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The Law's Two BodiesSome Evidential Problems in English Legal History$

John Baker

Print publication date: 2001

Print ISBN-13: 9780199245185

Published to Oxford Scholarship Online: January 2010

DOI: 10.1093/acprof:oso/9780199245185.001.0001

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The Law's Two Bodies
Oxford University Press

1. Anon. (1304)

YB Trin. 32 Edw. I (Rolls Series), p. 259. Common Pleas.

Fictitious force and arms in trespass for felling timber.

One R. brought a writ of trespass against J. and others etc., and said that they came wrongfully with force and arms and cut his wood and carried it away etc. The defendants said that they were not guilty.

The inquest came and said that they cut his trees, but not with force and arms.

Therefore it was adjudged by Bereford CJ that he should recover his damages etc., and that the defendants should be taken, even though they did not come with force or with arms etc.

2. Broun v. Cok (1330)

98 Selden Soc. 530. Eyre of Northamptonshire.

Quare impedit for the advowson of Desborough. Counsel censured for not pleading by way of fiction.

… [Counsel for the defendants] was driven by the court to name the parson by whom the church was filled and to say by whose presentation.

Bacon. Stephen, of whom the plaintiff has counted, by the presentation of William the plaintiff's father.

[First version:] And it was said in private that Bacon had mispleaded, because he could safely have alleged that the church was filled by a stranger as parson, by the presentment of a stranger (who never had any right), for this is not traversable.

(p.114) [Second version:] It was said that Bacon mispleaded when he said that the church was filled by the presentation of the plaintiff's father, for he had thereby confessed that the advowson belonged to him. He could have said that the church was filled by the presentation of one of those named as disturbers [i.e. defendants], and no worse would have befallen the disturber than would befall him now if the church were found to be vacant.

3. Anon. (1353)

YB 27 Edw. III, Lib. Ass., pl. 5. King's Bench sitting at Kingston, Surrey.

Agency: the act of a bailiff pleaded as the act of the master.

A poor man sued a bill of trepass against W. of W., serjeant at arms, for a horse and an ox wrongfully taken; and he pleaded Not guilty. It was found that W.'s bailiff had sold the horse to the plaintiff for certain money, and that when W. came into the area he took the horse back.

The jurors were asked whether the bailiff was known as his bailiff. They said yes; and he had sold other goods in the market.

And they were asked whether he had a special warrant to sell the horse. They said no.

In right of the ox, it was found that the bailiff had pledged the ox to the plaintiff for twelve bushels of wheat, price twelve shillings, on terms that, if he did not pay, the plaintiff would have the ox. And it was found that the wheat came to the use of his master, and [no] payment was made.

And, both as to the one and the other, the plaintiff had judgment to recover his damages.

4. Anon. (1353)

YB 27 Edw. III, Lib. Ass., pl. 56. King's Bench sitting at Wells, Somerset.

Contra pacem allegation treated as immaterial.

In a bill of trespass which J. of B. sued in the King's Bench at Wells against W. at D. for trampling on and despoiling his grass, the defendant pleaded Not guilty; and it was found by verdict (p.115) that the defendant's beasts had depastured upon the plaintiff's grass by escaping, to his damages of five shillings, but not against the peace.

Taunk. We pray judgment of the bill, which says contra pacem etc., for in such a case the plaintiff should have a bill without saying contra pacem.

But notwithstanding this, because it was found that this was for want of good care (bon garde), it was awarded that the plaintiff should recover; and the defendant was taken, because it was for want of good care etc.

5. Anon. (1374)

YB Mich. 48 Edw. III, fo. 25, pl. 8; B. & M. 304.

Fictitious force and arms in trespass against a lessee for negligently burning down a house.

One Henry T. brought a writ of trespass against a woman and supposed by his writ that she had burned his house in G. with force and arms. Upon this the woman had earlier pleaded Not guilty. And now the inquest came and was charged on the point; and the inquest said that the house was burned by the woman's fault through bad care.

WYCHYNGHAM J. to the inquest. Did the woman come with force and arms to do this wrong as the plaintiff has supposed, or did it happen by her negligence and not by force?

The inquest. Sir, the house was burned by the woman's negligence, and not by force and arms or by her malice, because the woman had the house as the plaintiff's tenant from year to year at a rent of 11s. a year.

Belknap. So you find that the woman had no right in the house except at the plaintiff's will, to put her out whenever he chose?

The inquest was just about to say what Belknap had told them, for which WYCHYNGHAM J. reproached him. And the inquest said definitely that she was in for a term of one year at a rent of 11s.

WYCHYNGHAM J. In case the action is held good, tell us how much the damages should be.

The inquest. Sir, to his damages of 100s. (And then the inquest was bidden farewell.) …1

(p.116) 6. Case in the Inner Temple (c.1485)

Keil. 114; 105 Selden Soc. 80.

Fictitious bailiff of goods in account.

A writ of account is brought, supposing the defendant to be his ‘bailiff’ of his manor of Dale and to have the administration of his goods. The question is: if it is found that he was not his bailiff of the manor, but it is found that he did have the administration of his goods, shall he account for the goods, or not?

It was argued that he shall not, for one may not have a writ of account for goods alone …

But everyone else's opinion was contrary to this, because he2 cannot have any other writ, and what he supposes in the writ about being his bailiff is only words of form. Similarly, if someone brings a writ of detinue for a sealed bag of money, and it is found that he detains the money but not the bag, he shall nevertheless recover, because the bag is not material but merely a form used in declarations. So it is in a writ of warranty of charters; the writ is unde cartam habet, and yet he may declare on a warranty by reason of a reversion or by homage ancestral. And the cases which have been put are not like this case, for the party in those cases could have a writ in another form, whereas in this case there is no other form of writ to obtain an account in respect of his goods. For one may not have a writ in the form de tempore quo fuit receptor bonorum.3 Therefore in this case, although it is found that he is not his bailiff, he shall nevertheless account for the goods.

7. Anon. (1491)

YB Mich. 7 Hen. VII, fo. 2, pl. 2. King's Bench.

Fictions in writs. Fictional unity of person taken too far.

An action of trespass was brought by a husband and wife, and the writ was, ‘why with force and arms he broke the close of the husband and wife, and took their goods and chattels found at A.’; and the count was that the defendant took the goods (p.117) and committed the trespass to the woman while she was single. The defendant pleaded Not guilty, and was found guilty, and judgment was given accordingly. And the defendant sued a writ of error.

The opinion of the court was that the writ of trespass was not good, and therefore that the judgment was erroneous. For it was agreed that where one has no writ corresponding with his facts, but a general writ of form, and there was no other writ in the Chancery in accordance with his facts, then even if the writ does not maintain his count (so that the count does not correspond) still the writ shall not abate. For instance, in warrantia cartae there is no other writ but unde cartam habet, and therefore, even if his count does not warrant the writ, it is nevertheless good; for instance, he may count that he has a warranty by homage ancestral, and such like, and his writ shall not abate, because he has no other writ corresponding with his facts. Likewise in waste, the writ is ad terminum annorum, but he may count of a lease for one year or half a year … But where one may have a writ corresponding to his facts, and does not take that writ accordingly, so that the writ is not warranted by the count, or the count is not warranted by the writ, then everything shall abate. As in the case here, the plaintiff could have an action of trespass to answer the husband and wife ‘in a plea why with force and arms he took the goods and chattels of the wife’, and not ‘their goods and chattels’ … and such a writ is in the Register. (And the Register was brought before the justices, and such a writ was in the Register.) …

8. Case in the Inner Temple (c.1495)

Port's notebook, 102 Selden Soc. 142.

Fictions and words of form in writs: see the Selden Soc. edition for the year-book authorities behind these examples.

Observe that a person who holds his land by homage ancestral may sue a writ of warranty of charters, and his writ shall say unde cartam habet; and the reason is that there is no other form of writ.4 Also, in a writ for forging false deeds the writ shall say unde (p.118) falsa fabricavit facta, and yet the plaintiff may declare of one deed. And in a writ of waste, where the defendant holds for the term of half a year, the writ shall say qui tenet ad terminum annorum, for the above reason. Also, if a tenant for life commits waste and alienates, the writ of waste shall be qui tenet etc ….

9. Gaynesford v. Guldeford (1505)

Keil. 67; Caryll's reports, 116 Selden Soc. 463. King's Bench.

Words of form in trespass vi et armis.

Note that in trespass for battery the writ went on to say, ‘and laid such and so many threats upon the same A. and caused such injuries and griefs that the plaintiff was unable to go about his business’. In this case the jury found for the plaintiff with respect to the battery, and that was properly found. They also found the threatenings and other injuries for the plaintiff, but that was falsely found. Their intention was never other than to find everything for the plaintiff, with everything incident to the battery (of which the defendant was clearly guilty), but not the threatenings—which were put into the writ merely for form. Nevertheless on this point, amongst others, but principally on this point—and also for excessive damages—they brought an attaint. Then, in the attaint, this point—namely the ‘such and so many threats’—was the principal cause in which they assigned the false oath. (This was in the attaint between Gaynesford and Guldeford.)

So it would be better to leave this clause out of the writ, if it is not the very truth of the matter, for many times this point is not directly answered by reason of oversight.

10. Eland's Case (1528/9)

Spelman's reports, 93 Selden Soc. 31.

Fictional demise where no other writ available.

A writ of entry sur disseisin in the per was brought against Eland, supposing that he had no entry unless by one S. qui illud ei demisit, who thereof disseised the demandants, whereas in fact S. was tenant in tail by the gift of a stranger, and died seised, and (p.119) it descended to the tenant. And so, as some thought, the tenant is in through the donor and not through his father. But this objection was not allowed. There is no other form in the Register but this form, qui illud ei demisit; even though he is in by descent.

11. Holygrave v. Knightsbridge (1535)

YB Mich. 27 Hen. VIII, fo. 24, pl. 3.

Agency and undertakings ‘in law’.

In the King's Bench one Jordan5 brought a writ on his case and recited in the writ that, whereas the plaintiff had one Tatham in execution in the Compter6 for a certain debt recovered against him, the defendant undertook to the plaintiff that if the said plaintiff would discharge the said Tatham of the execution he would pay the debt to the plaintiff at such and such a day if the said Tatham did not pay him earlier; and showed how he discharged the said Tatham from execution, and that the said Tatham did not pay before the day, and so etc. The defendant traversed the undertaking, and they were at issue thereupon. At the nisi prius in London the plaintiff gave in evidence that the defendant came to the plaintiff's wife, the plaintiff being absent, and undertook to the wife that if the plaintiff (her husband) would discharge the said Tatham from the execution he would pay the debt at a certain day to the husband if Tatham did not pay earlier; and then the plaintiff came home, and his wife told him about this, and he agreed to the undertaking and thereupon discharged the said Tatham from execution.

The defendant said that this evidence was not good, because the wife cannot be party to such an undertaking without her husband's previous command, or earlier agreement; therefore the undertaking was void, and the husband's subsequent agreement cannot make it good.

It seemed to the justices of nisi prius that the exception was not good. Therefore the defendant made a bill of exceptions, and one of the justices sealed it. Then the verdict passed for the plaintiff, (p.120) and now at the day in banc the defendant alleged the aforesaid facts in arrest of judgment.

Knightley. You ought not to proceed to judgment, because this undertaking to the plaintiff's wife, while he is absent, is not good; for the wife cannot do any act which shall prejudice her husband …

FITZJAMES CJ7 … Now, as to whether the undertaking to the wife is a good cause for the plaintiff to bring his action, it seems clearly that it is … The plaintiff alleges that the defendant undertook to the plaintiff, and gives in evidence that he undertook to the plaintiff's wife: this is consistent with his issue and goes in its stead. For the subsequent agreement of the plaintiff makes it an undertaking to him in law. Likewise, if my wife buys goods, and later I agree, this is my sale. If my servant sells some of my goods, and later I agree to this sale, it is now my sale; and I shall have a writ of debt, and allege that the defendant bought from me, because my agreement afterwards makes it my act …

12. Anon. (1562)

Brit. Lib. MS. Hargrave 4, fo. 183v.


Cholmeley said that it is common course, where a factor makes a contract, that an action lies against the master; and the declaration is of an assumpsit against him, but the plaintiff gives in evidence how the factor made the contract.

13. Note (1571)

Dyer's notebook, 110 Selden Soc. 233.

Sending a writ to a deceased judge.

Remember that suit was made this term for the certifying of certain notes and acknowledgments of fines taken by Justice Carus in his last circuit before his death, without any dedimus (p.121) potestatem previously directed to him (as is usual). And it was much doubted whether or not it is necessary to have a dedimus potestatem directed to the said justice, dated before the said acknowledgment was made, or whether his executors may certify his notes simply upon a certiorari directed to them … The executors of Justice Willoughby, Justice Spelman, and Chief Justice Bromley, returned the writs of dedimus potestatem as well as the writs of certiorari; and that is held a sure way, and the clearest. Therefore suit should be made to the lord chancellor, or keeper of the great seal, to have these writs of dedimus potestatem backdated (ove ante testes) to the lifetime of the justice.

14. Edwards v. Burre (1573)

Dalis. 104; B. & M. 416. Queen's Bench.

Fictitious or implied undertaking in assumpsit for debt.

William Edwards brought an action on the case against Edmund Burre and Margaret his wife, administratrix of the goods and chattels of John Sidwell, late her husband, and counted that the testator in consideration that the plaintiff had lent the testator forty shillings undertook to pay him forty shillings. The defendant pleaded Non assumpsit modo et forma. The plaintiff submitted evidence that he lent the forty shillings to the testator.

WRAY J. said to the jury: If it be true that the plaintiff lent the said sum, you must find for the plaintiff; for the debt is an undertaking in law.

But note that it was said that this is by reason of the custom of the King's Bench, for in the Common Pleas he would have to prove the undertaking …

15. Anon. (1579)

Linc. Inn MS. Misc. 488, p. 64; B. & M. 533. Queen's Bench.

Fictions and implications in trover and conversion.

An action on the case was brought, and the plaintiff declared that he lost his horse and that it came into the defendant's hands by finding, and the defendant sold it and converted the proceeds (p.122) of sale to his own use. The defendant pleaded Not guilty, and the jury found these facts specially: the plaintiff lost the horse, and it came to the defendant's hands, but he did not sell it or take money for it, or convert the money to his own use. And they further found that the defendant is now in possession of the horse and ready to deliver it up.

Now Aunger moved the matter at the bar, and said that the plaintiff should not have judgment …

But GAWDY, SOUTHCOTE AND AYLOFFE JJ (WRAY CJ being then in the Chancery) thought the contrary. For they said that the sale and conversion to the defendant's use is only a matter of form, and if for that reason they did not give judgment for the plaintiff in this case they would overturn a thousand precedents, and all actions on the case for trover.

GAWDY J., however, said that the course in the Common Bench was contrary; for Dyer CJ would have the plaintiff prove that the defendant sold the horse and converted it to his own use. So in that court it seems to be a matter of substance and not merely of form.

The following day the case was moved again, and it was held by WRAY CJ as above, and that the detaining and using of the horse was in law a converting to the defendant's use.

16. Lane's Case (1629)

Godbolt's report, cited in Elwis v. Lombe (1704) 6 Mod. 117 at 119.

Fictitious plea in trespass to drive plaintiff to new assignment.

Salkeld … quoted Lane's Case (Hil. 4 Car. I), in Judge Godbold's manuscript: trespass quare clausum fregit in A., B. and C.; the defendant pleaded that the locus in quo was Blackacre, Whiteacre and Greenacre, his freehold; and issue thereupon; and because the defendant could not prove his freehold in them, as alleged, the verdict was against him; for the court said that, though it be usual for the defendant to lay a feigned place in his plea, to force the plaintiff to a new assignment, yet is is dangerous so to do, for if issue be taken thereupon and he cannot prove his plea, he is gone.

(p.123) 17. William Style, Regestum Practicale (1657)

Invention of the fictitious casual ejector in the 1650s.

[P. 72] If the court makes a rule in an action of trespass and ejectment that the defendant in the action shall confess the lease, entry and ouster, and yet at the trial the defendant will not do it, the plaintiff must proceed notwithstanding in his trial; but he may also proceed in this court against the defendant upon his contempt in not obeying the rule of the court. Pas. 24 Car. BR.8

[Pp. 107–08] If one seal a lease of ejectment to try a title of land, it is not necessary to give notice of the sealing of this lease unto him whose title is concerned, but it is sufficient to give notice of the lease to the tenant or under-tenant of the land in question. Hill. 23 Car. BR.9 For the possession of the land is primarily in question in this action, and is to be recovered, and not the title of the land, though the title of the land do come in question and is tried collaterally. But now, by the new way of practice, it is not usual to seal any lease of ejectment at all in an action of trespass and ejectment, but the plaintiff that intends to try the title delivers a declaration to an ejector of his own making, and that ejector sends or delivers the declaration to the tenant in possession, who gives notice thereof to his lessor, whose title is concerned, to defend the title, and if neither the tenant in possession nor his lessor will defend the title, then the ejector will confess a judgment to the plaintiff, and so the tenant will be stripped out of possession; but if they or either of them will defend the title, then it is usual for them to move the court that they may be made ejector to defend the title, which the court will grant if they confess lease, entry and ouster at the trial, and stand merely upon the title; and if at the trial they do not, the judgment to be entered against the plaintiff's ejector.

[P. 109] He that is to try a title of land by an action of trespass and ejectment ought not to make an ejector of his own against whom he may bring his action, or to consent or agree with one to come upon the land let in the ejectment lease, with an intent to make him an ejector and to bring his action against him. Mich. (p.124) 22 Car. BR.10 For by that means the tenant in possession of the land was often put out of possession by a writ of habere facias possessionem without any notice given either to him or his lessor of the suit. But now this is altered by the new way of practice formerly mentioned.

[P. 111] The owner of the land may consent with the party that claims the land to make an ejector to try the title of it, if it be not a plot betwixt him and the ejector, Mich. 24 Car. BR.11 namely to strip the tenant of the land in possession.12

[P. 265] Where one desires to be made party to defend the title of the land in question in an ejectione firmae, the court will grant it, so that he will confess lease, entry and ouster. Pas. 23 Car. BR.13 in Prince and Warren's case, 2 Maii 1648. But now that rule is enlarged, for now he must confess lease, entry, and actual ouster, and must not except against the jury for want of hundredors, but insist only upon the trial of the title; and if at the trial he do not all this, then judgment is to be entered against the lessor's own ejector.

18. Lamine v. Dorrell (1705)

2 Ld Raym. 1216; B. & M. 470. King's Bench.

Fictitious or implicative receipt ‘to the plaintiff's use’, besides the fictitious undertaking, in money had and received. Facts revealed by special case stated for the court in banc.

In indebitatus assumpsit for money received by the defendant to the use of the plaintiff as administrator of J. S., on Non assumpsit pleaded, upon evidence the case appeared to be that J. S. died intestate possessed of certain Irish debentures, and the defendant (pretending to a right to be administrator) got administration granted to him, and by that means got these debentures into his hands and disposed of them; then the defendant's administration was repealed, and administration granted to the plaintiff, and he (p.125) brought this action against the defendant for the money he sold the debentures for. And, it being objected upon the evidence that this action would not lie, because the defendant sold the debentures as one that claimed a title and interest in them, and therefore could not be said to receive the money to the use of the plaintiff … the point was saved to the defendant. And now the court was moved, and the same objection made.

POWELL J. It is clear the plaintiff might have maintained detinue or trover for the debentures … But the plaintiff may dispense with the wrong and suppose the sale made by his consent, and bring an action for the money they were sold for, as money had and received to his use. It has been carried thus far already …

HOLT CJ. These actions have crept in by degrees. I remember, in the case of Mr Aston,14 in a dispute about the title to the office of clerk of the papers in this court, there were great counsel consulted with; and Sir William Jones and Mr Saunders were of opinion, an indebitatus assumpsit would not lie, upon meeting and conferring together and great consideration. If two men reckon together, and one overpays the other, the proper remedy in that case is a special action for the money overpaid, or an account; and yet in that case you constantly bring an indebitatus assumpsit for money had and received to the plaintiff's use …

Afterwards, on the last day of the term, upon motion to the court, they gave judgment for the plaintiff. And HOLT CJ said that he could not see how it differed from an indebitatus assumpsit for the profits of an office by a rightful owner against a wrongful, as money had and received by the wrongful officer to the use of the rightful. (p.126)


(1) The outcome is not recorded, but the finding of ‘no force’ was not treated as obviously fatal.

(2) Text reads ‘the defendant’.

(3) Against a receiver the writ had to say receptor denariorum (receiver of moneys).

(4) See the two previous cases.

(5) This name is puzzling. There is no mention of anyone called Jordan in the record.

(6) A London prison.

(7) The other judges gave similar judgments.

(8) i.e. Anon. (1648) in the King's Bench.

(9) i.e. Anon. (1648) in the King's Bench.

(10) i.e. Anon. (1648) in the King's Bench.

(11) i.e. Anon. (1648) in the King's Bench.

(12) There is a similar entry on p. 314.

(13) Perhaps a slip for 24 Car.: Warren v. Warren (1648) in the King's Bench.

(14) Woodward v. Aston (1676) 1 Mod. 95.