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The Law's Two BodiesSome Evidential Problems in English Legal History$

John Baker

Print publication date: 2001

Print ISBN-13: 9780199245185

Published to Oxford Scholarship Online: January 2010

DOI: 10.1093/acprof:oso/9780199245185.001.0001

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(p.161) F. COMMON LEARNING

(p.161) F. COMMON LEARNING

Source:
The Law's Two Bodies
Publisher:
Oxford University Press

1. Anon. (1356)

YB Mich. 29 Edw. III, fo. 47. Common Pleas.

Early evidence of pleading exercises in the inns of court.

In a quod ei deforciat the tenant vouched two women, who warranted. The husband and wife counted against them, and claimed the land unto the wife and the heirs issuing from the body of the wife.

Ingleby. They have not counted by whose gift, so we pray judgment of the count.

Skipwith. The writ does not mention any gift. This is a writ based on our own possession, and the count is warranted by the writ.

Ingleby. It is a writ based on a previous record, and so we pray that they should specify with certainty the record on which this writ depends. In the case of an attaint, or a scire facias, which depend on a previous record, the tenant shall have oyer of the record.

WILLOUGHBY J. and Skipwith. This was never an exception in this place, though we have often heard it among the apprentices in their inns (en hostelles).

Later they were ousted …

2. Anon. (1441)

YB Mich. 20 Hen. VI, fo. 5, pl. 16. Common Pleas.

Markham. I think there is a distinction in an action of debt brought by executors as to when they shall have it in the debet et detinet and when in the detinet only. The distinction is this: if the action is of such nature that the law will compel the executors to name themselves executors, or else the action fails, then they shall have detinet only, as in the case where the executors recover the same sum by action of debt and count upon the record, they shall in (p.162) this writ say detinet only, and not debet, for the law compels them to count according to their record; and in the first action they were compelled to name themselves executors, ergo in the second action they shall be constrained to name themselves executors, for the above reason. But if the action is of such nature that they are not constrained by the law to name themselves executors, even if ex abundantia they name themselves executors, nevertheless the writ must say debet et detinet. For instance, suppose the executors bring a writ of trespass for goods which were taken out of their possession, and recover damages, in this case if they bring a writ of debt and count upon this recovery, the writ shall say debet et detinet, because they were not compelled to name themselves executors in the first action … For it is a common learning (comen erudition) in our law that the executors shall never have an action as executors unless the testator could have had the same action in his lifetime; but the testator could not have had an action of debt in his lifetime for this thing, and therefore there was no duty then, ergo etc ….

3. Lewknor's Case (1454)

YB Mich. 33 Hen. VI, fo. 54, pl. 42. Common Pleas.

Someone brought a writ against John Lewknor of Dale, gentleman, supposing that he had entered in various lands where his entry was not permissible, contrary to the statute of Richard II.

Choke. Sir, we say that there are two John Lewknors living in the same vill of Dale, namely the elder and the younger, and he does not show in his writ which one he is. Therefore we demand judgment of the writ.

Wangford. Sir, whether he is elder or younger, we say he is the same person against whom we have conceived our action. So we demand that he recover.

DANBY CJ. You shall not have this plea, being the defendant, for if you are the same person against whom he has brought his action you must answer his action, and if you are not the same person and the plaintiff will declare against you, you may well traverse the action. But the order in this case is, if someone appears who is not defendant, who has the same name, the plaintiff may say that he is not the same person against whom he sued, but that he sued against John Lewknor of Dale, the (p.163) younger, or the elder, or gentleman or yeoman, or to name him of another vill; and so the plaintiff must give him a new addition, and the person who appears may go without day, and the process in future shall be against the defendant with the new addition.

MOYLE J. No one shall have addition, whether he is elder or younger, unless it is the son who shall have the father's addition, in which case by our old learning (nostre auncien erudition) it is necessary to give him an addition, or else the writ will abate.

Choke. Then we say that this John is the son and has no addition …

4. Prior of N. v. Abbot of W. (1471)

YB Hil. 11 Edw. IV, fo. 10, pl. 5. Common Pleas.

In a writ of debt brought by the prior of N. against the abbot of W. upon a composition made between their predecessors for an annuity of four marks, and also one mark payable at a certain feast of the year, and also various other covenants, and then in the conclusion the abbot bound himself and his successors in £10 for the performance of all and singular the covenants at every time; and the plaintiff showed how the annuity of four marks etc. was in arrear at the day etc., and also the annuity of one mark etc., which he had often requested the defendant to pay him etc. The defendant said that he was always ready to pay the annuity etc., as above, and still is, for see here the money, without this that the plaintiff requested him to pay. Thereupon they demurred in judgment whether the defendant ought to tender the annuity at the day at his peril, or whether the plaintiff should make request.

And it was well argued, but I was not there. Nevertheless, as I heard, the better opinion of the court was that he ought to tender, when he is bound to perform all the covenants …

Therefore, in arrest of judgment, Fairfax showed how the declaration is double, so that the plaintiff has two causes to have the penalty, namely the non-payment of the annuity of four marks and also of the one mark, where either of these was sufficient to have the penalty. However, if someone covenants to do various things, there he may in a writ of covenant assign default in all the covenants, for there he is to recover everything in damages and if more are broken he will recover more damages …

Catesby to the contrary. It is common learning that a plea which has two matters is not sufficient, but if the party demurs (p.164) thereon he shall have advantage of it; but if two issues are taken, and both found for the demandant, it is good enough, and he shall have advantage of it, for there is no impropriety (enconvenience) in the judgment. Likewise if two pleas are pleaded, and issue is taken on one matter alone, the other matter is waived. Similarly here, although the declaration is double, the defendants have confessed both matters in point of judgment …

BRYAN CJ … Here the defendant does not confess the plaintiff's action for the penalty, but says he was ready to pay the annuity, and prays judgment whether he ought to have an action for the penalty. Sir, it seems all one where someone demands one thing by two titles and where he demands two things in one writ. For instance, if in an assize the plaint is for a manor and various acres of land, parcel of the same manor, this plaint abates. Likewise, it seems, here etc.

5. Anon. (1489)

YB Hil. 4 Hen. VII, fo. 1, pl. 1. Common Pleas.

Grandfather, father, and son; the grandfather holds of the king in chief; the father marries; the grandfather dies; the land descends to the father, and he enters and dies before any office found; then it is found that the son is under age, and the king commits the wardship over to a stranger during the minority of the infant; and the father's widow brings a writ of dower against him.

Wode. It seems that the writ does not lie …

Fyneux to the contrary. For here the tenancy descended lawfully upon the husband, and he had lawful seisin, of which the wife is endowable. And it is a common learning (erudition) that a wife shall be endowed of a tenancy in law …

BRYAN CJ said that a woman shall be endowed of a tenancy in law, as above …

6. Anon. (1489)

YB Hil. 4 Hen. VII, fo. 9, pl. 2. Common Pleas.

… BRYAN CJ. Sir, it has been held a common distinction that when the defendant claims through the same person through (p.165) whom the plaintiff claims, the feoffment is traversable, but otherwise not. And yet in reason I do not know any difference when the title is traced through the person through whom the plaintiff claims and when the defendant traces title from someone else … And I know that it is common learning (erudition) at this day that if someone pleads an accord by the mediation of such and such a person, or pleads an arbitration, with satisfaction, the party may traverse the arbitration, or the submission, or the satisfaction, or the accord. And yet it is not needed if the party will simply say, generally, that he has given twenty shillings in satisfaction for such and such a trespass; but if he sets out all the facts, any part of it may be traversed …

7. Thomas Frowyk's reading in the Inner Temple (Autumn 1492)

105 Selden Soc. 272.

Note that it has been common learning in moots that in no case upon a voucher against common right shall the lien be shown to the court upon the voucher …

8. Anon. (1493)

YB Pas. 8 Hen. VII, fo. 11, pl. 1. Chancery and King's Bench.

In an assize the bailiff showed that a lease was made to his master (the tenant), for term of his life, remainder over in fee to the king, and prayed aid of the king; and it was granted. And the plaintiff came into the Chancery and prayed a procedendo without examining the king's title, because the aid was not well granted …

Kebell would have argued that the aid was grantable by the bailiff's plea in the above form.

HUSSEY CJ said that there was no need to argue that; for even if it was not lawfully granted, when it has come here it cannot be sent back until the king's title has been further examined … Now, it is a common learning (erudition) that if aid is granted for a cause, and the cause is insufficient, this is not error; for it is only a delay. It is otherwise of a voucher …

(p.166) 9. Richard Littleton's reading in the Inner Temple (Lent 1493)

105 Selden Soc. 273.

Three are present at the killing of a man, but only one slays him.

Littleton, reader. According to the old opinion, all are principals, and for the old reason—that by their presence he is more discouraged from resisting.

Frowyk. It has often been held both ways. But the common learning nowadays is clearly that no one is principal except the one who gives the blow. That has often been adjudged recently, and that is the law now in use …

10. Hulcote v. Ingleton (1493)

Caryll's reports, 115 Selden Soc. 138, 139, 141; YB Pas. 13 [recte 8] Hen. VII, fo. 23, pl. 9. Common Pleas.

Kebell. The old learning of court has always been that a feoffor who conveys the fee simple may not condition with his feoffee that he should not alienate to anyone, but that it is perfectly good if he conditions that he should not alienate to a particular person. It seems to me, however, that it is perfectly good in both cases: for, even though a tenant in fee simple has [no] power to alienate, it is not contrary to his estate, since it may be the feoffor's intention that the land should flow downwards to the feoffee's heirs for the advancement of his blood … It seems to me that a man may condition with his feoffee that he should not alienate.

BRYAN CJ interrupted him and said that they would not hear him argue that proposition, because it was absolutely contrary to our old common learning, and contrary to what is now in effect a principle. By this means we would overturn all our old precedents. So do not speak any more on that point …

11. Anon. (1494)

YB Trin. 9 Hen. VII, fo. 4, pl. 4. Common Pleas.

… BRYAN CJ to the contrary. As to the count, it is good in part; for it is a common learning (erudition), where someone brings an (p.167) action for two things and it appears that he cannot have an action for one of them, that in this case the writ shall not abate in toto but shall stand for the part which is good; whereas if someone brings an action for two things, and he has a cause of action for part in another form, or by another action, there the whole shall abate …

12. Moyle v. Abbot of Battle (1494)

Caryll's reports, 115 Selden Soc. 266, from YB Trin. 16 Hen. VII, fo. 16, pl. 17 (misdated).

A replevin was sued against the abbot of Battle, and at the pluries the abbot came by his attorney and demanded cognizance of the plea … and upon this matter the plaintiff demurred in judgment, for various reasons. One reason was that it seemed to them that the abbot had left it too late, since he did not come on the first day. For it is a common learning that if a party may have cognizance he must have it by the original writ; and therefore he must demand it on the first day or else he shall not have it …

13. Note (1497)

105 Selden Soc. 298.

A married woman may not make her will of lands which are in the hands of feoffees to her use, any more than she may make a feoffment, according to the common learning. Also this was adjudged in the Chancery by advice of the justices in the time of Edward IV, as was said by Philpott, who was of counsel in the matter.

14. Dictum in Gray's Inn (c.1500)

Bodl. Lib. MS. Rawlinson C. 705, ff. 27v–28.

Note that Thomas Nevill said in Gray's Inn that if a son disseises his father and makes a feoffment in fee, and the father dies, he shall clearly be estopped. It is otherwise if the son releases to a (p.168) disseisor in his father's lifetime: this shall not estop after his father's death … And he said that there is a distinction when the father has a right of entry at the time of the son's feoffment and when he has no right of entry until after the son's feoffment … And this distinction is good law, as he said, for he had oftentimes heard it agreed by the learned ancients1 of Gray's Inn (agre per lez auncients erudit homez en Greys Inne sovent foitz), as he said etc. But he said that the case here is a great doubt …

15. Anon. (c.1530)

Spelman's report, 93 Selden Soc. 142.

It was adjudged that the lord shall not have wardship of land during [a lease for] years: that is, he shall not oust the termor who had a lease for years from the infant's ancestor.

Before the same judgment, however, it was a common learning that the lord could oust the termor, and at the heir's full age the termor should have his term back.

Then the other justices, after the death of my lord FYNEUX CJ2 (who was of opinion that the lord could not oust the termor), were of another opinion. And FITZHERBERT J. said that this was the old learning; and as to this there are many judgments contrary to the opinion of the said chief justice.

16. William Fulbeck's advice to a law student (1599)

Fulbeck, A Direction or Preparative to the Study of the Law (1829 edn.), 92–4, 107–8, 113. The preface is dated from Gray's Inn, 4 December 1599.

The best interpreter of the law is common reason and intendment. Wherefore if any one man's opinion do differ from common (p.169) reason, let the student avoid it. Neither are such things without cause to be altered, which have always heretofore received a certain interpretation. Neither is the common law any other thing than a determinate order established and ratified by common consent. Wherefore Bodinus said not well, who putteth this difference betwixt a law and a custom, in that a custom is accepted by the plausible agreement of the multitude, but a law springeth up in a moment, and is commanded by the authority of the ruler, many times against the liking of them that are bound by it,3 for common law is that which is made and approved by common allowance, and therefore it is law, because it is commonly used for law … But here it is good for the student to be assured of what nature and quality the thing is which I call common reason or intendment, for what may seem to offer doubt, whether we ought to ascribe common reason and opinion to the number of authors, or to the worthiness of them, or to the persuasion of reason which doth concludenter demonstrare to the sense and understanding of the most part of men of indifferent capacity. I would have common opinion taken according to this last branch …

Gentlemen students of the law ought by domestical moots to exercise and conform themselves to greater and weightier attempts … and it will not be amiss sometimes to reason together, before men of more reading and greater judgment, which may friendly admonish them, and if they err reduce them into the right way. It is good to bring such matters into question as be disputable, and may deserve argument, for it were a vain thing to make a doubt of that which is plain and manifest: as whether a rent or annuity ought to be paid to a dead man, or whether a man may commit an offence against the law without punishment …

It will be very expedient for the students of the law to endeavour amongst themselves, if any law seem to be repugnant and contradictory to another, to reconcile them and bring them to agreement, and herein let them appeal to the opinion of men more grounded in the law. In the books very often the principal sense of law doth differ from the literal sense. This was a law amongst the Romans, Peregrinus si murum ascendat capite puniatur.4 Now the (p.170) case was thus, certain enemies did scale the wall, and a stranger did ascend to beat them back. This matter is informed against him, there can be nothing more probably urged against the literal sense of the law, than the matter proposed in question, for might not a stranger climb up the wall to save the city?

17. Johnes v. Johnes (1814)

3 Dow 1 at p. 15. House of Lords.

Authority of the opinions of the best authors.

LORD ELDON C. … Where that case occurred where it was thought that the mode of entering up the judgments was wrong, Lord Alvanley adverted to a form, of which this was nearly a transcript, which had been suggested by Mr Serjeant Williams (1 Saund. 58, note 1), to which he (Lord Alvanley) said he saw no objection. So far there was authority that this judgment was good, attending to what had been said by Serjeant Williams in his note (2) to 2 Saund. 187, and though one who had held no judicial situation could not regularly be mentioned as an authority, yet he might say that to any one in a judicial situation it would be sufficiently flattering to have it said of him that he was as good a common lawyer as Serjeant Williams, for no man ever lived to whom the character of a great common lawyer more properly applied. There was however no judicial decision on the point.

Notes:

(1) If the word is here used in that technical sense. Utter-barristers of a certain standing were called to be ‘ancients’ before they became benchers, and under the original constitution of Gray's Inn the ancients formed part of the ruling ‘grand company’: J. H. Baker, ‘The Old Constitution of Gray's Inn’ (1977), reprinted in The Legal Profession and the Common Law, 39–41. But the meaning here may simply be ‘senior’.

(2) Died in 1525.

(3) This is the Roman or Civilian sense of lex, a word generally eschewed in describing the common law, which is rather jus. It is also the sense of the modern French loi. On the other hand, the law-French ley (derived from legem) was generally used by English lawyers for common law.

(4) If a stranger climbs the wall he shall be punished by death.