, cc. 6, 23. Bracton, , f. 329 bGoogle Scholar, will say that they ought to follow the King's Court in certain matters, such as voucher to warranty. Very occasionally the rolls of Curia Regis show the procedure of a local court whence a plea has been removed by recordari facias. And there are many records that a lord has ‘prayed his court’ e.g., 1 C. R. R. 86, 88, 89 (1199); see Glanv, . Bk. 12, c 7.Google Scholar One whose plea is removed from Court Baron to King's Court by a pone not preceded by the necessary tolt will be amerced and his plea will fail: 1 Palgrave, , 440 (1199)Google Scholar; cf. 1 Palgrave, , 5 (1194)Google Scholar.

8 His concern is mainly with the procedure of the King's Court. Charters interest him chiefly as a method of proof: if vouchee comes and fails to warrant vouchor, it may come to the duel between them ‘whether vouchor have his charter thereof or no’ (Bk. 3, c. 1); an alleged villein may prove his enfranchisement by charter or by other lawful means (Bk. 5, c. 5); a loan may be secured by pledges, by gage, by interposition of faith, or by charter (Bk. 10, c. 3); a charter may be proof of a debt, and debtor must ‘warrant’ the charter and the agreement contained in it if he acknowledge its seal (Bk. 10, c. 12); it is a crime to falsify a charter (Bk. 14, c. 7).

9 Ancient Charters prior to a.d.1200Google Scholar, 10 P. R. S. No. 45 (1171–1183): grant to an abbey in perpetual alms with clause of warranty and acquittal.

10 Ibid., Nos. 56 (vifgage dated 1190), 64 (grant for fealty dated 1197–1198), 65 (grant for homage dated 1197–1198).

11 In each of the last four years of Richard I. there are between two and three hundred fines. The approximate proportion containing warranty clauses is 9 per cent., 8 per cent., 11·5 per cent, and 5 per cent, respectively. There are no warranty clauses in the few fines dated before 1195 nor in those (totalling 122) dated early 1199 before Richard's death. Sen P. R. S. vols. 17, 20, 23, 24. Neither of Glanvill's two specimen fines contains a warranty clause: Bk. 8, cc. 2, 3.

12 In the Feet of Fines, one warranty clause in three emphasises escambium in 7 and 8 Ric. I: 17 P. R; S. Nos. 27, 40, 74, 119, 125; 20 P. R. S. Nos. 21, 40, 78, 79, 89, 113. Thereatter it is seldom mentioned: 23 P. R. S. Nos. 44, 156, 183; 24 P. R. S. No. 79.

13 In 1198 a lord, sued by certain tenants for exacting from them villein services and for detaining and ignoring the Justiciar's writ thereof, answers that when they unrolled the writ before him he had no clerk to read it to him and that when at last a clerk arrived, they had gone: 7 C. R. R. 346.

14 See 8 Cambridge Law Journal, pp. 278 el seq.

15 E.g., 20 P. R. S. No. 39 (1196); 24 P. R. S. (1196), pp. 215, 217–218.

16 Glanv, . Bk. 9, c. 4Google Scholar; also Bk. 7, c. 3 (‘if the chief lord have warranted the homage’). Hints in the cases include: 14 P. R. S. 7 (1194)—the King's letters patent that no ‘man’ of A shall be impleaded of any tenement which A ought to warrant to him, so long as A remains a hostage in Germany for the King; 1 C. R. R. 97(1199)—B vouches C ‘because’ C gave him that land for his homage and service; also 1 Palgrave, (1199) 432Google Scholar; also ibid., 305, 310, and Plac. Abr. 40, re Henry de Longo Campo. See further 8 Camb. L. J. 278–279.

17 E.g., the following instances in the Feet of Fines: 17 P. R. S. Nos. 13 (1192), 24 (1195), 104 (1196); 23 P. R. S. Nos. 52 (1197), 138 (1198).

18 See 9 Camb. L. J. 88 et seq.

19 Glanv, . Bk. 7, cc. 1, 18Google Scholar; Bk. 13, c. 11. Illustrations from this period are 14 P. R. S. 21 (1194); 1 Palgrave, , 39–40 (1194), 353, 354 (1199), 398–399 (1199)Google Scholar; and perhaps ibid. 49–50 (1194).

20 E.g., 1 Palgrave, , 70 (1194)Google Scholar, where A is summoned to warrant to B a chirograph made between them in the King's Court as to certain land which C is now claiming from B. See further 1 Palgrave, (1199) 228, 424Google Scholar; also 8 Camb. L. J. 280.

21 1 Palgrave, (1194) 30–31, 39–40Google Scholar; 14 P. R. S. (1194) 68–69. See further 9 Camb. L. J. 98–99. Even an infant's fine seems to be binding at this period: 1 Palgrave, (1194) 2.Google Scholar

22 Glanvill gives this writ (Bk. 8, c. 4); for instances, see Woodbine's notes, p. 237. Woodbine indexes it as de fine facto observando (p. 306).Google Scholar Maitland calls it the writ de fine tenendo (2 Coll. Pap. 127). It is in the early registers of the thirteenth century (op. cit. 132, 137). Presumably it was this same writ which grounded Maitland'ε ‘action Quare non tenet ei finem factum’ (2 P. and M. 100). For an action upon a fine levied before Justices in Eyre, Glanvill has other writs whereby the parties, the Justices and Knights of the shire are summoned to court to record the matter (Bk. 8, cc. 5–8). Evidently plea rolls of the Eyre were rare or less conclusive than those of the Central Court or were likely to remain in the personal possession of the Justices. As regards Bracton's possession of the eyre rolls of Raleigh and Pateshull, see 2 Holdsworth, 232, 233; and cf. 1 Palgrave, , 418–419 (1199).Google Scholar

23 The majority of the Feet of Fines and charters of this period contain one or other of these phrases. Sometimes, however, they contain an express warranty as well: e.g., 10 P. R. S. Nos. 45, 64; 17 P. R. S. Nos. 40, 76. Contrast the position in the thirteenth century: 8 Camb. L. J. 280–281.

24 See 8 Camb. L. J. 281–282, for the warranties implied from these words at common law and by the Statute of Bigamy.

25 Bk. 7, c. 2. See also Bk. 3, c. 3, for a writ to summon A to warrant to B land ‘which B claims of his gift or of the gift of his father.’

26 In 14 P. R. S. (1195), there are three cases in which defendant vouches a warrantor in respect of land which, it is said, the latter or his father ‘gave’ to defendant or his father: 125 (vouchee gave to voucher's father), 126 (vouchee's father gave to voucher's father); 133 (vouchee gave to voucher).

27 14 P. R. S. 124: a few sentences of the record appear also in Plac. Abr. 80. The hearing is in the nature of a recordari facias. What judgment the Justices gave is not recorded.

28 See footnote 24, ante.

29 See editor's introduction to 3 P. R. S. (N. S.), at p. xviii. The expenses of repairing the buildings around Windsor Castle, burned or broken ‘per werram,’ are shown in the Pipe Rolls for 1194: 5 P. H. S. (N. S.) 256. John had seized this and other castles, while King Richard was a captive in Germany, and then the King's supporters had attacked them.

30 Bk. 10, c. 15; see also Bk. 3, c. 1.

31 Bk. 3, c. 1: a defendant can vouch to warranty ‘if he allege that he have a warrantor, of whose gift or sale or gift in escambium or other cause he has that thing.’ An example of escambiiim is seen in 1 C. R. R. (1196) 28–29. A brought novel disseisin against B and lost because the sheriff testified that he had put B in seisin in execution of a judgment that B should have escambium from A's land in compensation for land which B had lost through A's breach of warranty. For warranties arising from escambium in thirteenth century, see 8 Camb. L. J. 282–283.

32 Bk. 3, c. 1: ‘if the tenant declares in court … that he merely holds it as a loan or hiring or gage or as committed to his custody or in some other mode entrusted to him by another …’ But contrast 1 Palgrave, , 19 (1194)Google Scholar where a defendant who had only custody was allowed to vouch to warranty him of whom she held; also 14 P. R. S. 1–2 (1194) where a mere vicar ‘vouches’ the parson in assise utrum.

33 Glanvill's rule expressly includes the gagee (see preceding note). Its application to the termor is illustrated by 14 P. R. S. 133 (1195) and by 1 Palgrave, , 355 (1199)Google Scholar: in each the lessor came and acknowledged the tenancy and plaintiff (suing mortdancestor) was advised to seek a writ against him—in the latter case he did so and won: 2 Palgrave, , 47 (1199)Google Scholar.

34 As to the temor, see 1 Palgrave, , 153–154 (1198)Google Scholar, anomalous in that termor vouched lessor to warranty: lessor duly warranted and won the case for him. Gagees could not get from the King's Court a specific performance of their debtor's obligation (‘privatas canventianes’) to deliver the promised pledge: Glanv. Bk. 10, c. 8; yet the debtor is ‘bound to warrant the terms of the charter of pledge: Glanv. Bk. 10, c. 12. For a gage, by fine, with express warranty, see 17 P. R. S. No. 171 (1196).

35 See, e.g., Glanv. Bk. 6, cc. 1, 12. The writ to summon the heir to warrant her dower recites that she claims it ‘of the gift of’ her late husband: ibid. c. 9.

36 A curious example is 14 P. R. S. 71 (1194): widow with her second husband vouch the heir and produce an infant boy as such. Plaintiff denies that this boy is heir, whereupon they ‘produce n certain girl’ instead.

37 The probable origin of this anomaly is the old role that her action for dower fell within the jurisdiction of the heir's court baron: see Glanv, . Bk. 6, cc. 4, 6Google Scholar; also cc. 8, 9, 10, that when such action is removed into King's Court defendant can object if heir not present to warrant her claim—e.g., 1 Palgrave, , 126 (1194).Google Scholar There are two pleas in 1194 (op. cit. 80, 81) in which defendants justify this objection by saying that they are not her deceased husband's heir. See also 14 P. R. S. 7–8; 1 Palgrave, , 20–21Google Scholar; 23 P. R. S. No. 123 (escambitim); and twelve claims by a Cambridge doweress in 1 Palgrave, , 406–409 (1199).Google Scholar

38 For the position in the thirteenth century, see 8 Camb. L. J. 283–284.

39 Bk. 7, c. 18: neither she nor the heirs of the marriage can sue without her warrantor until homage has been done by her third heir; it should not be done earlier, see 9 Camb. L. J. 88–97 and cf. 1 Palgrave, , 39–40 (1194).Google Scholar That a father cannot validly give his wife's maritagium to his daughter in maritagium, see Woodbine's notes to Glanvill, p. 234, and add l C. R. R. 75 (1199). In 1127 this was done, with compensation to the wife and her relatives: 10 P. R. S. (Ancient Charters), No. 12.

40 This bar and the homage-bar are pleaded in 1 Palgrave, , 39–40 (1194).Google Scholar Her second husband seems unable to plead it in 14 P. R. S. 20 (1194).

41 Cf. 14 P. R. S. 42 (1194): Mabel, a widow, sues a Prior for land and advowson alleged to be part of her maritagium. The Prior seems to say that her husband conveyed it to him and that their son ought to warrant him. Mabel seems to answer that someone ought to warrant her and her son, because it is her maritagium. The Prior then says something which may be that he ought not to answer her without her warrantor [the eommon formula in dower]. The record is defective.

42 10 P. R. S. (Ancient Charters), No. 12 (1127): her father's heir is to ‘maintain and defend’ her matrimonium from all injury. Other early cases of maritagium include ibid. No. 6 (1121); and 14 P. R. S. 25 (1194), which tells of maritagium given sixty years before, semble, without a charter.

43 E.g., 14 P. R. S. 20 (1194), with its sequel 1 C. R. R. 163 (1200). I have not noted any express warranties in grants of muritagium by fine during this period.

44 Little is seen of Glanvill's rule which-had restricted the warranty to the reasonable gifts of the ancestor: see p. 195, ante, and footnote 51, post. So long as the right heir lives, the next heir is not liable on the warranty: 1 C. R. R. 89–90 (1199); Plac. Abr. 61 (S. C. wrongly dated).

45 Cf. 17 P. R. S. No. 171 (1196), a vifgage of land, by fine, for a term of four years ends with an express warranty by debtor and his heirs to creditor and his assigns. Occasionally a grant or quit claim by fine is made to A ‘and his assigns’: e.g., 24 P. R. S. (1199), Nos. 216, 258—in the latter A is sacerdos. Occasionally a grantee and his heirs are expressly forbidden to alienate: e.g., 23 P. R. S. (1198), Nos. 181, 190. For assigns in the later law of warranty see 8 Camb. L. J. 295–299.

46 Ante, p. 194.Google Scholar

47 9 Camb. L. J. pp. 90 et seq.

48 1 C. R. R. (1200), 163, 342–343. Ultimately they compromised: 3 C. R. R. 204 (1204). Their litigation had begun in 1194 (14 P. R. S. 20) with a precocious writ of entry. For maritagium and warranty bar, see further footnotes 39, 40, ante.

49 If donor was never seised, his warranty is already invalid: 1 C. R. R. 96 (1199). In the thirteenth century warranties are held invalid even for a donee's want of seisin: 8 Camb. L. J. 286.

50 Bk. 7, c. 1.

51 E.g., 1 Palgrave, , 157–168 (1198)Google Scholar, continued ibid. 168, 363—grandfather's gift with charter, no judgment recorded; 1 Palgrave, , 427 (1199)Google Scholar —father's gift with charter, heir pleads also that father gave away over one-third of his lands and prays judgment whether he ‘ought to warrant such gifts,’ they concord.

52 1 Palgrave, , 64–65 (1194).Google Scholar This seems strangely like enforcing a testamentary gift of land: but the compromise was made ‘saving the right of both parties’. Usually in mortdancestor an infant heir recovers seisin without question: see Glanv, . Bk. 13, cc. 4, 6.Google Scholar

53 (i) Action for rent (1199–1200) by Thomas Blac: he is said to be suing the same defendant in warrantia cartœ and in plea of land (presumably writ of right for there is essoin de malo le.lecti); ultimately defendant quitclaims to him by fine: 1 Palgrave, , 270, 300, 310Google Scholar; 2 Palgrave, , 64, 187, 247.Google Scholar (ii) Hubert de Halketot sues to establish his enfranchisement (1194–1201); his plea is described both as warrantia cartœ and as plea of liberty or villenage; ultimately he loses through a default of appearance: 1 Palgrave, , 106, 230, 233, 319, 376Google Scholar; 7 C. R. R. 340; 2 Palgrave, , 56Google Scholar; 1 C. R. R. 210, 246, 344, 370, 461; 2 C. R. R. 11, 13 (s.c. Plac. Abr. 32; 3 Selden Society, pl. 78). (iii) For advowsons, see next paragraph.

54 (i) Richard de Heirun sues warrantia cartœ and ‘plea of land’ for two virgates (1198–1199); he seems to be seised now but is alleged not to have got seisin in donor's lifetime; no judgment recorded: l Palgrave, , 157, 168, 294, 298, 363.Google Scholar (ii) Lucas de Burnham sues warrantia cartœ and ‘plea of land’ (1199–1200); a fine follows in his favour: 1 Palgrave, . 234, 278, 452Google Scholar; 1 Hunter's Fines, 183–184.

55 See 2 P. and M. 135–138.

56 Bk. 4; c. 2; Bk. 13, cc. 18–22. It seems that pleas of presentation to a mere vicarage belonged to court Christian; 14 P. R. S. 10 (1194).

57 Darrein Presentment could be used only whilst the church was vacant: Glanv, . Bk. 13, c. 19Google Scholar, and Woodbine's note thereto.

58 The donee can defeat the heir's action by pleading the gift only where the gift included lands to which the advowson was appendant: Glanv, . Bk. 13, c. 20.Google Scholar Maitland seems to overlook this reservation: 2 P. and M. 136–137. I have found no case where a donee of advowson in gross barred the heir's darrein presentment by pleading the gift.

59 See the count in Booth, , Real Actions, 122–123.Google Scholar The early counts are usually for advowsons appendant and apeak of the church being founded in the ancestor's fee: e.g., 1 Palgrave, , 61 (1194)Google Scholar; 1 C. R. R. 24 (1196); 7 C. R. R. 328 (1196). There was evidently a presumption that the advowson of a church was appendant to the surrounding land: 14 P. R. S. 32 (1194); 1 C. R. R. 32 (1198); 1 Palgrave, , 391 (1199).Google Scholar

60 Bk. 4, c. 1; Bk. 13, c. 20. Glanvill seems to assume that the church is vacant so that the donee's adversary could sue darrein presentment. It is no defence to darrein presentment that defendant has already brought a writ of right which is still pending: see 1 Palgrave, , 378 (1199)Google Scholar, a darrein presentment, re the church of Coton, Cambs., which dragged on until this problem was settled by the King's writ to the justices: 1 C. R. R. 42, 236, 443, 447.

61 Possible cases of it are 1 Palgrave, , 378Google Scholar (see preceding note); also 14 P. R. S. 122–123 (1195). Maitland indexed the latter as writ of right, but it seems to be an early quare impedit (see note 63, post); Plac. Abr. 80 is the same case wrongly dated, and 17 P. R. S. No. 171 (1196), is the resulting fine which shows that the donee's case was thought to be a strong one.

62 (i) Abbot of Wardon's Case (1199–1200) has sixteen entries in all; the abbot begins with a ‘plea of warranty of charter’ against his donor's co-heiresses (1 C. R. R. 76), and then is seen suing them for the advowson on their father's charter (2 Palgrave, , 99, 201Google Scholar; Plac. Abr. 23, 24); he wins and is awarded seisin despite defendants' repeated objections that their father presented the last parson and something illegible about not warranting (1 C. R. R. 238, 261; Plac. Abr. 26); this may involve a writ of right, for in one passage (2 Palgrave, , 99Google Scholar) are the words quare ei defore' ut Aicit. (ii) Abbot of Pipewett's Case (1199–1200), likewise begins as ‘plea of warranty’ and is later described as ‘plea of advowson’ and then as loquela de ecclesia; we have not the rolls of Mich. 1198 which contain the main hearing, and there is no special hint that it involved a writ of right: 1 C. R. R. 85, 276; 1 Palgrave, , 256.Google Scholar (iii) See also Abbot of News' Case (1199–1200) which ended in a fine: 1 Palgrave, , 237Google Scholar; 2 Palgrave, , 194Google Scholar; 1 C. R. R. 185, 289. Perhaps these cases were the new Quart Impedit and the scribe has no traditional name for them; but cf. footnote 63, infra.

63 E.g., 1 C. R. R. 18 (1196) ‘de placito impedicionis presentatimis’; 24 P. R. S. 243 (1196), ‘de placito impedimenti presentare idoneas personas’ to two churches ‘which are vacant.’ This action may conceivably be earlier still, for the rolls seldom tell one more than that a case is de placito advocationis ecclesie. What looks like writ of right is sometimes quare impedit; see footnote 61, ante; also Abbot of Stanlee's Case (1198–1200) comprising ten entries of which only the first two show that it is quare impedit—the others call it plea of advowson or of warranty of charter: 1 C. R. R. 44, 65, 142, 143, 201; 1 Palgrave, , 239, 313, 397Google Scholar; 2 Palgrave, , 53, 226.Google Scholar

64 2 P. and M. 138, and footnote.

65 See Booth, , Real Actions, pp. 223Google Scholaret seq., for a detailed account of the quare impedit. In it a donee would count on his donor's seisin and on the charter of gift; and a reversioner could count on the seisin of tenant for life. It applied only when the church was vacant. In our period there is already a writ of entry for an heir who, having recovered his inheritance from a wrongdoer, discovers that the latter has alienated its advowson to one ‘who has no entry nisi per ablatorem suum’: 1 Palgrave, , 391 (1199).Google Scholar

66 See 2 P. and M. 137–138; 3 Holdsworth, , H. E. L. 98–99.Google Scholar It was already decidedin our period that a warranty given by a donor who had never himself been seised is inoperative: see footnote 49, ante.

67 As regards warranty in pleas of chattels and of felony, see e.g., 14 P. R. S. (1194) 22–23, 102–103; also Glanv, . Bk. 10, cc. 15–17.Google Scholar

68 For vouchers in the thirteenth century, see 8 Camb. L. J. 287–294.

69 E.g., 1 Palgrave, , 358 (1199)Google Scholar; ibid. 417(1199) continued in 1 C. R. R. 221; 2 Palgrave, , 95 (1199)Google Scholar; also Glanv, . Bk. 3, c. 1.Google Scholar

70 E.g., 1 C. R. R. 23 (1196); 7 C. R. R. 330 (s:c.): defendant vouches his lord the Abbot who warrants and, two years later, makes fine with plaintiff—23 P. R. S. No. 138.

71 E.g., 1 C. R. R. 160, 315, which began in 1198 (1 Palgrave, , 166)Google Scholar: defendant vouches his wife who vouches her brother and (on his death) his son. See also 1 Palgrave, , 417.Google Scholar

72 Glanv, . Bk. 3, cc. 1–5.Google Scholar See also 1 C. R. R. (1199) 89–90; Plac. Abr. 61 (s.c. wrongly dated): vouchee in writ of right successfully counterpleads the voucher; judgment for plaintiff ‘because defendant has no warrantor thereof.’ See further § 4, post.

73 Bk. 13, c. 30.

74 E.g., 14 P.R.S.5(1194); 1 Palgrave, , 19 (1194)Google Scholar; 14 P. R. S. (1195) 125, 126, 133–134—these two latter pleas are curious in that fathers seem to claim to inherit from their deceased sons.

75 Bk. 13, c. 38, and Woodbine's note thereto: nor is any essoin permitted in novel disseisin.

76 Ibid. Cases of escambium for land lost by novel disseisin include 24 P. R. S. (1196) 215, 217–218; 1 Palgrave, , 82 (1194)Google Scholar.

77 14 P. R. S. 8 (1194)—the manor is in the King's hand (1 C. R. R. 52); 14 P. R. S. 71 (1194)—defendant had seized the land on the King's liehalf from one of Eurl John's supporters. See below, pp. 204–205, as to vouching the King.

78 1 Palgrave, , 153–154 (1198).Google Scholar This is not strictly voucher at all, see ante. p. 196.Google Scholar

79 1 Palgrave, , 62–63 (1194)Google Scholar—plaintiff vouches his lord to prove that he ought to hold of him and not of defendant. 1 C. R. R. 197 (1200) brings to light an old case from tho Salop Eyre: the recognitors are now giving a detailed report of it at Westminster and then are asked specifically ‘whether Eve of Longford then came into court to warrant’ the successful plaintiff in the novel disseisin. They reply that they do not know. This case can be dated by Robert de Witefeld, one of the named Justices of that Eyre. He was dead by 1194 (5 P. R. S. N. S. 93) and his last recorded eyre in that county seems to have been 1192 (2 P. R. S. N. S. 257).

80 Ante, pp. 196–197.Google Scholar

81 E.g., 14 P. R. S. 7–8 (1194)—the heir-warrantor is a hostage for the King in Germany; 1 Palgrave, , (1199), 415Google Scholar bis—defendant alleges that the husband gave the land to him before marrying plaintiff.

82 See 8 Camb. L. J. 283–284.

83 The only case I have found is a darrein presentment against a husband who vouches his wife op the ground that the church is founded upon her land: 1 C. R. R. 24 (1196).

84 1 Palgrave, (1194) 1Google Scholar (bis, of which one is a dean); 9 (a priest); 19 (evidently a vicar—cf. 14 P. R. S. 10). These entries are probably related to the action quo (advocato et) warranto tenet se in ecclesia which one can bring against a parson—presumably in order to compel him to disclose his patron so that one can then sue the patron by writ of right: see 14 P. R. S. 33 (1194) and its sequel 1 Palgrave, , 8Google Scholar; also 1 Palgrave, , 317 (1198), 416 (1199)Google Scholar; 7 C. R. R. 342 (1198); 1 C. R. R. 103 (1199). In 14 P. R. S. 6–7 (1194), the defendant chaplain in quo warranto vouched plaintiff himself, and acknowledged his right to the advowson of the chapel.

85 It is writ of right (not darrein presentment) since the church is evidently full. When the patron comes to court in 14 P. R. S. 69–70 (1194), he is said to ‘warrant’ the parson (here a dean) and becomes the defendant—see also Plac. Abr. 11 (s.c.) and continuation in 1 Palgrave, , 130.Google Scholar If parson and patron are sued together, the parson says (as a termor would say—ante, p. 196Google Scholar) that he ‘claims nothing therein except as parson (as termor) of the gift of’ his co-defendant. This occurred in 14 P. R. S. 122–123 (1195); Plac. Abr. 80 (s.c. wrongly dated), where the parson, an abbot, suspecting that his patron is about to lose, reminds the court that he must warrant him and says what sum he is prepared to accept as his escambium. See also preceding footnote.

86 I Palgrave, (1194) 5, 88Google Scholar; 14 P. R. S. 73 (1194). See also 1 Palgrave, , 440 (1199)Google Scholar— plaintiff vouches shire court; 1 C. R. R. 96–97 (1199)—vouchee vouches court baron.

87 14 P. R. S. 31–32 (1194).

88 14 P. R. S. 30 (1194).

89 14 P. R. S. 22–23 (1194), appeal of felony; 1 Palgrave, , 82 (1194)Google Scholar, novel disseisin; 1 C. R. R. 28–29 (1196). same.

90 See 9 Camb. L. J. 86.

91 For the rules and procedure in such a case, see Glanv, . Bk. 3, cc. 6–8.Google Scholar Such a case cannot be held in court baron: ibid. Bk. 12, c. 8. Examples include 1 Palgrave, , 62 (1194)Google Scholar, novel disseisin; 1 C. R. R. 101 (1199), quod permittat, continued 1 Palgrave, , 437.Google Scholar

92 E.g., even plaintiff can vouch in such a case; the vouchee need not come; even if he does come he may entrust the plea to his vouchor.

93 See preceding footnote, and 9 Camb. L. J. 82–83.

94 This seems to happen in 14 P. R. S. 5 (1194), a mortdancestor; but the ready warrantor offered no argument for the defence; so the verdict of the jurors would have been taken immediately had they not absented themselves.

95 Glanv, . Bk. 3, c. 1.Google Scholar The record will say ‘Let him (vouchor) have him (vouchee) at Westminster’ on such a day: e.g., 1 Palgrave, , 33 (1194), 417 (1199)Google Scholar; 14 P. R. S. 125–126 (1195).

96 In writ of right, the land is taken into the King's hand: Glanv. Bk. 3, c. 4; 1 C. R. R. 82 (1199); but can be replevied pending final judgment if defendant show a good excuse: 1 Palgrave, , 9 (1194)Google Scholar. If both vouchee and defendant defaulted it cannot be replevied: 14 P. R. S. 46–47(1194). In mortdancestor a vouchee's default meant only, semble, that the verdict of the assize would be heard at once: Glanv, . Bk. 13, cc. 12, 30.Google Scholar See 8 Camb. L. J. 290 for the rules of the thirteenth century.

97 14 P. R. S. 8 (1194)—Justiciar comes; 1 Palgrave, , 9–10 (1194)Google Scholar —Justiciar does not come. The latter entry is of special interest: defendant tells how he took to the Justiciar a ‘writ’ from the King upon the matter. Each entry bears a marginal note that the Arch bishop-Justiciar is to be consulted. For vouching the King in thirteenth century, see 8 Camb. L. J. 288, 292.

98 Glanv, . Bk. 3, c. 1Google Scholar (right). Both sides offered battle in 1 C. R. R. 97 (1199). In mortdancestor, if vouchee counterpleads the warranty the verdict of the assize may be taken at once; then, if their verdict is for the plaintiff, the plea becomes a plea of warranty between defendant and vouchee upon the question of escambium: see William fitz Randulf's litigation (1198–1199): 1 Palgrave, , 195Google Scholar; 1 C. R. R. 97; 1 Palgrave, , 354, 364.Google Scholar In the unhurried action of Right, plaintiff must wait until the vouchee's counterplea has been decided; then, if the counterplea has succeeded, plaintiff gets judgment at once: 1 C. R. R. 89–90 (1199); Plac. Abr. 61 (s.c. wrongly dated). A plaintiff complains of such delay in 14 P. R. S. 124 (1195). These procedural rules seem to become rather different in the thirteenth century: see 8 Camb. L. J. 290.

99 For this there was a writ praecipe quod facial rationabile escambium; see 1 C. R. R. 39–40 (1198); also ibid. 81, the sequel of 1 Palgrave, , 151 (1198).Google Scholar But there are signs that the original writ for such a claim was or soon became the writ de warrantia cartœ: see, among the prolonged attempts made by the Prioress of Clerkenwell against Simon fitz Simon, 1 Palgrave, , 442Google Scholar; 2 C. R. R. 139, 147, 153, etc.; her action is sometimes described as warrantia carte and sometimes as plea of escambium. See also footnote 108, post.

100 Glanv, . Bk. 3, c. 5Google Scholar (right); 1 C. R. R. (1198) 39–40, mortdancestor.

101 Ante, p. 202.Google Scholar

102 Glanv, . Bk. 3, cc. 2, 3.Google Scholar In the thirteenth century the record will say in such a fase, ‘Let him have him by aid of the Court’ (see Woodbine's note to c. 3). In the one instance I have found in our period it says, after the voucher, ‘Let him have a writ to have his warrantor’: 1 Palgrave, , 432 (1199).Google Scholar

103 Bk. 3, c. 2: ‘Ad petitionem ejus qui eum vocavit warantum.’ Woodbine's edition gives no variant for this; yet Beames merely writes ‘upon the petition of the tenant.’

104 The only passage I think in which Glanvill speaks of warranting a charter is concerned only with creditors suing their debtors (Bk. 10, c. 12) and is preceded by his famous statement that the King's court is not in the habit of protecting privatas conventiones of this kind (Bk. 10, c. 8). In 1199 the parties to a plea of debt (1 Palgrave, , 257Google Scholar) are simultaneously contending in a plea warantie carte (1 C. R. R. 111; 1 Palgrave, , 367Google Scholar).

105 (i) Ralph of Rouec: 1 Palgrave, , 131 (1194)Google Scholar; 14 P. R. S. 13 (1194). (ii) Martin de Bello Fago: 1 Palgrave, (1194) 18–19, 126Google Scholar, resulting in a fine–23 P. R. S. No. 150(1198). (iii) Compare 1 Palgrave, , 70 (1194)Google Scholar, where B is summoned by A to warrant a chirograph and does so.

106 E.g., Gilbert fitz Ailnoth is sued in mortdancestor and vouches William fitz Randulf: 1 Palgrave, , 195 (1198)Google Scholar; 1 C. R. R. 97 (1199); and loses through his default— 1 Palgrave, , 354 (1199).Google Scholar Then Gilbert sues William de placito warantie carte: 1 Palgrave, , 364 (1199)Google Scholar; 1 C. R. R. 461 (1201). Ultimately they concord: 2 C. R. R. 234 (1203). The Pancefot litigation was similar (1194–1199), but there the plea is called warantie terre: 1 Palgrave, , 110, 224Google Scholar; 2 Palgrave, , 47, 138.Google Scholar

107 (i) Martin de Bello Fago seems to sue B de warentia carte and then refrain from vouching him in a mortdancestor: 1 Palgrave, (1194) 18–19, 126.Google Scholar (ii) Giffard of Gedelston seems to do the same in 1198: 1 Palgrave, , 167Google Scholar; 24 P. R. S. No. 129. (iii) The Abbot of Winchecum be sues warranty of chirograph against T (who warrants at once) in expectation that another is about to claim his land: 1 Palgrave, , 70 (1194)Google Scholar.

108 It so operated in the thirteenth century: 8 Camb. L. J. 285. In our period there is clearly some judicial proceeding for obtaining escambium for land lost in novel disseisin: 1 Palgrave, , 82 (1194).Google Scholar Two actions by Adam de Leus against his brother seem to show that it is by plea of warranty of charter leading to a writ of execution quod facial rationabile escambium: 24Google Scholar P. R. S. (1196) 215, 217–218. See also footnote 99, ante. Robert de Wudecot's plea de warentia carte in 1194 as to the land of ‘Corshal’ (14 P. R. S. 14) seems almost certainly to result from his loss of that land (of ‘Chershal’) in an action of novel disseisin a year or two previously (2 Palgrave, , 239Google Scholar; 1 C. R. R. 197, as to which see footnote 79, ante).

109 Ante, p. 206Google Scholar; Maitland, , 2 Collected Papers, 127.Google Scholar

110 They are Cambridge University Library MS. II. vi. 13, and British Museum MS. Cotton, Julius D., II. f. 143b. Maitland dated them and had seen none earlier: 2 Coll. Papers, 130, 135.

111 The British Museum writ tells the sheriff to command defendant to warrant or else to have him before the Justices in Eyre. The Cambridge writ commands the sheriff to cause him to warrant or else have him before the next assize. The latter looks the older, somewhat resembling a writ of Justities, and hints of an. initial hearing in the shire court; cf. footnote 113, post.

112 1 C. R. R. 111 (1199): ‘A day is given to Adam and Peter de placito warantie carte on Easter day in five weeks because the sheriff has not sent the writ.’ At that day there was a further adjournment: 1 Palgrave, , 367.Google Scholar Meanwhile the parties are suing each other for debt—cf. footnote 104, ante.

113 In 1 Palgrave, , 48 (1194)Google Scholar, Plac. Abr. 2 (s.c.) a lord prays his court and has it de placito warantie carte. Glanvill expressly excluded from his treatise pleas in lord's court and shire court (Bk. 12, cc. 6, 23); but the shire court had a very wide jurisdiction to hear cases commenced by the King's writ (Bk. 12, cc. 9 et seq.). Cf. footnote 111, ante.

114 Geoffrey de Hurton's Case, 14 P. R. S. 124Google Scholar, see ante, p. 195.Google Scholar The contraction used (Justic) might conceivably mean a writ from the Justices or of Justities. Justiciar seems more likely, I think, since the King's writs commonly boro the Justiciar's name—see e.g., Glanvill's writ of right, Bk. 1, c. 6.

115 Booth, , Real Actions, 241.Google Scholar Tfhis formula was already used (but without mention of a charter, as a rule) in the writ quod capiat homagium: Glanv, . Bk. 9, c. 5Google Scholar; 14 P. R. S. 135; 24 P. R. S. 228; 1 C. R. R. 86, 95. See also 1 Palgrave, , 5Google Scholar (de recto tenendo); 24 P. R. S. 219Google Scholar) (ne injuste vexes).

116 1 Palgrave, (1198) 157–158, 168Google Scholar: ‘quas clamat tenere de eo et unde cartam habet.’ 1 Palgrave, (1199) 362Google Scholar, Plac. Abr. 7 (s.c.): ‘Preceptum fuit … quam tenet et de ea clamat tenere.’

117 17 P.R.S.Nos.43(1195), 69 (1196), 165(1196); 23 P. R. S. No. 171 (1198); 24 P. R. S. No. 216 (1199). In some the recital is that one of them bad been summoned to court to warrant a charter to the other: 20 P. R. S. No. 39 (1196); 23 P. R. S. Nos. 52 (1197), 129 (1198). In one fine, which binda A not to lease to anyone but B, the action is said to have been based upon both warranty of charter and covenant: 23 P. R. S No. 148 (1198). Over 900 fines are recorded for this period.

118 Robert de Wudecot's Case; 14Google Scholar P. R. S. U (1194), read with 1 C. R. R. 197. As to this case, see further footnotes 79, 108, ante.

119 As to novel disseisin, see preceding footnote and ante, pp. 202, 206.Google Scholar

120 Ante, p. 206Google Scholar and footnote 107. Those entries which merely show (hat a defendant in action of warranty of charter came and warranted ia court are probably cases of this kind: e.g., 1 Palgrave, , 70 (1194), 167 (1198)Google Scholar; also 1 Palgrave, , 305, 310Google Scholar, with ito sequel Plac. Abr. 40 (Henry de Longo Campo). So also those which resulted in a fine—see footnote 117, ante.

121 As tu the vouchee who does not come, see § 4 and footnotes 99, 106, ante.

122 2 Pollock, and Maitland, , 106.Google Scholar This connection between covenant and de warrantia cartœ is also illustrated by 23 P. R. S. No. 148, see footnote 117, ante.

123 See ante, pp. 198–201Google Scholar, for its use where a grantee seeks to obtain seisin.

124 14 P. R. S. 20–21, 28; 24 P. R. S. 226; 1 Palgrave, , 74, 95Google Scholar (and 126), 119, 130, 239, 255, 372, 429; 1 C. R. R. 18, 22, 25, 38, 40 (bis), 92; 7 C. R. R. 333. In C. R. R. and some parts of Palgrave the essoins have not been printed (1 C. R. R. vii–viii). In 1 Palgrave, , 85Google Scholar, the plea ended by failure to prosecute. In 1 Palgrave, , 305, 310Google Scholar, it apparently ended by defendant's death and began again some years later against his heir: 2 C. R. R. 79; Plac. Abr. 40. Contrast the importunate Prioress of Clerkenwell who tried ten times at least (from 1 Palgrave, , 298, 442Google Scholar, till 3 C. R. R. 184) to get her defendant to court but failed.

125 When an action de warrantia cartœ was related to another pending action about the same land, both were usually adjourned to the same day so that both could be decided together: e.g.. 1 Palgrave, (1199) 355, 362Google Scholar (which concluded in 1 C. R. R. 121, 125), where John Morrell was defendant in mortdancestor and plaintiff in warranty of charter for tlie same land. See also 1 Palgrave, (1199) 415Google Scholar, re Albin fitz Richard, bis.

126 See footnote 113, ante. The entries about Eustace of Fulbourn (Cambs.) seem to support this. The only records of his plea of warranty of charter against Gilbert de Tani are their essoins: 1 Palgrave, (1199) 240, 291.Google Scholar But a later entry shows that in fact Gilbert is his lord and that Eustace is defendant in a plea of right in Gilbert's court and has vouched Gilbert there: 2 Palgrave, (1199) 95.Google Scholar This last entry is a writ prohibiting Gilbert from holding that plea, whether because he ought not to become defendant in his own court (cf. footnote 91, ante) or because, as the writ says, he is beyond the seas on the King's service, is not clear.