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Solicitors and the Law of Maintenance 1590–1640

Published online by Cambridge University Press:  16 January 2009

J. H. Baker
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Extract

The surviving image of the Elizabethan and Jacobean solicitor was created for us by the pamphleteers and playmongers, who could be sure of immediate applause or popular sympathy by introducing into their work a few caricatures drawn from the seamier recesses of the legal world. We are encouraged by these writers to imagine a London plagued by these vermin of the law, scurrying in and around the Temple and lurking in the shadows of Westminster Hall, waiting to pounce on the unsuspecting bumpkin who had the misfortune to wander near their reach. Whether and to what extent these portraits bear any relation to reality are questions which social historians have yet to answer. Legal historians have made but a slight contribution to the history of solicitors during the period which, for them, was the most critical of all. To this period may be assigned the beginning of a process of demarcation between the functions of barristers and solicitors, and when we understand how this came about we shall have traced for the first time the origin of the solicitors' branch of the profession.

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The Cambridge Law Journal , Volume 32 , Issue 1 , April 1973 , pp. 56 - 80
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Copyright © Cambridge Law Journal and Contributors 1973

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References

1 E. B. V. Christian, A Short History of Solicitors (1896), pp. 70–110 (where he misinterprets the early legal position); Solicitors: An Outline of their History (1925), pp. 73Google Scholaret seq. (a survey of contemporary literature); Holdsworth, W. S., “The Solicitors” in History of English Law, Vol. VI, pp. 448–457Google Scholar; Briks, M., Gentlemen of the Law (1960), p. 98.Google Scholar

2 An approach to this question was outlined in“Counsellors and Barristers” [1969] C.L.J. 205 at pp. 214–224.Google Scholar

3 As to this, see Lucas, P., “Blackstone and the Reform of the Legal Profession” (1962)Google Scholar, 77 English Historical Review 456; Prest, W. R., The Inns of Court 1590–1640 (1972)Google Scholar, Chap. II.

4 This undignified ceremony is referred to as early as 17 Hen. 8 in a slander case cited by Coke, B.M. MS Lansd. 1076, f. 146. See also Aldridge & al. v. Woolridge & al. (1597) Hawarde, Cases in Camera Stellata, p. 70. There are numerous references to it in the 17th century and it must have been a not infrequent entertainment. The statutes regulating attorneys are listed in the works referred to in n. 1, supra.

5 See “Counsellors and Barristers” [1969] C.L.J. 205 at pp. 215–217Google Scholar; Simpson, A. W. B., “The early Constitution of the Inns of Court” [1970] C.L.J. 241 at pp. 251–253.Google Scholar

6 The ecclesiastical courts also had an exclusive bar, but they are outside the scope of this article since they were beyond the purview of the statutes of maintenance and in many respects were a law unto themselves: see Constantine's Case, n. 52. infra; Tisdall v. Bevington, Noy 68.

7 Hughes, P. L. and Larkin, J. F. (ed.), Tudor Royal Proclamations, Vol. I (1964), pp. 371–372Google Scholar, no. 270; abstracted in Letters and Papers of Henry VIII, Vol. XXI (i), pp. 560–561, no. 1145.

8 Tudor Royal Proclamations, pp. 408–409, no. 294. I am indebted to Dr. W. R. Prest for drawing my attention to these proclamations.

9 Black Books of Lincoln's Inn, Vol. I (1897), p. 328; W. Dugdale, Origines Juridiciales (1680 ed.), p. 311.

10 Thus a fellow of an inn could justify maintenance without showing that he had been called to the bar: W. Rastell, Collection of Entrees (1596 ed.), p. 432, Maintenance pl. 18.

11 See the orders issued in 1555 and 1574; Black Books, Vol. I, pp. 315, 391; Williamson, J. B., History of the Temple (1924), pp. 157, 226Google Scholar; Calendar of Inner Temple Records, Vol. I (1896), p. 227; Middle Temple Records, Vol. I (1904), p. 200; Acts of the Privy Council, Vol. VIII (1894), p. 246; Dugdale, op. cit. p. 312.

12 Order cited in last note. This was renewed in 1584: Pension Book of Gray's Inn, Vol. I (1901), p. 62.

13 5 Eliz. 1, c. 1, s. 4; Stat.Reg. iv, 403.

14 See Hastings, M., The Court of Common Pleas in 15th Century England (1947), p. 114Google Scholar. Dr. W. H. Bryson informs me that the Exchequer Order is of the same date.

15 In [1969] C.L.J. at p. 217, I said this case was obscure and not very informative. Now that the case is not quite as obscure, I have reversed this opinion.

16 Shrewsbury Burgess Roll (Forrest, H. E., ed., 1924), p. 244Google Scholar, records Richard's admission as a burgess in 1551 by the description of “scholar,” son of John Prynce“corvisor.” “Scholar” is a misleading translation of literalus, which rather suggests self-education. Richard does not appear to have attended either university.

17 Calendar of Inner Temple Records, Vol. I (1896), p. 173. In a manuscript article on the Prynce family by H. E. Forrest (Shropshire Record Office MS 224/6) it is stated (p. 19) that Richard was called to the bar in 1554; but this is obviously a misunderstanding of the special admittance. Forrest had little to say about Richard's legal career. I am indebted to Miss Mary Hill, County Archivist of Shropshire, for bringing this article to my attention.

18 According to his plea in Broughton v. Prince (infra), he stayed in the Inner Temple from 1 Mary 1 (1554) until 3 Eliz. 1 (1560–1561).

19 T. F. Dukes, Antiquities of Shropshire (1844), p. 296, notes in a Council suit of 1563:”Richard Prince of Foriat Monacher (Abbey Foregate, Shrewsbury) examined as to the conveyances he had drawn: he is styled ' counsel at the Barre' in the court of the Marches: he had been clerk to Mr. Aylesbury when he drew this conveyance.”

20 Calendar of Patent Rolls 1560–1563 (1948), p. 449.Google Scholar

21 See T. Churchyard, The Worthines of Wales (1587), sig. K3 (Spenser Society facsimile reprint, 1876); MS Chronicle of Shrewsbury, cited in H. Owen and J. B. Blakeway, A History of Shrewsbury (1825), Vol. I, p. 562. The house is now called the Whitehall, and is used for local government offices.

22 The Visitation of Shropshire 1623, Part II (Harleian Society, 1889), p. 409.

23 J. B. Blakeway, The Sheriffs of Shropshire (1831), p. 109.

24 Abbey Register, October 5th, cited in H. E. Forrest's MS at p. 27.

25 A second example is David Baker of the Inner Temple, who described himself as a solicitor but seems to have practised as a counsellor before taking the monastic habit in 1605: see Memorials of Father Augustine Baker O.B. (McCan, J. and Connolly, H., ed., 1933), pp. 67Google Scholar, 71. Another is Richard Broughton of the Inner Temple (infra), who eventually became a Welsh judge.

26 See Williams, P., The Council in the Marches of Wales (1958), p. 173.Google Scholar Most of the instructions referred to below are cited, but not quoted, in Dr. Williams' valuable monograph.

27 Historical Manuscripts Commission, Report on the MSS of Lord De L'Isle and Dudley, Vol. I (1925), p. 334 (and p. 351, paraphrased); R. Flenley (ed.), A Calendar of the Register of the Council in Wales and the Marches 1569–1591 (1916), p. 81Google Scholar (a paraphrase of Bodl.MS 904, f. 29v). The quotation is from the 1574 reissue, printed in R. H. C[live], Documents connected with the History of Ludlow (1841), pp. 323–324.

28 William Gerard, “Discourse on the Council in the Marches” (1575), printed in 13 Y Cymmrodor (1900), p. 137 at p. 157Google Scholar; Clive, op. cit. p. 342. See also the 1579 instructions: B.M. MS Eg. 2882, f. 25, and Cotton MS Vitell. C. i, f. 58v.

29 Williams, op. cit. pp. 173–174, citing Clive, op. cit. p. 349, and Gerard's report (12 Y Cymmrodor 55). Both references seem rather to refer to John Price, Queen's Attorney in the Marches. But see the next note.

30 Acts of the Privy Council 1575–1577 (J. B. Dasent, ed., 1894), p. 379.

31 Instruction no. 17: B.M. MS Lansd. 49, ff. 200v, 211v; MS Eg. 2882, f. 3v; Cotton MS Vitell. C. i, f. 88. (Orthography modernised, emphasis added.)

32 “Dyreccons to the Clerk of the Counsaill in the Marches of Wales” (1590) B.M. MS Lansd. 63, f. 94.

33 For a short biography see W. R. Williams, History of the Great Sessions in Wales 1542–1830 (1899), p. 90. Broughton later became Vice-Justice of Chester; he died in 1604.

34 Placita de Scaccario, Trin. 31 Eliz. 1 (E. 13/373), m. 25. All the entries end with imparlances. For yet another action, a prohibition, noted in Hilary Term 1590, see B.M. MS Harl. 1633, f. 78.

35 Collection of Entrees (1596 ed.), p. 432, Maintenance pl. 18. (First edition 1566.)

36 Placita de Scaccario, Mich. 32 & 33 Eliz. (E. 13/378), m. 4. (Punctuation added.)

37 3 Leo. 237.

38 Ibid. p. 238. Cf. the recollection of the case in Clegatt v. Hammersly (1636) B.M. MS Harl. 1330, f. 47: “Tr. 33 Eliz. en lexchequer Broughton et Princes case. Traverse, non consiliarius neque lege peritus, cest bon pie el issuable.”

39 Lane v. Cotton (1599) Univ.Coll.Lond. MS Ogden 29, f. 337 (translated). Cf. Owen 128; B.M. MS Harg. 12, f. 153v; Bodl.Lib. MS Rawl. C. 728, f. 28v (“il duist aver allege que il fuit student per certeine temps et come il fuit elect per le Benchers destre un Barrister”); Cro.Eliz. 728 (“he ought to have pleaded, that he had been a student in such an inn of court, and called to be an utter barrister.”)

40 Carye's Case (1626) Poph. 207, per Jones J.: “ in maintenance against [sic] Broughton it came in question upon evidence to a jury [sic] whether one who is [not] a Barrister may give advice, and it was ruled that he could not, albeit he had Letters Patent to inable him as fully as if he had been called to the Bar.” This garbled version makes no sense without the “not.”

41 Treatise on the Star Chamber, printed (from MS Harl. 1226) in F. Hargrave (ed.), Collectanea Juridica (1792), Vol. II, p. 94. Hudson was not admitted to Gray's Inn until 1601.

42 Loc. cit. in last two notes. From Jones' remark it might be thought that the letters patent were put in a hypothetical case during argument, but Hudson specifically states that Prince was “the only man in his age that was allowed to practise at the bar by letters patent under the broad seal, and never called to [the bar of ?] any inn of court, which I suppose was a reason of the traverse.” In J. Manning, Serviens ad Legem (1840), p. 279, is an extract from B.M. MS Harl. 980 concerning a “Mr. Finch of Shrewsbury” who had a similar right; but this is merely an error for “Prince.” Prince's name occurs as “Finch” in several manuscript versions of Hudson's text: e.g. Camb.Univ.Lib. MS Add. 3106, ff. 45v–46.

43 A similar right seems to be referred to in W. H. Turner (ed.), Calendar of Charters and Rolls preserved in the Bodleian Library (1878), p. 153, summarising Middlesex Ch. 42, as granting to John Greene, Recorder of London (1659), the privilege and freedom of practising at the bars of the courts of Westminster. In fact the privilege was that of practising within the bars, Greene being already a bencher of Lincoln's Inn.

44 See [1969] C.L.J. at p. 217. Further cases are Hugh Hare (I.T.) v. Browne (1586) B.M. MS Lansd. 1076, f. 146, MS Harl. 1624, f. 159v; Stone v. Moun-ford (1587) MS Lansd. 1076, f. 125; Nicholas Vaus (M.T.) v. Serle (1589) MS Harl. 664, f. 36; Nicholas Kinnersley (I.T.) v. Coper (c. 1589) Camu.Univ.Lib., MS Gg. v. 4, f. 119v.

45 [1969] C.L.J. at pp. 217–218. (The fact was observed before the significance of the date was appreciated.) Further cases are Nelhersall's Case (1596) B.M. MS Add. 25232, f. 26; Cuthbert Reynold's Case (I.T.) (1597) MS Harl. 4552, f. 131 v; Preston's Case (1627) Noy 98; Nurse (G.I.) v. Pounford (1631) Hetley 161.

46 E.g. Nicholas Halsequell (“unus sociorum interioris Templi … in lege terre valde eruditus”) v. Valance (1592) MS Harl. 664, f. 37. No such name is to be found in the Calendar of Inner Temple Records, nor in Students Admitted to the Inner Temple 1547–1660 (1877).

47 Univ.Lib.Camb., MS li. v. 23, f. 220. (translated).

48 Univ.Lib.Camb., MS Gg. ii. 20, ff. 1117v–1118, per Jones and Berkley JJ. (translated). The oath of allegiance was required by the 5 Eliz. 1, c. 1, s. 4, to be taken by all “persons that have taken or hereafter shall take any Degree of Learning in or at the Common Lawes of this Realme, aswell utter Barresters as Benchers Readers Auncientes in any Howse or Howses of Courts.” Quaere whether the oath was necessary for an advocate without such a degree; the statement seems to assume that call to the bar was an indispensable prerequisite to practice, which by 1637 it no doubt was.

49 See Pomeroy v. Abbot of Buckfast (1442) M. 21 Hen. 16, 15, pl. 30; Home's Case (1456) H. 34 Hen. 6, 26, pl. 3; Anon. (1479) M. 19 Edw. 4, 3, pl. 9; Anon. (1515) Spilman's Reports, copy in MS Harg. 388, f. 25; Anon. (1549) Moo. 6, pl. 20. An exception was made where the person paying the fees used money which he owed to the party. Cf. John Doket's Case (1454)) H. 32 Hen. 6, 24, pl. 11.

50 Prest, W. R., The Inns of Court 1590–1640 (1972), p. 52.Google Scholar

51 Ibid. Chaps. I—III; Lucas, op. cit. in n. 1, supra.

52 Lord Lincoln's Case (temp. Eliz. 1), cited in following: Constantine v. Barnes (1595) Rolle Abr., Vol. II, p. 114, line 44, Maintenance (E. 4), also reported in Univ.Lib.Camb. MS Ee. iii. 2, f. 55v, and cited in Noy 68; Germyn v. Rolls (1596), infra. Many of the cases concerning “solicitors” involved attorneys retained to solicit causes in other courts.

53 The total number of attorneys of the Common Bench is said to have risen from 313 in 1578 to 1,383 in 1633: Christian, E. B. V., Solicitors: An Outline of their History (1925), pp. 114–115.Google Scholar

54 Cf. T. M., The Sollicitor (1662 ed.), pp. 22–23; “every idle fellow, whose prodigality and ill husbandry hath forced him out of his Trade or Employment, takes upon him to be a sollicitor.”

55 p. 5 Hen. 7, 20, pl. 1, per Keble Serjeant.

56 83 Camd.Soc. (3rd ser.), p. 2 Cf. the slightly different version printed as an addendum to Smith, T., De Republica Anglorum (1906 ed.), p. 153.Google ScholarCf. also H. Spelman, Glossarium Archaiologicum (1687 ed.), p. 518.

57 Brooke v. Harrald (1594) Univ.Lib.Camb., MS LI. iii. 9, f. 412v, per Hele serjeant. The contention was unsuccessful.

58 Note 55, supra.

59 Fisher and Browne v. Sadler (1589) B.M. MS Harl. 4562, f. 104v. Contra: Anon. (c. 1600) ibid, folio ultima.

60 Collection of Entrees (1956 ed.), f. 202v.Google Scholar

61 Edward Onley's Case, Dyer 355, 356. The pleadings are printed in Old Benloes 297, pl. 292, citing T. 18 Eliz. rot. 934. In 1506 a jilted fiancé recovered his expenses in soliciting the law-suits of his betrothed: Lewes v. Style, K.B. 27/979, m. 71 v.

62 Exeter College, Oxford, MS 119, f. 73 at f. 77. This report is superior to that in Dyer. A third good report may be found in W. Shuger's Collection, Gray's Inn MS 27, ff. 101–104, taken (apparently) from the book of “Ashton.”

63 Worthington v. Garstone (1580) collected in Hob. 67, and noted in Rolle Abr., Vol. I, p. 17, lines 14–20, Cf. Anon. (1580) cited in Cro.Eliz. 760.

64 William Worlhington v. John Garsten, clerk (1580), Coram Rege Mich. 22 & 23 Eliz. 1. K.B. 27/1275, m. 378. The declaration is lengthened by the allegation of a forbearance to sue, the main contract being laid in the preter tense.

65 Sir John Neale's MS (now in Univ.Coll. London), f. 85 (translated). A slightly abridged copy is B.M. MS Harl. 4552, f. 43v. The point is briefly reported in Cro. Eliz. 459.

66 Univ.Lib.Camb. MS Gg. vi. 29, f. 113v (translated).

67 Were's Reports, MS Harg. 7, Part II, f. 159 (translated); also in Lincoln's Inn MS Misc. 490, f. 600.

68 Were's Reports, f. 186v (translated and emphasis added); Lincoln's Inn MS Misc. 490, f. 677v.

69 Univ.Lib.Camb., MS Gg. vi. 29, f. 115v. (translated).

70 Ibid, (translated). Cf. ibid., £. 114v (Trussell v. Mounslowe), in which the defend-ant was a solicitor, and the court could not forbear to observe that “solicitor … is not a profession or place tolerable in law, and by consequence [it is] maintenance in him.”

71 Ibid, (translated).

72 MS Harl. 4552, f. 43v (translated).

73 MS Harg. 7, Part II, f. 186v; Lincoln's Inn MS Misc. 490, f. 677v (translated). A wise suggestion is made in this report that the solicitor could avoid the legal difficulty by taking his money in advance.

74 Att.-Gen. v. Kinge (21 May 1596) in J. Hawarde, Reports del Cases in Camera Stellata (W. P. Baildon ed., 1894), p. 44 at p. 45 (repunctuated). Cf. MS Harg. 26, f. 58, to the same effect (perhaps the same case): “In all his reading he had not read that a solicitor has any calling in our law, but only counsellors, Serjeants, and attorneys. For attorneys were not allowed by the common law, but by statute. For [at common law] everyone must prosecute his own cause.” (Translated.)

75 “In 41 Eliz. Sprouse que fuit famous sollicitor que en un terme purchase 300 originalls, et le court ne voile suffer Iuy de practize, et puis fuit admitt house-hold servant al Count de Hertford”: recollection by the court in Herne v. Rolfe (1634) B.M. MS Add. 35967, f. 24.

76 Speech to the judges (June 1600) referred to by Chamberlain, Cal. State Papers Dom., vii 441; Heydon v. Good (1600) MS Lansd. 1074 f. 365, and B.M. M S Add. 25212, f. 7v; Wortley v. Savill (1600) MS Lansd. 1074, f. 369, and MS Add. 25212, ff. 13, 14v. In Wilson v. Pecke (1629) MS Lansd. 1094, f. 66, are listed six cases in which litigants were fined by the Star Chamber for soliciting. See also Jones, W. J., The Elizabethan Court of Chancery (1967), p. 318.Google Scholar

77 Osbourn v. Eden (1600) Cro.Eliz. 760; the report is less than helpful.

78 Anon. (1600) Inner Temple, MS Barrington 6, f. 32 (translated).

79 Anon. (1601) Bodl.Lib., MS Rawl.C. 720 f. 65v.

80 Postern's Case (1602 or 1603) Moo.K.B. 656, pl. 898 (translated); also in Hudson, W., Treatise on the Star ChamberGoogle Scholar, printed in F. Hargrave (ed.), Collectanea Juridica (1792), Vol. II, p. 94.

81 J. Bruce (ed.). The Diary of John Manningham, 99 Camden Society (Old Ser.) (1868), p. 81, quoting MS Harl. 5353, f. 59 (November 1602). This may be a reference to Postern's Case.

82 Att.-Gen. ex rel. Nicholas v. Hichecoke (1605) in Hawarde, J., Cases in Camera Stellata, p. 244.Google Scholar

83 Op.cit. from the text printed in Collectanea Juridica (1792), Vol. II, at pp. 94–95.

84 Prest, W. R., The Inns of Court 1590–1640 (1972), pp. 53Google Scholar, 54–58.

85 1 H.C.J. 124, 127, 128, 130. The Committee met in “the New Hall in the Temple” and so it probably included a preponderance of lawyers.

86 S.P. 12/282/52, f. 125 (list of the committee, dated 12 November 1601); S.P. 12/282/73, f. 168 (title of bill in “Notes for the parliament”).

87 3 Jac. 1, c. 7; text from Stat.Reg. iv, 1083–1084. The history of the enactment is obscure, and it is not referred to in Notestein, W., The House of Commons 1604–1610 (1971)Google Scholar. For the formal stages, see 2 H.L.J. 380, 382, 390, 391, 429; 1 H.C.J. 282, 286, 290, 307. (The bill was introduced in the House of Lords in February 1605/6, sent to the Commons in March and passed in May.)

A reader on this statute said it was intended “to retrench and obviate the occasion of those imputations that ly upon the law—it were to bee wisht they were onely slanders—multitude of atturneys and solliciters, traffiquing in causes and delaying them, more for private gaine then their clyents' (their masters') good”: B.M. MS Harg. 491, f. 3v (anonymous and undated).

88 See J. Herne, The Pleader (1657), pp. 163, 195: two cases of 1607 in which attorneys of the Common Bench were retained to solicit causes in Chancery.

89 Snigg v. Chambers (1607) Univ.Lib.Camb., MS Add. 3105, f. 137v. Accord. 2 Buls. 230 (1614), Per Coke C.J.

90 Alt.-Gen. ex rel. Stafforde v. Parmeter (1607) in Hawarde, J., Cases in Camera Stellata, p. 331.Google Scholar

91 Quelch's Case (c. 1610) Univ.Lib.Camb., MS Add. 3105, f. 146.

92 MS Harl. 1692. f. 37v, per Nicholls, J.: “il ad estre tenus en camera stellata que un attorney del un court poit sollicite un suite pur un speciall home en auter court.”Google Scholar

93 Ibid, (translated). The last sentence is obscure.

94 Rolle Abr., Vol. I, p. 17, line 33, Accion sur le Case (T) 10; Exeter College, Oxford, MS 151, f. 30v; 1 Bro. & Golds. 73; Hetley 129, per Richardson C.J. Followed in Gage v. Johnson (1622) Winch 53.

95 Bradford v. Woodhouse (1619) Cro.Jac. 520; Shepp.Abr., Vol. II, p. 407; 2 Rolle Rep. 76. Croke later said that he had been of counsel in this case and that the maintenance point was not argued: Sands v. Trevilian (1630) Univ.Lib.Camb., MS, Ii. v. 23, p. 66.

96 Thursby v. Warren (1629) Cro.Car. 159, W. Jones 208. The same point was made in Kelloway v. Mere, argued on the same day: Univ.Lib.Camb., MS Ii. v. 23, p. 8; B.M. MS Add. 25222, f. 188; MS Harg. 25, f. 55v; MS Harg. 24, f. 97; MS Harg. 47, f. 7; MS Harg. 111, f. 13v.

97 W. Jones 208.

98 Wilson v. Peck, Hetley 129. The printed report is taken from a very bad copy, and omits half a sentence from Henden's argument. Other copies of the text of this case are: Univ.Lib.Camb., MS Dd. iii. 46, f. 34; MS Ii. v. 35, f. 233v; B.M., MS Add. 35957, f. 218v; MS Add. 35962, f. 252; MS Lansd. 1085, f. 273; MS Harg. 362, f. 210v. The reports are probably by Humphrey Mackworth.

99 Hetley 129, corrected from the MSS.

1 James Ravenscroft's Reports (see n. 4, infra), MS Lansd. 1094, f. 43v, per Richardson C.J. and Harvey J. (translated).

2 Hetley 129, corrected from the MSS. The case referred to is Thursby v. Warren (n. 96, supra).

3 Hetley 129.

4 The MS says “ousterment” (utterly), which does not make sense.

5 MS Lansd. 1094, f. 43v (translated). On f. 135 the writer records the death of his father Thomas Ravenscroft, and signs himself James Ravenscroft. The writer was called to the Bar by the Inner Temple in 1626: Calendar of Inner Temple Records, Vol. II (1898), p. 155. The fact that he was himself a “young counsellor” in 1629 probably accounts for his interest in the speech. The volume belonged to Edward Umfreville and was purchased by Lord Lansdowne after the 1758 sale.

6 “Counsellors and Barristers” [1969] C.L.J. at pp. 221–222Google Scholar; Prest, W. R., The Inns of Court 1590–1640 (1972), p. 27.Google Scholar

7 See the reargument in Hilary Term 1635, MS Lansd. 1094, f. 65v.

8 Cf. Eveleigh v. Parker (1640) MS Harg. 42, f. 20v; Rolle Abr., Vol. I, p. 53, Action sur le Case (S) 3.

9 “Caroli” in the MS is clearly wrong.

10 Herne v. Rolfe, B.M., MS Add. 35967, ff. 23–24 (translated). Also noted in Rolle Abr., Vol. I, p. 13, Action sur le Case (R) 18. Cited and followed in Blowlewell v. Turnwill (1637) Univ.Lib.Camb., MS Gg. ii. 20, f. 976. A “common” solicitor was one who solicited causes generally for a living, as opposed'to a private servant.

11 See Utber v. Cooper (1654), Pratt v. Banks (1654–55), Bodl.Lib. MS Brasenose College 69, ff. 135v, 137, 142.

12 R. Peacock (ed.). Rules and Orders of the Court of Common Pleas (1811), p. 2; Rules and Orders of the Court of King's Bench (1811), p. 20. Whether and to what extent this order was observed in the years following are questions which for the time being we must defer.

* I am most grateful to Mr. M. J. Prichard for reading a draft of this paper and for his valuable comments.