Forms of Anglo-Saxon Contracts and Their Sanctions
Michigan law review
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... out Early Journal Content at http://about.jstor.org/participate--jstor/individuals/early-journal--content. JSTOR is a digital library of academic journals, books, and primary source objects. JSTOR helps people discover, use, and build upon a wide range of content through a powerful research and teaching platform, and preserves this content for future generations. JSTOR is part of ITHAKA, a not--for--profit organization that also includes Ithaka S+R and Portico. For more information about JSTOR, please contact firstname.lastname@example.org. cial issue on the point. How do such procedural facts then affect the question as to the nature of right? In case of failure of title it would seem that judicial recognition was at first indirect. The law started with the composition procedure above described.55 By it the first legal needs of society were met, namely redress for assault, battery, and homicide. It was not long, however, before trouble caused by stealing, particularly cattle-stealing, gave serious concern, and we get the theft-procedure. The composition procedure, as we have seen, was set in motion by demanding justice, backed up by threats of vengeance. Thereby the defendant was induced to enter into the procedural contract, with sureties. The theft-procedure was begun by demanding property as one's own. The defendant would then have to give it up, or give sureties to insure his proving that it was his own. A sues B for the recovery of a stolen cow. One plea that B may set up in defense is that he bought the cow from a designated party, C. If B can produce C, and C admits the sale, B may give the cow into C's hands and the suit will then proceed against the latter, thus freeing B from the charge.56 Suppose then C succeeds in defending the charge of theft, but is unable to prove ownership or to produce his own warrantor. In that case C will have to give up the cow to A. The procedure in this matter we find early, in the laws of HLOTHAE^R and EADRIC 7, "If any man steal property from another, and the owner afterwards lay claim to it; let him vouch to warranty at the king's hall, if he can, and let him bring thither the person who sold it to him; if he cannot do that, let him give it up and let the owner take possession of it." In our case B has paid C for the cow, what then are B's rights? Obviously C should give him another cow. It is clear B had such a right.56" But what of an action to enforce it? The purpose of a suit was to determine a right, not to enforce it, and judgments had in any case to be collected by the plaintiffs, and not by officers of the law. What clearer determination, then, of B's rights could be desired than in the action of theft between A and C? If C cannot defend his title and gives up the cow to A, he must, of course, compensate B. But what will compel C to compensate B? The very same sureties who held C to his obligation of warranty, who compel him to take B's place in the theft charge brought by A. For certainly the 55 Ante, page 554-5. Oaths 3, Ethelred II., 9. 58a Cf. Glanvil, III, c. I.