Trespass on the case
Encyclopedia
The Writ
s of Trespass and Trespass on the Case are the two catchall tort
s from English Common Law, the former involving trespass
against person, the latter involving trespass against anything else which may be actionable. The writ is also known in modern times as Action on the Case and can be sought for any action that may be considered as a tort
but is yet to be an established category.
In 1278, however, the Statute of Gloucester
was passed. This limited actions in the royal courts to property damage worth above 40 shillings, maims, beatings or wounds. Soon after this Statute was passed, writs of Trespass appeared in a stereotyped form alleging "force and arms", or "vi et armis
." Trespass writs alleging force and arms became known simply as Trespass.
Some of the cases brought in vi et armis form probably did not involve force and arms at all, and could be regarded as fictions.
An example is Rattlesdene v Grunestone [1317], which was a case about the adulteration of wine with salt water. The form of the writ stated however that the defendants "with force and arms, namely with swords and bows and arrows, drew off a great part of the wine from the aforesaid tun and instead of the wine so drawn off they filled the tun with salt water so that all the aforesaid wine was destroyed."
was less strict than procedure by writ in the Court of Common Pleas
. Several cases were brought by a procedure of Bill into the King's Bench which did not allege force and arms between the 1340s and 1360s. In the Humber Ferry Case (1348), a horse was lost while being ferried across the Humber, and no force and arms was alleged.
The turning point in the creation of "honest" writs of Case was Waldon v Mareschal (1369). It was alleged that the defendant had negligently treated the plaintiff's horse. The Common Pleas accepted that in such a situation, an allegation of force and arms in a writ would not be appropriate. By the 1390s, actions on the Case were common.
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
s of Trespass and Trespass on the Case are the two catchall tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
s from English Common Law, the former involving trespass
Trespass
Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels and trespass to land.Trespass to the person, historically involved six separate trespasses: threats, assault, battery, wounding, mayhem, and maiming...
against person, the latter involving trespass against anything else which may be actionable. The writ is also known in modern times as Action on the Case and can be sought for any action that may be considered as a tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
but is yet to be an established category.
The Emergence of the Writ of Trespass
Trespass and Trespass on the Case, or "Case", began as personal remedies in the royal courts in London in the 13th century. These early forms of trespass reflected a wide range of wrongs.In 1278, however, the Statute of Gloucester
Statute of Gloucester
Statute of Gloucester is one of the most important pieces of legislation enacted in the Parliament of England during the reign of Edward I. The Statute, proclaimed at Gloucester in August 1278, was crucial to the development of English law....
was passed. This limited actions in the royal courts to property damage worth above 40 shillings, maims, beatings or wounds. Soon after this Statute was passed, writs of Trespass appeared in a stereotyped form alleging "force and arms", or "vi et armis
Vi et armis
Trespass vi et armis was a kind of lawsuit at common law called a tort. The cause of action alleged a trespass upon person or property vi et armis, Latin for "by force and arms." The plaintiff would allege in a pleading that the act committing the offense was "immediately injurious to another's...
." Trespass writs alleging force and arms became known simply as Trespass.
Some of the cases brought in vi et armis form probably did not involve force and arms at all, and could be regarded as fictions.
An example is Rattlesdene v Grunestone [1317], which was a case about the adulteration of wine with salt water. The form of the writ stated however that the defendants "with force and arms, namely with swords and bows and arrows, drew off a great part of the wine from the aforesaid tun and instead of the wine so drawn off they filled the tun with salt water so that all the aforesaid wine was destroyed."
The Emergence of the Writ of Trespass on the Case
By the 1350s, writs of trespass could only be litigated in the royal courts if they alleged "force and arms." This was, however, largely a problem of procedure; some sections of the royal courts were more liberal than others in this respect. In particular, procedure under the King's BenchKing's Bench
The Queen's Bench is the superior court in a number of jurisdictions within some of the Commonwealth realms...
was less strict than procedure by writ in the Court of Common Pleas
Court of Common Pleas (England)
The Court of Common Pleas, or Common Bench, was a common law court in the English legal system that covered "common pleas"; actions between subject and subject, which did not concern the king. Created in the late 12th to early 13th century after splitting from the Exchequer of Pleas, the Common...
. Several cases were brought by a procedure of Bill into the King's Bench which did not allege force and arms between the 1340s and 1360s. In the Humber Ferry Case (1348), a horse was lost while being ferried across the Humber, and no force and arms was alleged.
The turning point in the creation of "honest" writs of Case was Waldon v Mareschal (1369). It was alleged that the defendant had negligently treated the plaintiff's horse. The Common Pleas accepted that in such a situation, an allegation of force and arms in a writ would not be appropriate. By the 1390s, actions on the Case were common.
See also
- Pierson v. PostPierson v. PostPierson v. Post, 3 Cai. R. 175, 2 Am. Dec. 264 , is a Supreme Court of New York case about a disagreement over a dead fox that serves as an important cornerstone in American legal education.- Background :...
, a Supreme Court of New York case from 1805 dealing with Trespass to case. - Keeble v Hickeringill
- English tort lawEnglish tort lawEnglish tort law concerns civil wrongs, as distinguished from criminal wrongs, in the law of England and Wales. Some wrongs are the concern of the state, and so the police can enforce the law on the wrongdoers in court – in a criminal case...