Page:Harvard Law Review Volume 9.djvu/65

JUDICIAL PRECEDENTS. 37 Nor does the citation of cases increase. Fifty years later, 14 Edw. III. (1340), the reports of which fill about two volumes in Mr. Pike's new edition of the Year Books, there are only three cases cited by name either by the bench or at the bar. 14 Edw. III. 37, 63, 247, 253. The other references are all to cases by their Term or other description, e.g.^ " Contra Michae lis 7iono,'* diwd all but one (p. 285) appear to be notes by the reporter or other owner of the book.^ Coming down to the end of the century (1400), 2 Hen. IV., we find the Year Book of that year containing reports of 131 cases filling 25 folios. There are three instances in which judges refer to particular decisions, 7 pi. 26; 10 pi. 45; 23 pi. 9. In another case counsel said that a married woman ought not to be allowed to plead in an action of waste after default by her husband, quod contra dicebatiir per totam Curiam eo quod scBpius en tiel case el ad este receive^ 2 pi. 7; again the practice of the King's Bench in replevin is declared to be different from that which prevails else- where, 9 pi. 44 ; in three other cases earlier decisions are referred to, but only not to be followed, 6 pi. 21 ; 15 pi. 16; 19 pi. 12; and in 21 pi. 20 the reporter notes that the decision made was not after- wards followed. Let us take a time forty years later (1440), 18 Hen. VI. The reports for this year cover 34 folios. Lovell's Case is referred to twice by name, 8 pi. 7 ; 9 pi. 7. Besides, in four instances it is said, '■^ceo ad este adjiige^' 6 pi. 6; 10 pi. 9; 15 pi. 3, bis? The two legal treatises of the fifteenth century make but little reference to judicial decisions as authority. In Fortescue's book, De Laudibus Legum Anglice^ there is no reference to any decided case, and in the seven hundred and forty-nine sections of Little- ton's Tenures, only eleven cases are referred to, usually in the briefest manner, §§ 88 (and 94), 96, 157, 383, 412, 420, 514, 643 (and 644), 692, 702, 729. 1 In Hengham Magna and Hengham Parva, the work of a Chief Justice in Ed- ward I.'s time, a case before Henricus de Bathonia is given at length. Heng. Mag. c. 10 ad fin. ; the opinion of tlie same judge is referred to in three other places of the same book, once in c. 8, and twice in c. 9 ; another case is referred to in c. 13 ; and there is one reference in Hengham Parva, c. 3. 2 Lord Coke in the preface to the tenth volume of his Reports, speaking of his own time, says : " The ancient order of arguments by our Serjeants and apprentices of law at the bar is altogether altered, i. They never cited any book, case, or authority in particular, 'as is holden in 40 E. III.,* &c., but ' est tetnus ou agree in ri're livres^ 'est tenns adj'uge in tertnes' or such like, which order yet remains in moots at the bar in the Inner Temple to this day."