VIII.

The Writs of Entry

VIII.A. Rex v. B (circa 1280s)

BL Add. 31826, fol. 63.

A writ of entry ad terminum qui preteriit

The king brought a writ of entry against B. and claimed a manor with the appurtenances as
his right and heritage in which he did not have entry unless by the lease which Eleanor,
Queen of England, made thereof to one William his father at term of life etc.

And they denied tort etc.

Bereford.[1] We are not held to answer to this writ, because we understand that there is a
common law in England; and on the common law thus there is a common writ of form. And
we understand that the king wants himself to proceed by the common law and by a writ of
common form. And this writ is not of common form, inasmuch as it makes no mention of
any reversion,[2] whereof we ask judgment of this writ.

Thornton. We understand that there is made sufficient mention of the reversion, inasmuch
as we have shown -- and this by writ -- that the tenements which are now in demand were
given to your ancestors, after which term by the form of the gift the reversion is supposed
[to be] to the heir of the donor. Wherefore it seems to us that we have sufficiently made
mention of the reversion in our writ.

Kellawey.[3] We ask judgment of this writ altogether, for the reason that, whereas you
claim in your writ the manor of Cherbaston, we cannot render your claim, because the
manor that we hold is called Kerbauston. And we ask judgment of your writ.

Gyselham. This exception ought to be put before view of the land. And by asking your view
you have affirmed our writ. And we ask judgment if he is now able to come to such an
exception to abate our writ.

Kellawey. Sir, if we ought now to vouch in this plea and our warrantor come and ask by
what [he should be bound], and we put forward his deed or the deed of his ancestor, he
would demand judgment of our bad voucher, because we had vouched him to warrant such
tenements in Cherbaston and we have never had anything in Cherbaston. Wherefore we ask
judgment of this writ, etc.

1. Could one have any kind of writ, with any variations one wanted? Note that Bereford and
Thornton, here pleaders, were to become quite important. Bereford became chief justice of
the court of common pleas; Thornton, chief justice of the court of king's bench. Two
exceptions are drawn to this writ; what are they? Note that Bereford's assertion about there
being a common law might seem impertinent to the king, but it did not affect his career: he
became a chief justice. It was true that there was a common law and that the king was
expected to follow it, even though it might here have been bent somewhat.

2. What is the significance about the defendant having already asked the view? "View" was
the defendant's chance to have pointed out to him, on the land, the precise land being
claimed. One asked for the view during the case, and it required an adjournment from one
term to the next. It was only available if the defendant had more than one tenement in a vill
or the plea was only for a portion of the tenement.

3. What is the role of precedent? What kind of argument is Kellawey's last argument?
Common law at this point did not rely on precedent at all, but on analogy.

4. This is all there is to this report. We do not know if Kellawey's argument was successful
or not. Reporters did not particularly care about the trial; they often also did not report the
straightforward pleading that appeared finally in the record. What does this indicate about
the reporters? The reporters seem to have been apprentice lawyers who sat in in court to
listen to the experts. They were only interested in the arguments, not the outcome. Once
they knew what could be pleaded, the resolution of what the factual situation actually was,
was uninteresting: they only needed to learn how to plead.

VIII.B. Geoffrey v. Poynant (1290-1294)

BL Add. 31826, fol. 71b

A writ of entry ad terminum qui preteriit

Henceforth, the pleaders are designated as being pleaders for the plaintiff [P] or for the
defendant [D]; justices are indicated as [J]. These designations do not appear in the
documents.

One John Geoffrey and Gilbert brought a writ of entry against William Poynant on the
seisin of one Ralf and said "in which he has not entry etc., if not by the lease which the
same Ralf made thereof at a term which has expired etc."

William defended etc., and said that he had entry not at term but rather in fee and by the
deed of that same Ralf.[4] And he put forward a deed which attests this. And we ask
judgment.

Kingsheved [P]. Sir, we tell you that he entered into these tenements at a term of 10 years.
And see here his deed which attests this, wherefore we want to aver that after he entered
these tenements he never changed his estate.

Mettingham. [J] Let us first be at one concerning his writings.5 You grant well that the deed
which William proffered is the deed of your ancestor, and you, William, grant well that the
writing concerning the term which they put forward is your deed such that you cannot deny
that you entered in his tenements at term, but that you say that, within your term, Ralf made
you a deed of feoffment and by that you think to bar them from action.[6]

Covintry [P]. By this deed that they put forward they cannot bar us, because we tell you
that William entered into the tenements at term such that the free tenement and the right
reposed in the person of the lessor,[7] wherefore we tell you that after the bailment at term
he never came into the countryside whereby they could deliver the seisin of those
tenements, nor did they send any man;[8] wherefore on that deed never was any seisin
delivered to him, rather he all the time continued his estate of a term -- the fee, free
tenement, and right reposing all the time in the person of the lessor. And we ask judgment if
without livery of seisin to him any estate can accrue to him by this deed.

Mettingham [J]. Much more in this case can you void a quitclaim[9] than a feoffment.
Because I think that he in whose person the free tenement and the right rest can enfeoff and
can then demand nothing against that feoffment, but you cannot deny that in the person of
Ralf on the day of the feoffment rested the fee and the free tenement and the right whereby
he could enfeoff. Now, every quitclaim supposes in itself that he is seised to whom the right
is quitclaimed, because I can void the quitclaim which I have made if I can aver that at the
time of the making of the quitclaim and afterwards I remained seised.

Covintry [P]. Sir, he must show how seisin was delivered to him, because I think that if I
make my deed to you of one carucate of land and you by virtue of this deed put yourself in
the tenements without livery of seisin from me, that I will recover against you by a writ of
novel disseisin.[10]

Mettingham [J]. If you had bailed me a tenement at term and afterwards you come here
before justices and acknowledge the tenements to be my right, I think that you will be
foreclosed forever, and so the seisin will not be delivered to you by writ, nor by letter.[11]

Mutford [D]. There is no need in this case for us to answer to the livery of seisin, because
livery of seisin is only a corporeal comprehension[12] and the fee and the right and the free
tenement accrues by the feoffment. Wherefore, the livery of seisin in this case would only
be a corporeal comprehension, which we have by way of the term,[13] which is
acknowledged.

...

Mettingham [J]. Because we have understood -- and this is law -- that each thing not
corporeal can pass by way of deed which attests this, and because fee and right and free
tenement are things not corporeal, and moveable and not immoveable, they ought to pass
by way of deed.[14] And you have acknowledged the deed which attests this. So this court
adjudges that John Geoffrey and Gilbert take nothing by their writ, but be in mercy etc.,
and William adieu etc.
VIII.C. Anon (1310)

SS. 20:118 (YB 3 Edward II)

A writ of entry cui in vita

A. brought the cui in vita against H. saying "into which he had no entry save by [X], to
whom her husband, whom [in his life she could not contradict], demised."

Herle [D]. Her husband never was seised so that he could make a lease.

Malberthorpe [P]. You do not answer us, for your answer is of double meaning: either that
he was never seised[15] or that he was seised in our right, so that by the common law he
could make no lease.[16]

Herle was driven to plead over.

Herle [D]. Whereas she says that her husband leased to [X], he never leased to him, ready
etc.

Malberthorpe [P]. That amounts to this: that [X] never entered by him. Therefore, you
ought to give us a good writ.

Herle [D]. I am pleading not to your writ, but to your action:[17] for it is your husband's
lease that gives you action and this lease we traverse. Judgment.

Malberthorpe [P]. Our husband leased to [X].

Issue joined.[18]

So note that in a writ of entry one can traverse the entry without giving a good writ.

Why does one worry about pleading in a way that might carry different meanings? Would
that not just get ironed out at trial? Not at all. All the argument was supposed to be done
during pleading, so that the job at trial was supposed to amount only to submitting the
previously specified question to the jurors, who were supposed to have already figured out
their answer, since they were notified of the question by the writ venire facias. By the
1290s other things were happening at trial before the jurors, as with informal submission of
evidence, but without rules of evidence or much supervision. Pleaders only took down this
kind of procedure once or twice over more than a century, so we know almost nothing of
what went on before the jury.