| 1473.004 |
1473 |
King's Bench, (Exchequer Chamber?) |
Trespass? for an affray (fighting)? |
Nota |
Choke, Richard JCP
some ascuns
Bryan, Thomas CJCP Brian
Choke, Richard JCP
Bryan, Thomas CJCP Brian
Jenney, William Sjt Genney |
Say |
Lord |
|
|
|
Henry VI, King of England |
Parliament
(Exchequer Chamber?) |
|
Fitzherbert Office del court 8, Graunt 27, Barre 110, Eschape 2
Brooke Office del court 27, Parliament 60, Pledinges 103 & 161 (not in margin), Corporations 58 (not 50), Freshe suite 3 (not 9), Trespas 330, Distresse 49 (not 50), Corone 158 (not 159), Escape 35 |
Perhaps cross-referenced in 1486.002 = Hil. 1 Hen. 7, pl. 2, fol. 6a
Dive case, Plowden Commentaries 64
37 Hen. 6, fol. 17
22 Edw. 4, fol. 48
Plowden, Commentaries 65
11 Hen. 4, fol. 40
12 Hen. 4, fol. 5
12 Edw. 4, fol. 10
10 Edw. 4, fol. 9
21 Edw. 4, fol. 8, 32
7 Edw. 3, fol. 324
17 Edw. 3, fol. 1
Plowden, Commentaries 37
2 Edw. 4, fol. 6, 7
16 Edw. 4, fol. 10
33 Hen. 6, fol. 55
11 Hen. 7, fol. 4
11 Edw. 4, fol. 8
7 Edw. 3, fol. 315
35 Hen. 6, fol. 2
27 Edw. 3, Lib Ass. pl. 35
18 Edw. 4, fol. 4
6 Hen. 7, fol. 12
10 Hen. 7, fol. 26
14 Hen. 7, fol. 1
Stanford, Plees del Coron 38 c d
13 Hen. 7, fol. 2
10 Edw. 4, fol. 11
9 Edw. 4, fol. 2 |
Act of Parliament that all corporations and licenses granted by Hen VI were void |
| En Bank le Roy en le case de Seignior Say, vers ceux de Nottingham, fuit |
37 |
(Perhaps those of Nottingham claimed jurisdiction (cognisance) of the plea.)
It was held that an act of Parliament that corporations and licenses granted by the previous king ought to be pleaded, and that the Court was not bound to have cognisance of such acts of Parliament, because such an act was private (particular) not general.
Other issues were discussed whether the name of the mayor at the time of the grant needed to be shown, whether a Justice of the Peace or a constable could pursue one (defendant) suspected of committing an affray (fight) into another county to arrest him, and whether such an arrested suspect should be brought to the gaol where he was arrested or to the gaol where the act had been committed. |
tenus que un act de Parliament que touts corporations & licences grauntes per le Roy Henry, &c. serront voide, que ils covient estre pledes, & le Court n' est tenus d' aver conusance de eux, mient pluis que un particuler act, pur un particuler person; Et le dit act n' est general, mes est particuler en un generaltie, cest assavoir, que touts corporations, &c. sicome un act soit fait que touts Evesques ou touts Seigniors averont tiel chose, &c. cest particuler act, &c. mes ou un act est general que extende a chescun home, ceo ne besoigne d' estre plede, car il est un general & commen ley, &c.; Et auxi fuit tenus ou un patent est fait al Major, Aldermen & Cominaltie, si home voit pleder tiel patent, il covient monstre que fuit Mayor al temps del patent, mes nemy queux fuerunt Aldermen & Cominaltie ou Baille, car ils sont le corps & le Maior est le teste, issint ne besoigne monstrer forsque que fuit le teste, nient pluis si grant soit fait al Maior et Citizens il ne besoigne monstrer queux fueront Citizens, &c.
Choke JCP dit, coment que il soit use a monstrer que fuit Mayore al temps del grant, &c. pur le pluis suertie, uncore il veia ajudge quant tiel patent fait al Mayor et Cominaltie fuit plede generalment, agarde bon, car il serra pris que un Mayor fuit al temps del grant, en quel case le grant fait al Mayor & Cominaltie est bon, mes s' il n' aver Mayor le grant fuit voide, &c.
Et auxy fuit touche si home fait affray, & les Justices de Peas ou constable veyant luy issint fesant affray, vient a mesme l' affray & voilent arrester, et il fue en (= flee into) auter Countie, & l' auter luy freshment pursue, s' il poit luy arrester en auter Countie, &c.
Et ascuns disoyent que n' est semble lou home vient a distrainer pur dammage fesant, ou pur son service, & le distresse est enchase il poit prendre le distraint en auter terre, cest pur le tort que il ad pur les beasts, ou pur le prendre (should be perdre) des services, &c.; Auter est icy, &c.
Quare, car ascuns semble tout un, & pur affraie fresh suit est material, mes s' il fuit pur felonie, n' est material, car il poit prendre luy en chescun Countie, mes il fuit debate le quel il duist amesner luy al gaole, lou il fist le felonie, &c. & semble que cy, car il poit estre plus tost la deliver, &c.
Bryan CJCP: al contrarie, il covient estre amesne al gaole ou il fuit pris, &c. & pur s' deliverance il poit estre remove per un brief, &c.
Et fuit tenus que pur felonie ou pur suspection de felony, home poit debruser meason pur prendre le felon, car il est pur le commen weale de prendre eux
Et auxi Choke JCP dit, que le Roy ad interest, le brief est 'non omittas propter aliquam libertatem', &c. issint le libertie de son meason ne luy tiendra lou, &c.; Mes auter est pur det ou trespss, le Vicont ne auter, ne poit debruser le meason pur luy prender, car ceo n' est forsque particuler interest del partie, &c.
Et fuit move lou un est eins per felonie ou condempne & escape, si le gardeine (= warden) fait fresh suit, il poit luy reprendre, s' il soit sept anz apres, mes sans fresh suit nemy:
car Bryan CJCP dit, s' il ad fait fine pur l' escape ou action est sue vers luy pur l' escape, cesty que fuit condempne, &c. donques s' il luy prendroit apres, ceo serra a nul entent, & contrarie al recorde que est, 'quod fuit ad largum' &c.
tamen Sjt Jenney dit, si beasts prises pur distraint escapent, il poit prendre quant il poit, &c.
in M. Hemmant, ed. Select Cases in the Exchequer Chamber, 64 SS 30-34 (1945) (case 13) (note on the status of the escaped prisoner), dated Hil. 14 Edw. 4 (1475): Item fuit grant par les Iustices en l eschekir chambre que si vn condempne escap hors de execucion que bien list al gaoler de ly reprendre a ascun temps apres qu il poet trouer et serra dit en execucion come il fuit deuaunt mes si le party port son bref de dett vers le gaoler et recouere et ad execucion enuers luy donques le condempne poet auer sicre facias d estre dismisse |
|
s.v. Say (Fynys), Sir John, d. 1478, in Oxford DNB. |
liberty of the subject, liberty of one's house: it was held? argued? (tenus) that one (probably a constable or a Justice of the Peace) can break into a house to arrest another for felony or for suspicion of felony, because it was for the common good (commen weale) to arrest them (felons)); and also Choke JCP said that the king had an interest (in arresting felons), comparing the writ of Non omittas (for sheriffs to enter franchises to execute the king's process after failure of bailiffs to do so), so the liberty of his (felony suspect's) house will not hold him where (the king has an interest), etc.; but it is otherwise for Debt or Trespass, (when) the neither the sheriff nor anyone else can break into the house to arrest him (Debt or Trespass defendant), because this was only for the particular interest of the party (plaintiff in Debt or Trespass), (principle that a man's house is his castle, Semayne's Case)
it was held that it ought to have been pleaded that an act of Parliament that all corporations and licenses granted by king Hen. 6 were void, and the Court is not held (tenus) to have cognisance (judicial notice) of them (acts of Parliament), no more than of a private act (un particuler act), for a particular person; and the said act was not general, but was particular as to a class (en un generaltie), that is to say, that all corporations, etc., as if an act be made that all bishops or all lords would have such a thing, etc. this is a private (particuler) act, etc., but where an act is general so that it extends to everyone (chescun home) this need not be pleaded, because it is a general and common law (?), etc.; and also it was held that a patent was made to the mayor, alderman, and commonalty, if one wanted to plead such a patent, he ought to show who was mayor at the time of the patent, but not who were aldermen and the commonalty or bailiffs, because they are the body and the mayor is the head, so there is only a need to show who was the head, no more if a grant be made to the mayor and citizens, there is no need to show who were citizens, etc
Choke JCP said even though there be a usage to show who was mayor at the time of the grant, etc. for the greater surety (suertie, assurance), yet he (Choke JCP) had seen it adjudged when such a patent was made to the mayor and commonalty was good, but if there was no mayor the grant was void, etc.
and also it was touched (upon that) if one commit an affray (start a fight) and the Justices of the Peace or a constable, seeing him (the fighter) thus making affray (fighting), come to the same affray (fight) and want to arrest him (the fighter), and he (the fighter) flees (fue) into another county, and the other (Justices of the Peace or constable) pursue him (the fighter) immediately (freshment), whether they (Justices of the Peace or constable) could arrest him (the fighter) in another county, etc.
and some said that it is not the same where one (lord) comes to distrain for damage feasant, or for his services, and the distraint (animals distrained) are driven away (enchase) he (the lord) can take the distraint (distrained animals) on another's land, this is for the wrong that he (the lord) had (suffered) by the animals (beasts) or for the loss
(prendre, should be perdre) of services, etc.; it is otherwise here, etc. (so Justices of the Peace or constable could not pursue one who committed affray into another county)
query, because to others (ascuns) it seemed all the same (tout un), and for affray (fighting) fresh suit (in the pursuit) is material, but if it was for felony, it (a showing that pursuit of the fleeing felony suspect was made with fresh suit) is immaterial, because he (the fleeing felony suspect) in any county, but it was disputed whether he ought to be brought to the gaol (in the county) where the felony was committed, etc. and it seemed that he should (cy), because (there) he (felony suspect) could be soonest (pluis tost) delivered (tried), etc.
Bryan CJCP (to the contrary): he (felony suspect) ought to be brought to the gaol where he was arrested (pris), etc. and for his trial (deliverance) he (felony suspect) can be removed (to the gaol of the county where the felony was committed) by a writ, etc.
and it was held that one can break into a house, for felony or for suspicion of felony, to arrest (prendre) the felon, because it is for the common good (commen weale) to arrest them (felons)
and also Choke JCP said that the king had an interest (in arresting felons), the writ is 'Non omittas' (ordering the sheriff to enter a franchise to execute the king's writ after the bailiff of the franchise had failed to do so), so the liberty of his (felony suspect's) house will not hold him where (lou) (the king has an interest, or will not hold the king out?), etc.; but it is otherwise for Debt or Trespass, (when) neither the sheriff nor any other ought to break into the house to arrest him, because this is only the particular interest of the party (plaintiff in Debt or Trespass), etc.
and it was moved (that) where one is in (eins, in gaole) for felony or condemned and escapes, if the warden makes fresh suit (immediate pursuit), he (the warden) can retake him (the escapee), (even) if it be seven years afterwards, but not without fresh suit
because Bryan CJCP said (that) if he (warden of gaol) had made fine (paid a fine) for the escape or an action was sued against him (warden of gaol) for the escape (of) he who was condemned, etc. then if he (warden of gaol) would arrest (prendroit) him (escapee) afterwards, this will be to no intent (ceo serra a nul entent, meaningless, there would be no point to this), and it would be contrary to the record which was 'that he (the escapee) was at large, etc.
yet Sjt Jenney said that if animals taken for distraint escaped, he (the lord) could take them whenever he could, etc.
(Non omittas was a writ directed to the sheriff where the bailiff of a liberty or franchise who had the return of writs refused or neglected to serve a process, for the sheriff to enter into the franchise and execute the king's writ himself, or by his officer)
in M. Hemmant, ed. Select Cases in the Exchequer Chamber, 64 SS 30-34 (1945) (case 13) (note on the status of the escaped prisoner), dated Hil. 14 Edw. 4 (1475): item; in the Exchequer Chamber it was granted by the Justices that if one who is condemned escapes out of execution, the gaoler may well retake him at any time afterwards if he can find him, and he (prisoner) will be said to be in execution just as he was before, but if the party bring his writ of Debt against the gaoler, and recovers and has execution against him then the one condemned (prisoner) can have Scire facias to be dismissed |
| Bodleian MS Lat. misc., c. 55 (note at end only) |
|
1473.004 = Pasch. 13 Edw. 4, pl. 4, fol. 8b-9a
Fitzherbert Office del court 8, fol. 92r, and Graunt 27, fol. 21v, dated this Mich. 13 Edw. 4, fol. 8, and Fitzherbert Barre 110, fol. 116v, and Eschape 2, fol. 308r, dated this Mich 13 Edw. 4, fol. 9
Brooke Corone 158, fol. 185v: Nota que fuit tenus pur felony, ou pur suspitious de felony home poet debruser meason pur luy prender, car ceo |
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| M. Hemmant, ed. Select Cases in the Exchequer Chamber, 64 SS 34 (1945) (case 13) (Note on the status of the escaped prisoner) (dated Hil. 14 Edw. 4) |
Case
Lord
Holding (tenus)
Act
Parliament
Act Of Parliament
Corporation
License (licence)
Grant
King
Voidance
Void Grant
Pleading
Binding (tenus)
Cognisance
Notice (conusance)
Judicial Notice
Private Act (particuler)
Particular Act
Person
Particular Person
General Act
Generality
Class (generaltie)
Bishop
Thing (chose)
Extension
Extending
Everyone
Need (besoigne)
General Law
Common Law
General And Common Law
Patent
Mayor
Alderman
Commonalty
Showing
Time
Bailiff
Body (corps)
Head (teste)
Citizen
Usage (use)
Surety (suertie)
Security
Assurance
Sight (veia, veyant)
Adjudging
General Pleading
Award
Good Patent
Understanding (pris)
Touch
Affray
Fight
Making Affray
Justice Of The Peace
Peace
Constable
Arrest
Fleeing (fue)
Flight
County
Seeming
Distraint
Damage Feasant
Services
Driving (enchase)
Wrong (tort)
Taking Distraint
Loss (prendre)
Query
Fresh Suit
Immediacy (freshment)
Pursuit
Materiality
Felony
For Felony
Immaterial
Dispute (debate)
Bringing (amesner)
Gaol
Soonness (pluis tost)
Sooner
Deliverance
Trial (deliver)
Contrary
Arrest (pris)
Removal
Removal By Writ
Suspicion
Suspicion Of Felony
Breaking In (debruser)
House
Housebreaking
Felon
Common Good
Commonwealth
Common Weal
Interest
King's Interest
Non Omittas
Propert Aliquam Libertatem
Liberty (franchise)
Liberty
Liberty Of His House
Liberty Of House
(A Man's House Is His Castle)
Holding (tiendra)
Debt
Trespass
Sheriff
Particular Interest
Party
Motion
Imprisonment (eins)
Condemnation
Escape
Warden (garde)
Retaking
Seven Years
Year
Fine
Making Fine
Action
Suit
Meaningless (a nul entent)
Record
Contrary To Record
At Large (ad largum)
Tamen
Item
Grant
Execution
Gaoler
Party
Writ Of Debt
Recovery
Scire Facias
Dismissal |
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