Doige's Case

Context

Doige’s case (also known as Shipton v. Dog, or Shipton v. Dogge) arose during a period of extension of trespass on the case for nonfeasance. At the middle of the fourteenth century, trespass on the case was an accepted plea in cases of contractual misfeasance, but not in cases of contractual nonfeasance. However, there was pressure to extend tort liability to nonfeasance, especially in cases where no other remedy was available. “The plea rolls show attempts to bring such cases within the action of trespass as early as 1303 by the end of the fourteenth century it is possible to find precedents of actions on the case for contractual non-performance in Registers of Writs and attempts to bring such actions are relatively easy to find in the plea rolls of the fifteenth century.” Courts were nonetheless resistant to this extension, believing that tort liability should only be allowed in cases of commission, rather than mere omission.

Despite this resistance, the legal history of the time contains several isolated decisions from as early as 1401 in which tort liability was found for nonfeasance, often by reframing the nonfeasance as misfeasance of deceit. In Somerton’s Case in 1433, for example, the court held that “a lawyer was liable under the action of trespass on cases for deceit. In that case, the plaintiff hired the defendant to be an agent for the purchase of a manor. The agent wrongfully disclosed his agency to a third party and collusively obtained the property for the third party.” Although the failure to obtain the manor was a nonfeasance, the plaintiff characterized the conduct as misfeasance of deceit. This method of claiming deceit in an action of nonfeasance continued with Doige’s case.

Facts

In Doige’s case in 1442, the plaintiff made an agreement with the defendant to purchase land, and prepaid the purchase price of £100. The defendant agreed to enfeoff the plaintiff of the land within 14 days, but failed to do so, and instead enfeoffed a third party. The defendant brought the case under an action of deceit, and the defendant demurred on the grounds that the action should have been brought in covenant. Because the defendant was in the custody of the King’s Bench, the plaintiff was forced to bring the action there.

Judicial Arguments

Judge Ayscough began by arguing against allowing trespass on the case. In doing so, he made an analogy to carpentry: If you contracted with a carpenter to make a house, and he did so poorly, then there was trespass on the case, because the action derived from his misfeasance. On the other hand, if the carpenter did not build the house, the action was in covenant, because there was no bad act.

Judge Babthorpe, in response, claimed that the defendant had done something bad by enfeoffing a third party, thereby disabling herself from enfeoffing the plaintiff. He believed therefore an action of deceit could be founded. He also drew an analogy to a lawyer who does not show up in court, and who is liable in deceit despite his lack of commission.

Judge Paston then attempted to show that a convenant does not always preclude an action of deceit: imagine if a seller bargains to enfeoff party A, but enfeoffs party B instead, and then afterwards enfeoffs party A. Party B will oust party A, but no action of convenant would be available, because the seller enfeoffed party A according to the convenant. There would instead be an action in deceit.

Babthrorpe then argued that in such an example, there would be deceit that sounds in covenant.

Ayscough drew a distinction to the previous example: there was a positive action, whereas in this case there was none.

Chief Judge Newton then claimed that an action of covenant would be pointless, because 1) the defendant had already enfeoffed another, and 2) the day on which the feoffment should have occurred had already passed. Newton went on to argue that an action of deceit “clearly [lay]” because the defendant would be able to demand her money with a writ of debt, and a perfect bargain should require that if one party can bind the other to perform, the bound party should then have remedy against the first.

Judge Fortescue claimed that it was irrelevant whether an action of covenant would be pointless. He also drew an analogy: if seller makes a lease to party A, then makes a lease for the same land to party B who then occupies it, the seller has prevented himself from enabling party A to have the lease, but party A would only be able to bring a writ of covenant.

Paston responded that a writ of covenant does not necessarily preclude a writ of deceit. He made this claim through an example: if someone has a carpenter build them a house of certain specifications, and he does so, but makes the house faulty in ways which are not covered in the covenant (poor materials, etc), there will be not action of covenant, but there will be an action of trespass on the case insofar as the carptenter has done something wrong.

Newton then stated that if the plaintiff wants to bring the case in deceit, that is acceptable, but the plaintiff cannot then bring it in covenant as well.

Fray then drew another analogy: “if the defendant in our case had ousted her feoffee and then enfeoffed the plaintiff, all the convenants would have been fulfilled. Supposee the feoffee afterwards ousted the plaintiff: would he not then have an action of deceit, since he could not have a writ of covenant? I say he would.”

Ayscouch disagreed.

Paston then argued that “it is not true that in every bargain there is a covenant. For if I buy a horse from you, without a warranty that he is sound, here is no covenant; and yet there is a bargain, and if the horse has an internal illness I shall have a writ of trespass on my case against you for selling him to me, knowing that he is ill.” Paston therefore believed that the plaintiff should have a writ of deceit on the bargain.

Westbury then drew an analogy: if, after the bargain of the present case, the defendant made a secured loan on the land, then feoffed to the plaintiff, there would be a writ of deceit. Therefore, Westbury argued, there should be a writ of deceit here.

Fortescue then stated that “if each party to a bargain should be bound by an action, it must follow that an action of deceit is maintainable.” Looking at the horse example Paston used, he explained that in such a case, the seller would have writ of debt for the money, and the buyer would have a detinue to claim the horse. In this case, however, the buyer could not claim the land because it was already enfeoffed to the third party. Paston then reiterated that a good contract must bind both parties.

Result

“[I]n Hilary term 1443 judgment was given for the plaintiff to recover £20 damages, as assessed upon a writ of enquiry[,]” although the actual purchase price claimed by the court was £200.

Analysis

According to David Ibbetson, the judges reasoned as followed: because there was an agreement to buy and sell land, the seller would have an action against the buyer for the price. How then could the buyer have no action against the seller of the land? “The difficulty was that there was no action that the plaintiff could obviously bring: not convenant, because there was no deed; not debt or detinue because the action was not for money or chattels, not any real action because no title had yet passed to the plaintiff. The only possibility was the action of trespass on the case.” In order to find a way to justify trespass on the case, the court pointed to the fact the agreement was positively broken by conveying the land to a third party and thereby disabling the seller from performing on the contract. The judges used this logical distinction to create misfeasance out of nonfeasance.

Alfred Simpson and Kevin Teeven have a different interpretation. They believe that Doige’s Case simply extended the doctrine of action of deceit, which had already applied to intermediaries in land transactions (such as lawyer in Somerton), to the seller herself.

Effects

Along with Somerton’s case and a few isolated others, Doige’s case brought on the beginning of contractual nonfeasance passing through the test of trespass on the case under deceit. The court was interpreted as creating a general rule that liability for deceit existed where the defendant seller disabled himself from performing a contract by conveying to a third party. “In the half-century after [Doige’s case] actions for the failure to convey land, coupled with allegations of disablement, became a routine if not frequent part of the business of royal courts.”

This general rule resulted in courts accepting liability in cases where the defendant had conveyed to a third party, but not in cases where the defendant had kept the property for himself. This split approach was criticized by lawyers, and remedied beginning in the 16th century.

Ibbetson also believes that Doige’s case helped blur the line between contract and tort by allowing plaintiff’s to “formulate the defendant’s behavior in terms of the language of wrongdoing rather than the language of rights.”

Benjamin Geva mentions that a peripheral effect Newton CJ’s dicta that “if I bail a certain sum of money to Paston to bail over to Fortescue, now, if Paston does not do this, he will be liable to me in an action of Account and also in an action of Debt” became a prominent piece of support for the rule that “a bailee who has failed to deliver money to the beficiary is chargeable to the bailor, not only in Account, but also in Debt.”

References Available Online:

A History of the Common Law of Contract By Alfred William Brian Simpson

A Historical Introduction to the Law of Obligations By David J. Ibbetson

Bank Collections and Payment Transactions By Benjamin Geva

Favor Emptoris: Does the CISG Favor the Buyer?