Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 3. Strict Liability and Negligence
the case, or simply “case” as it was sometimes known, dropped the recitation of force and arms
and supplied a cause of action for the kinds of harms that seemed too indirect to be characterized
as trespasses by force and arms.
All this may seem quite mysterious, but it is relatively simple once one drops the
unfamiliar language. The forms of action were simply the causes for which the king’s justice
might be invoked. The king’s writs were simply his orders to lower officials to commence the
process by which the cause in question might be redressed. A typical writ issued by the
Chancellor upon a complaint of trespass would have looked something like this one:
The King to the sheriff of S., greeting. If A. shall give you security for pursuing his
claim, then put by gage and safe pledges B. that he be before us on the octave of
Michaelmas, wheresoever we shall then be in England [i.e., in the King’s Bench],
to show why [ostensurus quare] with force and arms [vi et armis] he made assault
on the selfsame A. at N., and beat, wounded and ill treated him so that his life was
despaired of, and offered other outrages against him, to the grave damage of the
selfsame A. and against our peace. And have there the names of the pledges, and
this writ. Witness etc.
J.H. BAKER, AN INTRODUCTION TO ENGLISH LEGAL HISTORY 545 (4th ed. 2002). To translate:
“Dear Sheriff, Hello! If A is willing to put up a bond, then please order B to put up a bond of his
own and to find men who will vouch for him and agree to offer their own assets to guarantee that
he will appear at the fall term of the court to answer A’s allegations. Yours as ever, King.” Thus
would a medieval or early modern tort case begin.
With the establishment of the writs of trespass and case, the basic building blocks of early
modern tort law were in place. But key questions remain unresolved in our account thus far. The
most important for our purposes is to determine the kinds of unintentional harm for which the
writs of trespass and case would offer remedies. As far as we can tell, this question first arose in
round-about fashion as part of a fifteenth-century case. The late medieval report of the case
appears below. As you will quickly see, the dispute was not really about unintentional torts at all.
Yet as the parties argued the case in the royal court, they arranged for part of the case to turn on
the answer to the question of whether the defendant had committed an unintentional wrong. The
lawyers for the parties and the judges then weighed in with a startling variety of possible answers
to our central question: when is an actor liable for unintentional harms?
Hulle v. Orynge (The Case of the Thorns), Y.B. Mich. 6 Edw. IV, fo. 7, pl. 18 (1466)
[Plaintiff Hulle brought a writ of trespass against defendant Orynge for breaking into his
close with force and arms (“quare vi & armis clausum fregit”) and consuming and trampling his
grass and crops on six acres of land in Devon. Defendant Orynge pleaded that he owned one acre
adjoining the plaintiff’s land, that while cutting thorns there from a thorn hedge on his property,
the thorns fell onto the plaintiff’s land by their own will (“ipso invito”), that he had gone
immediately onto the plaintiff’s land to recover the thorns, and that this was the trespass of which
the plaintiff complained. The plaintiff demurred. The report, translated from Law French, is
taken from a medieval Year-Book during the reign of King Edward IV.]
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