| 1443.108 |
1443 |
Common Pleas, Exchequer Chamber |
Trespass for taking a villein and loss of service |
Trespas |
| Mich. |
22 |
Hen. 6 |
49 |
30b-33a |
Newton, Richard CJCP
Aysshton, Nicholas Sjt Asht. (for P)
the inquest
Aysshton, Nicholas Sjt Asht.
the inquest
Aysshton, Nicholas Sjt Asht.
Markham, John Sjt (for D)
Newton, Richard CJCP 31
Ayscough, William JCP Ascue
Moyle, Walter Sjt Moile
Ayscough, William JCP Ascue (mentioned)
Portyngton, John JCP
Pole, Ralph Sjt (for P)
Fulthorpe, Thomas JCP
Newton, Richard CJCP
Markham, John Sjt
Newton, Richard CJCP
Portyngton, John JCP
Aysshton, Nicholas Sjt Ashton
Newton, Richard CJCP
Pole, Ralph Sjt
Danby, Robert Sjt 32
Bingham, Richard Sjt
Portyngton, John JCP
Ayscough, William JCP Ascue
Fulthorpe, Thomas JCP
Ayscough, William JCP Ascue
Newton, Richard CJCP
Danby, Robert Sjt
Newton, Richard CJCP
Fulthorpe, Thomas JCP
Ayscough, William JCP Ascue
Portyngton, John JCP
Aysshton, Nicholas Sjt Asht.
Fortescue, John CJKB
Yelverton, William JKB
Newton, Richard CJCP
Yelverton, William JKB
Fortescue, John CJKB
Newton, Richard CJCP
Portyngton, John JCP
Moyle, Walter Sjt Moile
Danvers, Robert Sjt Davers
Newton, Richard CJCP
all the Court
Fortescue, John CJKB
Danvers, Robert Sjt Davers
Fortescue, John CJKB |
Hungerford or T. |
Thomas |
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| Hungerford, E., wife of Thomas |
K., villein of E. Hungerford |
Chancery, Court of |
|
Statham Briefe 91, Laborers 13, Processe 64, Trans 89
Fitzherbert Issue 74, Laborers 7
Brooke Repleader 22, Attorney 46, Coverture 27, Deux plees 16, Double plee 132 (not in margin, not 2 Hen. 6), Errour 79 (not Fitzherbert), Dammages 76 (not in margin), Laborers 31 (not in margin), Villenage 24 (not in margin), Grauntes 43 (not in margin) |
Register
perhaps cross-referenced in 1448.029 = Mich. 27 Hen. 6, pl. 29, fol. 4b-5a |
Statute of Labourers = 23 Edw. 3 (1349), ch. 1
Statute of Forcible entry = 8 Hen. 6 (1429), ch. 9 or 5 Ric. 2 (1381), stat. 1, ch. 7 |
| Thomas Hungerford & E. sa feme port brief de Transgressioun envers un Rob. de ceo que il aver pris ove force un |
204 |
Plaintiffs counted that defendant took with force plaintiff wife's villein before she was married, the villein then being in plaintiff wife's service, so that plaintiff wife lost the villein's service for a long time.
Defendant pleaded as to the taking of villein that the supposed villein was free and of free estate, and not villein.
Issue was joined.
Defendant pleaded as to the loss of service that the supposed villein was never retained with plaintiff wife.
Issue was joined.
Process continued against the jurors until now the inquest was ready to give their verdict (passer).
Newton CJCP said that the issue ought not be taken on two articles.
Plaintiffs prayed the jury at their peril.
The inquest was taken, who found that he was plaintiff wife's villein and was in her service, but not retained with her, and assessed the damages at 30 pounds.
Plaintiffs prayed that the damages be severed for the taking of villein and for the loss of services.
The inquest assessed the damages for the taking of villein at 29 pounds and for the loss of his service at 20 shillings.
Plaintiff prayed judgment.
Defendant said that the Court ought not proceed to judgment because the parties mispleaded (jeofail) and should replead.
Newton CJCP argued at length that plaintiff should recover.
Ayscough JCP and Portyngton JCP argued that the parties should replead.
Newton CJCP told defendant that unless defendant would say something else, he would have judgment.
Defendant said that plaintiffs pleaded by attorney and continued all the process by attorney, and plaintiffs were infants (within age), so they should have pleaded by guardians and not by attorney, which was error.
Newton CJCP told defendant that he should bring a writ of Error for this.
They were adjourned to Pasch. 1444.
Plaintiff rehearsed the matter and prayed judgment.
Newton CJCP said that the Justices were of differing opinions.
Extensive further argument whether the parties should replead.
Newton CJCP argued that at least one of the issues pleaded should stand.
At another day the matter was rehearsed in Exchequer Chamber.
Fortescue CJKB argued that plaintiff should recover.
Further argument.
Plaintiff husband released the damages by the loss of the villien's services, and prayed their judgment for the rest of their damages for the taking of the villein.
Plaintiffs had the damages for taking of the villein (29 pounds) as the inquest had taxed (assessed). |
Newton CJCP: tout soit que ii articles son comprehendes en cest brief, uncore il n' est que d' enformer le Court, & le Jury; ne sera entendu per cel' briefe le perte du service a volunte, ou service per voy de reteiner, mes bond service; Et le usel briefe que est en le Registre en tiel cas est, 'quare Nativum suum cepit, per quae servicia suum Nativi sui per longum tempus amisit'; Et si mon servant ale al Eglise al' Sabot' day a Dieu servir, & un auter luy prende, ou bal (batist?) , jeo aurai mon action vers luy & uncore il fuit a cel' temps en sect- service a Dieu, & en son service, & nemy sect- mon service: mes les Ley luy adjuge tout temps en mon service; mes 'frank & de frank estat' est plus digne respons, & fera fine de tout; ils sont nudement en covenant
Sjt Markham (for D): jeo entend home ne sera ii fois puni per un brief per un meme trespas; ceo est le cause del' action; est le substance de s' action; Et le cause est, il sera inconvenient que un doit recover damages sans cause; ceo est le substance del' action; semble que tout est un jeofaile, & que covient a vous replede
Ayscough JCP: Issint semble tout cel' un jeofail; Non video illus
Sjt Pole (for P): le parol soit misrep-, uncore ceo ne ousre le plaintif de son jugement
Sjt Bingham: mettons que le villein soit entre son labour demesne a son 'plough', ne est tout le profit de son labour a son Seignor?; Ou s' il soit artificer, n' est tout le profit de cel' quand il ad vendu son marchandise al' Seignor?; Covient adonques faire le melior service; Et mettomus que le villein soit retenu ove un auter, uncore il est en le service son Seignor, car tout le profit de son salerie que extende son reasonable substance, est al Seignor, issint semble quand tout le profit de son labour avient loialment al' Seignor, le Ley ajuste luy son servant, & il continualment en son service
Portyngton JCP: tout le force de argument que est fait de le contrary part est cel, s. que est enclude en cest que il est son villein, que il est servant, & en son service: mes ceo n' est issint a ma entent, & cest prove le registre; Et auxi la est un auter brief per cel' cas, si jeo ay pris mon villein & pur ceo que il ne voit estre justifie, jeo luy met en le ceps (= stocks), & un auter luy prist hors del' ceps (= stocks), le brief 'quare' un tiel 'Nativum & servientum meum cepit'; & si le villein soit en le service le plaintif ne fait adonqz le transgressoun est plus heinous
Fulthorpe JCP: ne sont parolx d' auter substance forsqz pur abriger le matter
Fortescue CJKB: le presumption de son brief; une villein ne poit estre retenu ove son Seignor: issint semble que cel' issue 'frank & de frank estat' fuit un parfit issue
Sjt Moyle: Sont divers briefes que sont general en lour natures, & uncore ils poient estre fait special; si un de droit doit escower (= clean out) un dike, & ne fait pas issint que en son defaut mes terres sont surronde (= flooded), jeo aurai accion de Transgressioun, & cel' special matter covient aver un respons, & ceo est un special brief en son nature |
service owed by villeins, sons, apprentices, and servants discussed; at two points the Justices and Serjeants disputed when actions on the Statute of Labourers could be brought, a similar argument in the much shorter report 1444.025 = Hil. 22 Hen. 6, pl. 25, fol. 43b (Trespass for beating a servant, plaintiff need not count of a retainer)
similar matter in 1443.018 = Hil. 21 Hen. 6, pl. 18, fol. 31a-32a
Sjt Aysshton and Sjt Pole both pleaded for plaintiff; Newton CJCP and Fulthorpe JCP argued for plaintiff's position; Ayscough JCP and Sjt Danby argued for defendant's position
damages of 30 pounds, assessed separately as 29 pounds for taking of villein and 20 shillings (= 1 pound) for loss of services
Sjt Markham (for D): I understand that one will not be twice punished by writ for one same trespass (double jeopardy principle); suppose that one was his villein, and not in his service, even though another take him and imprison or beat him, his lord will not have an action of Trespass for taking his villein, and the Court of Chancery proves this; it would be inconvenient that one ought to recover damages without cause
Newton CJCP: if I bring a writ of Trespass for ravishment of my son and heir being in my service, I think (voile bien) that this writ is no good, because I cannot constrain him (my son) to serve me unwilling (sans son bon gre); but taking my apprentice then being in my service is a good writ, because that he is named apprentice includes in itself that he is my servant; thus here it is included in those words 'was villein' and it was alleged that he was servant, and I constrain my villein to serve me without any retainer against his will (mauger le sien), and he cannot go out of the lordship without making a fine to the lord, and even though the lord lease land to the villein to occupy and cultivate (mainurer), yet he can, when he pleases, command him to serve in his house, or in his business (besoignes), thus the law adjudges him always in the lord's service; and the usual writ is in the Register in such case; he cannot lose his service if he was not in his service, so those words ' in servic- existente-' are no great matter; and if one be retained by me in service, and not come to serve me, and another takes him and coerces him to serve him, I will have an action against him 'for taking my servant', because the law adjudges him always in my service, and I can coerce him to serve me when I want; and if my servant go to church on the Sabbath day to serve God, and another take him or beat him, I will have my action against him, and yet he was at this time in secular service to God and in His service, and not (following) my service, but the law adjudges him always in my service
Ayscough JCP: suppose that (one) be my villein, it is lawful for another to constrain him to serve him, if he find him vagrant, except that I will be preferred by reason (cause) of the lordship before any other, and this by the Statute (of Labourers)
Portyngton JCP: by this (usual) writ it will not be understood that he was in his service in fact, by other means (voy) than every villein is in the service of his master; the damages will be assessed now according to the loss of service of another common person, and in effect is nothing but 'taking of his servant', because the damages will be apportioned equally in the one case as in the other; if I have taken my villein and because he would not be justified I put him in stocks (ceps), and another take him out of the stocks (ceps)
Sjt Pole (for P): that he is his villiein, and that he is his servant, and that they can coerce him to serve them, when they please, without any request; and if my villein be vagrant, and another request him to serve him, so he is retained with him, I can seize him when it pleases me, and coerce him to serve me; the law understands that he is always my servant
Sjt Danby: if he not be in his service in fact, then the trespass is not so heinous as it is if he was in his service
Sjt Bingham: suppose the villein be about his own labour at his plough, does not all the profit of his labour go to his lord?; or if he be an craftsman (artificer), does not all the profit of this, when he has sold his merchandise, go to the lord?; it must be thus to do the better service; and suppose that the villein be retained with another, yet he is in the service of his lord, because all the profit of his salary that exceeds his reasonable sustenance (substance) goes to his lord, thus it seems when all the profit of his labour comes lawfully to the lord, the law adjudges him his servant, and continually in his service
Sjt Danby: suppose that one be retained with me for a year to serve me each time that I call or require
Newton CJCP: this is a covenant, and of such a servant you will never have an action on the Statute (of Labourers) (to which Fulthorpe JCP, Ayscough JCP and Portyngton JCP agreed) because they are barely (nudement) in covenant
Fortescue CJKB: the presumption of his writ is only 'that a villien being in his service as servant was taken' because it will be understood by his writ that he did not lose service other than bond service; because service by way of retainer ought not be understood (meant): because a villein cannot be retained with his lord: so it seems that the issue 'free and of free estate was a perfect (parfit) issue
Fortescue CJKB and Newton CJCP: an apprentice can depart out of his service
Sjt Moyle: there are various writs that are general in their natures, and yet they can be made special, as if one break my close and my animals depart the close and come into my grain, and trample and graze my grain, and yet this is nothing but abridgement, and an answer to the breaking of close will go to all , but if one of right ought to scour a dike, and do not so that my lands are flooded, i will have an action of Trespass, and this special matter ought to have an answer, and this is a special writ in its nature
Sjt Danvers: if I give one an acre of land to serve me when I call him into his service, if he be taken by another against his will, I will have an action on the Statute (of Labourers)
Newton CJCP and all the Court: this is not so: but in your case you are put to your distraint, because this is a tenure
Fortescue CJKB: what estate did you give him in the land?
Sjt Danvers: Sir, to hold at my will
Fortescue CJKB: yet you will not have an action on the Statute of Labourers
In 1448.029 = Mich. 27 Hen. 6, pl. 29, fol. 4b-5a, a concluding note stated that a Protection would be allowed as was held by all the Justices of the one Court and of the other in the case of the Lord of Hungerford'. |
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1443.108 = Mich. 22 Hen. 6, pl. 49, fol. 30b-33a
Statham Briefe 91, fol. 31r, stated that a writ of Trespass 'quare talem nativum' etc., 'et servientem suum ou apprenticiam suum (& servientem suum)' was adjudged good, as in the case of Hungerford, etc.; Klingelsmith stated that this was a very long drawn-out case, where the learning of the period was 'debated' with great solemnity
Statham Laborers 13, fol. 121r: Une villeynn sera compelle de servier come appiert per l estatut &c.; Mez son seignior sera preferre s il ad mester (= need) per l estatut quod nota (a villein will be compelled to serve, as appears by the statute (of Labourers); but his lord will be preferred if he has need (mester) (of him), by the statue, note this) (said by Ayscough JCP)
Statham Processe 64 may be this case, and stated that a Venire facias to be viewed (de(str)e viewe) would not be awarded where an infant appeared by attorney, and (the infant's attorney) said that he was under age, etc.; query as to the process, etc.
Statham Trans 89 stated that in Trespass for an apprentice taken from his master, it is no plea (to say) that he (the apprentice) was discharged from his apprenticeship that day (defendant took him), unless he (defendant) showed a deed of the discharge, because he (the apprentice) cannot be an apprentice without a specialty
Brooke Villenage 24 cross-referenced Brooke Repleader 22 and stated that a villein will be understood always (to be) in service to his lord, unless (except) special matter be shown to the contrary, by Newton CJCP and several (pluries),yet several (plures) (argued the) contrary, and thus query; and by Portyngton JCP (said that) if one beat (batte) my villein who is not actually in my service, I will have Trespass, that 'N. natiuum & seruientem meum verberavit, per quod seruicium seruientis mei per magnum tempus amisi' and (I) will recover damages for the time that he could have been in my service, because I could have called him into my service at my pleasure, and in Trespass 'quod villanum & seruientem meum cepit', the defendant can justify that he (the villein) was vagrant (vagarant) and that he retained him according to (iuxta) the statute (of Laborers), but where it is (Trespass) 'quod villanum & servientium meum in servitio meo existent-', there he ought to answer over to the service |
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Wife
Taking
Force
Villein
Feme Sole
Unmarried Woman
Service
Virtue
Long Time
Loss
Freedom
Free Estate
Loss of Service
Retainer
Process
Continuation
Juror
Inquest
Issue
Joinder
Action
Article
Taking of Villein
Answer
Surmise
Count
Good Count
Servant
Possession
Mention
Abduction
Statute
Labourer
Labour
Case
Declaration
Detaining
Traverse
Comprehension
Content
Information
Jury
Recovery
Damages
Peril
Finding
Assessment
Assessment of Damages
Severance
Separation
Judgment
Proceeding
Understanding
Punishment
Twice Punished
Son
Heir
Ravishment (rapuit)
Cause
Cause of Action
Substance
Substance of Action
Imprisonment
Prison
Beating
Battery
Lord
Nativum
Proof
Chancery
Court of Chancery
Inconvenience
Nativo Habendo
De Nativo Habendo
Good Plea
Plea
Supposition
Sufficiency
Sufficient Answer
Jeofail
Mispleading
Repleading
Avail
Cause
Inclusion
Pleasure
Constraint
Willingness (bon gre)
Apprentice
Good Writ
Name
End
Word
Allegation
Against His Will
Maugre le Sien
Lordship
Making Fine
Lease
Occupation
Cultivation (mainurer)
Command
Business (besoignes)
Villeinage
Acknowledgement
Point
Special Matter
Showing
Voidance
Service At Will
At Will
Way
Bond Service
Usual Writ
Register
Difference
Distinction
Coercion
Compulsion
Church
Sabbath
Sabbath Day
Sunday
God
Serving God
Secular Service
Sect
Lawful
Vagrant
Wandering
Exception
Preference
Master
Elegit
Tenant by Elegit
Statute Merchant
Disseisin
Tenant by Statute Merchant
Assize
Ouster
Freehold
In Fact
Accord
Common Person
In Effect
Apportionment
Equality
Equal Apportionment
Breaking Close
Not Guilty
Rien Culpable
Bar
Insufficiency
Venire Facias
Goods
Taking Goods
Bad Bar
Entirety
Binding
Guilt
Abatement
Attorney
Infant
Infancy
Within Age
Guardian
Error
Reason
Aid
Writ of Error
Defeat
Record
Adjournment
Term
Ensue
Rehearsal
Opinion
Motion
Intent
Cutting (trenche)
Parcel
Request
Process of Law
Mistake (misrep-)
Verdict
Contrary
Apprenticeship
Heinous
Heinous Trespass
Clarity
Own Labour
Plough
Profit
Artificer
Craftsman
Sale
Merchandise
Salary
Extension
Sustenance (substance)
Reasonable Sustenance
Continual Service
Argument
Force of Argument
Justification
Stocks (ceps)
Covenant
Abridgement
Non Video Illud
Worth
Demurrer
Plea of Land (category)
Calling
Requirement
Accord
Bare Covenant
Nude Covenant
Forcible Entry
Disseisin with Force
Detaining with Force
Inquiry
Exchequer Chamber
Presumption
Perfection (parfit)
Perfect Issue
De Bene Esse
Willingness
General Writ
Strengh
Strong Writ
Departure
Consideration
According to the Law
Distinction
Nature
Nature of Writ
Special Writ
Cleaning
Dike
Flood
Manor
Advowson
Common
Appendant
Feoffment
Appurtenances
Incident
Query
Per Quae Servicia
Fealty
Acre
Will (volunte)
Action on the Statute
Distraint
Tenure
Estate
Tenancy At Will
Release
Release of Damages
Taxation (Assessment) of Damages |
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