Case Law in the Making: The Techniques and Methods of Judicial Records and Law Reports. Vol. 2: Documents [1 ed.] 9783428490769, 9783428090761

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Case Law in the Making The Techniques and Methods of Judicial Records and Law Reports Volume 2: Documents

Comparative Studies in Continental and Anglo-American Legal History Vergleichende Untersuchungen zur kontinentaleuropäischen und anglo-amerikanischen Rechtsgeschichte Herausgegeben von Prof. Dr. Dr. h. c. mult. H e l m u t Coing und Prof. Dr. Dr. h. c. K n u t Wolfgang N ö r r

B a n d 17/11

Case Law in the Making The Techniques and Methods of Judicial Records and Law Reports Volume 2: Documents

Edited by Prof. Dr. Dr. Alain Wijffels

Duncker & Humblot · Berlin

Gedruckt mit Unterstützung der Gerda Henkel Stiftung, Düsseldorf

Die Deutsche Bibliothek - CIP-Einheitsaufnahme Case law in the making : the techniques and methods of judicial records and law reports / ed. by Alain Wijffels. Berlin : Duncker und Humblot Vol. 2. Documents. - 1997 (Comparative studies in continental and Anglo-American legal history ; Bd. 17,2) ISBN 3-428-09076-4

Alle Rechte, auch die des auszugsweisen Nachdrucks, der fotomechanischen Wiedergabe und der Übersetzung, für sämtliche Beiträge vorbehalten © 1997 Duncker & Humblot GmbH, Berlin Fremddatenübernahme: Klaus-Dieter Voigt, Berlin Druck: Berliner Buchdruckerei Union GmbH, Berlin Printed in Germany ISSN 0935-1167 ISBN 3-428-09076-4 Gedruckt auf alterungsbeständigem (säurefreiem) Papier entsprechend ISO 9706 ©

Contents

Part One English and American Traditions H. Baker The Common-Law Courts of Medieval England: Year Books and Plea Rolls

9

D. J. Ibbetson Report and Record in Early-Modern Common Law

27

W. H. Bryson Equity Reports and Records in Early-Modern England

53

. H. Helmholz The English Ecclesiastical Courts. Appendix W. H. Bryson Virginia Law Reports and Records, 1776 - 1800

85

101

Part Two Continental European Traditions A. Romano Le decisiones della Regia Gran Corte del Regno di Sicilia G. Vallone Corti Feudali e poteri di giustizia nel Salento medievale. Appendice

137

195

M. Asche ri Dalla prima instanza all'appello: atti originali della Rota di Siena (sec. XVI) 215 B. Auzary -Schmaltz Le Parlement de Paris au Moyen Age: collation de recueils privés et de registres de la Cour 233

6

Contents

S. Dauchy Le Parlement de Paris aux Temps Modernes: collation de recueils privés et de registres de la Cour 269 A. Wijffels Le Parlement de Dijon: collation de recueils privés et de registres de la Cour 293 F. Ranieri Aktenrelationen am Reichskammergericht (16. - 17. Jh.). Quellen

319

Λ. Wijffels Grand Conseil de Malines: recueil de jurisprudence de Guillaume de Grysperre. Texte intégral 337 C. H. van Rhee Grand Conseil de Malines: L'affaire Jacques Le Sauvaige contre la ville de Malines 389 J. Th. de Smidt et C. Verhas Le Höge Raad: collation de recueils de jurisprudence et de registres de la Cour 439 G. Dolezalek Records of a case and respective decisiones Rotae: Salisburgensis Chiemensis Testimonialium, coram Scotto (1701 - 1705)

seu

Contributors

487

457

Part

One

English and American Traditions

J. H. BAKER

The Common-Law Courts of Medieval England: Year Books and Plea Rolls Specimen Year Books

I. Chaloner v. Moresle (1329) Report Bodl. Lib. Oxford MS. Tanner 13, p. 338.1 Eyre of Northampton, 1329. En bille de trespas les damages furunt taxes par enqueste a deus mars et demi. Pus les justices taxerunt les damages a χ mars pur ceo qil virunt par inspection qe le trespas fut heignous. Translation of the Report In a bill of trespass the damages were assessed by the jury at two and a half marks. But later the justices assessed the damages at ten marks because they saw by inspection that the trespass was heinous.

Record PRO, JUST 1/633, m. 191. Convictum est per juratam patrie in quam Walterus le Chalouner de Norhampton querens et Andreas de Moresle defendens se posuerunt quod idem Andreas in festo Nativitatis Beate Marie anno regni regis Edwardi nunc 1 Printed in 97 Seiden Soc. 428. Cf. the variant report in Brit. Lib. MS. Add. 5924, fo. 13ν: Έη une bille de trespas lenqueste taxa les damages le pleyntife en ii marc, et pur ceo qe avis fut a la court qe le trespas fut graund la court agard qil dust recoverir χ marc, pur ses damages etc.'.

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tercio horo vesperarum in suburbio Norhampton ex oposito domus Gilberti le Rode vi et armis in prefatum Walterum insultum fecit et ipsum verberavit et dédit ei duas plagas ex transverso duorum digitorum mediorum in manu sinistra et unam plagam ex transverso nasi contra pacem ad dampna que taxantur per discretionem justiciariorum ad decern marcas. Ideo consideratum est quod predictus Walterus recuperet versus predictum Andream de Moresle dampna predicta. Et predictus Andreas capiatur quod sit hie die Mercurii proximo post festum Sancte Katerine ad satisfaciendum ...

I I . Rex v. Bury (1321) Report Brit. Lib. MS. Harley 453, fo. 32v, with some corrections from Royal MS. 10 Β. VIII, fo. 32r. 2 Eyre of London, 26 February 1321. Item quidam Isabella de Buri occidit quendam in ecclesia que se tenuit in ecclesia unde quidam dubitaverunt utrum privilegio clericali gaudere debeat. Justiciarii itineris super hoc consulentur qui mandaverunt ordinarium ut eis certificaret ac idem Ordinarius rescripsit decretale eidem ordinatum in hec verba: Immunitatem ecclesiarum et jura non nulli impunitatem suorum excessium per [defensionem] ecclesie optinere sperantes homicidam [et] [mutilationes] membrorum in ipsis ecclesiis vel earum cimiteriis committere non verentur qui nisi per ecclesiam ad quam confugiunt crederent se defendi nullatenus [fuerant commissuri et] infra cum [in] eo in quo deliquerit puniri quis debeat [et frustra] auxilium legis invocat qui committit in legem mandamus quod puplice injungetur talis non debet gaudere immunitate ecclesie nec privilegio. Ob quo extracta fuit ab ecclesia tarn per clericos quam laicos et in Neugate imprisonata et ibidem per triduum detenta. Et quarto die ipsa Isabella simul cum aliis prisonibus coram justiciariis itineris ducebatur que coram eis occasionata se mutam tenuit. Unde curia exigit qualiter vocabatur [et] unde fuit et ipsa non respondit. Ber. Bon est qe homme enquerge si ele seit mute ou noun et quant ele parla drein. Et super hoc venerunt xii et super hoc fecerunt sacramentum de veritate dicenda et iverunt ad interloquendum. Et donqe Pass. Il vous vaudreit plus de parler qe si nous enquergoms et trusoums qe vous puset parler vous ne chalangerez pas lenqeste. Parlez et vous mettez et vous serret ben aquite. Is. Sire merci pur Dieu. Pass. Repe2

Printed in 85 Seiden Soc. 73, 83, which supplies the date of the first hearing from another manuscript.

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lez les jurours quia ipsa loquitur. Et tunc fuit occasionata de morte ut prius et ipsa dixit: [Domine] ipse me percussit. Pass. Le tuastes vous vel ne? Is. Jeo fesoie moi defendaunt. Pass. Cornent volez vous aquiter? Is. Sire jeo ne poi autrement fere. Pass. Donqes volez vous dire qe vous ne le tuastes pas? Is. Sire jeo fesoi moi defendaunt. Pass. Il covent qe vous deditz la felonie. Et ita fecit et illa posuit se etc. et issint suspensa. Et nota quia mulier fuit curia voluit capere congnitionem et si masculus si sic dixisset suspensus fuisset sine inquisitionem.

Translation of the Report Likewise a certain Isabel of Bury killed someone in a church, and stayed in the church, and thereupon some doubted whether she ought to have the privilege of [sanctuary] .. . 3 Four days later, the same Isabel was brought before the justices in eyre, together with other prisoners; and, being charged before them, she remained silent. The court thereupon asked what she was called and where she came from, and she made no answer. Bereford. 4 The proper course is to enquire whether or not she is dumb, and when she last spoke. Thereupon twelve men came, took an oath to speak the truth thereupon, and went off to discuss the matter. Then PASSELEY, J. said [to Isabel]: It would be better for you to speak; for if we make enquiry and find that you can speak you will not be allowed to claim a jury. 5 So speak, and put yourself upon a jury, and you may well be acquitted. Isabel. Mercy, my Lord, for God's sake.6 PASSELEY, J. Call the jurors back, for she is speaking. Then she was charged with the death, as above, and said: My Lord, he hit me first. PASSELEY, J. Did you kill him, or not? 3 The judges decide that she should not, after a decretal is cited to them by the ordinary. This passage is omitted here, since it is in Latin. 4 Ralph of Bereford, clerk of the eyre. He was doubtless a relation of Chief Justice William of Bereford, who speaks in Case 3. 5 This seems to be the more likely meaning of chalenger jurez , which Miss Cam (85 Seiden Soc. 73) translated as 'challenge the jurors', relying on the Royal MS., which reads serretz mie receu a chalenger jurez . 6 The Royal MS. reads, Sire jeo vous cri merci.

J. H. Baker

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Isabel. I did it in self-defence. PASSELEY, J. How do you wish to acquit yourself? Isabel. My Lord, I could not do anything else. PASSELEY, J. Do you wish, then, to say that you did not kill him? Isabel. My Lord, I did it in self-defence. PASSELEY, J. You must deny the felony. And so she did; and she put herself on a jury etc. And thus she was hanged. Note that because she was a woman the court was willing to take an inquest, whereas if a man had spoken thus he would have been hanged without a jury. Record PRO, JUST 1/547A, m. 62 and m. 66 Anno regni Regis Edwardi quartodecimo (Stephano de Abington coronatore, Reginaldo de Conductu et Willelmo Prodhomme vicecomitibus existentibus) quedam Isabella de Bery et Johanna la Clerkes venerunt ad ecclesiam Omnium Sanctorum atte Hull 7 in warda de Bradestret et in eadem ecclesia invenerunt quendam Gilbertum Lyter clericum ejusdem ecclesie quia eas pro strepitu et tumultu quos fecerunt a predicta ecclesia exire precepit et predicta Isabella inde ira mota cum quodam cultello ipsum Gilbertum in pectore percussit ita quod statim inde obiit. Et predicta Johanna statim capta fuit et ducta ad prisonam de Neugate et modo est inprisonata etc. Et predicta Isabella in predicta ecclesia se tenuit quousque per custodes ejusdem ecclesie pro delicto suo in eadem ecclesia expulsa fuit ab eadem. Statim capta fuit et ducta ad prisonam de Neugate etc. Et postea predicta Johanna coram justiciariis hic acquietata fuit etc. ... [ m. 66] Isabella de Bury capta pro morte Gilberti Lyter clerici interfecti in ecclesia Omnium Sanctorum by the Wal in warda de Bradestret (unde indictata est coram coronatoribus) venit, et quesita qualiter se velit de morte predicti Gilberti acquietare defendit omnem vim, feloniam et totum etc. et quicquid est contra pacem domini regis, et quod in nullo est inde culpabilis de bono et malo ponit se super patriam. Et juratores wardarum de Bradestrete et Chepe dicunt super sacramentum suum quod predicta Isabella culpabilis est de morte predicti Gilberti. Ideo ipsa etc. [suspendetur margin]. Catalla ejus vi Ii. xv s. vi d. Vicecomes nunc respondeat. 7

A slip for All Hallows on the Wall, in Broad Street ward.

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I I I . Randolf v. Abbot of Hailes (1311) Report Brit. Lib. MS. Add. 35116, fo. 242v. 8 Common Pleas, Trinity term 1311. Jon Randol porta son bref de dette vers labbe de Hayles et ly demanda cent livres par la reson qe il achata de ly xi sakes de leyne par un Johan le Blound son moygne le jour de la Maudelein lan etc. in S. en le counte de Viltes' a paier a le feste Seint Matheu prochein swyant a quel jour il ne paa nul dener ne uncore ne fait as damages etc. Stonouere. Le abbe defend etc. et nentendom mie qe a cesti bref deive estre respondu qar il ad counte qe le contrat se prit en le counte de Wilts' et le bref original va au viconte de Gloucestre. Ε demandoms jugement de cesti bref etc. Hervi. En auncien tems home soleit en teu cas abatre le bref de dette et ore veez tote en jour qe bref de dette par tel excepcion ne abate mie par quei dites autre chose. Malm. Quei unt il de la dette? Westcot. Swite bon e qe les leins vindront en profit del abbe et de son meson. Malm. Chescon achate e vent deit estre fait entre certeinz persounz qe sunt a la dette liez e labbe veut averer qil achata unkes nules ley nés etc. West. Nous avoms dit qe lachate se fit par un frere Johan vostre moyng par ceo fet qe ci est. E mit le fet le moyngne avant a la court qe ceo tesmoygne qe le moygne avoit achate al oeps la mesoun celes leines. Malm. Si le contrat nostre moyng nous dut lier il covensit aforce qil ust garraunt par especiaute a tel contrat faire mes ore dyoms nous qe eel moynge est ore mort e il ne mostre nul especiaute qe fut garraunt au moynge a cel contrat fere. E demandoms jugement etc. Westc. Il fut moyngne de office a queux poer est done de fere contrats en prou de la mesoun. Ber. Si vous mandez vostre valet au marche pur achater vitaille com manger ou beyre e les veygnent a vostre hostel e seient despendu en vos usis ne nest ceo mie reson qe vous seiez tenuz a la quitaunce? Quasi diceret sic. E dautrepart si vous maundez vostre seneschal a un faire e il achate draps et espiceries a vostre oeps e vous le despendez nest ce mie reson qe vous seez tenu a laquitaunce au marchaunt de ses deners? Quasi diceret sic. Malm. Il nous ne lyout mie auxi fort come vous fetes qar en tot Wiltes' navoms nous mesoun. Ber. Responez a ceo qil dyent qe les leins devindrent a vostre profit etc. Hervi a Malm. Il vous sovent ben del abbe de Seleby en aunciene cas. Et Sir Henri icy fut partie etc. Malm. Vous dites vérité mes il ne prit renz etc. Hervi. Mes a noun Deu 8 Printed in 42 Seiden Soc. 20, with the record on p. 22. There is a different report of the same case, found in at least 4 manuscripts, and abridged in Fitz. Abr., Dette , pl. 168.

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lenqueste se joint. Malm . Nous enparlerom. Frisq. Vous avez ben entendu cornent il unt demande ceste dette e en prove de la dette il tendent swite bone a ceo vous respond le abbe par son attorne e dit qe nul dener ne deit e prest est a defendre encontre ly e encountre sa suite. Herle . A ceo navendrez mie kar nous avoms dit qe les leynes devindrent au profit de la mesoun e prest del averer. Ber. Il vous unt demande ceo qe vous avez de la dette et vous ne mostrez ren qe swite bone pur quei navendrent il a sa ley etc.? [... Toud. vyt bien qil covendreit qil respoigne al fait le moigne et al averment et fit son client acorder. Et sic. etc.] 9

Translation of the Report John Randolf brought his writ of debt against the abbot of Hailes 1 0 and demanded from him £100 by reason that he bought from him eleven sacks of wool, through John the Blond 1 1 his monk, on the day of St Mary Magdalene [22 July 1309] at S[evenhampton] in Wiltshire, the money to be paid at the feast of St Mathew next following, at which day he did not pay one penny, and has still not paid, to the plaintiff's damage. Stonor. The abbot denies [the force and wrong] etc. 1 2 And we do not think he ought to be answered in this writ, for he has counted that the contract was made in Wiltshire and the original writ went to the sheriff of Gloucestershire. We ask judgment of this writ etc. HERVEY DE STAUNTON, J. In olden days they used to quash the writ in such cases, but now you see every day writs of debt which are not quashed by this exception. So say something else. Malberthorpe. What proof have they of the debt? Westcote. Good suit; and we say that the wool came to the benefit of the abbot and his house. Malberthorpe. Every purchase and sale ought to be made between certain persons who are bound to the debt; and the abbot wishes to aver that he never bought any wool etc. Westcote. We have said that the purchase was made through one Brother John, your monk, by this deed which is here. (And he put before the court 9

From the end of the other report (42 Seiden Soc. 20). A Cistercian abbey in Gloucestershire. 11 John of Hardepury in the record. 12 The is the formal 'defence' made when the defendant appeared. 10

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the monk's deed, which witnessed that the monk had bought this wool for the benefit of the house.) Malberthorpe. If a contract made by our monk is to bind us, he must surely have a written authority to make such a contract; but we say that this monk is now dead, and the plaintiff shows no written document (especiaute') authorising the monk to make the contract. And we ask judgment etc. Westcote. He was a monk holding an office, and a general authority is given to such officers to make contracts for the benefit of the house. BEREFORD, C. J. If you send your manservant to the market to buy victuals, such as food and drink, and they come to your house and are consumed for your benefit, is that not a reason for your being bound to settle the bill? (As if to say, it is.) Then again, if you send your steward to a fair, and he buys cloths and groceries for your benefit, and you consume them, is that not a reason for your being bound to see that the merchant is paid his money? (As if to say, it is.) Malberthorpe. It does not bind us as clearly as you suggest, for in the whole of Wiltshire we have no house. BEREFORD, C. J. Answer what they have said about the wool coming to your use etc. HERVE Y DE STAUNTON, J. (to Malberthorpe). You must remember the old case of the abbot of Selby, 13 in which Sir Henry [Scrope] took part? Malberthorpe. What you say is true, but [the plaintiff] did not succeed. HERVEY DE STAUNTON, J. But an inquest was joined, 1 4 by God. Malberthorpe. We wish to imparl. Friskney. You have heard how they have demanded this debt, and in proof of the debt they offer good suit, and the abbot answers by his attorney and says that he owes not a penny and is ready to deny it against him and against his suit. 15 Herle. You shall not get to that; for we have said that the wool came to the benefit of the house, and we are ready to aver it. 13

It was not so 'old', if it may be identified as Brayton v. Abbot of Selby (1307): see the commentary in vol. I. 14 I. e. the question was put to a jury. The record of Brayton v. Abbot of Selby (1307) ends with the summoning of a jury. 15 This is an offer to 'wage law'.

J. H. Baker

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BEREFORD, C. J. They have asked what proof you have of the debt, and you have shown nothing but good suit; so why should they not get to their law? [... Toudeby saw clearly that he must answer the monk's deed and the averment, and so he made his client reach a settlement. And so etc.] 1 6

Record PRO, CP 40/187, m. 57d. Abbas de Hayles in misericordia pro pluribus defaltis etc. Idem abbas summonitus fuit ad respondendum Johanni Randolf de placito quod reddat ei centum libras quas ei debet et injuste detinet etc. Et unde idem Johannes per attornatum suum dicit quod, cum 1 7 ipse apud [S]evenhampton in comitatu Wylt' die Martis in festo Sancte Marie Magdalene anno domini regis nunc tercio vendidisset cuidam Johanni de Hardepury commonacho predicti abbatis et procuratori ipsius abbatis et domus sue predicte undecim saccos lane in presencia Jacobi Gryndewell, Willelmi Dybner, Laurencii le Eyr, Willelmi atte Mulle, Johannis Whelyfedde, Johannis Bacoun, Ricardi Baroun et Willelmi de Havyngdone, et ali[orum], pro predictis centum libris ei solvendis die Sancti Mathei apostoli proximo sequenti que quidem lane predicto procuratori sic vendite et recepte ad opus ipsius abbatis devenerunt ad manus ipsius abbatis et commodum domus sue predicte: idem abbas denarios illos eidem Johanni ad diem ilium non reddidit set illos ei hactenus reddere contradixit licet sepius fuisset requisitus etc. et adhuc contradicit etc. Unde dicit quod deterioratus est et dampnum habet ad valenciam quadraginta librarum etc. Et inde producit sectam etc. Et abbas per attornatum suum venit. Et datus est eis dies hic a die Sancti Michaelis in xv dies per justiciarios prece partium sine essonio etc.

16

From the other report. The record ends with an adjournment at the prayer of the parties. 17 From cum down to the colon (inserted by the editor) is a recital of the causa debendi, followed after the colon by an allegation of non-payment.

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IV. Fyloll v. Ashley (1520) Report YB Trin. 12 Hen. VIII, fo. 3, pi. 3 (from Redman's edition). Court of Common Pleas, Trinity term 1520. William Fylowle chivaler port breife de trespas vers un J. quare servum suum verberavit et unum canem vocatum a blöde hownde cepit et asportavit etc. et sur ceo fuit demurre, ^fFitzherbert prist exception al count pour ceo que il nad surmit en son count que il puit expender xl s. par an, quar auterment il ne puit custodire un hownde et pur ceo son count nest pas bon. Donques al mater, semble qe nul action gist pur un chien, quar de chose de nul value ne de ascun profit nul home avéra action. Et un chien nest de ascun value, mez chose pur pleasure. Auxi chescun favour le comen welthe, mez un hownde nest profytable, quar home serra melius occupied paraventure si tielz tryfyls ne fueront, et pur ceo le comen welth ne favour ceo. Et si issint, donques si ascun prist ceo nul action gist pur luy. Auxi est nul breife en le register, quare leporarium suum cepit. Et pour ceo nul action gist pur luy. % Newport et Newdigate al contrarie. Et semble que le counte est assez bon, pur ceo que si home port action vers moy pur ceo que jeo aye prise son robe de vellours ou son cheyne dore il ne monstra en son count que il puit expender terres a taunt value accordant [a] le statute, quar le defendant doit ceo monstre en son barre. Et auxi cest chose est presentable devant lez justices, s. que il ad use tiel robe contrarie al estatut. Et pur ceo le count est assez bon. A i l mater semble que toutz foitz lou home ad ascun tort ou damage la ley done a luy un remedie, et ceo par voy daction. Donques icy il ad fait a moy damage par cest prisel, quar cornent que cest chyen soit chose de pleasure unquore il est profitable pur huntynge ou pur mon recreation. Quar si jeo aye un popyngay ou thrushe que chaunta et refresshe mon spirites ceo est graunde comfort a moy, et donques si ascun prist ceo a moy il ad fait a moy graunde tort et pur ceo est reason que il sera punishe. Auxi ascunz tient lour terrez par [le] service dun chyen ou byrde, et donques si ascunz prist ceo a luy il ad graunde damage par ceo. Auxi est en un lyver que home en huntynge parmyt son brachis dentre en auter close, et le tenant del terre eux distreyne damage fesaunt, et le owner avoit replegiare de eux. Issint icy etc. ^[Roo al contrarie. Quar lou home port action de ascun chose et cest chose est comprise deinz ascun estatut, il doit faire mention de lestatut. Come si home port action de forcible entre il dirra en son count, contrarie a tiel estatut, ou lou est provyde par tiel estatut etc. A l mater, jeo ay pris lou home navera appeale de felonye ou lou home ne serra indyte de felonye del chose que est prise ove felonyus entent la il navera action de trespas: quar lentent est 2 Wijffels (Ed.), Vol. 2

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le diversite parenter trespas et felonye. Et pour prisel dun chyen home navera appeale, cornent que soit ove felonyus entent, pur ceo que nest reason que home avéra jugement de vie et membre pur un chyen, que est de nul value. Et pur ceo il ne puit aver ascun action pur cest chose. Par que etc. % Broke Justice. Semble que le count est assez bon, quar lou ascun estatut est en le negative et done null action, en cest case home avéra action accordant a son mater que fuit par le comen ley et ne parlera del estatut. Et icy lestatut avandit ne done action ne sur ceo laction est foundus, quar appiert que il ne prist le chyen pur ceo que le pleyntife ne puissoit expender accordant al estatut, quar ceo doit estre inquire devant les justices et le parte serra punishe. Donques a ceo que est dit que ceo nest trespas pur ceo que ne puit estre felonye, ceo nest voier: quar si un découpé mez arbrez, ou prist mez damez ou fesauntz ou conys, ceo nest felony mez unquore ceo est trespas quar est tort et damage a moy. Et home puit faire damage a moy et ne faire injurie. Come si le viscunt (que) arrest moy ceo est damage pur ceo que il restreygne moy de mon libertie, mes ceo nest injurie. Issint si un artyficer acquire a [luy] plusorz customerz que auter de mesme le art, come scrivener, ou scole maister que ad plusorz disciplez que auter pur ceo que il est pluis erudite: ceo est dampnum a lauter, mes nemy injuria, pur ceo que chescun doit preferre luy mesme et nest punishable. Auxi home puit faire damage et injurie et ne serra punishe, come si le seignior batera son villen, ou le baron son feme, ou home batera un home utlage ou traytor ou pagane: ilz naveront action pur ceo que ilz ne sont pas able de suer action. Mez icy il ad pris mon chien, et cornent que soit chose de pleasure uncore jeo ay propertie en ceo. Quar al commensement de mounde toutz bestez fuerunt obedyent a nostre primer piere Adam, et toutz lez quater elymentes fueront a luy obedyent, mez après que il ad infreint le commaundement del nostre seignior dieu toutz bestez commenceront de rebeller et destre savage, et ceo fuit pur punishement de son cry me. Et ore ilz sont en comen, et occupanti conceduntur: come fowles en le eyre, pissez en le mere, et bestez sur le terre. Et quant jeo aye pris un fowle et par mon industrie jeo ay fait luy tame par le restreygner de son libertie, ore jeo ay un especial propertie en luy entaunt que ceo est fait obedyent par mon propre labour. Et donques nest loyal a ascun de prendre ceux, come dere en mon parke, ou pissez en mon ponde. Auterment est si ilz sont en le ryver. Issint est dun tame best que use a mon meason. Auterment est si ilz sont a large. Quar si jeo aye un byrde 1 8 chauntant, cornent que ne soit pur mon profit, uncore il refresshe mez spirites queux sont cause de bon valitude de mon corps, que est pluis graunde treasure que toutz richez; et donques si ascun prist ceo de moy ore il ad fait a moy graunde damage par cest prisell, et pur ceo est reason que jeo avéra action. 18

The printer Powell was sufficiently offended by this to emend it to oseau.

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Et en cest case un hownde est profitable pur plusorz chosez, quar il puit aler ove moy et issint null voet faire ascun assaute a moy, ou il voile folow un latron. Auxi un curre est profitable pur un scheparde, et donques que prist ceo hors de son possession fait a luy damage. Et pur ceo est reason que en toutz ceux casez que il avéra action. Uncore lez damages serront assesse par le court accordant al profit del hownde, et nemy al taxation de le partie. ^[Pollarde ... Donques a ceo que est dit que un chyen est encounter le comen profit, jeo agree que loquendo de comen profit serroit plus profit si ne serroit ascun parke en tout engliter, et donques les graunde seigniorz perderont lour pleasure, mez cornent que soit enconter mon profit uncore nest loyal de prender ceo hors de mon possession. Quar harpes, lutes et arkes ne sont profitable, pur le cost de stryngez, uncore nest loyal a ascun de prender eux de moy encounter mon volunt, quar hoc facias alteri quod tibi vis fieri. Et cornent que ceo ne puit estre felonye, uncore puit estre trespas ... Et issint laction bien gist, ^f Eliot al contrarie. Et primerment semble que il doit faire mention de lestatut en son count, quar ne puit estre pris par implication que il puit expender tant terre issint que il puit custodire un hownde ... Donques al mater, semble que nul puit aver action pur un chyen, quar chyen est un vermyn et savage de nature: quar en laten est appeale fera et nemy jumentum nec avarium, quar averia proprie sount tielz bestes queux [ne] sont fere nature et savage mez sount pliable et sont apt pur sustenaunce de home, come barbettes, beoffes et auterz. Et pur eux home avéra action, quar par prisell de eux il ad damage. Mez si un prist mon chyen jeo nay graunde damage par ceo ... Auxi cornent que home ad pleasure en tielz beastes, unquore nest reason que il avéra action pur son pleasure entaunt que nest chose de ascun value. Quar un dame que ad petit chien ne voile [vendre] ceo pur graunde some dargent, [mez] si un prist ceo nest reason que el avéra action vers luy pur le pleasure que el avoit en luy. Et issint en cest case, cornent que home avoyt pleasure en cest hownde, unquore nest loyal que il avéra action pur chose de nul value et que nest que vermyn. Et issint le action ne gist. ^[Brudenell. Semble que il ne ferra mention del estatut en son count... Donques al mater ... est reason que il avéra action. Et issint adjuge que il avéra action pur ceo et vi s. iiii [d. pur] damagez et costes. Translation of the report Sir William Fyloll brought a writ of trespass against [Henry Ashley] for beating his servant and taking and carrying away a dog called a bloodhound; and upon this it was demurred. Fitzherbert took exception to the count because the plaintiff has not alleged in his count that he is able to spend 40 s. a year, for otherwise he 2*

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cannot keep a hound; 1 9 and therefore his count is not good. Turning to the substance, it seems that no action lies for a dog; for no one may have an action for something of no value or profit, and a dog is of no value 2 0 but is something kept for pleasure. A l l [laws] 2 1 favour the common weal, but a hound is not profitable - men would perhaps be better occupied if such trifles did not exist - and therefore the common weal does not favour it. If that is so, then if anyone takes a dog no action lies for it. Moreover, there is no writ in the Register 22 quare leporarium suum cepit. 23 Therefore no action lies for it. Newport and Newdegate to the contrary. It seems that the count is perfectly good, because if a man brings an action against me for taking his robe of velvet or his gold chain, he need not show in his count that he is worth so much in land according to the statute, 24 since it is for the defendant to show [the contrary] by a plea in bar. (Also, this is something presentable before the justices: namely, that he has used such a robe contrary to the statute.) Therefore the count is good enough. As to the substance, it seems that wherever a man has any wrong or damage the law gives him a remedy, and that is by way of an action. Here, then, he has damaged me by this taking; for although this dog is an object of pleasure, it is nevertheless profitable for hunting or for my recreation. Similarly, if I have a parrot or thrush which sings and refreshes my spirits, this is a great comfort to me; and it follows that if anyone should take it from me he would do me a great wrong, and it is right that he should be punished for it. Also, some men hold their lands by the service of a dog or a bird, 2 5 in which case if anyone takes it from such a person he is greatly damaged by it. Furthermore, there is a book-case where a man in hunting allowed his braches 26 to enter in another's close, and the terre-tenant distrained them damage feasant, and the owner had replevin for them. 2 7 And so here, [trespass will lie]. Roo to the contrary. For where a man brings an action for something that is touched upon in some statute, he ought to mention the statute. For 19

By the statute of 13 Rie. II, c. 13. Cf. YB Pas. 8 Edw. IV, fo. 5, pi. 16. 21 Conjectural insertion. 22 I.e. the register of writs (Registrum omnium brevium , first printed in 1531). 23 Perhaps an allusion to YB Trin. 3 Hen. VI, fo. 55, pi. 34 (trespass quare leporarios cepit). 24 I.e. the Act of Apparel 1515, 7 Hen. VIII, c. 7. 25 I.e. the tenure is to render a dog or a bird to the feudal lord. Serjeant Kebell maintained that an assize would lie for a greyhound reserved as a service: 105 Seiden Soc. 192. 26 Hunting dogs. 27 Trin. 2 Edw. II, Fitz. Abr., Distresse , pl. 20. 20

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instance, if a man brings an action of forcible entry, 28 he shall say in his count 'contrary to such and such a statute' or 'whereas it is provided by such a statute ...'. As to the substance, I have learned that wherever a man shall not have an appeal of felony (or wherever a man shall not be indicted for felony) in respect of something which has been taken with felonious intent, he shall not have an action of trespass either: for the intent is the only distinction between trespass and felony. Now, a man may not have an appeal for taking a dog, even if it is taken with a felonious intent, because it is not right that a man should have judgment of life and limb for a dog, which is of no value. 29 Therefore he cannot have an action for such a thing. Thus [the count is bad]. BROKE, J. It seems that the count is good enough, for where any statute is in the negative, and gives no action, a man shall in that case have an action according to his facts as at common law and need not speak of the statute. Here the statute referred to gives no action, and the action is not based on it: for it does not appear that he took the dog because the plaintiff could not spend according to the statute, for that ought to be enquired into before the justices and the party punished. It has been said that this is not trespass because it cannot be felony, but this is not true: for if someone fells my trees, or takes my deer, pheasants or coneys, this is not felony, and yet it is a trespass, for it is wrong and it damages me. A man can damage me and yet do no wrong. For instance, if the sheriff arrests me, this is a damage (because he restrains me of my liberty) but not a wrong. Likewise if a craftsman acquires more customers for himself than another of the same craft, such as a scrivener, or a schoolmaster who has more pupils than another because he is more learned: this is damnum to the other but no injuria , because everyone ought to look after himself and it is not punishable. 30 Also, a man may cause damage and do wrong and yet he shall not be punished. For example, if a lord beats his villein, or a husband his wife, or a man beats an outlaw, traitor or heathen: these people shall have no action, because they are unable to sue. But here he has taken my dog, and although it is a thing of pleasure I nevertheless have property in it. At the beginning of the world, all beasts were obedient to our forefather Adam, 3 1 and all four elements were obedient to him, but after he had broken the 28

On the statute 5 Rie. II, stat. 1, c. 7, or 8 Hen. VI, c. 9. There seems to be no judicial statement of this doctrine before the present case, though it was taught in readings: e.g. Richard Littleton's Inner Temple reading of 1493, and Wadham's Lincoln's Inn reading of 1501: 94 Seiden Soc. 318 η. 1. See also the case of peacocks, YB Mich. 18 Hen. VIII, fo. 2, pi. 11. 30 This seems to allude to the case of Gloucester school, Hamlyn v. More (1410) Hil. 11 Hen. IV, fo. 47, pi. 21; CP 40/595, m. 484. 31 Genesis, I. 26, 28. 29

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commandment of our lord God all the beasts started to rebel and become wild, and this was a punishment for his crime. Now they are in common ownership, et occupanti conceduntur : as fowls in the air, fish in the sea, and beasts upon the land. When I have taken a fowl, and by my industry have tamed it by restraining its freedom, I have a special property in it, since it has been made obedient by my own labour. And then it is not lawful for anyone to take it. Nor is it lawful to take such things as deer in my park or fish in my pond, though it is otherwise if they are in a river. 32 Likewise of a tame beast which uses my house; but it is otherwise of beasts at large. If I have a singing bird, although it is not for my profit, yet it refreshes my spirits, which are a cause of my bodily health, and that is a greater treasure than all riches: so if someone takes it from me, he damages me greatly by the taking, and therefore it is right that I should have an action. In this case, a hound is profitable for various reasons. He can walk with me, so that no one will want to attack me, or he will chase a thief. (Similarly, a cur is very profitable for a shepherd, and whoever takes it from his possession causes him damage.) Therefore it is right in all these cases that there should be an action. Nevertheless, the damages shall be assessed by the court according to the profitability of the hound and not according to the party's own assessment.33 POLLARD, J. ... Now, as to the assertion that a dog is against the common profit, I agree that if we are to speak of common profit it would be more profitable if there were no parks in the whole of England, and then great lords would lose their pleasure. But even if something is against my profit, it is still not lawful to take it out of my possession. Thus, harps, lutes and bows are not profitable, because it is costly [to replace] the strings, and yet it is not lawful for someone to take them from me against my will: for hoc facias alteri quod tibi vis fieri. 34 And even if it cannot be felony, it can still be trespass ... Thus the action well lies. ELYOT, J. to the contrary. First, it seems that he ought to mention the statute in his count, for it cannot be understood by implication that he can spend so much in land that he can keep a hound ... As to the substance, it seems that no one can have an action for a dog, for a dog is verminous and wild by nature. In Latin it is called fera and not jumentum or averium, for averia properly so called are animals which are [not] ferae naturae but docile and suitable for the food of man, like sheep, oxen and others. For these latter a man may have an action, because he is damaged by the taking of them. But if someone takes my dog I am not much damaged by it 32 33 34

YB Trin. 18 Edw. IV, fo. 8, pi. 7. The remaining three judgments are abstracted, in the interests of space. Cf. Tobias , 4.16; Matthew, 7.12; Luke , 6.31.

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... Also, although a man takes pleasure in such animals, still it is not right that he should have an action for his pleasure, since that is of no value. A lady who has a pet dog will not sell it for a large sum of money, but if someone takes it it is not right that she should have an action against him in respect of the pleasure which she took in it. So in this case, although a man derives pleasure from this hound, yet it is not lawful that he should have an action for a thing of no value, which is only vermin. So the action does not lie. BRUDENELL, C. J. It seems that he need not mention the statute in his count ... Then, as to the substance ... it is right that he shall have an action. So it was adjudged that he should have an action for this, and 6 s. 4d. damages and costs. Record PRO, CP 40/1027, m. 433. Dors[et]. Henricus Assheleygh nuper de Upwynborne Sancti Egidii in comitatu predicto armiger attachiatus fuit ad respondendum Willelmo Fyloll militi de placito .. , 3 5 Et unde idem Willelmus, per Robertum Jenour 36 attornatum suum, queritur quod predictus Henricus, primo die Februarii anno regni domini regis nunc decimo, vi et armis, videlicet baculis et cultellis, in Walterum Rooper servientem ipsius Willelmi apud Gussige Sancti Michaelis insultum fecit et ipsum verberavit, vulneravit et male tractavit ita quod de vita ejus desperabatur, per quod idem Willelmus servicium servientis sui predicti per magnum tempus, videlicet a predicto primo die Februarii anno decimo supradicto per très menses tunc proximo sequentes, amisit, ac unum canem vocatum a bludhound ipsius Willelmi, precii etc., ibidem inventum, cepit et abduxit, et alia enormia [et intulit], ad grave dampnum [ipsius Willelmi] et contra pacem [domini regis]. 37 Et predictus Henricus, per Egidium Peny 38 attornatum suum, venit. Et defendit vim et injuriam quando etc. Et quoad venire vi et armis necnon totam transgressionem predictam, preter captionem et abductionem canis predicti, idem Henricus dicit quod ipse in nullo est inde culpabilis prout 35

Note of the writ. The substance is repeated in the count. Robert Jenour (d. 1536) was filazer of the Common Pleas for Dorset and other counties, and also practised as an attorney. 37 The words in square brackets are repesented in the record by 4etc.' 38 Giles Peny (d. 1558/60), of Yeovil and (later) of East Coker, Somerset, and of Strand Inn, attorney of the Common Pleas. 36

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predictus Willelmus superius versus eum queritur. Et de hoc ponit se super patriam. Et predictus Willelmus similiter. Et quoad captionem et abductionem canis illius, idem Henricus dicit quod breve et narratio predicta quoad captionem et abductionem canis illius minus sufficientes in lege existunt ad actionem predictam inde versus ipsum Henricum manutenendam, quodque ipse ad breve et narrationem ilia necesse non habet nec per legem terre tenetur respondere. 39 Et hoc paratus est verificare. Unde petit judicium et quod predictus Willelmus ab actione sua predicta de captione et abductione canis predicti versus ipsum Henricum habenda precludatur etc. Et predictus Willelmus dicit quod, ex quo ipse sufficientem materiam in brevi et narratione predictis de captione et abductione canis predicti superius declaravit ad actionem suam predictam inde versus ipsum Henricum habendam [et] manutenendam, quam ipse paratus est verificare, quam quidem materiam idem Henricus non dedicit nec ad earn aliqualiter responded set verificationem illam admittere omnino récusât, idem Willelmus petit judicium et dampna sua occasione captionis et abductionis canis illius sibi adjudicari etc. Et quia justiciarii hoc se avisari volunt de et super brevi et narratione predictis quoad captionem et abductionem canis predicti priusquam judicium inde reddant, dies datus est partibus predictis hic a die Pasche in xv dies de audiendo inde judicio suo etc. eo quod justiciarii hic inde non dum [advisantur] etc. Et quoad triandum exitum predictum per patriam triandum superius junctum, 4 0 preceptum est vicecomiti quod venire faciat hie ad prefatum terminum xii etc. per quos etc. et qui nec etc. ad recognoscendum etc. quia tam etc. 41 ... [continued to Trinity term] Ad quem diem hie veniunt tam predictus Willelmus quam predictus Henricus per attornatos suos predictos. Super quo, visis brevi et narratione predictis, quoad captionem et abductionem canis predicti, et per justiciarios hie plenius intellectis, videtur eisdem justiciariis hie quod breve et narratio ilia sufficientes in lege existunt ad prefatum Willelmum actionem suam predictam inde versus prefatum Henricum manutenendam, set quia nescitur que dampna idem Willelmus sustinuit occasione captionis et abductionis canis illius, preceptum est vicecomiti quod per sacramentum proborum et legalium hominum de comitatu suo diligenter inquirat que dampna predictus Willelmus sustinuit, tam occasione captionis et abductionis canis predicti quam pro misis et custagiis suis per ipsum circa sectam suam in hac parte appositis, et inquisitionem quam etc. vicecomes constare faciat hie in octabis Sancti Michaelis sub sigillo etc. et sigillis etc. ... 39

These words indicate a formal demurrer. I. e. the matter to which the defendant pleaded Not guilty, before the demurrer. 41 This indicates a writ of venire facias ordering the sheriff of Dorset to summon a jury. 40

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Note: In January the jury summoned by the writ of inquiry found that the plaintiff had sustained 40 s. damages and 53 s. 4d. costs. The plaintiff thereupon waived his damages in respect of the assault, and judgment was given for £3. 13 s. 4d. The plaintiff waived 26 s. 8d. of these damages after judgment.

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Report and Record in Early-Modern Common Law Sample Reports A l l of the texts which follow are in Law French in the original; the translations are mine. I have tried to be as literal as is consistent with making sense. Those parts of the texts which were in English or Latin in the original have been left as they appear in the manuscript, and italicised. References to citations have been left as they appear in the manuscripts, and given in expanded form in the footnotes. I have capitalised the names of judges and counsel in the hope that it might help readers to find their way around the texts. Several of the texts appear in a number of different manuscripts. I have not attempted to collate them with each other, since the purpose of the present study is to give some idea of the actual texts available rather than to reconstruct some hypothetically perfect ur-text. I have, however, made use of the different versions available to me in setting doubtful readings or supplying obvious lacunae. Where possible I have transcribed and translated what appears to be the autograph. Where this has not been possible, I have selected what appears to be an early manuscript with a reasonably good text; inevitably the selection has at times had to be arbitrary. A: E. COKE, Fifth Report (1607), f. 77v, collated with British Library MS Harl 6686 f. 133 Coke's Reports are the best known and most important of the early modern series of reports. At first, no doubt, Coke kept notes for his own use in the same way as most of his contemporaries, but by the time of this case he was gathering them with a view to publication. He had become Attorney-General in 1594, and was the most widely-respected lawyer of his day; he was later to become Chief Justice of England, until he was dismissed by King James I in 1616, whereupon he became a very active anti-royalist parliamentarian. He regarded his printed Reports as essentially pedagogic and frequently added substantial comments of his own to the arguments that were put forward in court, without always taking the trouble to distinguish between his views and those of counsel or judges. The present case is an uncomplicated example of his style. Comparison with the autograph manuscript, text A l , reveals the extent to which it was substantially edited (by Coke himself) for publication.

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Samon brings an action on the case on assumpsit, and counts that whereas there were controversies between the plaintiff and the defendant concerning divers lands in D, the defendant in consideration of 6d assumed and promised to pay £200 to the plaintiff if the defendant did not perform the award of J. S. etc.; which J. S. made an award that the defendant enter into an obligation to the plaintiff that the plaintiff and Elizabeth his wife should enjoy the said lands etc., which he had not done; on which the defendant 1 demurred. And it was adjudged against the plaintiff; and the reason and cause of the judgment was because the award was void for the uncertainty. For it does not appear for what sum the bond should be, for the arbitrators are judges of the case and their judgment and award must be certain so that the controversy is decided by it, and that it should not be a cause of new controversy by reason of its uncertainty. And the arbitrators cannot assign their power over, but they themselves ought to determine it, and therefore neither the plaintiff nor the defendant can assess the sum. But it was agreed that if J covenants with Β for the enjoyment of such land 2 , and does not express what sum, he shall be bound in such sum as amounts to the value of the land; as it is agreed in 10 E3 3 , if a man grants an annuity of 10 marks to one until he is promoted to a suitable benefice the law will expound it to be of the value of the annuity or more; but the reason of that is because it is the act of the covenantor himself which cannot be void, but it is otherwise in the case at bar. Also the award was void as to the wife, for she was a stranger to the submission. A l : British Library MS Harl 6686 f. 133 Samon brings an action on the case on assumpsit against Pit, which began T. 36 Eliz rot. 877, and counts that whereas there were controversies between the plaintiff and the defendant concerning divers lands in D, the defendant in consideration of 6d promised to pay £200 to the plaintiff if he did not perform the award of J. S. etc.; which J. S. made an award that the defendant enter into a bond to the plaintiff that the plaintiff and Elizabeth his wife should enjoy the said lands (except 7 acres), which he had not done; on which the defendant 4 demurred. And it was adjudged against the plaintiff. And it was agreed that the award was void for the uncertainty. For it does not appear for what sum the bond should be, for the arbitrators are judges of the case and their judg1 2 3 4

Text: plaintiff. Text: sum. Year Book P. 10 Edw III f. 18 pi. 11. Text: plaintiff.

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ment and award must be certain so that the controversy is decided. And they cannot assign their power over, but they themselves ought to determine it, and therefore neither the plaintiff nor the defendant can assess the sum. But it was agreed that if J covenants with Β for the enjoyment of such land, and does not express what sum, he shall be bound in such sum as amounts to the value of the land; as it is agreed in 10 E3 5 , if a man grants an annuity of 10 marks to one until he promotes him to a suitable benefice the law will expound it to be of the value of the annuity; but the reason of that is because it is the act of the covenantor himself which cannot be void, but it is otherwise in the case at bar. Secondly, it was said by the chief justice that the award was void for another reason, because the woman was a stranger; and the difference is when the arbitration award is to do several things and one is void but the other good, there the award is good as to this; but when an entire act is to be done, this should be wholly good or wholly bad. If a man is bound to perform such award as J. S. should make and he makes a void award, he is not bound to obey. But if after such void award is made he binds himself to perform it, this is not good; and so it has been adjudged in the Common Bench. And afterwards judgment was given against the plaintiff. B : Hertfordshire County Record Office Verulam X I I A 6 c f. 27 v, printed (in English translation) in G. CROKE, Reports , Part I, 432. This report is taken from the autograph of George Croke (1560- 1642), King's Serjeant (1623), Justice of the Common Pleas (1625), and later of the King's Bench (1628). Croke provides an excellent example of the lawyer who took reports throughout his career. In his early years he collected reports from a variety of sources, both printed and unprinted, but as his own practice developed he appears to have reduced his reliance on other people's work. There is no evidence that he had any thought of their being published, although they did circulate in manuscript in his lifetime. Although less compact than Coke's report, Croke's text is sharply focused on the two principal points at issue in the case. In addition, and by contrast with Coke's report, it also contains reference to the arguments of the counsel, as well as slightly elliptical treatment of judicial asides. Assumpsit and declares that whereas there were divers controversies between the plaintiff and the defendant concerning divers lands in D whereupon they submitted themselves to the arbitration of J. S., the defendant assumed in consideration of 6d to perform such award as J. S. should make; and alleges that J. S. awarded that the defendant should enter into a bond that the plaintiff and Elizabeth his wife habe rent et gauderent all of the lands in controversy except 17 acres, and for non performance of this 5

Year Book P. 10 Edw III f. 18 pi. 11.

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arbitration award he brought this action. And to this declaration it was demurred in law. And it was argued for the defendant that this award is void in that the award is that he enter into a bond and it is not awarded in what sum he should be bound, and so he does not know how he should perform; and if he should enter into a bond without a sum it would be void; and the arbitration award being so void the defendant is not bound to perform it. 2 The award is void in that they awarded that he should be bound that the plaintiff and his wife enjoy, and the wife is not party to the submission, nor should she have benefit from the award, for the arbitrators have no power to award that any thing be done to a stranger. TANFIELD for the plaintiff moved that the arbitration award is good notwithstanding these exceptions. For as to the first, although it is not shown in what sum the defendant should be bound, still he should tender an obligation for some sum and it is at his election in what sum he will be bound, be this never so little. And as to the second point the arbitration award is good, for although it is void as to the wife for she is not a party to the submission, still he should be bound that the husband enjoy it for it is good as to him; as in the case 18 E4 22 6 and 19 E 4 7 an award that the party should be bound together with a stranger as surety is void as to the stranger and good as to the party, and he himself ought to enter a bond. But as to the first point all the court holds that it is a void arbitration award, for the arbitrators are absolute judges and so should decide absolutely and certainly what should be done, and they cannot give their authority to us or to one party to make certain their uncertainty, any more than they can award that J. S. make an award between the parties for their authority is not transferable over. And so the award being uncertain it is void and the parties are not bound to perform it. POPHAM and FENNER said that if he should enter into any bond it should be in a sum related to the value of the profits of the land, and therefore if A covenants to enter into a bond for enjoyment of certain land without naming any sum, thus must be related to the value of the profits of the land. As in 8 Ass 8 , an annuity is granted to a man until he is promoted to a benefice, he need not accept a benefice of lesser value than the annuity. POPHAM: It seems that the arbitration award is also void for the second cause, for being an entire thing appointed to be done, being void in part it is void as to the whole. But it is otherwise where he appoints two things to 6

Year Book H. 18 Edward IV f. 22 pi. 3. Year Book M. 19 Edward IV f. 1 pl. 1. 8 i.e. Liber Assisarum 8 Edw III; but no such case appears there. Probably a reference to Year Book P. 10 Edward III f. 18 pi. 11. 7

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be done and one is within the submission and the other outside, and they are appointed to be performed severally, it is good for that which is within the submission and void as to the other. But as to this point none of the other judges spoke. But principally for the first point [it was decided] without further argument for the defendant. C: British Library MS Add 35950 f. 85 ν Like Croke's report, the volumes from which this version of the case is taken form a collection taken by a practitioner throughout his working life. The author may be identified as Sir Nicholas Overbury, a member of the Middle Temple; a contemporary of Croke, he would have been similarly well established at the beginning of his career when this report was made. The way in which the arguments are treated is similar to Croke's, although they are not directly attributed to counsel. The focus is on the two principal points at issue, and there is a similar lack of concern with the precise details of the arguments or the authorities cited in them. In an action on the case the plaintiff shows that he and the defendant placed themselves on the arbitration of A and Β about certain customary lands and tenements part of the manor of Bloxam in the county of Oxfordshire, and shows that the defendant in consideration of 12 d given to him by the plaintiff promised to pay £200 if he did not perform their award. And he shows that the arbitrators awarded that Pitt the defendant should enter into bound to the plaintiff that the plaintiff and Elizabeth his wife should have all the lands in controversy during their lives (except 17 acres) without interruption by the defendant and Christopher his son, and that Samon the plaintiff should enjoy all the lands except the 17 acres after the death of his wife during his life, paying 30 s. And to this declaration the defendant demurred in law. And this case had depended for two years, and then judgment was given that he take nothing by his bill. Two exceptions were taken to this declaration. First because the arbitrators awarded that he, viz. the defendant, should be bound to the plaintiff that he and his wife should enjoy etc., and he does not show in what sum he should be bound. And on this POPHAM Chief Justice drew the distinction between an award and a covenant, obligation and the like; for an award must be certain, for the arbitrators are judges and they must specify in certain in what sum the defendant must be bound, and the judges here cannot make any exposition of their judgment which is uncertain; but if a man had covenanted with J. S. that he would enter into an obligation with J. D. to pay him £10, here he must enter into an obligation of £11 or another such sum for this is the intention of the parties to the covenant. And therefore if a man covenants with J. S. that he will enter into an obligation that he will enjoy such land, then he must enter into an obligation to the value of the estate. For covenants must be taken in accordance with the

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intent of the parties; but there is no intention in the case of an arbitration, being a judgment, when the judges do not make it certain. And the second exception was because by the award the estate was to be made to Elizabeth who was a stranger. And the judges apart from GAWD Y and POPHAM said that as to the estate to be made to the two of them this was a void arbitration award. And they drew the distinction where the award is of one thing to be done to the party and another thing to a stranger, this is void as to the stranger but good as to everything that is to be done to the party; but when it is to be done to the party and a stranger jointly, then it is void as to both of them. And because of this here the estate is to be made to the husband and wife, and all is outside the award, and because it is outside the award it is wholly void. But it would be different if the estate was to be made to the husband [for life 9 ] followed by a remainder to the wife for life; this would have been good as to the husband and void as to the wife, because it was partly outside their submission and partly within. But if a void award is given and afterwards one of the parties obliges himself to perform, this obligation will bind him. But it is different where a man first binds himself to perform and afterwards the arbitrators make a void award. And so there is a distinction where the obligation is made before the award and where afterwards. And as to the submission concerning the title and possession of divers lands in Β and they make an award as above, this must be taken as being within the submission. For an award of a thing to be done to a stranger see 5 H7 22 1 0 , 8 E4 l 1 1 , 17 E4 5 1 2 , 19 E4 l 1 3 . And as to the other point, it was said that if a man covenants to make a lease to J. S. of the manor of D, he must make a lease for years. And notwithstanding these cases judgment was given against the plaintiff. D: British Library MS Add. 25201 f. 88 This manuscript is the memorandum book of a lawyer with an active practice in the court of King's Bench, John Harris. Arbitrators [award] that the defendant devenera obligatus and do not show in what sum. Per Curiam it is a void arbitration award. Also they ordered that the plaintiff should enjoy certain copyhold land against the defendant and his son, and per curiam this is void as to the son. 9

Inserted from CUL MS L I 3.9 f. 498. Year Book P. 5 Henry VII f. 22 pi. 2. 11 Year Book P. 8 Edward IV f. 1 pl. 1, at f. 2. 12 Year Book M. 17 Edward IV, f. 5 pi. 3. 13 Year Book M. 19 Edward IV f. 1. pl. 1. 10

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E : British Library MS Hargrave 7(1) f. 126. This report comes from a substantial collection of reports associated with Humphrey Were of the Inner Temple which circulated widely in three distinct versions. A number of different reporters, all members of the Inner Temple, are mentioned in the volume: John Bridgman, Jonas Waterhouse, and John Penniman as well as Were. They were of a similar degree of seniority, between five and ten years after entry into the Inn, all reporting cases at around the time at which they were called to the bar. It is just possible that Were himself was the reporter of the present case14, though it is more likely that his was the name with which the collection became associated. Whatever the case, we may be confident that the author was at the least a contemporary of his, a young lawyer just setting out on his career. The volume provides a good example of the type of reports taken by a junior practitioner in preparation for work at the bar. The facts are stated briefly but accurately; the apparent quotation from the Latin may point to the reporter's having had access to the record, although the paraphrasis of the quotation probably points more to his having noted it when read out in court 15. The arguments of counsel on both sides are reported at some length, as are the principal point on which the judges agreed and the two judicial excursus also noted by Croke. Assumpsit, the plaintiff declares that where there were debates between him and the defendant concerning certain lands in D, the defendant in consideration of 6d promised to pay £200 quandocunque ad hoc requisitus foret sinon perimpleret et performaret omnia et singula quod J. S. et J. D. arbitratores effecti etc . ex parte sua de et super premissis performandis ; et dicit in facto quod arbitratores predicti awarded that the defendant enter into a bond to the plaintiff that the plaintiff and Elizabeth his wife omnes predictas terras in controversia (exceptis 17 acris) haberent et gauderent etc.; which he had not done. This is the effect of the declaration, and to this the defendant demurred in law. CREWE: The action does not lie because the award is void; for it is that the defendant enter into a bond, and it is not shown by the arbitrators in what sum he should be bound. And therefore, if a man is bound in such a form "Noverint universi etc. me J. S. teneri et obligari J. D. " and it is not expressed in what sum, the the obligation is without force; and therefore as to this point the arbitration award is void and therefore the defendant is not bound by his promise to perform it. And hence this distinction has recently been taken in the Common Bench and agreed by the court: if a man is 14 Cf. Yale Law School MS G R 29.9 f. 263 ν : "Mr Ware report ceux termes precedents". 15 Compare lines 4 and 6 of the report with the record. The slight shifts in word order are telling: "performaret et perimpleret" in the record becomes "perimpleret et performaret" in the report, "in facto dicit" becomes "dicit in facto". 3 Wijffels (Ed.), Vol. 2

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obliged to observe the award of J. S., if J. S. then makes a void award the obligor is not bound to perform it; but if two men submit themselves to the arbitration of J. S. and he makes a void award and then one of them obliges himself to perform this, he is bound to perform this void award or he will forfeit his obligation, for it was the folly of the obligor himself to bind himself to perform an award that the law adjudges void 1 6 . Also, the award here is void for another reason; for the award is that the defendant and his wife enjoy certain lands, and the wife is not party to the submission and the arbitrators have no power to award anything to a stranger, just as it would have been void if [it was that] one party should pay £20 to J. N., a stranger. But here it might be said that although the award is void as to the wife yet it is not void as to the plaintiff, and therefore he must perform it as to him although not as to the wife; but this is not so, for an arbitration award is an entire thing, so that if it is void in part it is completely void. And so in 18 E 4 1 7 an arbitration award was that one party and two strangers as surety should be bound in £20 to the other party, there Brian and Choke held it completely void. Therefore etc. TANFIELD to the contrary: On the first point it seems to me that although it is not expressed in what sum the defendant should be obliged, still the defendant must show a readiness on his part to perform it, and so he must proffer to the plaintiff a bond of whatever sum he likes, even if it is only a small sum. And so in 14 H 8 1 8 , I make a lease for years without expressing the number of years, the law says that this will be for two years. Similarly, if I am bound to enter into a bond to J. S., I must enter into some bond or other. So here, if the award had been to lease land to the plaintiff he must lease it for two years at the least, and a lease at will would not have been sufficient; but any lease for years is performance. But any lease could be performance, similarly here any bond. As to the other matter, the arbitration award is good, for the husband and wife are one person in law and have a single possession of land, and therefore it is no more than that the husband alone should have the land, especially as the words are that they two should have it hoc est tantum during the marriage, and by these words the husband is not to have the land after the death of his wife neque e converso the wife after the death of her husband. But admitting that it is void as to the wife, still it has to be performed as to the plaintiff. And this is proved by the case of 18 E4 vouched above 19 , for in the same case in 19 E 4 2 0 the first case adjudged that the plaintiff himself 16 17 18 19 20

I have not identified any reports of this case. Year Book H. 18 Edward IV f. 22 pi. 3. Year Book M. 14 Henry VIII f. 10b pi. 6, at f. l i b , 12. Year Book H. 18 Edward IV f. 22 pi. 3. Year Book M. 19 Edward IV f. 1 pi. 1.

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must enter into a bond or otherwise forfeit the obligation. So here for this reason I pray judgment for the plaintiff. POPHAM, GAWDY, and FENNER: The arbitration award is void in that it is uncertain in what sum the defendant should be bound, for the arbitrators are made absolute judges in the cause and therefore they must decide certainly the dispute, and they cannot give authority to us or to one party or the other to make certain their uncertainty; any more than they could make an award that J. S. make an award between the parties, for their authority is not assignable over. And so here, this award being uncertain, the parties are not bound to perform it. But FENNER and POPHAM say that if a man covenants with A to enter into a bond that A should enjoy such land, and it is not expressed in what sum he should be bound, the law will say that the sum in which he is to become obliged should be to the value of the land, and he must enter into such a bond; as in 8 Ass 2 1 A grants to Β an annuity until Β should be presented by him to a benefice, here the benefice must be of the value of the annuity, otherwise Β is not bound to accept it but may retain his annuity. Similarly, if A covenants to enter into a bond to pay £20 he must be bound in a larger sum to pay £20, for an obligation of 20 s to pay £20 will not be said to be such a bond as is intended by the covenant. The reason is that it is the act of the covenantor himself in these cases, but the reverse in the first case. POPHAM: As to the other point it seems to me that the arbitration award is void, and the defendant on his side is not bound to perform it; and the difference is that where the arbitration award is to perform several things, there even if it is void as to one thing it is still good as to the other; so if here the arbitration award had been that the defendant enter into a bond that the plaintiff enjoy the land and also enter into another bond that the plaintiff's wife enjoy it as well, the defendant must enter into the bond to the plaintiff but not to the plaintiff's wife. But it is one single thing that is to be performed, it is good as to the whole or void as to the whole. And so it is here that the defendant enter into a bond that the plaintiff and his wife enjoy the land, which is a single thing; and this is void as to the wife since she is a stranger to the submission, and therefore it is wholly void. And so judgment was given against the plaintiff, principally on the first point. F: British Library MS Harl 6745 f. 163. This report comes from another widely circulating selection of reports taken by junior barristers in preparation for work at the bar, probably Henry Goldsmith and William Cobbe. The series runs from 1592 to 1596. As with Were's report, the 21

i.e. Liber Assisarum 8 Edward III; but no such case appears there. Probably a reference to Year Book P. 10 Edward III f. 18 p. 11. 3*

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facts are given at length with copious apparent quotations from the record; the arguments of counsel are given (though the identification is defective: Randle Crewe is referred to as counsel for the plaintiff rather than the defendant, while his opponent is never named); unlike Were's report, though, judicial arguments are specifically ascribed to individual judges. Text F1 is almost certainly a precis of Text F. John Samon brought an action on his case against Thomas Pitt on an assumpsit for not performing an arbitration. The plaintiff showed that whereas various debates and discords existed between him and the defendant concerning the title and possession of various copyhold lands in Bloxham Beauchamp, part of the manor of Bloxham Beauchamp, which were in the possession of the plaintiff, for the appeasement of these controversies they submitted themselves to stand to the arbitration and final judgment of one George Skinner and three other men impartially chosen to arbitrate and make final judgment; accordingly the defendant, in consideration of the submission [to arbitration] and of 6d paid to him by the plaintiff and in consideration that the plaintiff had promised to pay to the defendant 200 marks if he did not perform his side of the award of the arbitrators, the said Thomas assumed that if he did non perform the whole of his side of the award of the arbitrators then he would pay 200 marks to the plaintiff. And the plaintiff shows that arbitrators awarded that the said Thomas deveniret obligatus, anglice should enter into bond, prefato Johanni Samon that the said Samon and his wife during the life of the said wife should have and enjoy omnes predictas terras tunc ut prefertur in controversia existenti exceptis 17 acris terre et dimidia virgata terre and a shop, part of the said land in controversy, without any disturbance from the said Thomas Pitt or Christopher Pitt his son and heir etc. And also the arbitrators awarded that the said J. Samon deveniret similiter tentus et obligatus to the said Thomas that the said Thomas Pitt and Christopher Pitt his son intrarent super dictas 17 acras terre et dimidiam virgatam etc. and the said shop to enjoy it during the life of the said John Samon and his wife. And for breach the plaintiff shows how he has performed all his side of the arbitration award etc., yet still the plaintiff non devenit obligatus , anglice did not enter into bond, to the said John Samon that he and his wife should enjoy all the premises as specified exceptis preceptis , according to his promise; to the plaintiff's damage, etc. And to this declaration the defendant 22 demurred etc. Three grounds of demurrer to this declaration were shown: first that the arbitrators awarded that he should enter into a bond without showing in what sum he should be bound, and for this reason it was void; secondly because he should be bound that Samon and his wife and Samon's son 22

MSS: plaintiff.

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should enjoy the land, and the wife and son are strangers to the arbitration and not parties to the submission, and therefore 23 the arbitration is entire [and] wholly void. But according to CREWE although it is void as against the stranger, as it was adjudged in Elsat's Case in 24 Elizabeth 24 that any bond to do this would be, and so it is void as to the wife and son and there is no obligation to perform it, yet as to the party himself it is good and he is bound to perform it; and to support this he vouched 19 E4 l 2 5 , where the arbitrators awarded that the defendant and two strangers should become obliged and this was held good as to the party himself and void as to the strangers; and he vouched other books, etc. A third exception was that the submission [to arbitration] concerned the title and possession diversorum tenementorum etc. and the arbitrators awarded that he deveniret obligatus that the plaintiff and his wife should enjoy omnes predictas terras etc., and it is not shown in certain what lands etc., and therefore it is void; as in the case 46 Ε 3 4 2 6 , where an action of covenant was brought because the defendant did not keep a covenant with the plaintiff concerning all the lands he had leased to him and the writ abated because he did not show the certainty etc. And in 38 H6 l 2 7 a writ of entry on the statute of Richard I I 2 8 in various lands and tenements abated because he did not show the certainty. Also, the arbitrators have not made any award about the title but only about the possession, and because they have not made a final end of all of the matters submitted to them the arbitration is not good for this cause too. GAWDY: although they have made an award touching only the possession and not the title, this is sufficient according to 19 H 6 6 2 9 . And he put this distinction: where a man orally assumes to perform the arbitration award, then if they do one thing and not the other it is still good; but if he is obliged by deed to perform the arbitration award, then if the arbitrators do not make an award about the whole arbitration, then the arbitration is void. Then he said that the arbitration is imperfect in that no sum in which he is to become bound is sett downe, and therefore it is void because the arbitrators are judges and cannot give an uncertain judgment. And it is not the same as when I am obliged to make a lease of my land to J. S. without specifying the length of the lease, for there I must make some lease to save my bond. Then he said that the arbitration award that the wife and son 23 24 25 26 27 28 29

MSS: because. No report of this case has been identified. Year Book M. 19 Edward IV f. 1 pi. 1. Year Book H. 46 Edward III f. 4 pi. 13. Year Book M. 38 Henry VI f. 1 pi. 2. 5 Richard II stat. 1 cap. 8 (1381), the Statute of Forcible Entry. Year Book M. 19 Henry VI f. 6 pi. 12.

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should enjoy it is bad because they are strangers, but good as to the party himself; and for this he relied on the case of 19 E4 l 3 0 vouched above by Mr Crewe. Then as to the other matter, that he does not show the certainty, notwithstanding this it is good because by this action he is not to recover the land, but if it had been a writ of covenant to levy a fine of land there he would have had to show the acreage in certain as was adjudged in 46 Ε3 4 3 1 . But where he brings covenant to make an assurance of certain land there he must show the certainty, as was adjudged in 47 Ε 3 3 3 2 . And he put forward all the cases in that case, and so he concluded that the arbitration award was void because they did not show in what sum etc. FENNER: It seems harsh to hold this arbitration good, for every arbitration should be indifferent; as in 20 H 6 1 8, 19 3 3 where the arbitrators awarded that one of the parties should first pay £10 and release the other and that then the other should release him, this was a void award for it was not indifferent, for if he first pays and releases now all actions are released and determined; so the arbitrators should award that each do to the other etc. at a single moment without priority of time. And here there is no reason to compel him to show in what sum he should be bound; and it is not the same as the case in 8 Ass (it is in Perkins 157 but not in 8 Ass 3 4 ). As if I grant an annuity of £10 to someone until I promote him to a benefice, without showing its value, in this case I should promote him to a benefice having some regard to the value of the annuity. And if a man was obliged to enter into a bond that someone should enjoy certain land without showing in what sum he should be obliged, here he should become bound according to the value of the land, and it would be hard to hold him at fault. But here it is void for an arbitration must be reasonable, possible, and indifferent, and here the award is that he should enjoy it all apart from 17 acres and a shop, and it is not shown certainly that the defendant entered into these; and if he did not want to enter into there the arbitration is void since he has no means to compel him to enter, just as it would have been void if they had ordered that a stranger should enter, though that which is on his side is good. But here, because it is at his election whether he will enter or not and it is an indifferent choice and there are no means to compel him to enter, it is void. And so he concluded that the arbitration award was void. 30

Year Book M. 19 Edward IV f. 1 pi. 1. Year Book H. 46 Edward III f. 4 pi. 13. 32 Year Book T. 47 Edward III f. 3 pi. 4. 33 Year Book H. 20 Henry VI f. 18 pi. 12. 34 J. Perkins , Profitable Book, f. 157 para 804 (= 1532 ed. f. 157v). As the reporter states, the case is not found in Liber Assisarum 8 Edward III; nor is it Liber Assisarum 20 Edward III p. 1 as the marginal note in the later editions of Perkins states. It is probably a reference to Year Book P. 10 Edward III f. 18 pi. 11. 31

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POPHAM: The arbitration award is not good since the arbitrators are judges to perfect the matter and they cannot pass their judgment on to another, but it should come from themselves and from no other person; and therefore they themselves and no other person should fix the sum in which they should be bound. Then as to the other part, [that] it will not bind as to the wife but will be good as to the husband, he put this distinction: where the bond is disjunctive then it is good as to part and where it is copulative it is bad as to the whole because of the stranger. Then he spoke of the reasonableness of the sum. If a man is obliged to enter into a bond for £20 then a bond will not serve, but the bond should be related to the sum; but if I covenant to enter into a bond for £20, it should be a bond above the sum. And if a man is obliged to make an assurance of land, there the bond should bear a relation to the quantity of land. And in all these cases we can adjudge what will be a reasonable bond because it can be within our notice. But in the case of the arbitration award we cannot adjudge, because the judgment is reserved to them themselves. Therefore here because they could not adjudge the sum the arbitration is void. And it was adjudged against the plaintiff. F l : Cambridge University Library MS Ii 5.24 f. 170 Action on the case by Samon against Pitt on an assumpsit to perform an arbitration. Briefly there were only three points. 1. The submission between the plaintiff and the defendant concerned the title and possession of copyhold lands in Β and C, and the arbitrators awarded that the defendant should become obligatus in an obligation to the plaintiff (without showing in what sum) to assure the said lands to the plaintiff and his wife and [that] the plaintiff and M his wife should enjoy the said copyhold lands during their lives without any interruption by the said defendant. And the question was whether this arbitration award was void for uncertainty because it does not show in what sum the obligation should be; and it was awarded that it was [void] because it was uncertain and cannot be reduced to any certainty, for none of the parties can fix the sum. But if it was an arbitration award that one should make a lease for years to the other, even if it was not expressed for how many years, still this is good; for if he makes it for two years it is good, for the law [says that] this was the intention of the parties, and here it is certain enough. And here the arbitrators are judges, and every arbitration award should be certain; but if the arbitrators refer an uncertain thing to the law which the law can reduce to a certainty, this is good. As in the case of 8 Ass 3 5 : a man 35 i.e. Liber Assisarum 8 Edward III; but no such case appears there. Probably a reference to Year Book P. 10 Edward III f. 18 pi. 11.

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grants an annuity of £10 to another until he is promoted to a competent benefice, there the law provides the certainty that the benefice must be of an annual value of £10, otherwise the annuity will not end. And if a man is obliged to A in £10 to become obliged to Β in an obligation, without expressing the sum in which he should be obliged to B, the obligor may elect in what sum he should be bound. And if one covenants with another to enter into an obligation for the payment of £20 and does not show in what sum, the law will appoint this to be [an obligation of] £40 to pay £20. Thus if I covenant to be obliged that you may enjoy land to the value of £20 per year, there the law will construe it as being such a sum as the land is worth, as in the case of the covenant, and we are the judges. But in the case of arbitrators they are the judges, and we cannot construe the arbitration award here that the bond be of the value of the land, and therefore it is bad. And the arbitrators must make their award in certain and not 3 6 refer this to any other to be made certain. And the second matter is because the arbitration award was that the defendant should be obliged to the plaintiff to assure the lands to the obligee and his wife, and the wife is a stranger to the submission; and so the arbitration is void. TANFIELD: The husband and wife here are only one person in law, and so the wife is not a stranger, but the will of the wife is the will of the husband. CREWE to the contrary: It is at the election of the wife whether she will take the assurance or not, for after her coverture she may waive it; and so the arbitration award is void as being made in favour of a stranger to the submission. And if the arbitration award is void, so also is this obligation to perform i t 3 7 , as had been awarded in 24 Eliz . JUSTICE GAWDY: The arbitration award here is only made of the possession of the land and not of the title, but this is good because the submission was by word and not by [writing 3 9 ]; hence an award touching only part is good, as in 19 H 6 4 0 . It is otherwise where the submission is by deed; [for there it must] cover the whole, or otherwise it is wholly void. But here although the arbitration award is void as to the wife because she is a stranger to it, still it is good as to the husband, and here the party should perform it to the husband. And so is 19 E4 l 4 1 . 36 37 38 39 40 41

and not repeated in MS. The French at this point is confused. Elsat's Case (see Text F η. 23). Text illegible. Year Book M. 19 Henry VI f. 6 pi. 12. Year Book M. 19 Edward IV f. 1 pl. 1.

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POPHAM agreed that the arbitration award here is good as to the husband and void as to the wife. And as to this, there is a distinction between entire things and acts and several ones. If the arbitration award was that he should be obliged to the husband and wife, this is wholly void for the obligation is an entire thing and cannot be apportioned; but here the assurance can be severed. CREWE: The third matter is because in the count he shows that there were divers suits and controversies for divers lands in Β and C, concerning the title and possession of them, and he does not show the certainty of them as he should. 39 Η 6 l 4 2 : forcible entry, and he declares that he had entered in diversas terras et tenementa, and it was awarded bad. 46 E 3 4 3 : covenant, because he had broken the covenant concerning all his lands D had leased to him, held bad because he had not shown certainty of the land. GAWDY: No certainty of the lands is necessary here, for here he is not to recover any land as he would in the cases of 38 H 6 4 4 and 46 E 3 4 5 : a man covenants to enfeoff another of all his lands etc., and in covenant on this he does not need to show the certainty or quantity of the land awarded, because there only damages are to be recovered. But is is different where the land is to be recovered. And afterwards judgment was given against the plaintiff for the first matter, that the arbitration award was bad for uncertainty. G : British Library MS Additional 25198 f. 85 This report is the work of James Kirton of the Middle Temple, made just before his call to the bar in 1596. Counsels' arguments are reasonably detailed, but there is only the most minimal reference to the judgment of the Court. In an action on the case the plaintiff declares that various debates were pending between the plaintiff and the defendant for the title of divers tenements in D in the possession of the plaintiff, for the pacifying of which debates and all other causes the plaintiff and defendant put themselves on the arbitration of A and B; in consideration of which submission and also of 6d paid by the plaintiff to the defendant and in consideration that the plaintiff then promised to the defendant to pay him £200 on request if the plaintiff did not perform his side of the said award, the defendant assumed to pay £200 of silver to the plaintiff on request if he did not perform his said of the said award. The plaintiff shows that the arbitrators awarded that the defendant deveniret obligatus , anglice should become bound to the 42 43 44 45

Year Year Year Year

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M. 38 Henry VI f. 1 pi. 2. H. 46 Edward III f. 4 pi. 13. M. 38 Henry VI f. 1 pi. 2. H. 46 Edward III f. 4 pi. 13.

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plaintiff that the plaintiff and his wife haberet et gauderet the said lands then in controversy during the life of the wife without any disturbance by the defendant or Christopher his son and heir; and if it should happen that the said plaintiff supervixeret the wife, then the plaintiff should enjoy the said land throughout his life etc. And he shows further that notwithstanding that the plaintiff had performed all his side of the award the defendant non devenit obligatus , anglice did not enter into bond to the plaintiff that he and his wife during the life of the wife should enjoy the said land without any disturbance by the defendant or Christopher his son etc., although he had been requested to do so by the plaintiff on such a day and year etc. And the defendant demurred to this declaration for two causes: first because it is awarded that the defendant deveniret obligatus and it is not expressed in what sum; and the other in that by the award the plaintiff and his wife shall enjoy the land during the life of the wife without any disturbance by the defendant or his son where in truth the wife and the son were both strangers to the submission and therefore it is a void award and hence a discharge of the promise and assumption of the defendant. And on behalf of the defendant it was said that although the award is that he should be bound and it does not say in what sum, it should be understood that he should not be bound omnino, since the law cannot by any means reduce the uncertainty to a certainty, and so the arbitration award is completely void; as in 38 H6 fo. I 4 6 in forcible entry the plaintiff supposes in the count that the defendant had entered into certain lands and does not certainly show which, i.e. one acre or more, for which cause it was there held that the count was bad. [In] 46 Ε 3 4 4 7 , a writ of covenant supposes that the defendant does not hold to his covenant about all the lands and tenements he had leased to him in B, this was not good for he should have shown the tenements in certain. So here. But if the law by common presumption can in any way make an uncertain thing certain this will be held good. As where a lease is made for years, by common parlance without greater certainty 'years' in the plural means two years, therefore the law will say that this is a lease for such a period. [In] 9 E 4 4 8 a man is bound to give J S £10 without saying of what, the law will explain this uncertainty and say that it should be £ 10 of silver. But here it is impossible to say in what sum he should be bound and hence the award cannot be good. To which it was replied on the other side that by the plaintiff's counsel that of necessity the defendant should have shown that he has become well 46

Year Book M. 38 Henry VI f. 1 pi. 2. Year Book H. 46 Edward III f. 4 pi. 13. 48 Unidentified; it does not seem to correspond to any case in the Year Book of Edward IV. 47

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enough obliged by his covenant for the enjoyment of the land, and this would have been a good performance of the award in that a covenant can be made without any sum; but whether it be by bond or by covenant in a certain sum or in some other way according to the exact letter and sense of the arbitration award, still he should have become obliged; and to show he has performed he must of necessity show that he is obliged. On which this case was put: if a man is obliged to lease Blackacre to J. S., the condition will not be performed by a lease at will, for he must make an estate for a period which is not defeasible; but it is undisputed that he should lease the land for some estate or other if he does not want to forfeit the obligation; for he is obliged to lease some estate. For the same reason here he must be obliged in one sum or another, for the award is quod deveniret obligatus, therefore etc. As to the other matter, it was said for the defendant that the award is void because it is to be done to a stranger, i.e. the defendant is to become obliged to the plaintiff that he and his wife during the life of the wife should enjoy the land without disturbance by the defendant or Christopher his son, and the wife and the son are strangers to the submission, and so the award is void and the defendant is not bound to perform it but is discharged from his assumpsit as if no arbitration award had been made. And on this point the distinction was said to have been agreed by the Common Bench: if a man is obliged to stand to the award of J S and afterwards he makes a void award the obligor is not bound to perform; but if J. S. had made a void award and then J. D. is bound to observe and perform it, here J. D. must do it on pain of forfeiture; for here he has brought this inconvenience on himself 49 . On the other side it was answered that notwithstanding that the award is void as to the wife and son, still it is good as to the husband; for the husband who is plaintiff is privy to the submission, and so he should allege performance of everything that touches him. For as Spillman's Case in 18 Ed 4 2 2 5 0 and 19 Ed 4 l 5 1 , this must be performed; and on this the distinction can be drawn (it seems) where the award is that an act shall be done by a stranger to one of the parties privy to the submission the award is void, as where arbitrators award that J S enfeoff one of the parties privy to the submission this is void because there is no remedy for the party to compel him to do it; but if the award is that one of the parties should do an act to a stranger as to pay £ 10 or to enfeoff him, this is good, and this is our case, for the defendant was party and privy to the submission and the act is to be done by him and therefore he must do it accordingly notwithstanding that it is to a stranger. And as our case is in sub49 50 51

I have not identified any report of this case. Year Book H. 18 Edward IV f. 22 pi. 3. Year Book M. 19 Edward IV f. 1 pl. 1.

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stance and in construction of the law there is no act omnino to be done to any stranger, notwithstanding that it is in words; for the defendant is to be obliged to the plaintiff that he and his wife enjoy certain land during the life of the wife, which in substance is only that the husband shall have the land during his life, for during the life of the husband it is impossible that the wife have any profits from it, but the husband alone should have them to his own use, and if the wife should die during the life of the husband there is another clause in the award that the husband should have it during his life; and so in substance the award is that the husband alone should have an estate in the land during his life; but he is privy to the submission and so the award is good. But for the aforesaid reasons the opinion of the court fuit quod querens nil capiat per billam. H : British Library MS Harl 1697 f. 92 This is again, probably, an example of a report taken in preparation for practice, though it is of substantially lower quality than the three previous texts. Its authorship is unknown. The statement of facts is relatively brief, and there is no mention of counsels' arguments. Opinions are attributed to individual judges, though it is not at all easy to make sense of the arguments in the form in which they are reproduced. Samon brings assumpsit against Pytt. And declares that where there was a controversy between the plaintiff and defendant about certain land for the appeasement of which they submitted themselves to the arbitration of J. S., and the said defendant in consideration of 6d and of the said submission assumed to perform such award as the said J. S. would make or pay to the said plaintiff £200. And the plaintiff declared that the said arbitrator awarded that the said Pytte should be obliged to the said Samon that the said Samon and his wife enjoy terras predictas during the life of the wife. GAWDY: it seems that the arbitration award is void because it is not expressed in what sum the party should be bound as it should be, for the arbitrator is made judge of the cause and so he must give a certain award. Also, the award is that the wife enjoy the land and she is a stranger to the submission and for this cause also the award is void as to her but still it seems that it should be performed as to the party to the submission. But for the last matter, which is that there was a controversy de certis terris but the arbitration award is that he enjoy terras predictas, this is good enough. FENNER: It would be hard to hold the arbitration award good, for in every arbitration there should be equality, and there is not in our case, since it does not appear in what sum the party should be bound, whether

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larger or smaller. And 8 Ass 5 2 is that if a man grants an annuity until the grantee be promoted to a benefice this must be of as much value as the annuity is. And in this case if the defendant will be bound in an obligation it must be in a sum reflecting the value of the land. Also the arbitration award is that the plaintiff enjoy all the land except 17 acres, and he has not shown where the 17 acres are and so it is uncertain for this reason. Also the award is that the defendant enter into the 17 acres and what if he does not want to enter into them. POPHAM: The sum in which the defendant should be bound must be expressed by the award; for the arbitrator is made judge between the parties and so the party cannot be his own judge in what sum he should be bound. And for the other matter it seems that the arbitration award should be good to bind Samon if it is well pleaded. And I take the difference to be where a man is to do a joint act and where several; as to be bound to a husband and wife is a joint act, but it is different here. And so judgment was given for the defendant. I : Cambridge University Library MS Gg 6.29 f. 131 The manuscript from which this report is taken is a seventeenth-century copy of a set of an unidentified junior practitioner's reports. The reports have been reordered, roughly according to their subject matter, but there is no difficulty in reconstituting the original order of cases which ran between 1594 and 1597. The style is similar to that of other junior practioners' reports, although there is greater stress on the judges' opinions rather than those of counsel. The interchange between Gawdy J and Fenner J is not found in any other manuscript. Samon ν Pitt T. 37 Eliz 877. One promises on good consideration to stand to the award of A ; who awards that the defendant shall become bound to the plaintiff that the plaintiff and his wife during the life of the wife shall peaceably enjoy the farm of Blexhouse, except 17 acres, without interruption of the defendant or of his son. CREWE demurs to the declaration because this arbitration award is void as to a stranger to the submission, and hence he need not perform it; and to this effect in 24 Eliz in the Common Bench, one was bound to stand to the award of A, who made a void award, and he was not bound to perform i t 5 3 . It would be otherwise if he became bound after such a void award was made, for there although the award is void in law he is still bound to perform it. 52 i.e. Liber Assisarum 8 Edw III; but no such case appears there. Probably a reference to Year Book P. 10 Edward f. 18 pi. 11. 53 Elsat's Case, cited in Text F η. 23, but otherwise unidentified.

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GAWD Y: The arbitration award is void, in that it is not expressed in what sum the obligation should be; but although it is void in part as against the stranger to the submission, still it is good for the other part as against the parties to it, and so it was adjudged in 19 Ε 4 l 5 4 . FENNER to the same effect, for the reason that no sum is expressed. And every arbitration award must be indifferent between both parties, which it cannot be here because no sum is expressed. Also it is a void arbitration award in that it does not specify which 17 acres. POPHAM: Every arbitration award is to reduce things to a certainty, which is the reason why they cannot award that the parties stand to the arbitration of a third party; and the reason behind this case puts an end to our case. And here it is imperfect because of the uncertainty, and so void. And as to the wife it is void, and so wholly void, in that the enjoyment here must be exercised jointly. It would be otherwise if the arbitrator had appointed several acts to be done, some to the parties to the submission and some to a third party, for there it could be bad in part and still good as to the rest. But here it is otherwise. And if one covenants or promises to become bound to save one harmles or [to give] quiet enjoyment of land or to pay £20, in all these cases the obligation must be in such a sum as is proportionate to the thing which is to be done or performed; for there is no question in any of these cases that the promise or covenant will have been broken if he becomes obliged in 12 d or such a small sum. But here the reason is completely different, in that it is not certainly specified by the arbitrators in what sum the obligation should be and the arbitration is void and he is not bound to make any obligation. Therefore it was adjudged against the plaintiff. GAWDY: The proportionate value is not always to be taken in these uncertain cases, for according to the books if one grants an annuity of £10 until he is advanced to a benefice, if he tenders to him a benefice of only 40s the annuity is determined; but it is different if the words competenti beneficio are included in the grant. FENNER: There is no such distinction, neither in the books nor in reason; for in both cases the issue will be whether the benefice was sufficient pro rata , but if he accepts a benefice of lesser value his annuity is determined by his own folly, for he might have refused it. POPHAM inclined towards the view of FENNER. J : Yale Law School MS G R 29.7 p. 378 The volume from which this report is taken is a composite from several sources including Were's reports. It is typical of the type of volume made up by students 54

Year Book M. 19 Edward IV f. 1 pl. 1.

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in the early years of their legal studies. The report is unbalanced, with the facts predominating over the legal issues and only a very brief statement of the judgment. It is highly unlikely that this report was taken at first hand; close examination of the way in which the facts are described suggests that it may perhaps be an abstract of Kirton's report, but it is so brief that it is impossible to give any confident attribution. Action on the case, and he declares that various debates were between the parties and they submitted themselves to arbitration; in consideration that the plaintiff for 6d given to him by the defendant assumed to pay £200 to the defendant if he did not perform the arbitration award, the defendant also assumed to the plaintiff in consideration of 6d given to him by the plaintiff that if he did not perform the arbitration award on his side he would pay to the plaintiff £200 on request. And it is alleged in facto that the arbitration award was made that the defendant deveniret obligatus to the plaintiff that the plaintiff and his wife haberent et gauderent the lands in question without interference from the defendant or Christopher his son and heir. And although the plaintiff had performed everything on his side, still the defendant non devenit obligatus to the plaintiff as etc. and has not paid the £200 although required to do so. The defendant demurs because it is not expressed in what sum the defendant should be obliged to the plaintiff, and also because the award is that the defendant should be obliged for the enjoyment without interference by the defendant's son who is a stranger to the arbitration, and should also be obliged to the wife who is a stranger. And for this reason the arbitration award should be void. And for these causes it was ruled and adjudged that querens nihil capiat per billam suam. K : Harvard Law School MS 1180(1) f. 59 The volume from which this report is taken is, like text J, a composite collection. The report is again brief, but it considerably more sophisticated. The facts are stated briefly but accurately; and the principal points at issue are treated, if somewhat elliptically. It may be an abstract of a more substantial report, but probably not of any of the reports that has survived. It is perhaps more likely that it was taken at first hand by a student not yet practised in the art of making up a report - the intermittent use of English would support this - but as with text J, the report is so brief that it would be hazardous to say anything about it with any degree of confidence. Ρ promises S in consideration that eche had submitted themselves to the award of Β and alsoe of 6 d given by S to Ρ touching thinterest of ce rte ine lands in Bloxam toe perform thaward. Afterwards Β arbitrated that Ρ shall become bounde to S that S and his wief shall quietly enjoy the same lands without disturbaunce of Ρ or his sonne and no certain sum was expressed in which he should become bound. And because of this it seems that the arbitration award was void, for the arbitrators should be indifferent judges to determine the controversies and cannot transfer to another. But if a man

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is obliged to make a lease and no certain term is expressed he must make a lease for some certain term and a lease at will will not save the bond. POPHAM: If Β had awarded something to be done by a stranger to the submission or to a stranger, if it is an entire thing it is wholly void, but if it can be performed separately it is otherwise: 19 E 4 5 5 . But if the arbitration award was good without any sum being expressed then the sum should be valuable in terms of the consideration for which the bond is made. And to this purpose FENNER cited a case where an annuity of £10 was granted until he was promoted to a benefice, there the benefice must be of the value of the annuity 56 . As to the 5 7 exception made that the submission was touching divers lands in Β without expressing which of them in certain, and that the award is void because it too is uncertain; but according to GAWD Y it is not so; for the land here is not in demand, as appears in 47 E 3 5 8 : a man covenants to assure A of all his tenements in an action of covenant brought this must be expressed with certainty. In 46 E 3 5 9 covenant is brought on a demise of various lands, there the certainty must be expressed; for the term is to be recovered. And according to him when the award is that the other allow S and his wief to enjoy etc., even though this would have been void for the wife still it is good for A according to 19 E 4 6 0

The Record Public Record Office KB 27/1330 m. 877, printed in: E. COKE, Book of Entries (1614), f. 3 Memorandum quod alias scilicet Termino sancti Michaelis anno regni domine Elizabeth nunc regine Anglie tricesimo quarto et tricesimo quinto coram eadem Regina apud Castrum Hertfordense venit Johannes Samon per Georgium Brome attornatum suum et optulit in curia dicte domine Regine tunc ibidem quandam billam suam versus Thomam Pytt in custodia marescalli etc. de placito transgressionis super casum Et sunt plegii de prosequendo Johannes Doo et Richardus Roo qua quidem billa sequitur in hec verba: 61 55

Year Book M. 19 Edward IV f. 1 pl. 1. i.e. the case referred to in Perkins , Profitable Book, f. 157, attributed in the other reports to Liber Assisarum 8 Edward III. Probably a reference to Year Book P. 10 Edward III f. 18 pi. 11. 57 Reading uncertain. 58 Year Book T. 47 Edward III f. 3 pi. 4. 59 Year Book H. 46 Edward III f. 4 pi. 13. 60 Year Book M. 19 Edward IV f. 1 pl. 1. 61 Co Ent begins at this point. 56

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Oxon'. Johannes Samon queritur de Thoma Pytt in custodia Marescalli Marescalcie domine Regine coram ipsa Regina existente pro eo videlicet quod cum diverse lites et discordie habite mote et dependentes fuissent inter ipsum Johannem et prefatum Thomam de pro et concernenti titulum et possessionem diversorum tenementorum custimarum in Bloxham Beauchampe in comitatu predicto parcellarum manerii de Bloxham Beauchampe in comitatu predicto in possessione predicti Johannis Samon existentium pro pacificatione quarum quidem litium et discordiarum et omnium aliarum causarum tam idem Johannes quam predictus Thomas decimo octavo die Novembris Anno regni domine Elizabeth nunc Regine Anglie tricesimo quarto apud Bloxham Beauchampe predictum submisissent se stare arbitrio ordini et finali Judicio quorundam Georgii Skynner armigeris, Johannis Dalbye, Walteri Fludd, et Johannis Baylye generosorum arbitratorum inter eo indifferenter electorum ad arbitrandum ordinandum et finaliter adjudicandum de et super premissis, predictus Thomas postea scilicet die et anno predictis apud Bloxham Beauchampe predictam in consideratione submissionis predicte ac in consideratione sex denariorum legalis monete Anglie eidem Thome per predictum Johannem adtunc et ibidem fideliter solutorum necnon in consideratione quod idem Johannes dicto Thome adtunc et ibidem fideliter promisisset ad solvendum eidem Thome ducentas libras legalis monete Anglie quandocunque ad hoc per ipsum Thomam requisitus foret si idem Johannes non performaret et perimpleret omnia et singula que arbitratores predicti ex parte sua de et super premissis performandis et arbitrarentur et adjudicarent 62 super se assumpsit et eidem Johanni adtunc et ibidem fideliter promisit quod si ipse idem Thomas non performaret et perimpleret omnia et singula que arbitratores predicti ex parte sua performanda et perimplenda arbitrarentur et adjudicarent 63 quod tunc idem Thomas ducentas libras legalis monete Anglie eidem Johanni cum inde requisitus esset bene et fideliter solvere et contentare vellet; Et idem Johannes in facto dicit quod arbitratores predicti accepto super se onere arbitrandi ordinandi et adjudicandi inter ipsum Johannem et prefatum Thomam de et super premissis in eorum arbitrium ut prefertur posito postea scilicet ultimo die Novembris Anno regni dicte domine Regine nunc tricesimo quarto supradicto apud Bloxham Beauchampe predictam inde inter eos arbitraverunt ordinaverunt et adjudicaverunt modo et forma sequenti, videlicet Inprimis quod predictus Thomas Pytt deveniret obligatus, Anglice should enter into bond, prefato Johanni Samon quod predictus Johannes Samon et Elizabeth tunc uxor eius durante vita naturali ipsius Elizabeth haberent et gauderent omnes predictas terras tunc ut prefertur in controversia existentes, exceptis septemdecim acris terre et dimidia virgata terre communis Anglice 62 63

Co Ent: adjudicarentur. Co Ent: adjudicarentur.

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hälfe a yard land Cornons et quadam shopa 64 voeata the Butchers shoppe, parcellis predictarum terrarum in controversia tune ut prefertur existente sine aliquo impedimento vel perturbatione predicti Thome Pytt vel Christofen Pytt filii et heredis predicti Thome Pytt post statum et interesse predictorum Johannis Samon et Elizabeth finitum et determinatum, ac etiam quod predictus Johannes Samon si contingeret ipsum Johannem predictam Elizabethan! uxorem suam supervivere similiter haberet et gauderet omnibus terris predictis durante vita sua naturali secundum promissionem predicti Thome Pytt, eodem Johanne Samon solvens eisdem Thome Pytt et Christofero triginta solidos annuatim pro eisdem terris in consideratione cuiusdam assuerancie faciende per prefatum Thomam Pytt prefato Johanni Samon et Elizabeth uxori eius: ac etiam arbitratores predicti ulterius arbitraverunt, ordinaverunt, ordinaverunt et determinaverunt pro pacificatione controversiarum predictarum, et in respectu quietis predictorum Johannis Samon et Thome Pytt quod predictus Johannes Samon deveniret similiter tentus et obligatus prefato Thome Pytt, quod predictus Thomas Pytt et predictus Christoferus filius eius imediate post arbitrium factum intrarent super predictas septemdecim acras terre predicte dimidiam virgatam terre communis et predictam Shopam vocatam the Butchers shoppe, que in effectu extiterunt una medietas terre predicte in controversia ut prefertur existente et eisdem quiete gauderent durantibus vitis ipsorum Johannis Samon et Elizabeth tunc uxori s eius. Et dicit idem Johannes quod predictus Thomas promissionem et assumptionem suas predictas minime ponderans sed machinans et fraudulenter intendens eundem Johannem in hac parte callide et subdole decipere et defraudare, licet idem Johannes bene et fideliter performavit et perimplevit omnia et singula in arbitrio predicto specificata ex parte ipsius Johannis performanda et perimplenda iuxta formam et effectum arbitrii predicti non devenit obligatus, Anglice did not enter into bond, prefato Johanni Samon quod predicti Johannes et Elizabeth adtunc uxor eius durante vita naturali ipsius Elizabeth haberent et gauderent omnes predictas terras tunc ut prefertur in controversia existente exceptis septemdecim acris terre et dimidia virgata terre communis et predicta shopa, vocata the Butchers shoppe, parcellas predicte terre in controversia tunc existente sine aliquo impedimento vel perturbatione predicti Thome Pytt vel predicti Christoferi Pytt filii et heredis predicti Thome Pytt post statum et interesse predictorum Johannis Samon et Elizabeth finitas et determinatas, ac etiam quod predictus Johannes Samon si contingeret ipsum Johannem predictam Elizabeth uxorem suam supervivere similiter haberet et gauderet omnibus terris predictis durante vita sua naturali secundum promissionem predicti Thome Pytt eodem Johanne Samon solvens iisdem Thome Pytt et Christofero triginta solidos annuatim pro eisdem terris in consideratione cuiusdam 64

Co Ent: quandam shoppe.

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assuerancie 65 faciende per prefatum Thomam Pytt prefato Johanni Samon et Elizabeth secundum intentionem arbitrii predicti licet idem Thomas ad hoc per predictum Johannem postea scilicet decimo die Julii anno tricesimo quarto supradicto apud Bloxham Beauchampe predictam requisitus fuisset, nec predictas ducentas libras eidem Johannis Samon iuxta promissionem et assumptionem suas predictas nondum soluit seu aliqualiter pro eisdem hucusque contentavit licet idem Thomas ad hoc etiam per eundem Johannem postea scilicet predicto decimo die Julii, anno tricesimo quarto supradicto apud Bloxham Beauchampe predictam requisitus fuit, per quod idem Johannes diversa lucra commoda et proficua que ipse cum predictis ducentis libris emendo vendendo liciteque barganizando habere et lucrari potuisset si predictus Thomas promissionem et assumptionem suas predictas performasset totaliter perdidit et amisit, unde dicit quod deterioratus est et damnum habet ad valenciam ducentarum et viginti librarum et inde producit sectam etc. Et modo ad hunc diem scilicet diem Veneris proximum post crastinum Sancte Trinitatis isto eodem termino usque quem diem predictus Thomas Pytt habuit licenciam ad billam predictam interloquendi et tunc ad respondendum etc. et ante quem diem loquela predicta adiornata fuit per breve domine Regine de communi adiornamento coram eadem domina Regina apud Westm' usque in Octabis Sancti Hilarii coram domina Regina apud Westm' venerunt tam predictus Johannes Samon per attornatum suum predictum quam predictus Thomas Pytt per Georgium Cuppuldike 66 attornatum suum, et idem Thomas defendit vim et iniuriam quando etc. et petit iudicium de narratione predicta quia dicit quod narratio predicta materiaque in eadem contenta minus sufficientes in lege existunt ad ipsum Thomam ad narrationem illam respondere compellendum ad quam idem Thomas necesse non habet nec per legem terre tenetur aliquo modo respondere, unde pro defectu sufficientis narrationis in hac parte idem Thomas petit iudicium de narratione predicta et quod narratio ilia cassetur etc. et pro causis moratonis 67 in lege super narratione ilia idem Thomas iuxta formam statuti in huiusmodi casu nuper editi et provisi ostendit et curie hic monstrat causas subséquentes videlicet eo quod in narratione ilia allegatur quod predictus Thomas deveniret obligatus etc. et non monstratur 6 8 in qua summa etc. Etiam eo quod arbitrium concernit extraneos et ideo arbitrium illud vacuum existit et promissio predicta similiter vacua existit.

65 66 67 68 4*

Co Ent: assurancie. Co Ent: Cuppuldicke. Sic KB 27; Co Ent: morationis. Co Ent: monstrat.

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Et predictus Johannes Samon dicit, quod per aliqua per predictum [Thomam 6 9 ] Pytt superius placitando allegata narratio ipsius Johannis cassari minime debet quia dicit quod narratio predicta materiaque in eadem contenta bona et sufficientia in lege existunt ad eundem Thomam ad narrationem illam respondere compellenda quam quidem narrationem materiamque in eadem contentam idem Johannes paratus est verificare et probare prout Curia etc. et quia predictus Thomas ad narrationem illam non respondit nec illam hucusque aliqualiter dedicit idem Johannes petit judicium et dampna sua predicta occasione predicta sibi adjudicari etc. Et quia Curia domine Regine hic de iudicio suo de et super premissis reddendo nondum advisatur dies inde datus est partibus predictis coram domina Regina apud Westm' usque diem sabbati proximum post très septimanas sancti Michaelis de iudicio suo de et super premissis audiendo etc. eo quo quod Curia domine Regine hic inde nondum etc. Ad quem diem coram domina Regina apud Westm' venerunt partes predicti per attornatos suos predictos. Et quia Curia domine Regine hic de iudicio suo de et super premissis reddendo nondum advisatur dies inde ulterius datus est partibus predictis coram domina Regina apud Westm' usque diem Maitis proximum post xv Sancti Hilarii de iudicio suo de et super premissis audiendo etc. Eo quod Curia domine Regine hic inde nondum etc. Ad quem diem coram domina Regina apud Westm' venerunt partes predicti per attornatus suos predictos, et quia Curia domine Regine hic de iudicio suo de et super premissis reddendo nondum advisatur dies inde ulterius datus est partibus predictis coram domina Regina apud Westm' usque diem Jovis proximum post Octabis Sancte Trinitatis de iudicio suo de et super premissis audiendo etc. Eo quod Curia domine Regine hic inde nondum etc. Ad quem diem coram domina Regina apud Westm' venerunt partes predicti per attornatos suos predictos, et quia Curia domine Regine hic de iudicio suo de et super premissis reddendo nondum advisatur dies inde ulterius datus est partibus predictis coram Regina apud Westm' usque diem Jovis proximum post Octabis Sancti Michaelis de iudicio suo inde audiendo etc. eo quod Curia domine Regine hic inde nondum etc.

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KB 27 omits; supplied from Co Ent.

W. H. BRYSON

Equity Reports and Records in Early-Modern England 1. Attorney General v. James Bond (Ex. 1587) Only a lord of a manor and the parson can erect a new dove cote within the manor, and if anyone else do so, he will be ordered to remove it. I British Library MS. Add. 35943, f. 134v, pl. 1 In leschequer in le case inter John Wolley Armigerum un del privie counsel et Bond un Copiholder in fee deins le mannor del Thorpe in Comitatu Surey fuit agree per totam Curiam que nul fretenant Copiholder ne quecumque que ad special fee deins un mannor ne poit erigere de nova ascun pigeon howse, mes solement le Seignior del mannor ou Rector Ibidem tiel eleccon1 pur ceo que est graund detrement al tenants in respect del increase que consume le greine est bien inquirable in chacun leete. Translation In the Exchequer, in the case between John Wooley, Esquire, one of the privy counsel, and Bond, a copyholder in fee within the manor of Thorpe 2 in the County of Surrey, it was agreed by the whole court that no free tenant, copyholder, nor anyone who had a special fee within a manor could erect any new pigeon house, but only the lord of the manor or the rector of the same [could make] such erection because it is a great detriment to the tenants in respect of the increase [of pigeons] that consume the grain. It is well inquirable in each leet.

1 2

Sic in MS. Victoria County Histories, Surrey (1911), vol. 3, p. 438.

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II Cambridge University Library MS. Ee.6.12, f. 32, pi. 3 In Scaccario. Informacion fuit versus lessee per ans del roy de parcell d'un mannor pur erecter un pigeon howse; Et per Manhood, Gent, barrons, Popham Atturney etc. et touts le barre. Erecter d'un pigeon howse est common Nusans. Et pur ceo un injunction fuit enter a luy que ne construera novell dovehowse etc. ve' acc' [?] Et que fuit l'opinion de Mountague Justice et Plowden accordant que null forsque seigniour d'un mannor ou parson poit erect dovehouse. Et que fuit tout foits en antient temps enquere en leetes. James Bonds case. Translation In the Exchequer, there was an information against a lessee for years of the king of part of a manor for erecting a pigeon house. And [it was said] by Manwood [and] Gent, barons, Popham, attorney [general], and all of the bar [that] the erecting of a pigeon house is a common nuisance. And because an injunction was entered to him that he should not construct a new dove house etc. [...]. And this was the opinion of Justice Mountague 3 and Plowden 4 in accord that no one except the lord of a manor or a parson could erect a dove house. And this was always in former times enquired of in leets. James Bond's case.

III Moore's Reports 238, 72 English Reports 553 Eodem Termino. En l'Exchequer l'Attorney la Roigne exhibite English information vers James Bond, pur ceo que il ad erect un Pigeon house sur certaine terre que il tient pur ans, le revercion al Roigne, parcel del mannor de Thorp en Comitatu Surrey: de quel mannor la Roigne est seisy en fee. Et Manwood chiefe baron, et Gent Baron, et Popham Attorney la Roigne et touts les apprentices al barre pristeront le ley que le Pigeon house sera rect et accompt pur common nuzance: et pur ceo ils grant injunction a luy que il ne construer, car Manwood dit que nul poit erecter un Dove house de novo, forsque le Seignor del manor et le parson del Esglise, et en ancient ley ceo fuit inquirable en un leet perenter common nuzances. 3 Chief Justice of the Court of King's Bench, 1539 - 1545; Chief Justice of the Court of Common Pleas, 1545 - 1553; he died in 1557. 4 Edmund Plowden (1518 - 1585).

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Et en temps de cest mocion le Seignor Burghley vient en Court, et il esteant haut Treasuror dit que Monsieur Plowden fuit d'opinion que nul forsque le Seignor del mannor, ou le parson del Esglise poit erecter un Dove house: et auxi il dit que il ad oye Montague Justice issint dire en un grand assembly. Translation 5 In the same term 6 in the Exchequer, the attorney of the queen7 exhibited an English information against James Bond because he had erected a pigeon house upon certain land that he held for years [with] the reversion to the queen, part of the manor of Thorpe in the County of Surrey, of which manor the queen is seised in fee. And Chief Baron Manwood and Baron Gent and Popham, attorney of the queen, and all of the lawyers at the bar held the law [to be] that the pigeon house should be reckoned and accounted as a common nuisance. And on account of that, they granted an injunction to him that he not construct [it] because Manwood said that no one can erect a new dove house except the lord of the manor and the parson of the church, and in ancient law, it was enquirable in a [court] leet among the common nuisances. And at the time of this motion, he, being high treasurer, said that one except the lord of the manor dove house. And also he said that a great assembly.

the Lord Burghley came into court, and Mr. Plowden was of the opinion that no or the parson of the church can erect a he had heard Justice Montague so say in

IV Public Record Office E. 123/13, f. 84v, pi. 3 (4 July 1587) It is ordered by the court that James Bond, defendant in an English bill at the suit of Mr. Attorney General for the erecting of a dove house in hurt of the inhabitants of the queen's manor of Thorpe, shall, before Bartheutide 8 next, pull down the louver of the same house and make the house plain and even and fit for an apple loft or garner, [whichever] he will, or else an attachment shall go against him for his contempt, and order shall be given to some of the queen's officers in that county to pull down the same. 5

For another translation, see J. Chitty, A Treatise on the Game Laws, vol. 2 (1812), p. 831. 6 I.e. Pasch. 29 Eliz. (Easter Term 1587). 7 I.e. attorney general. 8 St. Bartholomew's Day, i.e. August 24.

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V Public Record Office E. 123/13, f. 123v, pl. 3 (14 November 1587) It is ordered by the court that, if James Bond do not before this day sennight reform and pull down the louver of the dove house in question between the queen's majesty and him according to a former order taken therein by this court on the fourth day of July last, that then this court will appoint certain persons to view and reform the same. VI Public Record Office E. 123/13, f. 137v, pi. 2 (28 November 1587) Whereas it was ordered the fourth day of July last past that James Bond shall pull down the louver of the dove house by him then lately erected within the queen's majesty's manor of Thorpe in the County of Surrey and make the house plain and fit for an apple loft or garner or else an attachment should be awarded against him for his contempt and order should be given to some of the queen's officers to pull down the same forasmuch as the said James Bond has not performed the same order, it is therefore now further ordered that a commission shall be awarded out of this court to Lawrence Slaughtow and Thomas Taylor, esquires, William Prossor, Edward Cooke, and Richard Sawkyn, gentlemen, or to any four, three, or two of them to pull down the louver of the same dove house and cause the same house to be made plain and fit for an apple loft or granary as aforesaid and to certify this court of their proceeding therein on the utas of St. Hilary next coming.

2. Katherine Ayliffe v. John Duke (Ch. 1655) A court of equity will grant relief against a common law judgment in order to prevent a double payment and fraud. I British Library MS. Hargr. 174, f. 21 v, pl. I 9 Mrs. Ayloffe tore [up] a bond of £800. [There was] a verdict against her in an action on the case for the £800, against which her bill was to be 9

Another copy of this report is British Library MS. Hargr. 99, f. 59v, pi. 8.

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relieved. Her equity was that the bond was but a collateral security and that, if the bond were in being, the obligee ought not in equity to be admitted to recover thereupon etc. and that, though the jury had done well in the verdict for £800 because the bond was for £800, yet she ought to have the same relief against the verdict in equity as she might have had against the bond if it were in being. And upon this she was relieved. And in this case, the bill did not complain of or arraign the verdict but admitted the verdict and sought relief upon the original equity. II 2 Freeman's Reports 152, 22 English Reports 1124 Mrs. Ayloffe tore a bond of £800; a verdict passed against her for £800 in an action of the case; she prayed relief here, for that the bond was but a collateral security, and that, if the bond were in being, the obligee, in equity, should be barred of his recovery thereon; and therefore, though the jury had done well in their verdict for £800, the bond being for £800, yet she ought to have the same remedy against the verdict in equity as she might have had against the bond if it were in being; and upon this she was relieved. And in this case the bill did not complain of or arraign the verdict but admitted the verdict and sought relief upon the original equity.

III Public Record Office C. 33/203, f. 723 (20 February 1655) Katherine Ayliffe, the relict of John Ayliffe, Esquire, deceased, plaintiff [versus] John Duke, the elder, John Duke, the younger, and George Duke and his wife, defendants. Where by an order of the 16th of December last it was ordered that the injunction granted in this cause should continue and stand in force and that the plaintiff should have further time for bringing in the 600 pounds recovered at [common] law till the last day of Hilary term last, upon opening of the matter this present day unto this court by Mr. Attorney General, 10 Mr. Churchill, and Mr. Pierce, being of the defendants' counsel, in the presence of Mr. Chute and Mr. Pecke of counsel with the plaintiff, it was alleged by the said defendants' counsel that the said money was recovered at [common] law in an action of the case and formerly ordered to be brought into court and that if the plaintiff should die, the same would be 10

Edmund Prideaux (died 1659).

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lost and therefore prayed that the said 600 pounds might be brought into court or in default thereof, the said injunction be dissolved. And it being further alleged that the plaintiff had [during] the last vacation examined her witnesses by commission, no commissioner being present nor any witnesses examined for the defendants, it was also prayed that the said commission might be renewed. But the plaintiff's counsel offering for reasons why the said injunction should be continued without bringing the said money into court that by a former order made upon hearing counsel on both sides, the said injunction was continued till the hearing of the cause upon the merits thereof, it appearing even by the answers of the said defendants that there was a practice and collusion among the defendants to defraud the plaintiff, and in default of the plaintiff's bringing in the said money, the defendants were left to prosecute the orders of the court to compel the plaintiffs thereunto and also for that publication was passed and the cause already set down to be heard, this court thereupon and upon long debate of the matter and upon hearing what was alleged on either side thought [it] not fit to dissolve the said injunction but that the same be continued and stand in force till the hearing of the cause but do nevertheless order that the plaintiff do by the general seal [day] give such sureties as Dr. Bennet, one of the masters of this court, shall allow of to abide the order of the court upon hearing of the cause and that in default thereof, the injunction is dissolved and do also order that the said defendants first making affidavit that neither they nor any for them have seen nor will see any of the depositions already taken nor of the plaintiff's interrogatories until they have examined all their witnesses, the defendants may renew the said commission, and publication of such depositions is to pass by Easter, and that the cause do stand to be heard the next term.

IV Public Record Office C. 33/203, f. 992 (21 May 1655) Katherine Ayliffe, widow, the relict of John Ayliffe, Esquire, deceased, plaintiff [versus] John Duke, the father, Esquire, John Duke, the son, gentleman, and George Duke, the elder, and Elizabeth, his wife, defendants. Upon hearing and debating of the same matter in question between the said parties this present day in the presence of counsel learned on both sides, the plaintiff's bill being to be relieved against an action at [common] law brought against the plaintiff by John Duke, the son, and a verdict obtained thereupon with 600 pounds damages for [the] cancelling of a bond of 1000 pounds for payment of 500 pounds entered [into] by the defendant George Duke to John Duke, the son, it appearing to this court that Sir

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George Ayliffe together with John Ayliffe, Esquire, the plaintiff's late husband, and Edward Hyde, Esquire, 11 became bound unto the defendant, John Duke, the father, in a bond of 3000 pounds for payment of 1500 pounds being the [marriage] portion of the defendant Elizabeth, daughter of the said Sir George Ayliffe, with the said George Duke and that although the plaintiff, who is executrix of her said late husband, John Ayliffe, who was executor of the said Sir George, had no assets neither of the estate of the said John Ayliffe nor of the estate of the said Sir George, and the estate of the said Edward Hyde was sold according to [an] Act of Parliament, 12 so as the remainder of the marriage portion being near about 900 pounds unpaid after the decease of the said Sir George, and John Ayliffe became desperate, yet the plaintiff being willing to pay the same so as the said George Duke and Elizabeth might have the benefit thereof but not otherwise, the said John Duke, the father, to induce such payment did by letter of attorney assign the said 3000 pound bond for payment of the residue of the said portion unto the said George to receive the same to the proper use of the said George Duke, which bond and letter of attorney being in the hands of the said George and Elizabeth were showed to the plaintiff the better to move her to make payment of the remainder of the said portion unto the said George. But before the plaintiff engaged for the same, it was discovered to her that the said defendant Duke, the father, had at the time of such assignment of the said bond caused the said George Duke to enter into the said bond of 1000 pounds to the said John, the son, at which she was much offended, and perceiving thereby that her kindness intended to the defendant George and Elizabeth would by that bond be diverted, refused to pay or secure the remainder of the said portion until the said 1000 pound bond were delivered up. And thereupon, the said bond was then delivered by the said John Duke, the father, to the said Elizabeth and by her brought to the plaintiff, who cancelled the same and then gave security for payment of the remainder of the said portion unto the defendant George and accordingly paid the same long since. Yet four years after, when all the said moneys was [sic] paid, the said action at [common] law is brought against the plaintiff in the name of the defendant John Duke, the younger, for [the] cancelling of the said bond, and the said verdict and damages thereupon given and the said John, the father, produced and sworn as a witness at the trial for the said John, the 11

Edward Hyde (1609- 1674) married in 1629 Anne, daughter of Sir George Ayliffe; she died six months later. In 1655, Hyde, a royalist, was in exile. With the restoration of the monarchy in 1660, he was made Lord Chancellor and Earl of Clarendon (cf. Dictionary of National Biography). 12 Act of 1651: C. H. Firth and R. S. Rait, Acts and Ordinances of the Interregnum, 1642- 1660, vol. 2 (1911), p. 520.

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son, and it appearing that the said John, the son, was not present at the entering into the said 1000 pound bond nor privy thereunto till afterwards when he was made acquainted therewith, neither had he ever the same bond in his custody, but the same was still kept by the said John, the father, and by him delivered to the said Elizabeth and so brought to the plaintiff and cancelled and security afterwards was given as aforesaid, it also appearing that the said John, the father, had before engaged himself for 2000 pounds to the said John, the son, and intended this 500 pounds to pay part thereof, which never came to him so as such engagement of the father to the said John, his son, is not impaired by anything done by the plaintiff. But it was insisted upon on the behalf of the defendants that it was an action wherein damages only were recoverable, and they had a verdict at [common] law and that the matter of the plaintiff's bill might have been given in evidence at the trial and that the bond was not delivered up to that end, that it might be cancelled. This court nevertheless upon reading the proofs and so much of the matter charged as is confessed by the said defendants in the answer and observing the circumstances appearing in this cause upon what occasion and by and from whom this bond is brought and put into the plaintiff's hands and of her entering security after the cancelling thereof for payment of the remainder of the said portion and how, after the same, all was paid and four years elapsed the said action is brought and verdict obtained and fully satisfied of the combination and practice in the bill charged, and conceive the said bond of 1000 pounds so contrived by the father was intended upon the matter to his own use, and the name of John, the son, used only in trust for the father that with that 500 pounds so much of his debt might have been paid, and do hold it unconscionable that the plaintiff, who was moved out of her charity and affection to her husband's sister to make payment of the debt so accounted desperate and who would not have engaged for the same, if the said other bond had not first been cancelled, would by this contrivance amongst the defendants be made liable to such double payment of the same debt by the said action and proceeding which are a part of the said practice when the plaintiff reaped no benefit by [the] cancelling of the said bond, and for that John, the son, if there were any just debt to him, might have relief for the same either against the said George Duke or the said John, the father, but the plaintiff can have no other relief but by this suit, their lordships thereupon declared that the plaintiff ought to have relief in this court and do therefore order and decree that the defendants shall be debarred of and from all further proceeding in the said action and shall seal and execute to the plaintiff a release of the said action and the cause thereof and that the injunction formerly granted in this cause be continued and stand in force and that the recognizance entered into by the

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plaintiff to abide the order of this court upon the hearing of this cause be vacated and delivered up.

3. William Morehead v. Margaret Douglas (Ex. 1655) A person cannot sue in equity where the same matter has been adjudicated at common law. I British Library MS. Lansd. 1077, f. 60v, pi. 5 Michaelis 1655. In Scaccario sur demurrer al bil d'estre relieve après Judgment, Le demurrer fuit allow en Moorewood et Douglas case. Et enconter ceo les presidents del chancery fueront monstre, mes per le chief baron ils ne obligera cest court. Et come avant dit fuit l'opinion de touts les Justices d'Angleterre 29 Elizabethae. Throckmorton et Sir Moyle Finche's case in Cancellaria. Translation [In] Michaelmas [term] 1655, in the Exchequer on a demurrer to a bill to be relieved after a judgment [at common law], the demurrer was allowed in Moorewood and Douglas' case. And against this the precedents from the Chancery were shown. But according to the Chief Baron, they do not bind this court. And as before said, it was the opinion of all the justices of England in 29 Eliz. [1586 - 1587] in Throckmorton and Sir Moyle Finch's Case in the Court of Chancery. 13 II Hardres' Reports 23, 145 English Reports 360 An English bill was preferred to be relieved against a judgment obtained at law upon nihil dicit in debt upon an obligation, the equity of the bill being that the money was paid. To this bill there was a demurrer upon the Statute of 4 Hen. I V , 1 4 that after judgment the party shall be in rest and 13 E. Coke , Institutes (1644), vol. 4, p. 86. The proceedings in the related common law case are reported in 1 Anderson 303, 123 English Reports 485; Croke (Eliz.) 221, 78 English Reports 477; Moore (K. B.) 291, 72 English Reports 587; 2 Leonard 134, 74 English Reports 420. 14 Stat. 4 Hen. IV, chap. 23, Statutes of the Realm, vol. 2, p. 142.

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peace unless error or attaint be brought. And the court allowed the demurrer. And Langham and Limbry's Case was cited in point, which was ruled in the House of Lords by the advice of all the justices in the last Long Parliament, the matter being 18,000' damages given in an action of covenant and judgment [had] thereupon. And the case betwixt Throgmorton and Sir Moyle Finch , wherein it was adjudged that after judgment for the mortgagee in ejectment, a court of equity cannot relieve the mortgagor, but he ought to have preferred his bill before judgment. And though the preamble of the Act does not mention courts of equity, yet by construction, the Statute extends to them.

Ill Public Record Office E. 125/36, f. 262, pi. 2 (20 November 1655) Whereas William Morehead in Easter term last did exhibit his English bill into this Court [of Exchequer] against Margaret Douglas, widow, defendant, to be relieved touching a judgment of £500 alleged to be surreptitiously obtained by the said defendant upon a nihil dicit against the said plaintiff in the Court of the Upper Bench the said Morehead alleging that he had no notice of any declaration before he was charged in execution, to which bill the said defendant put in a demurrer thereby setting forth that by divers acts of Parliament 15 after judgment once obtained the parties thereunto ought to be in peace and the same ought not to be again examined in any court of equity, upon reading of which bill and demurrer upon Saturday the 23rd of June in Trinity term last and upon hearing of His Highness' Attorney General 16 on the behalf of the said plaintiff and of Mr. Atkyns on the behalf of the said defendant, it was then ordered by the court that all things should rest as then they were and that the said cause should be continued in the paper of causes and that the court should be attended with precedents where relief has been given upon a bill in equity after a judgment obtained at law which cause being continued in the paper for Saturday the 27th of October this term and neither side then attending, the same was put out of the paper, and upon Friday the 18th of this instant November upon the motion of Mr. Watts of counsel with the said plaintiff offering divers precedents in Chancery, this court did order that the said plaintiff should attend this court with precedents of orders of this court, which last 15 Perhaps this is a reference to the Act of 21 August 1654, chapters 27 to 30, C. H. Firth and R. S. Rait, Acts and Ordinances of the Interregnum, 1642- 1660, vol. 2 (1911), pp. 955 - 956; this statute restricts injunctions after judgments at common law but it does not absolutely prohibit them. 16 Edmund Prideaux (died 1659).

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mentioned order is not yet drawn up by the said plaintiff nor has he shown any such precedents. Now upon the motion of Mr. Atkyns on the behalf of the said defendant desiring that the said demurrer might be determined, it is thereupon this day ordered by the court that the said cause upon the said bill and demurrer shall be put into the paper of demurrers for Saturday next and the counsel on both sides to attend and in the mean time the said defendant may attend the barons of this court with copies of the said bill and demurrer in case the said plaintiff shall neglect to attend them with the same. IV Public Record Office E. 125/36, f. 273, pl. 1 (24 November 1655) Whereas William Morehead in Easter term last did exhibit his bill into this court against Margaret Douglas, widow, defendant, to be relieved touching a judgment of five hundred pounds alleged to be surreptitiously obtained by the said defendant against the said plaintiff by a nihil dicit in the Court of the Upper Bench the said Morehead alleging that he had no notice of any declaration before he was charged in execution, to which bill the said defendant put in a demurrer thereby setting forth that by divers acts of Parliament after judgment once obtained the parties thereunto ought to be in peace and the same ought not to be again examined in any court of equity, upon [the] reading of which bill and demurrer upon Saturday the 23rd day of June in Trinity term last, it was ordered by the court that the court should be attended with precedents where relief has been given upon a bill in equity after judgment obtained at law, since which time the said plaintiff attending with some precedents in Chancery, this court did direct that the said plaintiff should attend with some precedents of orders of this court, and the said plaintiff failing to show any such precedents, upon Tuesday the 20th of this instant November, upon the motion of Mr. Atkyns on the behalf of the said defendant desiring that the said demurrer might be determined, it was ordered by the court that the said cause should be put into the paper of demurrers for this day and then counsel on both sides to attend and in the mean time the barons were to be attended with copies of the said bill and demurrer as by the said last recited order more at large appears, now upon [the] hearing of His Highness' Attorney General, Mr. Johnson, and Mr. Watts, of counsel with the said plaintiff, and of Mr. Atkyns, of counsel with the said defendant, upon full and deliberate hearing of counsel on both sides and after long debate of the matter, the court is fully satisfied and clearly of [the] opinion that the said demurrer is good and sufficient, and therefore it is this day ordered by the court that the said demurrer shall stand.

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4. William Curtis ν. Thomas Smallridge (Ch. 1664) In this case, the plaintiff who had been defrauded by the defendant had no excuse for not raising the matter in an earlier common law action, and the equity court refused to grant a remedy.

I Public Record Office C. 33/219, f. 403 (6 February 1663) Williamus Curtis, querens v. Thomam Smallridge et Dorotheam uxorem eius et alios defendentes. Upon examination of the matter this day unto this Court by Master Sandford being of the plaintiff's counsel, it was alleged that the plaintiff by his bill set forth that the defendant, Thomas Smallridge, being acquainted with the plaintiff and being in a very necessitous condition did by himself and the defendant, Dorothy, his wife, or some other by their appointment, order, and direction borrow of the plaintiff and Mary, his wife, several sums of money amounting in the whole to the sum of £112 and for security thereof did deposit as a pledge or pawn in the plaintiff's or his wife's hands several goods and pieces of plate promising to repay the said £112 within three months, which being expired, and the plaintiff calling for his money, the defendant, by combination endeavoring to defeat the plaintiff thereof, did not only refuse to pay the said £112, but the said Thomas Smallridge upon pretense [that] the said plate and goods was [sic] pawned without his consent, privity, or direction has brought an action of trover and conversion against the plaintiff for the said goods and plate and the plaintiff not being provided with witnesses at the trial to prove the pawning of these goods and plate and loan of the said money to the said defendants or to his use, he the said defendant got a verdict against the said plaintiff for £180 damages for the said goods and plate and has entered up judgment thereupon and does threaten to take the plaintiff in execution of the same. Therefore to have a discovery of the fraud and whether the said plate was not pawned by the direction and order of the defendants and the money of the plaintiff lent thereupon disposed of by or to the use of the defendants is the scope of the plaintiff's bill. Whereunto the defendants have answered and though the defendant Thomas does deny his consent in the pawning of the plate or borrowing of the said money, yet the defendant Dorothy by her answers set forth that she did by the persuasions of one Margaret Deane, who was formerly her servant, lend the several goods and parcels of plate to her, the said Deane, for the use of a seaman's wife then in child bed for a month, and at the end of the said month, the said Deane coming to her

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with the plaintiff's wife desired the defendant Dorothy's consent to borrow of the said plaintiff's wife £100 upon the said goods and plate which the said Dorothy Smallridge assented unto, and though as she pretends the same was done without her husband's consent, yet it resting wholly upon the proofs to make the said fraud appear which in equity the defendant ought to make good it was prayed that an injunction may be awarded for stay of execution upon the said judgment of £180 so had and obtained upon the said action of trover and conversion as aforesaid until the hearing of the cause, whereupon it is ordered that the plaintiff do by the last day of the term bring the £100 recovered upon the said action unto this Court and upon bringing the same into Court by the time aforesaid, an injunction is awarded for stay of the defendants' proceedings at [common] law against the plaintiff upon the said judgment of £180, and in the meantime, all proceedings at law thereupon against the plaintiff are stayed.

II 1 Chancery Cases 43, 22 English Reports 685 The defendant's wife had pawned her husband's plate to the plaintiff for £110. The defendant in trover for this recovered £115 damages against the plaintiff and [had] judgment for it. A bill was to be relieved against this judgment for that the defendant was privy to the pawning and had the £110. And the proofs being read, it appeared that the defendant had confessed so much, which if it had been proved at the trial, it was agreed the defendant could not have recovered in the trover; and there being no proof now that the defendant at law could not by reason of any accident have [had] his witnesses at the trial, the Court would not on any neglect of his grant a new trial. And it was insisted upon as a rule, that nothing shall be a ground to direct a new trial to avoid a judgment at law that would not be ground for a bill of review to reverse a decree, and a confession subsequent to a decree [is] no ground for a bill of review. Nor is the want of any evidence or matter which might have been used in the first cause and of which the party had then knowledge any ground for a bill of review; and here is no proof but that the plaintiff might have had the witnesses that were examined here at the trial. And so this cause was dismissed.

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The defendant's wife had pawned her husband's plate to the plaintiff for £110, for which the defendant in trover had recovered £115 damages against the plaintiff and [had] judgment for it. The plaintiff exhibited his bill to be relieved against the judgment and to have a new trial, suggesting that the defendant was privy to the pawning and received the £110. And the proofs being read, it appeared that the defendant had confessed so much, which, if it had been proved at the trial, it was agreed the defendant could not have recovered on the trover; but there being no proof now that the plaintiff at law could not by reason of any accident, have his witnesses at the trial, the Court would not, on any neglect of his, grant a new trial.

IV 2 Freeman's Reports 178, 22 English Reports 1143 The defendant's wife had pawned her husband's plate, and the husband recovered £ 1500 [sic] in trover. The plaintiff exhibited his bill here, and it appeared that the pawning was by the husband's consent and he received the money. Curia: Because it does not appear that by any accident the defendant was hindered of his witnesses at the trial, we will not order a new trial; and [it was] taken for a rule that the court will not set aside a trial at law for any matter which might be made use of at the trial, and here nothing appears but the defendant at the trial might have produced this evidence, and we will not help his negligence. So there can be no bill of review for any matter which might have been made use of in the first cause or for any matter subsequent to the decree, as the plaintiff's confession.

V Public Record Office C. 33/221, f. 499 (26 January 1664) Williamus Curtis querens [versus] Thomam Smallridge et Dorotheam, uxorem eius, defendentes. Upon hearing and debating of the matter in question between the said parties this present day in the presence of counsel learned on both sides the scope of the plaintiff's bill being to be relieved against a judgment at

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[common] law obtained by the defendant against the plaintiff in the Court of King's Bench for £180 besides costs upon an action of trover and conversion brought by the said defendant for certain goods and plate in the bill particularly mentioned, which the plaintiff by his bill alleges were pawned to him for security of £112 by him lent to the defendant and his wife and that he paid the £112 unto one Anne Downing by the order of the defendant and his wife and that, for want of his witness, the plaintiff could make no good defense at [common] law at the trial but the co[unsel] for the defendants insisted that the defendant Thomas Smallridge denies by his answer that he ever had any acquaintance with the plaintiff or that he ever borrowed any money of him upon any account whatsoever or sent his wife or any other to borrow any of him and denies also that the goods and plate in the bill mentioned or any other were by his consent, privity, or knowledge brought to the plaintiff's house and pawned or that he knows the said Anne Downing or that he ever gave order to the plaintiff or his wife to pay any money to her neither was the £ 112 or any other sum lent or paid to him or to his use by the plaintiff and says that upon an action brought by him for his said goods and plate which were privately conveyed out of his house he obtained a verdict in Hilary Term 1661 upon full evidence and afterwards judgment thereupon for £194 damages and costs. And the defendant's wife by her answer denies also that she ever received any money upon the pawn of the said goods or that the same were pawned by her to the plaintiff and says that the same were privately conveyed out of the defendants' house without her husband's consent or knowledge by one Margaret Deane, formerly a servant of the defendants, who pretended to borrow them for the use of a seaman's wife to furnish a room for some time promising that the defendant should have a considerable profit for the use thereof and that the same should be safely returned. But she denies that Deane ever paid her any money for the use thereof. This Court upon long debate of the matter and reading of the proofs in the cause and hearing of what was alleged on either side saw no cause or ground in equity to make a decree for the plaintiff's relief and does therefore order that the matter of the plaintiff's bill be from thenceforth clearly and absolutely dismissed out of this Court but who this [sic] nevertheless in regard the defendants have received 17 out of court £180 formerly brought in by the plaintiff and the defendants' counsel now proposing to accept the residue of the money recovered at [common] law together with their costs and thereupon to acknowledge satisfaction upon the judgment aforesaid, it is ordered that the plaintiff do pay unto the defendant the sum of £14 besides the residue of the £194 recovered at [common] law and also the said defendants' costs at [common] law in a month next without serving of 17

*

See the order of 25 February 1663, PRO C. 33/219, f. 329.

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pro[cess] on the plaintiff for that purpose and thereupon the said Smallridge is upon a release of errors from the plaintiff at the plaintiff's charge to acknowledge satisfaction upon record upon the said judgment.

5. Leonard Robinson v. Anne Bell (Ch. 1690) Where a party 's sworn attorney , an officer of a common law court , filed the wrong pleading by mistake , this is an accident which a court of equity will relieve. Where a person mistakenly admits that he has received money due to a deceased person and a court of common law orders him to pay that money to someone but he never received the money , this is a mistake which a court of equity will relieve. I 2 Vernon's Reports 146, 23 English Reports 701 [A] bill [was filed] to be relieved against a judgment in an action of debt upon a bond upon plenement administrfavit] pleaded. The bill surmised that there were several debts still unsatisfied of a higher nature than the defendant's and that the plaintiff had given directions to his attorney to plead specially, and he had not assets ultra what would satisfy those debts, but he by mistake had pleaded generally, plenement administr[avit], and further charged that the now defendant, by her friends, applied to the plaintiff, to know the value of the testator's estate, and of the debts that were owing by him. And he informed them thereof accordingly and at their desire he was prevailed upon, for the now defendant's satisfaction to write a letter to the defendant, and therein to mention the particulars of the said testator's estate. And in the letter so by him written, he mentioned three hundred pounds as due on a mortgage to the said testator. And upon the producing of that letter at the trial, the judge took it as sufficient evidence to prove that the three hundred pounds came to the defendant's hands and directed the jury accordingly; whereas in truth, after such time as the plaintiff wrote that letter, he discovered that it was a bad security, there being three precedent mortgages on the same lands, so that the three hundred pounds is not received but is all standing out at this day, the defendant confessing the letter and that it was given in evidence at the trial at law. And it appearing that there were such precedent mortgages and that the three hundred pounds was still standing out upon that security, the Court thought fit to relieve the plaintiff and granted an injunction to stay proceedings at law and directed an account of assets and on payment of what should appear due to the defendant to acknowledge satisfaction of the judgment.

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And the Lord Commissioner Hutchins said he thought the plaintiff was proper in this court for relief upon both points and cited a case in the Lord Bacon's time 1 8 where upon an action of debt upon a bond of seven hundred pounds brought against one as executor, he pleaded ne unques executor, and upon the evidence it appeared that a chimney back or other matter of very small value had come to his hands, and thereupon a verdict passed against him, and the judges came into court and informed the Lord Keeper this was the fact; and the party was relieved in equity. And he also cited the case of Cryer and Goodhand, in my Lord Nottingham's time, 1 9 where in an action of debt brought against the widow of an ale house keeper, who died intestate, she pleaded ne unques executor, and all the proof that was against her was that she had taken money for some few pots of ale sold in the house after her husband's death, and upon [the] hearing she was relieved.

II 1 Equity Cases Abridged 237, 21 English Reports 1015 But where an executor exhibited a bill to be relieved against a judgment obtained against him and surmised that he gave directions to his attorney to plead specially that he had not assets ultra what would satisfy debts of a higher nature but that the attorney pleaded generally plenement administ[ ravit] and, on the issue, a letter which he had been persuaded to write by the importunity of the defendant's friends giving an account of the testator's estate, and in which was an acknowledgment of £300 due to the testator on a mortgage was given in evidence and held sufficient by the Court and jury to charge him, but he proving that this mortgage was worth nothing, there being three precedent mortgages on the same estate, and that he had not notice of it at the writing of the letter, the Court relieved him.

Ill Public Record Office C. 33/274, f. 744ν (5 July 1690) Leonardus Robinson, generosus, [et] Leonardus Robinson, mercator, administratores Stephani Robinson, generosi, defuncti, querentes [versus] Annam Bell, viduam et relictam et administratrix Christofori Bell, defuncti, defendentem. 18 19

Francis Bacon was Chancellor from 1617 to 1621. He was Chancellor from 1673 to 1682.

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This cause coming this present day to be heard and debated before the Right Honorable the Lord Chancellor etc. in the presence of counsel learned on both sides, the substance of the plaintiffs' bill appeared to be that the said Stephen Robinson, deceased, entered into [a] bond to the said Christopher Bell dated 1 January 28 Carolus II [1677] of £100 penalty for payment of £50 and interest and about February 1682 died intestate possessed of a personal estate of about £432 9 s value and no more and that the plaintiffs took out administration of the same estate and possessed so much thereof as they could come by and exhibited a true inventory of all the intestate's estate and have paid for the intestate's debts justly owing by him on judgments and specialties, funeral charges, [and] charges of administration more than the value of his estate which came to their hands whereby they have fully administered nor does any part of the said estate in the plaintiffs' hands remain unadministered nor on the 4th of April 35 Carolus Secundi [1683] nor at any time since did any of the said estate remain in the plaintiffs' hands unadministered, yet the defendant as executrix or administratrix of her husband sued the bond in the [Court of] Common Pleas against the plaintiffs as administrators, who pleaded plene administravit, and that they had no goods in their hands to be administered nor had on the day of [the] purchasing [of] the defendant's original writ or at any time after, and the defendant by her replication pleaded that the plaintiffs on the day of purchasing the said writ, videlicet the 4th of April, had goods of the intestate in their hands to the value of the said debt, whereupon issue was joined and tried at [the] York Assizes, and [that] the plaintiffs hoped the defendant would have admitted the plaintiffs' payment of such of the intestate's debts as the defendant knew were really paid, which if she had done, the plaintiffs could not have been charged with assets, and that one Gregory Harthforth, being indebted to the plaintiffs' intestate in about £350, for securing thereof, mortgaged to him certain lands in Lorrowsikes, who did not suspect any prior mortgage or incumbrance, and failure being made in payment of the mortgage money, the intestate entered on the mortgaged premises or part thereof, after which the same were stocked partly with the intestate's and partly with Harthforth's goods and the intestate's goods remaining thereon at his death were inventoried by the plaintiffs among other [of] the intestate's personal estate, but that after the intestate's death, it appeared that the said Gregory Harthforth or some who were before him seised of the mortgaged premises had several encumbrances thereon or the greatest part thereof, videlicet three several mortgages, one to Mr. Wrightson, another to Mr. Johnson, another to Mr. Scott for securing £100 and interest to each of the said persons respectively on their respective mortgages, all which with interest were at the intestate's death, and the same or greatest part thereof still are in arrears and unpaid, as the plaintiffs were informed, besides other encumbrances

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prior to the intestate's and that the plaintiff never received any part of the mortgage money or interest but possession of the premises being deceived by the said Harthforth and the mortgagees the plaintiffs cannot have possession of the premises unless they will discharge the said mortgages and encumbrances, which are more than the full value of the premises, and that Christopher Bell, the defendant's father-in-law, on the defendant's behalf requesting the plaintiffs to pay the bond the plaintiff Leonard Robinson, gentleman, did afterwards write a letter to the said Christopher or the defendant wherein the plaintiff made a general calculation of what the intestate's estate amounted unto at his death and therein about £350 is mentioned to be owing on the mortgaged premises and the encumbrances thereon, videlicet thus to Mr. Johnson £100, to Mr. Wrightson £100, to Mr. Scott £100, and mention is also made what debts of the intestate the plaintiff had paid or given new securities for, by which it appears [that] the plaintiff had no assets to satisfy the defendant's debt but had fully administered for whereas after mention therein is made of the value of the intestate's goods comprised in the inventory and are therein owned to have come to the plaintiffs' hands in another item, mention is made of £350 to be upon [the] Lorrowsikes land, yet the plaintiffs had not received the same or any part thereof, nor can it be intended they should be charged therewith or received as appears by the nature and method of the said calculation and that the plaintiffs had not received the said mortgage moneys or any part thereof appears by their affidavits that yet at the said trial the defendant obtained a verdict against the plaintiffs, whereby it was found they had in their hands assets to £100 value, or some such sum, liable to the defendant's debt whereas had not the plaintiffs been charged with the mortgage moneys as come to their hands, the jury could not have found assets in their hands, and the assets then found were so found merely on mistake and misconstruction of the said letter and the calculation therein and not on any other evidence, and besides the plaintiffs' attorney by mistake and without their order pleaded plene administravit generally when [sic] as there are several judgments yet standing out obtained against the intestate for great sums really due, and that before the plaintiffs had notice of the defendants' original though not before the teste they had paid several debts due on specialties of as high a nature as the defendants' debt, all which ought to have been pleaded specially, and that the intestate in his lifetime paid all or the greatest part of the principal and interest secured on the said bond and, therefore, to be relieved in the premises is the scope of the bill, whereto the defendant by answer sets forth the bond and believes the intestate's death and administration granted to the plaintiff of the intestate's estate, as in the bill, and that the plaintiffs possessed the same or so much as would have enabled them to pay the intestate's just debts especially the defendant's if the estate had been rightly applied believes several omissions

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and undervaluations in the inventory, and says that her husband died intestate the first of October, 1679, and administration of his estate was granted to the defendant, whereby she became entitled to her personal estate and particularly to the said debt and confessed she brought an action of debt, and such proceedings were thereon as in the bill and that on a fair trial, the jury gave their verdict and found to the value of the said in the plaintiffs' hands, whereupon judgment was entered for the defendant in the [Court of] Common Pleas and costs taxed and says that the plaintiff, Leonard Robinson, sent a letter to the defendant's father-in-law wherein he made a calculation of part of the intestate's estate then to their hands but had omitted [the] other part as [he] believes and that therein among other things there is £350 mentioned to be due upon Lorrowsikes to the plaintiffs' intestate, and that the defendant having obtained such verdict as aforesaid intends to levy the principal, interest, and costs, and that the plaintiffs' failing to prove their plea, the defendant obtained the said verdict and not merely and only in the misconstruction and mistakes of the said letter and denies any part of the principal or interest due on the bond was ever paid to the defendant's husband or to the defendant since his death save one year's interest due the first of January, 1682, paid the defendant being the last time interest was paid, and says that on payment of principal, interest, and costs, she is willing to deliver up the bond and acknowledge satisfaction on the judgment as the court shall direct. Whereupon and upon long debate of the matter and hearing what was alleged on both sides and reading of the plaintiffs' letter and the proofs taken in the cause, Their Lordships declared they were fully satisfied [that] the said verdict was obtained upon a mistake and misconstruction of the plaintiff's letter and that therefore the plaintiffs ought to be relieved against the said verdict and do order and decree the same accordingly and that it be referred to Sir John Franklyn, Knight, etc., to take an account of the intestate's personal estate and certify what the same does in the whole amount unto and what part thereof has come to the plaintiffs', the administrators', hands and how they have administered and disposed thereof and what part is yet standing out and what debts the plaintiffs have paid and what remains unpaid and on what securities due in taking of which account the said master is to make unto the said administrators all just and fitting allowances for debts, funerals, costs, charges, and all other necessary expenses and to certify whether the plaintiffs had fully administered all the intestate's estate on the said fourth of April and the administrators are (if the defendant thinks fit) to be examined on interrogatories for the better discovery of the same estate, but as touching the repayment of the £71 paid by the plaintiffs to the defendant upon continuing the injunction till the hearing and now prayed by the plaintiffs counsel to be repaid to the plaintiffs, this Court do reserve their directions touching the same as also

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the consideration of costs on either side till after the account [is] taken, and the said master is to be armed with a commission for the examination of witnesses touching the matters to him referred if he shall see cause.

6. William Crane v. John Hill (Ex. 1695) A court of equity will grant relief against a common law judgment where the plaintiff at common law who had sold a fee simple afterwards took and set up a superior title or precedent encumbrance to evict his own conveyance.

I Lincoln's Inn MS. Misc. 559, f. 10 (Edward Ward's Reports) 20 The case upon the hearing appeared to be thus, the plaintiff Crane was a creditor to the defendant Hill's father and to the defendant for several sums of money, some lent and secured and others for which they were sureties for the said defendant and his father. And the defendant's father having an estate in lands (and amongst others of the rectory of Hales) all of about 300 1 per annum but greatly incumbered with mortgages, judgments, and otherwise and himself living in obscure and privileged places, 21 and the defendant, his eldest son, having little or nothing to live on (though bred at the university) was supplied with some moneys by the plaintiff for his living, for which he gave the plaintiff security by bond and otherwise. And the defendant's father happening to die in Gray's Inn about the 8th of September 1675, his death was made known to the plaintiff but not to the defendant. And before the defendant knew of his father's death, viz . on the 10th of September 1675, the plaintiff and defendant entered into a treaty about the plaintiff's purchasing the defendant's father's estate and the plaintiff's interest therein. And thereupon the 13th of the same September, articles in writing under the hands and seals of the plaintiff and defendant were entered into whereby defendant sold to Crane, the plaintiff, in fee all his father's estates in Norfolk or Suffolk the plaintiff to find defendant board for a certain time and paying some small sums about 20 1 and some time after 30 1 and after that 40 1 per annum for the defendant's life and to discharge the defendant from all engagements to the plaintiff. And upon this there was only 5 s paid immediately. After entering into these articles, 20 Another copy of this report is Georgetown University Law School MS. Β 88 8, p. 257. 21 I.e. he had absconded and was hiding from his creditors.

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the defendant understood that his father was dead at the time of the articles, and then he considered with himself whether he should perform or stand to the articles or not his father being dead, which he knew not of when he entered into the articles. And an uncle of the defendant's offered to buy the estate of the defendant. But the defendant refused to sell to his uncle, but after notice of his father's death upon consideration went on with the plaintiff though upon some better terms the plaintiff having offered to quit all his pretenses to the articles or bargain, if the defendant would pay plaintiff what he and his father owed him and save him harmless against their debts for which he was engaged. And thereupon the 13th of the same September, the defendant executed a deed of feoffment to the plaintiff of the whole estate in consideration of the discharge by the plaintiff of a bond of 600 1 for payment of 300 1 and two other bonds of 1001 apiece from defendant's father to plaintiff and plaintiff's discharge of a book debt of 80 1 due from defendant to plaintiff and of the payment of an annuity of 30 1 per annum to defendant for five years and of 40 1 per annum after for defendant's life to be secured out of the estate, and by that feoffment grants and conveys the whole estate to plaintiff and his heirs. And one of the liveries that was made was made upon the glebe, tithes, rights, and dues of the church of Hales. And by this conveyance (which indeed was defective), the defendant was to be saved harmless against his father's mortgages. And a month after all this, Wz. by lease and release of the 12th and 13th of October 1675, the defendant for the consideration of 735 1 15 s owned to be paid by plaintiff to him and also for the consideration that the plaintiff should secure to the defendant the said two annuities of 30 1 for five years and of 40 1 per annum after for the defendant's life unto the defendant, the defendant conveyed to the plaintiff and his heirs all his said father's estate, and amongst the rest by particular and express words the impropriations of Hales and Heckenham in Hales and all glebe, tithes, etc. thereto belonging, with covenants for further assurance, quiet enjoyment, and freedom from encumbrances against himself and all claiming under him. There was the defendant's receipt proved for the 735 1 15 s , and the two annuities of 30 1 and 40 1 per annum were secured by the plaintiff to the defendant by and out of all the estate conveyed to him. And this lease and release was executed by the defendant to the plaintiff knowingly and willingly and under the deliberation of a month and dictated and fully understood by the defendant as was proved in the cause and a fine levied at [the] same time which mentions not the rectory of Hales, though the lease and release do. There happened to be mesne encumbrances upon the estate by mortgage and judgments, some whereof were paid off by plaintiff others secured against by him and others compounded, and amongst the rest old

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Hill mortgaged part to one Bishop, the benefit of which ought to have come to Roger Cooke, but Crane, the plaintiff, denying the mortgage and insisting upon himself to be a purchaser without notice (though he after came to have the counterpart of the mortgage by him), the plaintiff paid nothing upon that mortgage, though he did upon others, and enjoyed the estate subject to the encumbrances for fifteen or sixteen years and paid the annuities all the time as they became due. Only the defendant in 1682 gave the plaintiff some trouble in Chancery endeavoring to set aside the bargain (but his bill was in truth upon hearing dismissed though that dismission [was] not drawn up). And afterwards in or about the year 1692, there was brought to the defendant's solicitor's house enclosed in a paper from an unknown person a lease in writing dated the 4th of May 1587, whereby it was mentioned that Sir Edward Clere leased to the defendant's grandfather John Hill the rectory of Hales with the glebe, etc. and perpetual advowson of the vicarage of Hales for one thousand years rendering 4 s rent yearly to Sir Edward for his life then to Robert his son and the heirs male of Robert, then to the right heirs of Sir Edward. Upon this the defendant Hill takes administration de bonis non etc. of his grandfather and brought his ejectment at law and recovered before Chief Justice Holt, though it no way appeared that ever this rectory was enjoyed by or how it came from the Cleres. And to be relieved against this lease and recovery, the now plaintiff exhibited his English bill. And the case appearing to be as above, it was by opinion of the chief baron and of Lechmere and Powis, barons, (