History of medieval Ipswich


Calendar of usages and customs of Ipswich, capitula 1-21

cap. 1
"Great pleas" shall be brought before the bailiffs in the portmensmoot every fortnight, on Thursdays; these include actions begun by writs of right, other actions begun by king's writ, and actions concerning free tenements (which do not require a writ to initiate them), excluding actions of fresh abatement and nuisance which are introduced by gage and pledge and require short adjournments and speedy remedy. Pleas of the crown should also be heard at these sessions, before bailiffs and coroners, except for cases of cutpurses and thieves caught redhanded or arrested upon complaint of a visiting outsider (as in the time of fair or market). Actions begun by gage and pledge, called "little pleas", that involve residents should be heard on two days each week, unless certain causes prevent the bailiffs from doing this, in which case the actions may be adjourned. Cases involving outsiders, called "piepowder", should be heard on a daily basis, unless plaintiff or defendant request an adjournment. Those at fair time should be brought before the bailiffs at any hour or morning or afternoon, and the same applies to cases of law marine (viz. involving outsider mariners and others needing to depart at the next tide) which are to be heard from tide to tide. In these actions, three essoins by reason of illness are allowed to parties. Similarly, in all other pleas, with or without writ, 3 essoins are allowed to either party, except in cases of fresh abatement or pleas of nuisance by gage and pledge.
cap. 2
essoins for tenants
In actions where a group of tenants are impleaded together and one of them makes an essoin, this must be taken as an essoin for all; the group shall not be allowed more essoins (i.e. cumulative for the number of persons in the group) than an individual tenant pleading alone.
cap. 3
essoins for executors
In actions where multiple executors are impleaded for the debts of a deceased, each of them is allowed only one essoin before appearance and one after.
cap. 4
essoins of the
king's service
In actions pending before the bailiffs, whether begun by writ or without writ, three essoins by reason of [the essoiner being busy in] service to the king are allowed. Neither plaintiff nor defendant may make such essoins, however, in actions tried by piepowder, in time of the fair, or by maritime law. Nor may such an essoin be allowed to a woman. If the essoin is made at a great pleas session in portmensmoot, the case shall be adjourned to the next session of portmensmoot. If made at a petty pleas session, the adjournment is to be the the next petty pleas session after a fortnight has elapsed. But if the individual on whose behalf the essoin is made fails, on the day to which the case is adjourned, to present proof of the reason for the essoin, it shall instead be considered a default [in appearance] and he shall be amerced 2s. It is advisable for plaintiffs to begin their pleading according to the type of action – whether the common law, the law merchant, or the law marine – since this will determine what essoins will be allowed.
cap. 5
writ of right
The process followed in writ of right is that when a man brings into court a writ of right against another concerning a borough tenement, the tenant is to be summoned at his tenement by two freemen to appear at the next portmensmoot to answer the complaint. If the defendant fails to appear, he is to be summoned again in the same way. And if he fails to appear on the second occasion, he is to be summoned a third time. If he fails to appear after three summonses, he is to be distrained [by goods] at the tenement in question, [to pressure him] to answer; and this shall likewise be repeated twice more. After this the tenant shall have [still the right to] 3 essoins, if he requests them. After which distraints and essoins, if the tenant continues to default in appearance, the tenement is to be taken into the king's hand, under view of lawful men living nearest, and the tenant again shall be summoned to answer at the next court session and to explain why he did not answer earlier summonses; and he shall be warned that if he fails to appear after a fortnight, he shall forfeit the tenement. When he comes to court ready to defend his right, and if the plaintiff press the issue of the default, then the tenant must deal with the summonses and distraints by waging his law; after which he may have 3 essoins if he need them. And if, by waging his law with 12 hands according to the custom of the town, he can deny [receiving] the summonses or the distraints, or deny that the first set of essoins were made by him or with his assent, then the plaintiff shall obtain nothing through his writ and will be amerced, and the case against the tenant dismissed. But if the defendant defaults after, or fails in, waging his law, the plaintiff shall recover possession of the tenement and the tenant be amerced. If any other comes before judgement is passed and shows that he has some title in the tenement, and that the defendant's default ought not to damage his rights, then he shall be allowed to defend those rights; this holds true for women covered under husbands as much as for anyone else. If the plaintiff waives the default of the defendant and wishes to continue the case, then the action between them is to proceed according to common law, with the tenant taking an oath before God and being supported by the oaths of 12 law-abiding and honest men, in the form of the grand assize, to determine whether he in possession of the tenement or he who is seeking possession of it has the right to it. Town custom does not allow [trial by] battle in such matters.

The jury should be chosen in the following way. The bailiffs shall choose 4 good townsmen acceptable to both parties (if the parties cannot agree, the bailiffs have power to make the choice unilaterally); these 4 are to select 12 jurors of the most knowledgable townsmen able to say the truth as to which party has most right to the tenement. The 4 choosers have until the next great court session to provide a list of jurors, whom the bailiffs will summon (by good summoners) to the great court session following that. If the choosers do not appear to name the jurors, they shall be summoned to the next great court session; if they again fail to appear on that day, they shall be amerced and ordered to find mainprise for their appearance at the following session. If they still fail to appear, the mainpernors shall be amerced, and each chooser must find six mainpernors for his appearance at the session following, and so on with mainpernors being amerced until the choosers come. When they appear, the choosers shall be sworn to select jurors, and they shall submit to the court a list of at least 24 names, in case any are challenged by one of the parties to the action. The first four names acceptable to the parties shall serve on the jury.

If the tenant, after the first 3 essoins, comes to court and requests a viewing of the tenement, to obtain a vouch of warranty from someone whose tenements are foreign [i.e. outside the jurisdiction of the bailiffs – this being a foundation for transferring the case to the king's court], then the case will turn upon this.

[The rest of this chapter, which is very long and convoluted, deals with procedure in this circumstance of the third party (of whom the tenant holds, or from whom the tenant had acquired, the property in dispute) to warrant the tenant's ownership. See the corresponding Norwich custom.]

cap. 6
fresh abatement
[Again this is a long chapter and I greatly shorten its tenor].

If any man dispossess another of a tenement which is subject to the jurisdiction of the town court, and if the dispossessed bring complaint of this before the court within 40 days, the bailiffs shall take the tenement into the king's hand (delivering it to the safekeeping of two of the neighbours) while the case is tried. The dispossessor shall be required to wage his law, in response to the plaintiff, on an assigned day. An assize shall be held involving 12 neighbours on that day, whether the dispossessor appears in court or not. If the dispossessor continues to hold on to the property, the bailiffs shall take it into the king's hand; if he cannot be removed without risk of violence, tbe bailiffs in view of one or more of the coroners and of other good townsmen shall nonetheless take it into the king's hand, regardless of whether the dispossessor is able to hold onto the property for more than 40 days. Anyone complaining of being dispossessed shall be advised by the bailiffs to initiate a plea before the court within 40 days of being dispossessed, or lose the right to bring a plea of fresh abatement. If the person dispossessed is, at time of dispossession, in prison, or of unsound mind, or overseas, then he must make a plea of fresh abatement within 40 days of being released, recovering his sanity, or returning to England. No essoins are allowed in this type of action, in order that speedy justice be done.

cap. 7
fresh nuisance
Cases of nuisance relating to borough tenements are to be conducted by gage and pledge [i.e. without requiring a writ], if the action is initiated within 40 days of the nuisance being done; but if he has not complained of the nuisance within 40 days, he requires the king's writ to bring the case before the court [with the same three exceptions as in cap.6]. The defendant is to be attached by a pledge to answer; if he refuses or goes off so that he cannot be found, a summons is to be made at the place where the nuisance was done that he is to answer the plea on a specified day. The case is to be tried by an inquest jury of 12 good and honest men of the neighbourhood, who shall view the tenement and the nuisance in question. If the jury finds that a nuisance has been committed, the court shall require the nuisance to cease and be redressed so that the neighbours can see it is so, and the plaintiff shall be awarded damages. If the defendant, after finding pledge or after being summonsed, defaults in appearance in court, the inquest shall proceed regardless and judgement rendered. If the parties will agree to resolve their dispute, before their neighbours and the bailiffs, without bringing it to court, so well and good. No essoins are permitted in such actions initiated by gage and pledge, but 3 essoins if initiated by writ.

Notes: a "nuisance" in this context generally referred to an action of the defendant which had resulted in damage to, or trespass into, the property of the plaintiff.

cap. 8
Tenants holding tenements in the town for a term of years, or for life, or women holding by dower right, shall not let the property fall to waste or into disrepair, but shall maintain it in as good a condition as they received it, for the benefit of whomever the tenement shall revert to after the death of the tenant. If this is not done, then the person who has the reversion may bring an action before the bailiffs, either by gage and pledge or by writ. The which action shall proceed thus: when the plaintiff initiates the plea, the accused is to be summoned (at the place wasted) by 2 law-abiding men to appear in court on a specified day to answer the charge; if the defendant fail to appear after three such summonses, then the bailiffs and one or two coroners together with a jury of 12 men shall go to the place wasted and assess the damage. Following this inquest, the accused shall be warned to appear on a specified day before the bailiffs to offer surety for compensating the plaintiff and remedying the waste done to the tenement, and no essoin shall be allowed from the defendant on that day. If he still fails to appear, the plaintiff shall be awarded seisin of the wasted property and damages, and the defendant shall be amerced for his trespass and defaults. If the tenant comes into court after the first three summonses and acknowledges the waste, or comes after the inquest and offers surety for redress, then that is acceptable. But if he cannot or will not offer surety, he shall lose the property and damages be awarded against him. The waste of the property is to be assessed before any surety is given, and the surety will answer for it if the wasted property is not restored to its proper state. If the property is not restored, the defendant is to be warned to appear before the bailiffs to show reason why they should not award damages and seisin of the property to the plaintiff. If the tenant comes to court and deny the waste, an inquest shall be held; if it finds that waste has occurred, the plaintiff shall be awarded damages and seisin. If the defendant restore the property, but then let it go to waste a second time, he shall lose the property. Plaintiff and defendant are allowed 3 essoins in actions of waste, prior to an inquest being held, but no essoins thereafter.
cap. 9
recognizance of
free tenement
If a man sells property in the town which he holds in right of his wife, and does this with the consent of his wife, after seisin has been delivered to the purchaser the woman may come into court with her husband and acknowledge her agreement to the transaction. The woman must be examined alone by the bailiffs to determine whether she makes the acknowledgement of her free will. And if it is found that she consented to the sale without coercion or threats from her husband, then her recognizance is to be legally binding forever. The recognizance of husband and wife, together with the charter of sale may be registered in the common roll of the town and be solemnized in full court before the coroners and good people of the town. And the bailiffs shall deposit the [recognizance] roll of their year in office in the common hutch for safekeeping as if a treasure. Following the recognizance, neither the woman (after the death of her husband) nor her heirs may claim any right in alienated tenements. Such recognizances may apply not only to tenements that are the inheritance of a woman or are purchased by a woman, but also tenements purchased jointly by a husband and wife. However, no such recognizance can be taken in the cases of tenements that are given to a husband and wife under condition of entailment to their heirs, or of reversion or remainder to any third party, since this would prejudice the rights of those to whom the tenements should pass after the deaths of the man and his wife. If a recognizance is taken without realization by the court of the entailment or reversion of the tenement, then it shall not stand as an obstacle to legal claims on the property. The heir or party entitled to the reversion may seek from the court the voidance of the recognizance, if an inquest determines that the recognizance had no right to give seisin; therefore any purchaser of property who seeks to strengthen his possession through such a recognizance would be well advised to ensure the recognizance be legally valid.

Notes: the use of the portmanmoot to give official cognizance to land transactions by women is evidenced prior to 1200 (P.R.O. Ancient Deed A3904).

cap. 10
a house that
abuts on another
If a house fall against its neighbour or by leaning against it do damage, the owner of the damaged house may recover his losses from the owner of the responsible house, through a plea of trespass; the losses shall be assessed by an inquest.
cap. 11
recognizances in
cases of reversion
In cases where a tenement is held for term of the tenant's life, or for a set number of years, he to whom the tenement shall revert after that period shall present to the court the deed stating his right of reversion, and it shall be enrolled with other recognizances of free tenements. The tenant shall be summoned by the court, and shall find mainpernors for his coming, to identify his claim in the tenement, and no essoin shall be allowed for this. If he fails to appear on the appointed day, his mainpernours shall be amerced, and he distrained by his goods and chattels, wherever they may be found within the borough, until he come. And when he comes and acknowledges that his claim in the tenement is only for life or a period of years, then the court shall award judgment that the tenant holds of he who has the reversion. If the tenant refuses to find mainpernours, he shall be distrained by his goods and warned by 2 burgesses to appear before the bailiffs on a specified day, or risk forfeiting the goods that were seized. And the same process of distraint, warning, and forfeiture is to be repeated until he comes. However, no such legal process against a tenant may be initiated if he is in prison, of unsound mind, or overseas. By assent of the community, it is ordained that any forfeitures such as mentioned above be put to the common profit of the town (and delivered to persons who shall answer for them to the community) and not for the individual profit of the bailiffs.
cap. 12
of rent
If there is a rent due from a tenement which is granted by a recognizance, then the tenant who ought to pay the rent shall be summoned to the great court following the making of the recognizance, to inform the bailiffs on what terms he holds the tenement. If he acknowledges he holds the tenement by a rent due to the maker of the recognizance, then he shall agree to pay the rent henceforth to the one to whom the recognizance was made. If he denies, then an inquest shall determine the matter; and if the tenant refuses to accept a finding that the tenant held the tenement of the maker of the recognizance, then he to whom the recognizance was made may initiate an action of distress to obtain the rent.
cap. 13
fresh abatement of
an enclosed tenement
If anyone in the town encloses his tenement, so that the landlord or any other to whom rents are due therefrom cannot make distraint for rents in arrears, the landlord may recover his rights through a plea of abatement, if this is initiated within 40 days of withholding of rent. If refusal to pay rent occurs a second time, the award of damages shall be doubled, and so on with each new complaint from the landlord.
cap. 14
lying fresh
If any tenant allows his tenement to "lie so fresh" that the landlord cannot make a reasonable distraint on the tenement for rent in arrears, and the rent is in arrears for four terms, and if the landlord proves in the town court that he ought to receive the rent and damages for its withholding, but the tenant refuses to comply, then the tenement is to be handed over to the landlord for a year and a day. If the tenant, within this period, comes to terms with the landlord he may have his tenement again; but if he does not come to terms, then the tenement shall remain in the hands of the landlord and his heirs indefinitely.

Notes: I am uncertain of the meaning of "lie fresh", but it may have something to do with a property being in a tumbledown condition such that there is nothing of value there for the landlord to seize.

cap. 15
fresh abatement
against a tenant
who counterpleads
If a landlord distrains on property whose rent is in arrears, but the tenant liberates the distraint through initiating a counterplea or by rescuing the distrained goods, the landlord may recover by bringing a plea of abatement before the bailiffs, if within 40 days after the distraint was liberated.
cap. 16
Those who own tenements and rents in the town through purchase may freely bequeath them on their death-beds. The last will of the testator, whether written or oral, is to be probated before the bailiffs within 40 days of the death of the testator through the witnessing of at least two men; if this proof is satisfactory, it shall be registered in the town rolls and administration of the will shall be granted to the executors, and seisin of the bequeathed properties delivered to the beneficiaries in front of the bailiffs. If the probate is not satisfactory, with variant evidence giving suspicion of fraud, the testament shall be considered invalid and the tenements shall go to the rightful heir. If the executors, through malice or collusion, refuse to prove the testament within 40 days and do not deliver seisin of the property to the party to whom bequeathed, then the latter may within the first 40 days come to court, lay claim to the property, and request the executors to be summonsed. The executors shall be summonsed (at their dwellings or, if they are not residents of the town, at the bequeathed tenements in their keeping) to submit the testament to probate or show why the claimant should not have the property. If the executors come and the testament is proved, the claimant shall have seisin of the property. If the executors do not appear, but the claimant can prove by inquest that the testator bequeathed him the tenement, it shall be delivered to him. If the executors themselves die before proving the testament, then their own executors shall be responsible for probate, or subject to the claimant's action just as the original executors.
cap. 17
tenements bequeathed
to children
If a tenement is bequeathed to any child not of the age of majority and the executors, through malice or collusion, refuse to prove the testament or to deliver seisin of the tenement to the child, then the closest friend of the child may assist the child to bring suit before the bailiffs to oblige the executors to come and prove the testament. If the child is kept out of the way by the executors or the testator's heir, in order to obstruct him from receiving what has been bequeathed him, then his closest friend may alone bring the suit.
cap. 18
tenements not
If a tenement that ought not be bequeathed is bequeathed to someone other than the person who has rightful inheritance, reversion or remainder of the property, the rightful claimant may recover possession through plea of fresh abatement if it is within 40 days of probate and delivery of seisin to the legatee. But if the claimant allows the legatee to continue his possession of the tenement for more than 40 days, the claimant may not recover through plea of abatement, notwithstanding that the tenement was not bequeathable. If the claimant is abroad, ignorant of the bequest, in prison, or of unsound mind, he may have 40 days to initiate an action against the tenant, after returning to England, leaving prison or being restored to sound mind. Similarly a child who has not come of age must introduce an action by himself or through his closest friend within 40 days, or lose the right to seek recovery through plea of abatement; however, once he comes of age he may [seek recovery through] purchase [of] a king's writ.
cap. 19
tenements bequeathed
to someone abroad
If a tenement is bequeathed to any man while he is out of the country, once the testament is proved seisin may be delivered to some of the closest friends of the legatee, to hold on his behalf (without waste or destruction of the property) until his return; this delivery of seisin may be registered in the town rolls. Upon the legatee's return, seisin should be transferred to him without any obstruction from those who have safekeeping in his name. If the keeper (or his heirs) try to prevent the legatee's entry into the property, the bailiffs can consult the town records for the proof of the testament and may deliver seisin on that basis, unless the keeper can present evidence why the seisin ought not be delivered. If the keeper wastes the tenement, the legatee may sue for damages. If the keeper die and his heir holds the tenement upon the legatee's return, the latter may recover against him just as would have been against the original keeper. If the keeper or his heir disposes of the tenement to some third party, and the returning legatee has his claim to it rejected by the tenant, he may recover through plea of abatement, if initiated within 40 days after rejection of his claim. If the executors collude to refuse to prove the testament or to deliver seisin either to the legatee's closest friend or to the returning legatee, the latter may bring action (within 40 days of return) to have probate; after that period a king's writ is require to obtain seisin. Such actions shall not be prejudiced by the failure to prove the testament in the previous period. If an inquest restores the property to the claimant, he shall have double the amount of damages assessed by the inquest.
cap. 20
If there is bequeathed a rent from a tenement, the legatee of the rent is to be put in seisin by the executors, if the tenant will acknowledge he owes the rent. If the tenant will not, the legatee may request the bailiffs to summon the tenant to court, to show under what terms he held the tenement and of what landlord on the day of the testator's death. If he states that he held it of the testator, owing to him the rent from the tenement, then the bailiffs shall award that the tenant now holds of the legatee and must pay the rent to him henceforth; no essoins are allowed the tenant in this action. If the tenant will not find mainpernors for his appearance, or finds them and still fails to appear (so that the mainpernors are amerced), then shall be implemented the same process to oblige him to come as in cap.11. If the tenant, when he comes to court, states that he did not hold the tenement of, nor owe the rent to, the testator, the legatee may disprove this by an inquest. If the tenant then still refuses to acknowledge that the rent is payable to the legatee, the latter may distrain the tenement for arrears. If, in cases of bequest of tenement or rent, a man witnessing the making of the testament refuses to come to court for its probate, then he shall be denied any bequest made him, while the legatee of tenement or rent may prove the bequest through an inquest of the nearest neighbours of the testator. But be it known that no woman who has a husband is allowed to bequeath any tenement in the town to the disinheritance of her heirs, not even though her husband consent to the bequest.
cap. 21
[Underage] female or male heirs shall be in the care of the closest friend (on the father's side or the mother's side) who is not in line of succession to the inheritance; this guardianship shall last until the heir is of full age according to the usage of the town, viz. 14 years old, and the guardian shall not allow the waste or destruction of the inheritance. When the heir is of age, the guardian (or his heirs) shall let him have the inheritance without obstruction. And account shall be made to the heir for all income from his inheritance during the period of guardianship, and of all moveable goods that may have come to the guardian along with the person of the heir, and any profits from such goods, with the exception of any reasonable allowance of costs that may be shown to have been spent on sustenance of the heir or maintenance of the heir's property. If the guardian allows waste or destruction [to the heir's property], he shall lose his claim to an allowance for costs in nurturing the heir, unless he provides surety that he will make good the damages and will maintain the inheritance, until the heir comes of age, in as good a state as he received it. In this circumstance, one of the closest friends of the heir shall be permitted to take the surety and, if the heir is too young to do so, bring an action for waste before the bailiffs on the heir's behalf. If the guardian loses the costs of nurturing the heir, for the cause mentioned, then guardianship is to be transferred to another of the closest friends of the heir. A guardian has no right to arrange the marriage of his ward, unless the child and his closest friend consent to it.


custumal contents

cap. 22-56

Created: August 29, 1998. Last update: March 28, 2010 © Stephen Alsford, 1998-2010