(p.95) Appendices A. COMMON PRACTICE AND COMMUNIS ERROR
(p.95) Appendices A. COMMON PRACTICE AND COMMUNIS ERROR
1. Quatermains' Case (1457/58)
YB 36 Hen. VI, ff. 24–6, pl. 21. King's Bench.
Practice of the courts.
FORTESCUE CJ. Sir, the law is as I have stated it, and has been so ever since the law began. We have several courses and forms which are held as law, and have been held and used for good reason (per cause de reason), even if the same reason is not ready to mind, but by study and labour a man could find it. And if any such course or form is in use and has been used against reason, it is not wrong to amend it …
2. Earl of Wiltshire's Case (1459–60)
YB Mich. 38 Hen. VI, ff. 11–12, pl. 23; 51 Selden Soc. 178–81 (from a manuscript dated 39 Hen. VI, not collated with the vulgate). Exchequer Chamber.
An assize was arraigned in Somerset before Aysheton and Moyle JJ. and, after two jurors were sworn in, the assize was adjourned for want of the view. At the next assizes a verdict was found for the plaintiff. It was now assigned for error that no record had been made of the proceedings on the first day.
… Choke. The course of the clerk of assize (le preignotare 1 del assise) is not to enter anything in an assize until the jury is sworn; and the time to make up the record is when the jury is taken …
PRYSOT CJ … As to your argument that, by their practice (cours), no mention need be made [of the first day], that is not a good practice. Therefore we wish to see precedents.
And various precedents were read and shown by Catesby and Greenfield where the [entries of assizes have mentioned every act2].
To this it was said that the prothonotary of this circuit3 has not [been accustomed to do that].
But precedents were shown from the same circuit,4 and they all made mention of every act done …
Littleton. If the practice of the prothonotaries is [as alleged], it ought not to prejudice the party. For in a plea in the Common Bench, when the parties are at issue, the process is venire facias, habeas corpora and distringas, and if the habeas corpora is lacking it is error; but in the King's Bench the practice is otherwise, for there one may have venire facias and distringas and not habeas corpora. Thus the course of the court makes law. Likewise here, the course of this circuit5 is not to enter anything until they have a full jury.
MARKHAM JKB. The practice is not so. We have seen precedents from this same circuit6 in a different form …
7 Choke. If this matter of record is reversed, you will reverse a hundred matters, which would be a mischief.
And all the justices said: If there is no other matter but that, we will not stay for that reason; for it is better to acknowledge a good form once than to continue an error for ever (il est meilliour un foith de conistre un bon forme que tout temps continuer errour) … Later all the justices said clearly that the record was erroneous …
Continued in YB Mich. 39 Hen. VI, ff. 17–18, pl. 22; 51 Selden Soc. 175–8.
PRYSOT CJCP ordered the three prothonotaries of the Common Bench to come before him.
Wydeslade 8 said that he never saw a record made of any matter or plea until the assize has passed, and then the whole record is made up; and nothing is said of the other days, even if the assize has been remanded two or three times, unless the plaintiff specially asks for it, for some particular reason. All that is done on the first day is to enter the plea on the dorse of the original. And he said that this was the common course with his master Browne,9 who was prothonotary before himself.10
MARKHAM JKB said it was a bad usage, and was only laziness (laches) on the part of the clerk; but by rights it ought to have been entered, and his laziness shall not change the law.
Cumberford 11 said that he had never been a clerk of assize, but that he had often seen the assize records for different regions (pays);12 and he said that there are more records like the present one than the contrary. He would not gainsay that it is a good idea (guise) to make up the record every day of what is done. Nevertheless, it seems to me13 that this form is just as good also …
Copley 14 said that he does the opposite (use le contrarie). For he says that his practice is, and always has been, to make up his record every day of what is done on that day.
And the justices said that this was good practice; and this is what ought to be done.
Littleton. If the usage of this region is as Wydeslade has said, then it is not error, even if they do the opposite in other regions. Similarly, the usage in the King's Bench is to award a distringas against the jurors immediately after the venire facias is returned, whereas if the habeas corpora were left out in the Common Place (p.98) it would be error. And this [difference] is because of the usage. Likewise here.
MARKHAM JKB. It is not the same, for in the King's Bench, even if the habeas corpora is left out, it is nevertheless of record that the distringas and the other writs have been returned there before the justices …
Choke. If this record is reversed for this cause, scores of records15 in England will be reversed.
Yelverton and Markham JJKB. Even if a hundred records are reversible by the law, we shall not thereby do contrary to the law; nor shall we cease to do law (faire la ley).
Prysot CJCP. It cannot be good when it is not of record and it does not appear before what justices the plaint was made nor in what place.
And the opinion of all the justices was that the judgment should be reversed. (Note that.)
3. Sir John Paston's Case (1464)
YB Hil. 4 Edw. IV, ff. 43–44, pl. 4.16 King's Bench.
A writ of error was brought to reverse the outlawry of John Paston, but the writ did not state at whose suit he had been outlawed. The justices thought it ‘a strange writ’ for this reason.
Paston's counsel showed the justices that this is the course of the Chancery [and said:] If we cannot have [such a]17 writ there, they will not give us another writ by any means, for they tell us there is no other form.
Markham CJ. If the form is so, then this course makes a law, even if nowadays perhaps reason would suggest the contrary; but we will not change the course now, for that would be inconvenient.
And other justices said that if the course was such it must be kept, for the course of such a court makes things certain (fait le certein).
(p.99) Croxton 18 showed two or three, or four, precedents to the justices which were in the same general form as above, and said there were a hundred records in the King's Bench of the same general writ, like the present writ, not only in the time of the present king but in the time of King Henry VI and other kings also. [He said that] if this should now be adjudged as naught, a hundred records in the King's Bench would be reversed.
And the justices of the King's Bench sent for two or three masters of the Chancery, who came to the Exchequer Chamber, and asked them the question whether there was any other writ of error, upon an outlawry pronounced, than this general writ. And the writ was read to them, and one of them clearly said that if there is an outlawry at the king's suit, and afterwards the party wishes to have a writ of error to reverse the outlawry, the writ is completely general like this one, whether the outlawry is for the king to have a fine in an action of trespass or upon an indictment or otherwise. However, in the case of an outlawry at the suit of a party, and error sued afterwards, it might perhaps be otherwise.
And the justices desired the masters aforesaid to go to the Chancery and consult their fellows, so that we may have certain knowledge of their course in this case. And the masters went away etc.19
MARKHAM CJ said, if it is the course that the writ is general, then Paston has acted well; and if the course is otherwise, then it has not been done well.
4. Babington v. Venour (1465)
YB Mich. 5 Edw. IV, Long Quinto, ff. 109–10. Exchequer Chamber.
In an assize of novel disseisin against Elizabeth Venour, the writ was returned ‘Pledges of the within-named Elizabeth, John S. and Thomas B.’, whereas it should have been, ‘The within-named Elizabeth is attached by pledge of John S. and Thomas B.’ All the justices were assembled in the Exchequer Chamber to discuss whether this was a good return. Some of them argued that it was, because it was an implied response to the ‘Pone per vadium et salvos plegios’ clause in the writ.
(p.100) … And the custom and course in a court, or precedents in a court, make a law. Thus it seems that in the assize above the return is sufficiently good. Moreover, there are precedents within the court that such returns have been made in assizes of novel disseisin, apart from two or three precedents in this same court of King's Bench …
According to other justices, who thought the contrary, the aforesaid writ has not been served; for this return does not prove that the defendant was attached … As to the precedents, two or three of them showing such returns in assizes do not prove the return good; for two or three returns, and precedents thereof, do not prove this to be law. Two or three precedents are not a custom or law, for there are forty and more precedents here in court against them … If there were no other precedent, that would be another matter. But even if there were no other precedent, nevertheless if it was against reason the court would amend it at the present day; for perhaps it has been allowed earlier without being challenged on either side or ever debated. So it was in a recent case in a writ of error to reverse an outlawry in the court of Lancaster province,20 and the writ said ‘At the county of Lancaster held there’, whereas it ought to have been ‘At the county of Lancaster held at Lancaster (or some other certain place)’. The word ‘there’ has no relation to any certain place or vill, and therefore the outlawry was reversed; and yet a hundred precedents of it were shown. Thus in various cases precedents do not make law. But notwithstanding that in the above case of the return of an assize there are forty and more precedents against the precedent of the aforesaid return … and only two or three, or four, precedents have as yet been found of that kind of return, it was said by the justices to the parties that whoever wished to have advantage of the precedents must search for them at his peril, and for his speed, for the court will not search for them. For if no precedent is shown of it, or no precedent is shown other than the usual form,21 the court must then adjudge according to law and reason etc. But if the course and usage and precedents are indeed as above, perhaps it would be another matter. Nevertheless, precedents do not in all cases bind the judges in the court, as has been seen in various cases (as above).
(p.101) 5. Coteler v. Hall (1465)
YB Mich. 5 Edw. IV, Long Quinto, ff. 97–100. Common Pleas.
In a writ of deceit to falsify a recovery in formedon, it appeared upon examination that the sheriff had made a false return.
Then Catesby prayed his judgment.
DANBY CJ. What judgment do you seek?
Catesby. We pray to be restored to the land, and to our damages as against the sheriff and also the party.
DANBY CJ. There are various precedents of this matter in our books, namely at various times in the time of King Edward III, that the party shall be restored to the land only, and the year 50 Edw. III [fo. 17] is one of them; and also in the time of the last king, namely in a case between 30 and 34 Hen. VI [33 Hen. VI, fo. 10] … where it was awarded that the plaintiff be restored to all that he had lost by the judgment and no more. So here you shall not be restored except to what you have lost by the judgment. Therefore if you can show any precedents for you, that you should have the issues and profits, show them. For in various places22 the contrary has been done.
Catesby. It has been adjudged both ways, and in some places the party has been restored to his damages. And it seems that the sheriff, because he is named in the writ, should render damages.
DANBY CJ. In this case the sheriff shall only, it seems, make fine for his falsehood, which fine the king shall have and no-one else. For, as it seems, the judgment is only that the party shall be restored to his land, and that the sheriff and the defendant be arrested—but that is only to have a fine for the king, not for the party.
MOYLE J. Why should the plaintiff not recover damages against the sheriff and the party for the deceit, and especially against the sheriff? For there is more fault in the sheriff than in the party; for even if the party delivered the writ to the sheriff, and the sheriff promised to serve it, there would be no fault in the party if the sheriff did not serve it afterwards, but only in the sheriff. Therefore it would seem right to award damages against him. Although it has been said to be the usage (ad esté use) that damages shall not be recovered against the sheriff, it seems that (p.102) we ought to change for the better reason and remedy. For instance, in olden times, long after the making of the statute which gave a writ of waste, the remainderman was not received to bring a writ of waste. Also in old reports (termes) it was the usage that the heir could bring a writ of debt. But now the law is changed in both these cases, for the justices since those times have found a better reason, that is, for the remainderman to have a writ of waste, and for the heir to have no writ of debt … Therefore, just as the justices before these times have changed [the law] because of better reason, why should we not now do the like? It seems to me that it would be right (reason) to recover damages against the sheriff …
Later the court said: Remember the matter tomorrow, because time is getting on (le jour est mult passé).
And on the next day, by advice of the justices of the Common Bench, it was awarded that the plaintiffs should have their aforesaid house back [but no damages].
6. Anon. (1490)
Caryll's reports, 115 Selden Soc. 38, pl. 39. King's Bench.
… Browne. I do not know how the decem tales can issue before the jurors have been demanded, so that the jury remains to be taken by their default.
It was said that [this] was the common course in London.
HUSSEY CJ. I do not see how that can be right, although if the precedents are that way we will respect them. I know full well, however, that it is absolutely contrary to right (reason); [and if you cannot] show precedents of it, it will not be used hereafter.
But it was said that there were several precedents of it, and that it is the common course.
7. Abbot of Hyde's Case (1492)
Caryll's reports, 115 Selden Soc. 96, pl. 107, at p. 97. Common Pleas.
… BRYAN CJ. Throughout my life I have always been of opinion that a body politic must always sue in accordance with the (p.103) name given them upon the incorporation … However, since the common usage (use) has been to the contrary, the matter is not to be argued.
8. Anon. (1494)
Caryll's reports, 115 Selden Soc. 229–30, pl. 170. Common Pleas.
In cui in vita the writ was challenged because it said ‘which he claims to hold unto himself and the heirs issuing from his body’, without showing by whose gift. It was said that the form in the Register in this case, where he claims to hold for life, is to show by whose lease or gift.
Kebell. There is no need to do so in either case, because the writ is not based on the gift or lease but upon the demise by the husband …
This was agreed; and so, as to this point, it was awarded that the writ was good. Later the Register was inspected, and the form given in the Register is to show by whose gift or (in the case of particular estates) by whose lease. For that reason the justices changed their opinion, and held that the writ should abate. But the usage (l’use) at the present day, when the plaintiff is entitled to recover a fee simple, is that the writ should not mention by whose feoffment or gift. Nevertheless, the old usage was to mention by whose gift, and the Register has examples both ways.
9. Dod v. Chyttynden (1502)
Caryll's reports, 116 Selden Soc. 407; Keil. 46. Common Pleas.
… Yaxley. It seems that a tenant at sufferance may justify the occupation of the land against his feoffees upon trust.
FROWYK CJ. In that case there are a thousand precedents contrary to law, for the common usage is to bring an action in the name of the feoffees and not in the name of the tenant at sufferance. (The whole court agreed with this.) …
(p.104) 10. Case at John Spelman's first reading in Gray's Inn (1514)
Bodl. Lib. MS. Rawlinson C. 705, ff. 98v–99.
Settled forms of pleading.
In an assize the tenant pleads that he was never seised in such a way that he could be disseised … and first it was argued whether it was a good plea to say that the plaintiff was not seised in such a way that he could be disseised.
No one could give any reason why it should be a good plea, but Spelman, reader, said that it is an ancient plea and has always been allowed as good; and if it should now be disallowed the old records would be overturned, and so the law would be uncertain. Therefore it should be allowed. Likewise in trespass it is a good plea to say ‘his freehold’, and yet there is no reason for this but by the continuance thereof. Likewise here.
11. Case at John Hynde's reading in Gray's Inn (1518)
Harvard Law School MS. 125, case no. 170.
Resulting uses. Chancery usage questioned.
Husband and wife, seised in right of the wife, make a feoffment without consideration; and the husband declares his will of this land. According to the reader, this will is void.
Chalenor agreed with this …
Hynde, reader. This feoffment made without consideration shall be understood to the use of the husband and wife and to the heirs of the wife, as the inheritance was before …
Broke, serjeant, to the contrary; and that this will made by the husband is good. For when the husband and his wife make a feoffment, this is solely the husband's feoffment, and the joinder of the wife is merely void unless she accepts the rent after his death … Now, [it is said that] this feoffment lacks consideration, and so it shall be to the use of the woman; and this is the construction of the Chancery by the court of conscience. Nevertheless in reason it should rather be understood to the use of the feoffee than to the use of the feoffor, because he says ‘I have given and granted’ (dedi et concessi). The Chancery, however, has construed it to the contrary; and this usage is outside the court of common (p.105) law, and is something that has begun in recent times. On the other hand, they expound this use that it shall follow the nature of the land as it was before, so that if the land was in gavelkind or borough English the use shall be of the same nature.
My lord Fyneux [CJKB] agreed with that …
12. St German's Doctor and Student (1528)
Book I, c. 26; literal text in 91 Selden Soc. 162.
Fiction, conscience, statute, and custom: the Doctor questions the propriety of the common recovery.
Student. This matter is great, for as thou sayest there be so many that have tailed lands by such recoveries that it were great pity and heaviness to condemn so many persons and to judge that they were bound to restitution. For I think there be few in this realm that have lands of any notable value but that they or their ancestors, or some other by whom they claim, have had part thereof by such recoveries: in so much that lords spiritual and temporal, knights, esquires, rich men and poor, monasteries, colleges and hospitals have such lands. For such recoveries have been used of long time …
Doctor. We shall not condemn them, but we shall shew them their peril.
Student. Yet I trust that their danger is not so great that they should be bound to restitution. For Jean Gerson saith in the said book called De unitate ecclesiastica, cons. 2, that communis error facit jus: that is to say, a common error maketh a right. Of which words, as it seemeth, some trust may be had, that though it were fully admitted that the said recoveries were first had upon an unlawful ground and against the good order of conscience, that yet nevertheless forasmuch as they have been used of long time, so that they have been taken of divers men that have been right well learned in manner as for a law, that the buyers partly be excused so that they be not bound to restitution …
Doctor … As to thy other reason, that a common error should make a right, those words, as me seemeth, be to be thus understood: that a custom used against the law of man shall be taken in some countries for law if the people be suffered so to continue. And yet some men call such a custom an error, because that the (p.106) continuance of that custom against the law was partly an error in the people, for that they would not obey to the law that was made by their superiors to the contrary of that custom. But it is to be understood that the said recoveries, though they have been long used, may not be taken to have the strength of a custom; for many, as well learned as unlearned, have always spoken against them and yet do. And furthermore, as I have heard, a custom or a prescription in this realm against the statutes of the realm prevail not in the law.23
Student. Though a custom in this realm prevaileth not against a statute as to the law, yet it seemeth that it may prevail against the statute in conscience. For though ignorance of a statute excuseth not in the law, nevertheless it may excuse in conscience: and so it seemeth that it may do of a custom.
Doctor. But if such recoveries can not be brought in to a lawful custom in the law, it seemeth they may not be brought in to a custom in conscience …
13. Bromwich's Case (c.1530)
Spelman's reports, 93 Selden Soc. 66, pl. 59.
General issue required by usage.
In an appeal of death brought against Bromwich, he pleaded that he committed the murder in self-defence, without this that he is guilty of the felony and murder as alleged etc. And the court would not allow such special matter to be entered on the roll; but the court said that he could plead the general issue and give the special matter in evidence. The court said that this had been seen a hundred times before, and they could not change their precedents.
(p.107) 14. Anon. (1542)
Brit. Lib. MS. Harley 1691, fo. 57. Common Pleas.
Resulting uses again.
BALDWIN CJ said that there was no reason why upon a feoffment or recovery there should be any use, but through the continuance thereof it has become a law.24
15. Brent's Case (1575)
2 Leo. 14, at p. 15. Common Pleas.
… MOUNSON J. These uses at the first were of no value, but afterwards by continuance communis error fecit jus, so as they were taken and esteemed as inheritances …
16. Mary Portington's Case (1613)
10 Co. Rep. 35 at 40. King's Bench.
The common recovery upheld as a benevolent fiction, hallowed by long usage, the employment of which cannot be forbidden by settlors. Recent practice as to perpetuity clauses, not having gained full acceptance, gives way to ‘dormant’ law.
… Note, reader, semper in fictione juris subsistit aequitas, et contra negantem principia non est disputandum.25 And in truth none ought to be heard to dispute against the legal pillars of common assurances of lands and inheritances of the subjects. And in the Parliament held in the reign of the late Queen Elizabeth, in the (p.108) great case betwixt Thomas Vernon and Sir Edward Herbert (which was argued by learned counsel before the lords in Parliament) there Hoord,26 an utter-barrister of counsel with Vernon—who had been barred by a common recovery—rashly and with great ill will inveighed against common recoveries, not knowing the reason and foundation of them; who was with great gravity and some sharpness reproved by Sir James Dyer, then chief justice of the Common Pleas, who said, he was not worthy to be of the profession of the law, who durst speak against common recoveries, which were the sinews of assurances of inheritances, and founded on great reason and authority …
As to the fourth objection, that this opinion, that tenant in tail cannot be restrained from suffering a common recovery, was new, and of a late invention: it appears by the authorities before cited, and by Littleton also, that it is not new, but well proved by our ancient and later books … And it is true that the law sometimes sleeps, and judgment awakens it: for dormit aliquando lex, moritur nunquam.27 And this was the only point on which judgment was given in this case against the plaintiff. And it was observed that these perpetuities were born under some unfortunate constellation; for they in so great a number of suits concerning them in all the courts in Westminster never had any judgment given for them, but many judgments given against them …
16. Herbert v. Binnion (1615)
1 Rolle Rep. 223. King's Bench.
Common forms of conveyance favoured.
COKE CJ said that in one Barton's case he moved this point when he was attorney-general. There is a tenant in tail and a remainder in tail, and tenant in tail levies a fine, and proclamations pass, and then suffers a common recovery. I then moved forcefully that (p.109) this recovery does not dock the remainder, because the estate tail was barred by the statute of 4 Hen. VII [c. 24] of fines, so that he is not in of an estate tail at the time when the recovery is suffered. But the court would not allow me to argue it, because it was a common assurance, and infinite estates depend thereon. Then I asked, what if the tenant in tail had been attainted of treason, and had then suffered a common recovery, would that dock the remainder? To which they said, that that was not a common assurance. Therefore Coke CJ said, note [how] common assurances are favoured.
DODDERIDGE J. If the dedimus potestatem for a fine bears date before the writ of covenant, this is communis error, and because it is a common assurance it is not now to be disallowed.
This was one of the errors assigned in a writ of error between Herbert and Binnion.
17. Waltham v. Sparkes (1695)
1 Ld Raym. 41, at p. 42. King's Bench. Also reported, sub nom. Walton v. Spark, Comb. 320, at p. 321.
Jurisdiction founded on common usage.
… [Counsel for the defendant] took exception to the replication, that the justices of peace out of sessions could not make an order for an express sum for the maintenance of a poor man, but they agreed that they might sign a rate made by the parishioners. But to this the court answered, that all the justices of peace in England did so, and therefore, though they have not authority to do it in strictness of law, yet communis error facit jus …
18. East India Co. v. Skinner (1695)
Comb. 342. King's Bench.
Error becomes law.
… HOLT CJ said, strictly it was so, but the practice having been in this case of taxes to grant such a conditional warrant to distrain, communis error facit jus …
(p.110) 19. Clay v. Snelgrave (1700)
1 Ld Raym. 576 at 577. King's Bench.
The question was whether the master of a ship could sue in Admiralty for his wages, upon a contract made on land.
… [Counsel for the defendant] said that the case of mariners was now settled, and ought not to be stirred; but that the great reason why they are permitted to sue there is, the ship is the debtor, and by the law of the Admiralty they may attach her, which they cannot do by the common law; and in the Admiralty court they may all join in a suit … And he cited a case Hil. 27 & 28 Car. II, Common Bench, between Cooker and Older, where Atkins and Ellis JJ. were of opinion that a prohibition ought to be granted to the suit in the Admiralty court by the master of a ship for his wages; but North CJ and Wyndham J. held the contrary opinion.
But Holt CJ said that it is an indulgence that the courts at Westminster permit mariners to sue for their wages in the Admiralty court, because they may all join in suit; and it is grounded upon the principle communis error facit jus; but they will not extend it to the master of the ship …
20. Yoxon v. Bennet (1702)
7 Mod. 91 at p. 93. King's Bench.
POWELL J. … though there be no precedents of these proceedings but since the time of Henry VII, yet if the current of precedents has been so ever since, we ought rather to run with the tide than to reverse all the judgments that have been given since; for in some cases, communis error facit jus …
21. Paul v. Knight (1732)
W. Kel. 222 at p. 224. King's Bench.
RAYMOND CJ … communis error facit jus; but that maxim establishes general errors only, and not such as are local; for should the construction prevail, no custom so absurd but might be established by it …
(p.111) 22. Smith d. Dormer v. Parkhurst (1740)
3 Atk. 135 at p. 139; B. & M. 91–2. House of Lords. Also reported in Willes 327 at pp. 338–9.
The question was whether the common clause in settlements limiting an estate to trustees to preserve contingent remainders was itself contingent and destructible.
WILLES CJ … if the estate limited here to the trustees is contingent, so are the limitations to trustees in all settlements, and consequently all the settlements for these two hundred years, ever since the Statute of Uses, may be questioned. But can we conceive, my lords, that every one has been mistaken for these two hundred years, and that this new light is just now arisen to us? Surely it is a much less evil to make a construction even contrary to the common rules of law (though I think this is not so) than to overthrow I may say ten thousand settlements; for it is a maxim in law, as well as reason, communis error facit jus … (p.112)
(1) Plural in Hemmant's text.
(2) ‘tenants de assise’ in vulgate; ‘t. de chescun act en assise’ in Hemmant.
(3) Omitted in vulgate.
(4) Hemmant; ‘court’ in vulgate.
(5) ‘court’ in vulgate.
(6) ‘court’ in vulgate.
(7) This interchange is omitted from the vulgate.
(8) John Wydeslade, chief prothonotary since about 1440.
(9) Thomas Browne (d. 1454), second prothonotary since the time of Henry V.
(10) Followed by the words ‘et de ceo entre’, which do not make sense.
(11) William Cumberford, Browne's successor as second prothonotary (1454–72).
(12) Hemmant translated this as ‘counties’, but it more likely refers to the circuits: see text I.
(13) Presumably Wyndslade speaking.
(14) William Copley, third prothonotary since 1455.
(15) ‘xx records et xx’, rendered by Hemmant as ‘two score’.
(16) Continued from ff. 41–3, pl. 3, in which there is another discussion of ‘the form and the course’ of the courts, relating to another point. Croxton, the clerk of the crown, was examined, and Markham C.J. told the defendant's counsel: ‘Show us within a day, if you can, two or three precedents of this matter.’
(17) Emending ‘auter’ to ‘autiel’.
(18) Thomas Croxton of Gray's Inn, clerk of the crown in the King's Bench 1458–65.
(19) The year book does not say whether they ever came back.
(20) i.e. the county palatine.
(21) Text unclear: ‘ou auterment que le precedent come en usual ne soit monstre de ceo.’
(22) Perhaps ‘books’ (emending ‘lieux’ to ‘livers’).
(23) The statute in question is Westminster II, c. 1, De donis (1285).
(24) Cf. the earlier Inner Temple moot (c.1533) on fo. 100 of the same manuscript, where Hare gives the reason: ‘because a use was invented in the beginning to make a fraud on the common law, namely to make a declaration of a will and so defraud the right heir, and oust the wife of her dower, and oust tenancy by the curtesy.’
(25) In a fiction of law there always subsists equity; and there is no need to dispute with those who deny basic principles.
(26) Perhaps George Hord of the Middle Temple, called to the bar in 1575. The dispute began much earlier: see Vernon v. Lord Powis and Herbert (1559–60) 109 Selden Soc. 33, 35; Dyer 170a.
(27) A law may sometimes sleep, but it never dies.