Page:Harvard Law Review Volume 5.djvu/322

306 306 HAR VARD LA W RE VIE W. the community-witnesses who ordinarily composed the jury, with business-witnesses and the like. In 1225 (Br. N. B, iii. case 1041), on a question of villeinage, six are summoned from the neighbor- hood ad recognoscendum cum parentibus. . . quas consuetudines t etc. In 1226 ( ib., case 1707), on a question relating to a parti- tion, the viscount is ordered to find out who were present at the partition et ex Mis etaliis venire faciat xii., etc., ad recognoscendum, etc. In 1227 (ib., case 1919), in a case of dower, the viscount is directed to find out who were present at the endowing and from these and others to summon twelve. 1 In an interesting case of 1323 (Y. B. Edw. II. 507), in a case of dower assensu patris, counsel for plaintiff says : " We put forward a deed which testifies the assent ; but that naturally lies enproeve (i.e., in proof by wit- nesses) and not en averrement (i.e., proof by jury), for it is not in the conusance of the country but of those who were present, and we are ready to aver the consent by them and others (i.e., by a jury with them). . . . Bereford, C. J. We have nothing to do here with the witnesses named in the deed, for it is not denied ; but we will cause those to come whom you will name as present when you were endowed, together with a jury (ovesque bon pays). Aid. (for defendant). That will be hard, for he may name ses cosyns et ses aims, who by his procurement will decide against us." But it was allowed. 2 This sort of thing seems to have been a mingling of the old procedure and the new. The proving by witnesses present at the endowing was the old lex recordamenti. An account of it in Normandy is found in Brunner (Schw. 342-3). A case of 1236-7 (Br. N. B. iii. case 1187) probably belongs to this class, where on a question relating to an alleged gift and seisin of a manor by the father of a tenant in capite now claiming it, the viscount is to summon twelve from the visne of the manor ad recognoscendum utrum. . . dedit. . . et. . . fuit in seisina. . . et quod venire faceret coram predictis liberos homines. . . adrecog. noscendum utrum, etc. It seems probable that this passage is corrupt and should read cum predictis? 1 For the form of the writ, see Bracton, 304 b. Other cases are Br. N. B. ii., cases 91, 154. See also ib., case 456; s. c. ib., case 595 (1230); ib., case 631 (1231J; Bracton, 380. • The original roll is not extant (Br. N. B. i. 161); bmt Professor Maitland, the editor of the Note Book, who did me the great kindness of examining that again at the British Museum, declares that there can be no doubt that the copyist has made it coram.
 * See also a case of 1315, Y. B. Edw. II. 278.