The ability of the defendant to wage his law would have prevented actions for debt against executors for money owed by the testator on a simple contract. While executors could be sued in debt on an obligation or on contracts where wager did not lie Cf. Anon. (1330) 98 ss 743 at 744; Anon. (1367) Y.B. Trin 41 Edw. III, fo 13, pl 3, for simple contracts the defendant had the right to wage his law. As a defendants "cannot wage their law of another's contract," there was no action of debt available against executors for simple contracts. Wivel (1443) 21 Hen. VI, pl. 6, fl. 23a-23b; Houghson v. Webb (1588)

A plaintiff could avoid wager by bringing an action for trespass on the case against an executor. The Common Pleas consistently denied such actions, usually on the grounds that it denied the defendant their right to wage law. See, e.g., Anon. (1571) BL MS Add. 25211, fo. 100. The King's Bench, on the other hand, usually allowed the action as a matter of fairness, because there would be no other way to recover against an executor. See, e.g. Cleymond v. Vyncent (1520); Norwood v. Norwood and Rede (1557).

However, in 1588, there was significant doubt as to the ability of a plaintiff to successfully bring assumpsit against executors in the King’s Bench. One factor was the establishment of the Exchequer Chamber as a mechanism for appeals from the King's Bench. 27 Eliz. I, c. 8 (1585). The Exchequer Chamber was made up of justices from the Common Pleas and court of the Exchequer, who believed strongly in a defendant's right to wage law, and was likely to overrule the King's Bench on this issue. Baker, New Light on Slade's Case, 29 CLJ 213, 223 (1971). However, no case was actually overruled by the Exchequer Chamber on this issue until 1595. Griggs v. Helhouse (1595) Cr. Eliz. 454.

The reason for the delay was perhaps that the King's Bench apparently stopped allowing assumpsit for simple debts until 1592. According to Baker, Sir Chrostopher Wray, Chief Justice of the King's bench, was persuaded that it was unjust to oust defendant’s of their right to wage law, and vowed "never to maintain this action again."; Baker, 29 CLJ at 223. After Wrey's death in 1592 the actions resumed in the King's Bench, writs of error were pending by the following year, and the first in a series of reversals on the issue came in 1595. Id.

• Caltons_Case_Exeter_CoIl._Oxf._MS._132,_fo._192v,_pI._11.pdf: Calton's Case, Exeter Coll. Oxf. MS. 132, fo. 192v, pl. 11 (1588)

I'll take this one. -Roger

-- RogerGoldfinger - 06 Nov 2008

Quo Minus

Why would an Elizabethan attorney prefer quo minus to debt?

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