Trespass & Case

Question 1

Distortion of the facts: barrel case

Answer 1

Rattledene v Grunestone (1317): attack on barrel with sword (VeA), revealing distortion, probably a shipping accident.

Also, note Baker’s theory which is that at this stage the judges have begun using the words/deeds distinction. The reasoning should still be alive but it appears they’re excluding misfeasance cases in covenant.

Question 2

Distortion of the facts: bailment backlash (II)

Answer 2

Toteshalle v Orfevre (1321): where D is looking after P’s goods and then damages them, P is prevented from bringing his trespass because it is not a breach of the king’s peace as he was looking after the goods with P’s consent. This reveals the danger of internally incoherent writs.

Taumbes v Skegness (1312), likewise for charters which had been deposited.

Question 3

Distortion of the facts: hostility to attempts

Answer 3

kemp v De Oxford (1313): arguing the defendant had forcefully poured salt into bags of wool to increase weight was not allowed and should have been brought on covenant. Baker notes the writ failed here because the count (story) revealed a total lack of violence.

Question 4

Omission of the facts: dropping more facts. The murderous smith.

Answer 4

de Rook v de Hauleye (1352): a case in which it was alleged a smith had, with force of arms, nailed nails into the hooves of the horse, killing it. Ibbetson notes it’s fairly implausible for there to be a mad smith killing horses and that instead it was probably a shoeing accident.

Also note the suspiciously large number of actions brought against smiths (even sometimes described as such in the report by a slip).

Question 5

Omission of the facts: occulist’s case (Bill)

Answer 5

1329 (‘Occulist’s case’), where an eye doctor was sued on the basis he had mistreated D. He was not desuited for covenant.

Question 6

Distortion of the facts: porcine demolition squad

Answer 6

Porcine Demo Sqaud (1351), reveals the degree of manipulation had started to become somthing of a problem. Here, P argued that D had used his pigs to demolish his wall, in reality it was likely a result of pigs wallowing next to the partition wall.

Question 7

Distortion of facts: was it judicial connivance or naivete?

Answer 7

Humber Ferryman Case (1348). At last, a bill by which we know the justices heard before them the full facts. Here, they hear full well that P is bringing his claim on the grounds D had taken his horse across the water in his ferry, he had overladen it, it had sunk, and he had killed the horse.

P even explictly changes tact when D starts to bring up the requirement for a deed under seal. It seems the judges are willing to accept this case.

Palmer has particular difficulty distinguishing it on the basis that it is (A) way too early for judges to be getting such ideas; (B) it lends support to Ibbetson and Milsom’s theory that these actions have been getting brought on facts much longer than Palmer thinks they have (and that the judges have been willing to give substantive - key - remedies to these kinds of cases longer than he claims).

Question 8

Distortion of facts: cases at the extreme (2)

Answer 8

Trote v Lynet (1358)

The mistaken identity sleeping case - there’s no way this could possibly been drafted as a writ VeA.

de Northcotev.de Aston (1359)

Here, P sued D for letting a prisoner go early. Again, very difficult to describe as a trespass VeA case. This illustrates how fairly run of the mill cases might be impossible to bring under case.

Ibbetson also notes that full non-performance, or, worse, late performance could not be easily encompassed under the writ. Drafting laziness may therefore have been a factor in play.

Question 9

What were the major disavantages of trespass when compared to case?

Answer 9

(1) The fact some cases couldn’t fit under them at all (deceit, breach of warranty, tampering with goods?), ie it did not have the same kind of extension effect. Cf Northcote v Aston; Trote v Lynet.
(2) The issue that it would involve sometimes seriously misinforming the jury as to the true action. Given the jury were supposed to investigate the facts themselves and didn’t bother hearing new evidence this could mislead them and undermine the case.

Question 10

When had the ‘cum’ clause been used before in the past?

Answer 10

Bailee cases; cases in which it was necessary for P to specify more facts (Prior of Coventry v Grauntpie (1309)).

Question 11

What was the initial trend of cases with the ‘cum’ clause and an absence of the BotkP/VeA clauses?

Answer 11

Initially (1340s-1350s) there are no cases in which the defendant actually answers the case. This is perplexing and might be because the judges are desuiting the plaintiffs before pleading can occur.

Question 12

What was the trend which followed the BotkP/VeA cases?

Answer 12

It seems there was looser drafting. This was obvious in the bills first, which usually dropped all mention of BotkP (The Oculist’s Case (1329) (eyre of Nottingham), Bukton v Tounesende (1348)).) Ibbetson.

Question 13

What kinds of writs would the justices in the 1360s allow, despite the clear absence of botKP or Vea on the facts? (6)

Answer 13

de Hapham v Cok (1349): (bill). KB had allowed proceedings on a bill where D was said to have forged a bond and sued on it in breach of the king’s peace.

de Harewoode v de Bukyngham (1355): A case involving wrongful acts by a bailee described asvi et armisand in breach of the king’s peace was allowed to go to issue. May have involved actual scuffle.

Navenby v Lassels (1368): Judgment was given against an innkeeper whose guest’s goods had been stolen by thieves in breach of the king’s peace, a situation implicitly stated not to have been litigated beforehand in the royal courts. Knyvet CJ refers to the fact that a similar action had been brought in the King’s Council, and the reporter appends a reference to the existence of liability in London (royal acceptance?).

Eynsford v de Hempton (1361): Despite the obvious meaninglessness of the allegation that the dogs were kept with swords, bows, and arrows, at least one case in this form was pleaded to issue in the Common Pleas.

Cleseby v de Willingham (1360): In a case pleaded to issue in the Common Pleas P alleged that he had bailed cloth to D to be fulled and that D had torn it into pieces in breach of the king’s peace. D took the general issue, and the case was (twice) sent to the county for the verdict of a jury.

Ibbetson (1999): More commonly, as the boundaries of trespass were pushed back, plaintiffs omitted the allegation of force and limited themselves to characterizing the wrong as a breach of the king’s peace.

de Northwood v Couper (1366-1367): In the Common Pleas, an owner of sheep recovered damages against a shepherd who had guarded them inadequately, again in breach of the king’s peace.

Question 14

What was the seemingly decisive case in heralding in the new type of writ?

Answer 14

Broadmeadow v Rushenden (1363-1365), took 2 years of hearing (which is a bit odd if sanction by the chancery and in response to an emergency).

This is the first case we see which has been pleaded by D. It involved a negligence surgeon and, despite complaints of covenant being the proper writ, it was allowed through. After this we see the traditional trespass on the case writs come through.

Question 15

What’s the full circle of liability for case?

Answer 15

Watdon v Mareschal (1369): in this case it was noted that if a misperformance case included BotKP, then it would actually be a bad writ.

Question 16

What did the widened writs pre-broadmeadow v rushenden demonstrate?

Answer 16

They reveal that the law evolves incrementally and that the way the justices would allow the law to move forward was to permit the omission of BotKP or VeA (not both). Ibbetson argues they did not know what these clauses were really doing but were unwilling to abandon both - what we are seeing is the focus on the BotkP to allow its elasticty to push trespass out.

Trespass snaps back into a recognisable form onces the pressure is re-directed into case.

Question 17

What were the main pressures for change producing the writ of trespass on the case?

Answer 17

There are several theories:
(1) Ibbetson’s: plaintiffs wanting to tell their stories to the judges (cf, if this would make any difference to a judge). (Bottom up approach);

(2) Palmer’s: chancery led reform by which the liability to labourers was opened up as a response to the black death (top-down approach)

Question 18

Distinctions calcify: name a case where it seems the actions are being treated separately.

Answer 18

Berden v Burton (1382), a case in which the division was made by Belknap CJ between traspass and case on the basis that the plaintiff could not bring an action for an unlawful burning if it was actually a result of either unintentional recklessness or indirect causation (servant being chased away whilst tending a fire which got out of hand and burned it down.

Question 19

What are the problems with the statute view?

Answer 19

One view is that a statute in 1285 was the root of the action. However, not only would this mean that 80 years had passed before the reform occurred, with no sensible reason why this was the case, but the statute seems clearly to be dealing with something else entirely (statute writs), and in any case, as Milsom notes, it wouldn’t even cover the case/trespass divide since they’re are plainly different instances/precedents.

Question 20

What is Ibbetson’s Argument?

Answer 20

Ibbetson argues that the motivation for the cum clause gaining in popularity was a desire by plaintiffs to tell their stories. For instance, in the miller’s case the miller specifically wanted to describe their special relationship whereby P did not have to pay D any of his grain. D actually tries to stop him and bring the claim under a general writ alleging D had stolen the grain. This might have been to mislead the jury.

Question 21

What is Palmer’s theory?

Answer 21

Palmer argues for a top-down approach. The key elements of his theory are:

(1) there was a substantive change in remedies which occurred as a consequence of the black death producing a serious labour shortage, and thus the chancery deliberately planned to increase liability of workers to keep them in check.
(2) Untried writs are still law (dating it back to an appropriate time to match the statute of labourers 1351 and ordinance 1349/height of the black death) and amount to the chancery enforcing its will rather than litigants just trying it on.
(3) He reaches a different conclusion on the date and dates it back earlier to 1352.

Question 22

What are some of the problems with Palmer’s theory?

Answer 22

(1) to demonstrate a substantive change he has to illutsrate how the law definitively changed in the period he claims (1352). The issue is that he only gives a brief overview of cases dating from before, most of them being after the 1340s, and thus his evidence for the period has been put askew. This is made more difficult by cases like the Humber Ferryman, the push which may have been caused by covenant being frozen out, and the substantive pushing which is clearly demonstrable before Palmer’s narrative begins: in short, there were other factors which must have been pushing for extension in existence, or at least playing an equal role (really a question of balancing).
(2) he relies heavily on the idea that writs were an assertion of the will of the chancery. This ties in with the general thrust of his argument that it was a top-down change intitiated by the council and the chancery. Thus, the lynchpin of the argument will lie in whether the chancery drafted/consciously authorised the writs or whether it just stamped them off. There is little evidence either way (Ibbetson). Also, practically it maye be question whether a writ never pleaded was really an asseriton of law (Jones).
(3) in terms of practical issues, it is questionable why the chancery would rely on litigants to implement its policies rather than passing an ordinance (Jones). A riposte to this could lie in the fact that the chancery was mainly composed of rich individuals who had a personal interest.

Question 23

Does Palmer’s theory still hold ground?

Answer 23

Yes, Ibbetson argues it is a useful counterbalance to the focus on pleading and procedural changes. It is almost certain the change towards case was influenced by the black death, especially given they coincide, and that the judiciary will have had it in mind. The number of cases would increase and the willingness of judges to give remedies could only be furthered. It seems unrealistic to suppose there were not at least some institutional actors who were pushing for increased liability for workmen who were increasingly skimping off their duties.

Likewise, other factors will have been the collapse of local jurisdiction and trade guilds.

Question 24

What are the main debates when discussing fault in trespass?

Answer 24

Cause of debate: why, or were, the liability standards in trespass and case any different? The main debate is between Ibbetson and Baker over whether the trespass writ on its face was substantively strict liability or whether it was regarded as an action of fault as well. Ibbetson, along with Arnolds, suggests it was conceptualised as a strict liability action, albeit one which incorporated fault through questions of causation and justificatory defences. Conversely, Baker argues that trespass vi et armis was a fault based action akin to case and that the form of the writ was merely procedural.

Question 25

Name a case for negligently starting a fire as an example of trespass on the case incorporating general negligence claims.

Answer 25

Critoft v Emson (1506)

Also cf scienter, custom of the realm, and dangerous animals cases.

Question 26

Name a case of permitting a dangerous situation.

Answer 26

Loghton v Calys (1473): leaving logs stacked up dangerously.

Question 27

Trespass on the case and trespass vea covered most negligent conduct, either if it was forcible or if it was negligent. Why did later writers assume negligence wasn’t covered?

Answer 27

Baker: because of the infrequency of the exceptions writers did not think case included general negligence. However, in reality between the two actions most negligence based claims were incorporated.

Question 28

What are some defences for negligent conduct under case? (3)

Answer 28

Rogerstun v Northcotes (1366): Storm pleaded

Abbott of Roche v Dukmanton (1450): Sudden wind pleaded

Terry v White (1528): Contributory negligence and transfer of risk pleaded

Question 29

When was fault more apparent in actions in case?

Answer 29

Ibbetson: in instances where the wrongful act complained of by P wasn’t D’s own.

Navenby v Lascelles (1368): Innkeepers and guesthouses where the guests comitted crimes. ibbetson notes the focus on fault is transparent.

Question 30

What is another example of a category of cases where fualt would be more apparent in case?

Answer 30

Rich v Kneeland (1613) —The analogy with innkeepers was that both had a duty to accept customers.

Question 31

Was it wrong to keep dangerous animals?

Answer 31

Yes, it was covered by scienter: Baldeswell v Pulter (1366): Simple negligence action against a dog-owner in London.

Question 32

Could you bring an action for negligently keeping a fire?

Answer 32

Yes, sometimes it was through the custom of the realm but this became less common as courts accepted the common custom was the common law. Eskhevyd v Coldale (1395): Negligence, not mentioning custom, by lessor against lessee.

Question 33

What are the three key cases for the fault debate?

Answer 33

Hulk v Orynge (The Case of Thorns), Weaver v Ward (1616), Dickinson v Watson (1685)

Question 34

What are the problems with Milsom’s jury theory?

Answer 34

Ibbetson:

(1) jury opinions were opaque and by their nature unrecorded, as such they could not have applied a fault standard systematically. (Similar criticisms can be made against Baker’s argument);
(2) The vast majority of texts do not involve the plaintiff alleging fault. Baker claims this was because they were encouraged to do this through the general ‘not guilty’ plea.
(3) His analysis of the cases suggests that there was a strict liability conception. (comments in yearbooks)
(4) Arnolds’s argument that we should trust later writers who knew what they were talking about when they described the action on the case as ‘strict liability’.

Question 35

What are some cases in which D pleads a lack of intention rather than a lack of fault?

Answer 35

Berdon v Burton (1382): Belknap CJ is drawing a distinction between trespass case. House burnt by accident. D pleaded lack of malice or intention rather than lack of fault.

Jankyn’s Case (1378): Stones accidentally dropped on P’s house during building operations. D pleaded lack of malice or intention rather than lack of fault.

Baker notes these probably involved a holdover from criminal law and whether intent was relevant to an action on the case. They do not contradict his argument fault was not relevant as fault was not pleaded.

Question 36

Describe the case of thorns

Answer 36

The Case of Thorns (1466): a case where a man was trimming a tree and the clippings (thorns) fell onto D’s land. D pled a lack of intent, but this was defeated. The main thing was that Choke J remarked ‘“If he wants to make a good plea out of this, he should show what he did to prevent the thorns from falling, so that we can judge whether he did enough to excuse himself”.

Baker takes this as an example of how they did not see it as strict liability.

Ibbetson takes it as an example of where the consideration was really one of causation. This is illustrated by the ‘act of god’ nature of a gust of wind, the example which Choke J gave of an excuse. Thus, this would support Ibbetson’s argument that the considerations of fault were usually based on causation (basically who is to blame) rather than seeing it explictly as an action based on fault.

Question 37

Describe the (much) earlier shooting case

Answer 37

Weaver v. Ward (1617): P shot D by mistake as part of training exercise that they were both part of. It was held that P could excuse himself by showing that D had run across the path of the gun or that it was ‘inevitable and that the defendant had committed no negligence’.

Ibbetson treats this as an exception and one of the awkward periphery cases for causation that would bring matters of causation to the surface.

Baker argues this illustrates how fault was a component of trespass.

Question 38

Describe the later shooting case

Answer 38

Dickinson v Watson (1382): D argued he had discharged his gun with no-one in sight but that P had wandered into the firing line, was shot accidentally, and that this was ‘inevitable’. Held, there was no ‘unavoidable necessity’.

Baker argues this was not illustrating how fault was irrelevant, but that D may still have been negligent in why he was shooting/his lack of precautions.

Ibbetson’s view could explain this as an example of how strict the law was and how the actus novus interveniens doctrine incorporated a fault standard. Unavoidable necessity seems to be an act of god standard.

Question 39

Baker’s strongest case

Answer 39

Gibson v Pepper (1695): D showed how he had taken reasonable precautions to warn passers by of his runaway horse, and lost on the pleading point alone. The defence was sound, but it amounted to the general issue.

Baker: uses this as an example of where the courts would recognise a lack of fault as a defence but only under the general issue. A strong case in favour of his theory.

Question 40

What were the justificatory defences for trespass?

Answer 40

Medical Treatment; Self-defence; Lawful arrest; Lawful chastisment; Lawful Entry into property (case of thorns 1466).

Question 41

What were the outlets for fault in trespass? (1)

Answer 41

Causation; victim did act, victim brought act upon himself; Note - not a defence (cf Arnold) but a missing requirement for the wrongfullness of the act.

Curteys v Crepping (1300): man bringing battery lost on the basis he had already assaulted the innkeeper’s wife.

Question 42

What was another outlet for fault in trespass? (2)

Answer 42

The second outlet for fault was by arguing it wast he third party acts. Fault is coming in, but in a slightly unexpected way - D is arguing it was P’s action.

Eg, servants, fire (Berdon v Burton). Likewise, liability for wandering animals (depending on if they were dangerous or acting according to their nature/incited - reveals fault consideration).

Wandering animal cases, ie whose duty was it to repair the fence is the true fault debate, masked by strict liability for wandering animals.

Question 43

Act of god cases?

Answer 43

The Case of Thorns (1466) —If the wind blew the defendant’s thorns onto the plaintiff’s land, there wouldbe no liability, since the wind rather than the defendant had caused the intrusion.

Anon (1455). Liability of a jailer for the escape of the prisoner. Defence is that the prison has blown down, so the prisoner had escaped. Court had said if it’s an ordinary storm, the jailer is liable. But if it’s no ordinary wind, then it’s an act of God.

Rogerstun v de Northcotes (1366) —the carrier of goods is not liable if the ship in which they were being carried was blown on to a sandbank in a storm.

Question 44

Odd periphery cases (3)

Answer 44

Instances where causation would not work because the defendant was doing the act with the propensity for damage.

Hulle v Orynge (The Case of Thorns) (1466):

The man who clipped the thorn hedge between his land and the land of his neighbour could hardly argue that God had done the clipping if the thorns fell over the boundary (though he might easily argue that God had blown them there if there had been a wind); he might, however, argue that he should not be liable if he could not have cut the hedge in any other way.

YB T.13 Hen VIII f.16 pl.1 per Browne Sjt:

In the same way, the man who cut down a tree on his own land in such a way that it fell over his neighbour’s boundary would be liable—he could hardly argue that he had not done the chopping—unless he could show that he could not have acted in any other way.

Weaver v Ward (1616), Dickinson v Watson (1682):

Analogous problems later arose with guns, whose sensitive mechanisms might be triggered all too easily by a clumsy user. However unintentional the act, it would have been difficult to say that it had been committed by God. In such a case, thedefendant would not be liable if the shot was ‘utterly without his fault’ or the result of ‘unavoidable necessity’.

Question 45

What are the lessee cases Ibbetson uses to support his theory?

Answer 45

He notes that cases like repairing the sea wall, who is responsible when waste is committed by a third party (ie, lessee?) were all situations which brought the underlying consideration of fault to the surface.

Cook v Hasard (1329) - likewise, when there was fire which spread from one party’s house to another, even if there was an act of god, would not properly cover the situation. Fault had to be brought in as causation didn’t provide the right language.

Question 46

What were some of the advantages of bill?

Answer 46

Conditional bill could incorporate and cover a lot of the ground of covenant, but it had liquidated damages and did not involve the uncertainty of the jury.

Question 47

Whitlok v Wherewell (1398)

Answer 47

A case involving badly behaved horses - the question was whether the defendant had notice of the horse’s behaviour.