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When is a Grey Mare not a Grey Mare? And Other Tidbits from English Legal History

A patron recently requested information about a 1726 English case involving an action for recovery of a wager. The parties were in agreement that the plaintiff’s “grey mare” outran the defendant’s “bay mare,” but the plaintiff (an “eminent distiller”) was nonsuited anyway because he could not prove that the “grey mare” in the race was the one originally matched. Apparently he pulled a switcheroo, and substituted a different horse with “a far better share of heels.” As more than 500 £ were wagered on each side, it is not surprising that the newspaper account of the case reported that “the dispute has been the subject of conversation for these two years past at most public meetings of gentlemen sportsmen.”

The patron wished to know whether there might be an official report of the decision, but unfortunately did not know the names of the parties or even the court in which the cause was heard. With only a hint that the court sat at Guildhall, we could surmise that it was the Lord Mayor’s Court (which still exists!), and at least some of that court’s decisions did find their way into the English Reports. But how to find the case without party names?

Fortunately, the English Reports, Full Reprint, is included in HeinOnline. This database permits the user to search for terms in the decision, such as “grey mare,” “bay mare,” and “wager.” Unfortunately, a search for these keywords retrieved nothing. Likewise a search in the Lexis English case law file containing decisions going back to 1561. So it appears that no report was made in any of the so-called nominative reports that comprised the ‘official’ world of case reporting in 18th century England.

Continuing on the subject of online reports of older English case law, those with a historical bent of mind might want to look at the proceedings of the Old Bailey, a free online database of English criminal cases spanning the period 1674-1913. This is an absolutely amazing collection of 197,745 criminal trials held at London’s central criminal court, described as “[a] fully searchable edition of the largest body of texts detailing the lives of non-elite people ever published.” Just for fun, I searched for cases involving grey mares, and in fact found 10 cases in which such horses were stolen. Perhaps one was the ringer used to dupe the “gentlemen sportsmen;” if so, it profited its seller no more than the “eminent distiller” who could not collect his gambling debt.

Perhaps it is fitting (and maybe even ironic) that the Old Bailey database is funded by the English National Lottery.


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