trated his meaning by showing how the Title "Brief" might be treated. Theloall chose this title, and wrote his treatise round it for his own use. Having been lent, it found its way, as often happened in such cases, to the printer.' It deserved to be printed, as it is the most orderly treatise on procedure, founded on the Year Books, that had yet appeared. The subject is distributed over sixteen books, each dealing with a particular topic; and each book is divided into chapters and paragraphs. It is reprinted at the end of the 1687 edition of the Register; and there is no doubt that it is a very useful commentary thereon, as it contains all the Year Book learning on the writs therein contained. But it naturally tended to lose its usefulness when the Register became antiquated. Historically, it comes between the older commentaries upon writs and the modern books on procedure, with which we must now deal. The Register and the commentaries upon it were, as we have seen, books of the old order. As Trespass and its offshoots gradually encroached upon the sphere of the older forms of action, as newer courts sprang up, the procedure of which was not that of the common law, these books became less useful to the practitioner. Their place tended to be taken by books of practice which shortly and tersely described the procedure of all the different courts. One of the oldest of a series of books, which is represented to-day by the Annual Practice and its rivals, is the Attourney's Academy, written by Thomas Powell, and published in 1623. Thomas Powell was a poet, a man of letters, and, in the latter part of his life, an industrious student of records. He had, the year before, written a tract giving directions for the search of records; and in 1627 he wrote the Attornies' Almanack, which gave directions as to removing causes or certifying records to the courts at Westminster. These two tracts supplement the principal work, and are often bound up with it. The book gives short practical directions as to the steps which an attorney must take in an action, and the fees which he 4 Theloall's Preface; see above 366 for the manner in which some of the Reports came to the printer. 2" The Attorney's Academy, or the manner and form of proceeding practically upon any suite, plaint, or action whatsoever in any court of record whatsoever within this kingdome...; with the moderne and most usual fees of the officers and ministers of such courts." 3 See Dict. Nat. Biog. 4" Direction for search of Records . . . for the clearing of all such titles and questions as the same may concerne, with the accustomed fees of search, and diverse necessarie observations; " in 1631 he published the "Repertoire of Records"; it would appear from D'Ewes' Autobiography i 235, that law students studied records in the Tower to fit themselves for practice; he tells us that he began to study them at first for points of law, and then he became interested in them chiefly for the light which they shed on English history. must pay, from the issue of the writ to the execution of judgment, not only in the courts of common law, but also in the Chancery, the court of Requests, the Star Chamber, the court of Wards, and several other courts.1 Besides, it gives information as to suffering recoveries or levying fines, as to the cost of proving a will, and as to the law terms and return days. It is interesting to note that, in the author's opinion, the most crying evil of the time was the fact that counsel were in the habit of taking fees, and then never appearing to plead. He suggests that in such cases the judge should have power to order the return of the fee and damages. A little later than this book, which had treated of procedure in general in a more modern style than any book that had yet appeared, we get one of the earliest of the books dealing with a special topic in procedure. In 1647 John March published, together with his book on actions for slander, a tract on the law and practice of Arbitration. 2 Books of this type show that the simplification of process, due partly to the action of the legislature, but chiefly to the spread of the offshoots of Trespass, was gradually making it possible to say something about actions in general. They are intermediate between the medieval books grouped round the writs, and the modern books, which begin to appear in the following period, grouped round the orders of the courts. But this simplification of process had been accompanied by the growth in the complexity of the law of pleading. The legal profession could find the rules of pleading in the Year Books and Reports. But for daily use they also wanted precedents of pleading which they could adapt to the needs of their clients. "What availeth," says Coke, "the serjeant or apprentice the general knowledge of the laws, if he know not withall the form and order of legal proceedings in particular cases.' It was not long before this want was satisfied. "3 We have seen that, in the early days of the Year Books, the first object which the reporter had in view was the giving of instruction to pleaders; and that it was only gradually that the report and the book of precedents became distinct things. Even in this period the two are found together. We have seen that Plowden considered that one of the great recommendations of his reports consisted in the fact that they contained precedents of 1E.g. the Council of York, the courts of the Counties Palatine, the Mayor's court, and the Sheriffs' courts in London. 2" I conclude with this humble request made to those who have power of reformation in this crying reigning evil amongst lawyers, touching the disappointment and defeate of Clyents causes, for which they are retayned and feed, and yet often fayle to give attendance in the houre of tribulation, or to bee nere unto the clyent in the day of visitation (a foule fault in a friend, but worse in a servant)," at p. 229. 3 Coke's Entries, Pref. 4 Vol. ii 537-538. pleading upon which there had been argument and judicial decision; that other reporters sometimes gave the pleadings at full length; and that Coke especially made a habit of doing so.2 But, even in the preceding period, separate books of precedents of pleading, both in the manorial courts and courts of common law, had made their appearance. Precedents of pleading in the manorial courts were, as we have seen, contained in the little books on the Court Baron and the Court Leet, which were printed at this period. Similarly, the older books of precedents of pleading in the courts of common law were printed; and newer books-the Books of Entries-began to appear, and steadily continued to increase in bulk. 6 4 The earliest of these books which has survived is one published by Pynson in 1510. The Bodleian copy has no title page. It begins with the alphabetical table. But another copy, described by Dibdin, has a title page, which gives an account of the contents of the book. It contains, so runs the title, the gist of divers matters and of the pleadings in real personal and mixed actions, and also information on writs and executions." The book consists of clxxxiv folios. It is printed in small folio, and is therefore a very much larger work than the small tracts of the preceding period. At one or two places large blanks are left; and these blanks probably represent features of the MS. The matters contained therein are not arranged in any particular order. The first precedent is of an action on the statute of Labourers, and then follows Debt against executors. Probably it is a practising pleader's precedent book which has found its way to the printers. The anonymous author doubtless jotted down precedents as he acquired them, and prefixed the index to his book that he might easily find them. Bodleian copy shows signs of use. The paging is corrected 1 Above 371 n. I. 3 Vol iv 112-113. 2 Above 371; below 463. The 4 The colophon runs-"Explicit opus excellentissimum et perutile in se continens multas materias omnibus legis hominibus perquam necessarias, noviter impressum, correctum, emendatum, et non minimo labore revisum, Londoniæ in vico vulgariter Flete strete nuncupato, in officina aere et impensis honesti viri Ricardi Pynson Regis Impressoris moram suam trahentis sub signo divi Georgii, Anno nostræ redemptionis M.CCCCCX Die vero ultima Mensis Februarii; " this may mean that there had been a former print, see Dibdin, Typographical Antiquities ii 442 n. (ed. 1812), or it may mean that it was printed for the first time. 5"Intrationum excellentissimus liber perquam necessarius omnibus legis hominibus: fere in se continens omnem medullam diversarum materiarum, ac placitorum, tam realium personalium quam mixtorum. Necnon multorum brevium tam executionum quam aliorum valde utilium illis hunc librum inspecturis aut inscrutandis." " Numbered clxxxv; but the numbering is wrong as it goes straight from f. 1 to f. lii. 8 At f. cxxxvb half a leaf; at f. clxxvii, a leaf and a half. from ff. lii-f.c, and at ff. clviiib-clixa some additional precedents are inserted in the margin. The book is the ancestor of a long line of similar books. In 1546 "the old Book of Entries" was published 1—so called to distinguish it from Rastell's later work. Like Pynson's book, it has an alphabetical Table prefixed; but its subject matter and arrangement show that it is a totally different collection-made, the title-page seems to tell us, by a judge. No doubt many lawyers made these collections; and the printers took any good collection which they could get. The book is anonymous; 2 but the Table is signed W.S. It is printed in small folio, and contains 244 folios. earlier work. It is therefore appreciably larger than the In 1564-the year before his death-William Rastell 3 published his book of Entries. It is a large folio of 627 leaves; and it superseded the older books, just as his abridgment of the statutes superseded the older abridgments. The reasons why it superseded the older books are to be found, not only in its size, and in the increased number of the precedents therein contained, but also in four other conspicuous merits. In the first place, the precedents were arranged under alphabetical headings after the fashion of an abridgment—a plan followed by Coke and subsequent writers. In the second place, it was thoroughly up to date. We shall see that it contained precedents for actions of assumpsit upon a bill of exchange. In fact it was more up to date than Coke's later volume. In the third place, it was provided with notes and references. In the fourth place, the material was gathered, not only from the old printed books, but also from the most authentic source-the offices of the prothonotaries. We have seen that the prothonotaries were officials whose duty it was to enter the pleadings in an action; and that 6 The title-page is as follows-"Intrationum liber omnibus legum Angliæ studiosis apprime necessarius in se complectens diversas formas placitorum tam realium, personalium, quam mixtorum, necnon multorum brevium tam executionum quam aliorum valde utilium, nunc tandem in gratiam studiosorum majori cura et diligentia quam ante hac revisus et emendatus, adjectis etiam Judice multo quam ante hac castigatore, cum nonnullis aliis additamentis hactenus non excussis nec editis cujusquidem Judicis ordinem series alphabetica tibi demonstrabit.” 2 On the title-page there appear the letters W. R.; this may mean that it was put together by William Rastell; as we have seen, vol. iv 311-312, William Rastell edited an earlier work on the statutes before he produced his larger book; he may well have done the same thing in this subject. 8 Vol. iv 311. 4"A collection of entrees, of declaracions, barres, replicacions, reioinders, issues, verdits, judgements, executions, proces contynuances, essoynes, and divers other matters; "it should be noted that Rastell's collection, and most of the subsequent collections contained forms of judgments; a special book of judicial forms complied by G. Auxley from the MSS. of Brownlow Moyle and Smithier was published by Townsend 1674. 7 Below 461. 5 Below 461. Below 385-386. therefore they and their clerks had unrivalled opportunities for accumulating a store of such precedents.1 Rastell seems to have been the earliest writer to make use of this store of precedents.2 He therefore produced a book of precedents in pleading of a wholly new type; and his example was copied by the numerous other books which appeared during the seventeenth century. It would be useless to enumerate all these books. A few examples will suffice. Richard Brownlow, who made the collection of judicial writs noted above,3 had a great reputation as one of the ablest prothonotaries of the Common Pleas. The writers of these collections knew that his name on the title page would recommend the book to the profession. Thus in 1653 and 1654 two volumes of his pleadings were published; and Herne's Pleader, published in 1657, contains a collection of pleadings, "drawn entered and taken in the times of those famous Prothonotaries of the Court of Common Pleas Richard Brownlow, Robert Moyle, John Galston, and Thomas Cory." These books, being published under the Commonwealth, were in English; but in 1673 Brownlow's Pleadings were published in their original language, with the addition of some modern precedents. In 1684 a collection made under the direction of Sir Thomas Robinson, late chief prothonotary of the Common Pleas, appeared. The preface tells us that, besides his own collection, the author "had the advantage of all those many curious and learned manuscripts which were collected by the long experience and critical observation of the greatest clerk of his time, Richard Brownlowe"; he had also the MSS. of Brownlow's successor, Thomas Corey, and of William Midgley, the clerk of the judgments. In 1670 W. Brown, a clerk of the Common Pleas, had, with the approbation of Sir Thomas Robinson, published from the MSS. of the prothonotaries 1 Vol. iii 644-648, 650-653. 2“ And understand this good reader, that al the notes and refermentes, and al that is in frenche in this booke, and al the wordes in the margent, be mine and of mye studye. But none of the declaracions, pledinges . . . and presidentes that be in latin in this booke, be of mye makinge... For al them (except a fewe which I gathered together while I was a prentice of the law, Seriant and Justice) have I taken and gathered out of fower several bookes of good presidents. First the old prented booke of entrees, the seconde, a booke of presidents of matters of the comon place, dylygentle gathered together and written by Master Edward Stubbis that was one of the prothonotaryes of the comon place, the thyrd a booke of good presidentes of matters of the kinge's benche, written and gathered bye John Lucas secundary to master William Roper prothonotary of the Kinge's benche. The fourth a booke of good presidentes which was my grandfather's Syr John More, sometime one of the justices of the Kinges bench (but not of his colleccion). And al the presidentes that be in al these fower bookes have I collected into this booke." 3 Above 380. In Robinson's Entries Pref. he is called "the greatest clerk of his time,” VOL. V.-25 |