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XIII.

Detinue
XIII.A. Glanvill's writ of debt/detinue: Glanvill, X.2-3 (ca. 1188)

The king to the sheriff, greeting. Command N. to render to R., justly and without delay, 100
marks which he alleges that he owes him and which, he complains, he is unjustly
withholding from him. And if he does not do so, summon him by good summoners to be
before me or my justices at Westminster on the third Sunday after Easter, to show why he
has not done so. And have there the summoners and this writ. Witness etc.

The cause of the debt may be loan for consumption, or sale, or loan for use, or letting, or
deposit or any other just cause of indebtedness.

1. Is there any difference in legal analysis between a claim for money owed and for a thing
to be returned? Today lawyers consider a claim for money as a contractual claim, that is, an
obligation between people. A claim for a thing to be returned, however, seems a matter of
property, an allegation of the plaintiff's relationship to a thing. In Glanvill no such
difference appears. The easiest explanation is that the two claims were made with an
identical writ because the claims seemed to them identical. That is possible if the claims
were considered relational obligations like twelfth century claims to land: the personal
relationship (narrowly defined and socially recognized) was primary, and people were
expected to stand to the obligations of relationships. Remember the change that would
happen to land claims over the following century culminating in Quia emptores, in which
obviously the lords were unconcerned any longer with the relationships but with the
incidents, concerned thus more with individuated rights than with the personal relationship.
In the twelfth century, however, the relationship had been primary.

2. What is the difference between this writ and the writ of first summons for land in
Glanvill (Glanvill I.6, see III.A. in the materials)? The lack of difference between the
precipe of first summons and the writ of debt/detinue in Glanvill would reinforce the
analysis made just above.

XIII.B. A Viscontiel Writ of debt/detinue from the 1220s

Early Registers of Writs, Hib.38.

A "viscontiel" writ is directed to a sheriff (in French, "viscont") directing him to hold a plea
in his court (the writ would still be directed to him if the case involved one in a liberty; the
sheriff would simply make out a copy [called a "return"] and send it to the liberty bailiff to
have that liberty hold the case). This kind of writ was thus not "returnable" because it was
not returned into the king's court; it stayed out.
The king to the sheriff, greeting. We command you to justice[1] B. that justly and without
delay he render to A. 20s which he owes him, as he says, if he can reasonably show that he
ought to render it to him. That we may not hear any further complaint thereof for want of
justice etc.

In the same manner a writ issues for a deed which he has entrusted to him, or for a shield,
or for a horse, or chattels to the value of 40s without payment. Because, if the debt or the
value exceeds 40s, there is added this clause in the writ:

After receiving security from him for the third part of the first pence to the king's use.

1. Once again, what is the difference between debt and detinue? Modern law sees a great
deal of difference between a claim for 20s (of ordinary money) and a claim for personal
property like a shield. Glanvill seemed to see absolutely no difference.

2. Why is there such a writ to begin such a case in county court? We began by
hypothesizing that county courts were omnicompetent unless for some specific reason the
case belonged elsewhere. We can dismiss completely the idea that it gave the court
jurisdiction: the county certainly had jurisdiction to handle such pleas without writ (and
continued to have it until regulated in part by the 40s rule in the late thirteenth century, as
treated above). Likewise, plaintiffs did not simply like writs: as indicated in the document,
they cost the plaintiff. In truth, we cannot prove the reason why plaintiffs purchased
viscontiel writs in the beginning, but we can proffer a reasonably good guess. The king's
court around 1200 wanted to get rid of simple cases; in Glanvill cases of debt in which the
plaintiff had specialty (proof of the debt written and under seal) seemed to be incredibly
easy. The viscontiel writs probably encouraged plaintiffs to resort to lower courts by
removing the case from county custom [in which, perhaps, specialty served to increase the
number of oathhelpers necessary or establish who proved] and to give the case the
procedure of the king's court even though the case was now in county [thus specialty would
preclude the debtor from making any answer except (a) that he had paid, proven by a
written acquittance, or (b) that the specialty was forged.] By this explanation, thus, the
viscontiel writ was valuable because it carried better procedure; it was made available to
lessen pressure on the king's court by shifting litigants to lower courts. The tendency here is
to show that the king's court did not expand because the government wanted to; expansion
was not a craftily designed expedient to increase royal finances and power.

XIII.C. Wulghes v. Pepard (1310)

Selden Society, 26:13-14

common law
Master John Pepard was summoned to answer Robert of Wulghes clerk on a plea [the terms
of the writ:] that he render to him a certain book of the price of 100s. which he unlawfully
detains from him etc. [the terms of the count:] And whereupon Robert by Henry of
Gothmundele his attorney says that, whereas on [22 July 1305] at Wifamcoote
[Warwickshire] he delivered to Master John a certain book of his which is called "The Holy
Grail" of the price of 100s to guard and at Robert's will to redeliver to him etc., Master John
though he was often asked to deliver that book to him still detains and has always hitherto
refused to deliver it and still refuses. Whereupon he says that he is injured and has damage
to the value of [[sterling]]10. And thereof he produces suit etc.

And Master John by Robert of Lychefeld his attorney comes and defends tort and force
when etc., and well he denies that the book ever came into his custody, and that he detains
from him the book as Robert asserts; and this he is ready to defend against him and his suit
as the court shall award. Therefore it is awarded that he wage his law thereof to him 12
handed etc. And let him come here with his law on the quindene of Hilary. Pledges of the
law: Robert of Lychefeld and Roger of Podymor of the same county. And the attorney of
Master John is told that he cause his lord to come here in his own person at the aforesaid
term etc.

Afterwards at that day came Robert by Henry his attorney and offered himself on the fourth
day against Master John on the aforesaid plea, and Master John did not come. And he had a
day here at this day after he appeared in court, and he waged his law to him thereof etc., as
appears above etc. Therefore it is awarded that Robert recover against him the aforesaid
book of the price aforesaid and his damages against him as undefended etc., and that
Master John be in mercy etc.

Damages: 10 pounds, whereof 40s to the clerks.

1. What is the remedy in detinue? As with all relational obligations, the objective was to
make the defendant stand to his obligation, to do what he had committed to do. In this case,
that obligation was the return of the physical thing. Detinue thus aimed to recover the
physical thing, not to recover the value of the thing as damages. What if the defendant were
to return the book? It was and remained firm law in detinue that return of the book, even if
damaged, terminated the suit. That rule appears even in the general issue of detinue: "I do
not detain."

2. The method of proof here was compurgation: group oath-taking. This particular case is
typical of fourteenth-century cases. Defendants never (that I have seen) lost if they showed
up to compurgate with their compurgators, but they often defaulted and thus lost. It seems
thus that compurgation was an acceptable method of proof. If the defendant could get
eleven people to back him up and go with him to Westminster to take the oath, then he
would win. But in a substantial number of cases the plaintiff could not so persuade his
friends. This does not, of course, mean that the right person often won. A poor defendant
might not be able to get people to go; but it seems likely that some defendants could not get
compurgators because people did not believe him. All this is different from a jury, because
a jury does not have to be chosen and persuaded to come by the defendant: it is compelled
by court order through the sheriff, and the sheriff chooses the jurors.

XIII.D. Montfort v. Basset (1310)

Selden Society, 26:14-15; common law

Hawise the widow of John de Montfort, John, and William, the executors of the will of
William de Montfort, were summoned to answer Robert Montfort, clerk, the brother and
heir of William, for this that they detain from him 5 charters, and he named the manors
contained in the charters, and one letter of covenant.

[D]. See, here is the lady. She has come on behalf of herself and the other executors and is
ready to render the charters.

Stanton [J]. Count.[2]

Denham [P]. This shows you etc.

Cambridge [D]. Hawise defends tort and force, and see here the charters.

Stanton [J]., to Denham. Are these the charters which you demand?

Denham [P]. Yes, sir.

Stanton [J]. Receive them from her on their behalf.

And so they did.

Detinue of charters is a special subset of detinue, particularly important because of the


importance of specialty in debt or for evidence of property in land. The conceptualization
of detinue of charters is the same as in detinue; both aim for the return of the physical thing.

XIII.E. Anon. (1343)

Rolls Series, 17-18 Edward III, p. 2; common law

If the primary remedy of detinue of charters is return of the charters, what happens when
the defendants cannot or would not return the deeds, either because they were destroyed or
because the defendants would suffer severe loss if the plaintiffs got control of the deeds?
Judgments on verdicts in detinue of charters are very rare; the following case represents the
resolution of the justices on the question prior to the Black Death. The Black Death here, as
with many other matters, was a point of crucial change. With detinue of charters, the reason
for the influence of the Black Death was that, with the death of a third of the population and
the consequent volume of inheritances, charters were absolutely crucial but often by
successive deaths in inappropriate hands.

In detinue of a writing it was pleaded to the country[3] on a traverse of the detinue,[4] and
now it is found by verdict that the charter has been burnt by the defendant.

Shardelow [J]. The plaintiff is possibly in such a case that he suffers disherison
[=disinheritance] unless he has the charter, because in some actions a party is not entitled to
an answer without showing a specialty; or even where he was possibly tenant, and had
warranty, and his specialty was lost, his land would be lost without any recovery of the
value, and therefore it seems that regard must be had to this, and enquiry made as to the
value of the land included in the charter etc.

But afterwards Shardelow said that the issue is only on the detinue, which detinue is found,
and therefore the court adjudges that the plaintiff do recover the charter, and damages
assessed at one half mark, and that the defendant be distrained to give up the charter.

What sense does Shardelow's judgment make, given that the jury had already determined
that the charter had been destroyed? Obviously, none. Continued distraint would put
pressure on the defendants, but relatively little if they were not possessed of lands
themselves. The government yet did not yet accord an overwhelming priority to compelling
the return of the deeds to the appropriate hands.

XIII.F. White v. Vicar of Holbeach (1344-45)

Rolls Series, 18-19 Edward III, pp. 460-65.

court of common pleas

The straightforward use of detinue of charters is getting the return of deeds or writings back
from an inappropriate holder. Detinue of charters, however, could easily be manipulated to
serve others purposes. Suppose that two parties wanted to go to arbitration and make sure
that the other would abide by the award. They could each make out a bond for a set sum to
the other, each rendering their bond into the hands of a neutral party on the directions to
return the deeds to their owners if both sides kept to the award, but, in case of default, to
give both deeds to the non-defaulting party. The court engineered procedures to give effect
to this manipulation of the action.

William White brought a writ of detinue of writing against the vicar of Holbeach, who
alleged that he received the writings on condition to render them to the plaintiff or to
another person, and he did not know whether the conditions had been kept or not, and
prayed a scire facias [that is, a writ to the sheriff to notify the relevant party that he might
be affected by what was happening and should come into court to object if he so wanted]
against the other person etc. And the other person was warned and appeared in person, and
he said that William did not appear against him either in person or by attorney, and prayed
that the writings might be delivered to him.

Moubray [P]. On this original writ the plaintiff appears by attorney against the vicar, and
that ought to be sufficient for this plea.

Willoughby [J]. No, the vicar is delivered by his answer.

Moubray [P]. The plaintiff appears by attorney against the person who is warned.

Skipwyth [D]. He could not be appearing by attorney before we had interpleaded, but
would be appearing in person; and we cannot appoint an attorney against him; why then
should he be able to appoint an attorney against us?

Thorpe [P]. Certainly he cannot. When anyone pleads in the manner in which the defendant
did in this plea, the court will tell the plaintiff's attorney that he must have his principal on
another day in person. But the record does in fact purport that "the same day" was given to
the plaintiff's attorney when the scire facias issued, and, as Moubray said, that William has
appointed his attorney against the person who is warned. And we tell you that we have kept
the covenants on our part, and that they have been broken on his part, for the covenants
were that, in order to set at rest a dispute between them, they should submit themselves to
four arbitrators, and in case the arbitrators could not agree, they were to stand by the award
of an umpire; and as security for these covenants four knights bound themselves by two
obligations to us and to him severally in [[sterling]]100 (and these are the obligations which
are now demanded) on condition that if one of us should fail to keep the condition the
obligations should be delivered to the one in whom no fault should be found. (And Thorpe
made profert of an indenture in witness of the fact.) And we stood by the decision of the
umpire elected by consent of the parties, and you would not abide by his award; therefore
we pray that the obligations be delivered to us.

Skipwith [D]. Now it is necessary that the knights who are bound, and to whose charge and
damage the writings are to be delivered, should be warned, for they are properly parties to
this covenant.

Stonore [J]. They are not so, but the parties between whom the dispute was are parties to
this covenant, and the knights have bound themselves foolishly.

Thorpe [P]. The knights have nothing to discharge them but the good faith of the person
who has the obligations in his keeping; therefore it is quite right that they should be made
parties before the obligations are delivered up.

Willoughby [J]. That does not seem to us to be so; therefore answer.


Skipwith [D] took exception to the writ of scire facias on the ground that it was not
warranted by nor in accordance with the record. And afterwards he took the issue that the
person who was named as umpire did not arbitrate, ready etc.

And the other side said the contrary.

Is this situation concerned with a detention, or the enforcement of an agreement? How can
it properly be litigated in detinue of charters? Why is it not litigated in debt? The ultimate
enforcement, of course, would come after the nondefaulting party got hold of the other's
obligation. Thereon he could bring a suit of debt against him, to which the other could have
no effective answer.

In this way the court allowed a narrow range of matters to be enforced by manipulation of
the law, primarily arbitrations and leaseholds. Arbitrations, in traditional opinion, have been
seen as illustrating dissatisfaction with the law: resort to non-legal mechanisms for
resolving disputes because the law was too slow or too corrupt. On the contrary, arbitration
probably thrived precisely because it was supported by this kind of legal mechanism that
made the parties live up to the award. Instead of showing dissatisfaction with the law,
arbitration is an example of the law supporting diverse mechanisms for dispute resolution.

The other major use of thus putting obligatory bonds into escrow was leasehold
arrangements. The real property writs did not protect leaseholds. As will appear later, the
law did not provide very good protection for leases in a straightforward way until later.
Nevertheless, this mechanism from early in the fourteenth century allowed leaseholders or
landlords a fair amount of security. The agreement protected could either be the
leaseholder's quiet enjoyment of the tenements or the landlord's right to receive the
tenement back in as good condition as it had been.

What is the importance of the history of detinue of charters? You should be able to see in
detinue of charters (a) the way in which courts and litigants allowed common law remedies
to be manipulated (different from fictions, because the deeds actually were deposited in the
neutral third hand); (b) the way in which the state, by judicial action, provided increasing
benefits to society by furthering more efficient methods of dispute resolution (most cases of
arbitration in which such arrangements were used would not have come into litigation).