Ghosts Of The Past - The Rule In Pigot's Case

For slightly over 400 years most common law jurisdictions have laboured under the strictures of the decision of Sir Edward Coke in Pigot's Case. Yet despite the risks that this rule presents, very few lawyers are familiar with the rule or its effect.

For all of the strengths that common law legal systems have, one of the weaknesses is ghosts of past in the form of ancient case law which rears its head in unwelcome circumstances. For slightly over 400 years most common law jurisdictions have laboured under the strictures of the decision of Sir Edward Coke in Pigot's Case (1614) 1 Co Rep 26b, 77 ER 1177. Yet despite the risks that this rule presents, very few lawyers - let alone lay persons - are familiar with the rule or its effect.

Background to Pigot's Case

In 1611 Henry Hudson was suffering the indignities of a mutiny after naming Hudson Bay after himself, and Shakespeare's last play (The Tempest, also ironically about a shipwreck) was debuting. In the same year, with rather less fanfare, a certain Mr Henry Pigot executed a bond acknowledging his indebtedness to one Benedict Winchcombe. Three years passed, and Winchcombe was subsequently appointed High Sherriff of Oxford. At this point some unknown but well-meaning person inserted the words "High Sherriff of Oxford" in Latin under Winchcombe's name on the deed. Later that same year, Winchcombe tried to enforce the deed against Pigot, but Pigot claimed that the deed could not be enforced against him on the grounds it had been altered, and was therefore void.

The judgment in Pigot's Case

The case came before the eminent jurist, Sir Edward Coke. In a lengthy judgment that departed from previous precedent, and gave all appearances of trying to rewrite the law on the subject, Coke opined that:

a deed is void if it is altered in any way by the person in favour of whom the deed is executed; a deed is also void if altered in a material way by a third party; but a deed is not void if it is altered in a non-material way by a third party. In this case, because the amendment was held by the jury not to be material, and because an unknown third party had amended the deed, Mr Winchcombe was able to enforce his claim.

However, although Coke's judgment had the effect of softening the previous law (which had been to the effect that any alteration to a deed would render it void - Elliott v Holder (1567) 3 Dyer 261b), the rule remains a trap for the unwary liable to catch out parties in modern times. In...