Front Page Titles (by Subject) TALTARUM\'S CASE 1 - The Collected Papers of Frederic William Maitland, vol. 2
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TALTARUM'S CASE 1 - Frederic William Maitland, The Collected Papers of Frederic William Maitland, vol. 2 
The Collected Papers of Frederic William Maitland, ed. H.A.L. Fisher (Cambridge University Press, 1911). 3 Vols. Vol. 2.
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The name of the hero of what has long been, and in spite of anything that I can say will long be, known as Taltarum's case, was not Taltarum. I have lately seen the record of that case. It stands on the De Banco Roll for Mich. 12 Edward IV, m. 631. I wished to see whether the pleadings were correctly stated in the Year Book. In the main they are correctly stated, but I am able to supplement the report with a few details and to add a little local colour. It was a Cornish case, and concerned a messuage and 100 acres of land in Porhea (Portreath?). The plaintiff was Henry Hunt; the defendant was John Smyth. The action was on the Statute of 5 Richard II against forcible entry, and the plaintiff sued “tam pro domino Rege quam pro seipso.” The original feoffor mentioned in the defendant's plea was Thomas Trevistarum. In the plaintiff's replication the famous recovery is alleged to have taken place in the Easter term of 5 Edward IV, before Robert Danby and his fellow justices of the bench. The writ stated that John Arundel, the lord of the fee, had remised his court. The demandant in it was Thomas Talkarum or Talcarum. His name is written many times, now with a k, now with a c, never with a t. The vouchee was Robert Kyng. The well-known rejoinder about the settlement made by John Tregoz was pleaded only as to twenty-four acres, parcel of the land in question. As to the residue the plaintiff pleaded in a more general fashion that at the time of the recovery Humphrey Smyth was not seised of the freehold, and that therefore the recovery was void in law. The defendant demurred upon both replications and the plaintiff joined in demurrer. Curia advisari vult, and gives a day in next Hilary term for judgment. No judgment has been posted up on the Michaelmas roll, nor could I find any notice of the case on the Hilary roll.
On looking at the report in the Year Book I do not think that any judgment had been given when that report was written. The four judges—so it seems to me—were agreed about the two points in relation to which the case has so often been cited. (1) They were prepared to hold that a proceeding such as was afterwards known as a “recovery with single voucher” would serve to bar an estate tail if the tenant in the action was “in as of” that estate tail. (2) They thought that such a recovery would not bar an estate tail if the tenant was not “in as of” that estate tail at the time of the recovery. But so far as I can see they were hopelessly divided, two against two, about the question of remitter which was the thorniest question in the case. I have often attempted and often failed to understand what was the hypothetical state of facts which formed the basis of the argument about the remitter. It was therefore that I searched the roll. I have only to report that what Mr Challis has justly called “the rambling obscurity” of the report correctly states the pleadings on the record. On the whole the hypothesis seems to be this. Talkarum, the recoveror, having obtained judgment, did nothing more during the life-time of Humphrey Smyth, the tenant in the action. Humphrey died seised; on his death Robert Smyth entered, and on Robert's death John Smyth entered. Then Taltarum entered on John and enfeoffed Henry Hunt, then John entered and cast out Hunt, and this was the forcible entry complained of. But I must confess that I am puzzled by those mysterious absque hocs with which the pleadings abound.
Leaving to Cornishmen the question whether Talkarum and Trevistarum are possible names, I cannot refrain from the remark that the name of Henry Hunt is beautifully simple.
Law Quarterly Review, Jan. 1893.