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Chapter 12 - THE EXTENSION OF EXISTING REMEDIES

Published online by Cambridge University Press:  16 June 2009

Paul Brand
Affiliation:
All Souls College, Oxford
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Summary

Most of the remedies whose creation was authorised by the Provisions of Westminster or by the Statute of Marlborough bear clear witness to that statutory authorisation in their wording. But not all. One obvious exception is the new writs of entry in the post whose creation was authorised in one of the new clauses added to the Provisions of Westminster when they were reissued in 1263 and which was itself reissued in 1267 without amendment as chapter 29 of the Statute of Marlborough. The other obvious exceptions are the various actions for ecclesiastical plaintiffs whose creation was authorised by one of the other new clauses also added to the Provisions in 1263 and which then became chapter 28 of the Statute of Marlborough. These allowed them to bring actions of trespass for goods and chattels taken from the possession of their predecessors and to bring actions to recover possession of lands and other property which their predecessors had held at the time of their death. In both cases, the general remedy was not new. What was new was a significant extension of the reach of that existing remedy. There is also a third possible example: the extension of the writ of waste to cover waste committed by lessees. This may have been implicitly authorised by clause 20 of the Provisions of Westminster of 1259, which was enacted with only minor additions as part of chapter 23 of the Statute of Marlborough in 1267.

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Kings, Barons and Justices
The Making and Enforcement of Legislation in Thirteenth-Century England
, pp. 336 - 347
Publisher: Cambridge University Press
Print publication year: 2003

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