| 1489.041 |
1489 |
Common Pleas |
Trespass for housebreaking, imprisonment, and other trespasses |
Trespas
Comon voix & fame
Curia
Replication
Diversite
Endictment
Opinion
Hue & cry
Fine
Odio & atia
Travers
Diversite
Curia |
Fysher, John Sjt Fisher (for D)
Kebell, Thomas Sjt Keble (for P)
all the Court
Fysher, John Sjt Fisher
Jay, Richard Sjt
Wode, Thomas Sjt Wood
Danvers, William JCP Davers
Bryan, Thomas CJCP Brian
Jay, Richard Sjt
Kebell, Thomas Sjt Keble
Danvers, William JCP Davers
Townshend, Roger JCP Townsend
Bryan, Thomas CJCP Brian
all the Court |
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S., J., victim of poisoning |
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Fitzherbert Faux enprisonment 8
Brooke Faux imprisonment 16, Replication 57 (not in margin), Trespas 416 (not in margin) |
cross-referenced in 1487.024 = Pasch. 2 Hen. 7, pl. 1, fol. 15b-16a
Mich. 4 Hen. 7, fol. 18, accord
9 Edw. 4, fol. 28 (twice)
22 Edw. 3, Lib. Ass. pl. 55 (twice)
10 Edw. 4, fol. 18 (twice)
Rastell, fol. 320
10 Hen. 7, fol. 17 (twice)
2 Hen. 7, fol. 54 (?)
27 Hen. 8, fol. 23
35 Hen. 6, fol. 15
7 Edw. 4, fol. 20
14 Hen. 8, fol. 18
7 Edw. 4, fol. 14
29 Edw. 3, fol. 39, pl. 134 (?)
11 Edw. 4, fol. 5
4 Hen. 7, fol. 18
35 Hen. 6, fol. 15
21 Hen. 7, fol. 29
11 Edw. 4, fol. 3
17 Edw. 4, fol. 5
2 Hen. 7, fol. 15, 16, same case
7 Edw. 4, fol. 20
35 Hen. 6, fol. 14, 15
17 Edw. 4, fol. 5 |
the statute (if the jury cannot find the truth, yet they will say the common voice and fame, and this will be certified) (not 8 Hen. 6 (1429), ch. 14 (II): two Justices of the Peace should testify that cocmmon fame and voice run in counties of such supposed riots, before Capias is awarded)
Westminster 1st (1275), ch. 9 (if hue and cry be made in a village, the village in which hue and cry is made is bound to be ready, if one is arrested on such cry, yet it will be justified; they will arrest at the sheriff's command, so if he be not ready to go with the sheriff he will make fine; ils seront preste a arrester felons)
Winchester (1285), ch. 4 (not 3) (against coming in the night, nightwalkers; one can arrest another who comes in the night during prohibited times, notwithstanding that there be no felony) |
| En brief de Trespas pur entre in son meason, & luy inprisoner, & auters transgressions, &c. Le defendant |
79 |
Defendant pleaded 'not guilty' as to all but the entry into plaintiff's house and imprisonment (of plaintiff), and as to this entry and imprisonment, defendant pleaded that one was poisoned, that the common voice and fame was that plaintiff had done this, by force of which defendant as servant to the then sheriff entered (the house, found plaintiff there, and took plaintiff and brought plaintiff to the prison.
Plaintiff replied by taking exception to defendant's plea for two causes, firstly because common voice that plaintiff had poisoned one was not sufficient cause to suspect plaintiff, and secondly because defendant should have pleaded that defendant entered and arrested on defendant's own authority, not by command of the sheriff (and defendant should have alleged that defendant himself suspected plaintiff of the felony).
All the Court agreed that defendant ought to have alleged that one was poisoned, which was traversable (by plaintiff).
Defendant rejoined that defendant's plea was sufficient in both respects.
Sjt Jay spoke for plaintiff's position.
Sjt Wode spoke for defendant's position.
Danvers JCP said that defendant's plea was good.
Plaintiff's counsel denied this.
Townshend JCP agreed with Danvers JCP that common voice and fame was sufficient cause to arrest.
Bryan CJCP said that there was sufficient cause to arrest plaintiff by common presumption, but that the sheriff could not command one to do this, so if defendant arrested plaintiff by the sheriff's command, defendant did this at his peril.
At last it was held by all the Court that defendant could not justify as servant, but should justify on defendant's own authority, and also the opinion of the Court was that the common voice and fame were sufficient cause of suspicion.
Defendant amended his plea as to the justification, and justified in defendant's own name, and pleaded that defendant entered for such suspicion, as before, to arrest plaintiff, that the sheriff was there, and that plaintiff had been arrested before, which was the same entry of which plaintiff had conceived this action. |
Sjt Kebell (for P): il ad allege l' entre, & que il prist pur ceo que un fuit poisonne, & le commun voix fuit il avoit cest fait, le quel n' est suffisant cause de luy suspect; Sicome le plaintiff avoit este veu a done a luy manger & boire, issint que il fuit sur ceo malade incontinent, ou ascun auter suspecte cause a que le party poit aver travers, pur ceo que n' est certain qui firent cel voix; Et l' auter cause fuit, pur ceo que il ad justifie l' entre, & l' arrest pur suspeccion de felony come servant al' Viconte, de quel' chose chescun home ad auxi grand authorite come le Viconte, ou Eschetor, & chescun home poit estre officer in tiel cas: donc quand le Viconte n' ad plus authorite que un auter, in ceo cas il ne puit faire tiel arrest in l' authorite del' Viconte, ou d' ascun auter per son commanement, mes per son authorite demesne, in quel cas il covient dire, 'ut supra', pur ceo tiel felony fuit fait, come Tout le Court agrea, que il covient allege que un est poisone, le quel est travers
Quod Nota
(Sjt Kebell, continuing:) Et pur ceo que pur suspeccion, & pur cause de suspect, il luy suspectant pur tiel cause luy prist, & nemy per commandement del Viconte ou d' ascun auter persone, pur ceo que il mesme ad authorite de arreste in tiel cas, in quel cas il ne poit justifier in l' authorite d' un auter quand il ad authorite de luy mesme: & pur tiel cause la justification per commandement del' Viconte n' est bon, mes covient este in son droit demesne
Sjt Fysher: Semble que le cause de suspeccion est assez bon: car sera entendu per common reason, quand il est un common fame, &c. que tiel fait, qu' il sera entendu que ceo n' est sans cause; Et quant al' justification ceo semble bon: car paradventure il n' est sachant de tiel felony, ou paradventure nul tiel felony est fait: & donq il seroit a mischief s' il seroit compele a justifier in son nom demesne ou paradventure il ne voulet ceo aver fait sans authorite del' Viconte &c. ou commandement, & or per le commandement il est in lieu de son Maistre; Purque &c.
Sjt Jay: Et semble que le cause n' est suffisante sans monstrer un 'grounde' cause, com un cultel de sang defile (= bloody knife) & 'similia', mes gens purront dire ceo que ne conisant, &c.; Et a l' auter mattere le justification n' est bon: car ou le Viconte commande son servant a faire un chose, de quel chose son servant ad si grande authoorite in Ley come le Viconte mesme, donc est le commandement void, & le servant sera puni come trespassor nienobstant le commandement, donq icy in cest cas chescun home ad equal pouvoir & authorite, & donq le Viconte ne poit luy commande a ceo faire, nient plus que il poit cocmmander le Viconte: mes si Viconte ad un brief & Precept de faire ceo, donq il poit faire un Precept oustre, & la le justification ensuffisant
Sjt Wode: Et quant al' cause de suspeceon il est suffisante: car un common voix & fame est un grand regard il nostre Ley; Car per le Statut si le Jury ne poient trover le verite, uncore ils dirent le common voix & fame, & cest sera certifie; l' ou le Viconte prist 'Posse comitatus' ove luy sans suffisante cause, le servant poit justifier assez bien per le commandement le Viconte, car lour fesance est per authorite
Danvers JCP: Et il semble que common voix & fame est suffisant cause: car si un home soit indicte d' un felony, ceo est suffisante cause de suspeceon de luy arreste sans proces
Quod Bryan CJCP affirmavit
Sjt Jay & Sjt Kebell negaverunt, & ceo n' est suffisant cause de luy prende, sinon per commandement d' un Capias
Et issint semble a Danvers JCP, & quand un indictment est suffisant, 'a fortiori' un 'vulgar- dict-' est suffisant
Townshend JCP: Car le common voix & fame est suffisant cause de suspeceon si nul felony ust este fait
Quod fuit penitus (= thoroughly) negatum
Et il (Townshend JCP) dit que le brief de Odio & atia fuit ordeine a souffrir on aller a le baillif per brief d' enquerir de ses condicions: & issint son demesner in le Pais est grandement estre pondere (= weighed) in Ley
Bryan CJCP: Quant a le cause de suspeceon, il est asset suffisant per le common presumpcion, come ad este dit: & come le Ley est in le cas del' indictment devant, ils sont suffisant causes de suspeceon; Et a dire que il n' est traversable, ouy Sir, assez bien sur un brief de Odio & atia; Et Sir, poit estre grand presumpcion quand common voix & fame est, & come ad este dit, le Jury enquerir de le common voix & fame quand ils ne sachent le verite; Et le common cours & Ley est tout temps use, quand on est delivre, les Jurors enquerir coment la fame & le common voix courge sur luy in son Pais; s. pur lour egal authorite; mes icy chescun ad egal authorite; Ergo le commandement nient material |
cited by reporter at end of 1487.024 = Pasch. 2 Hen. 7, pl. 1, fol. 15b-16a, what is sufficient cause to arrest one
Sjt Kebell (for P): he (defendant) had alleged the entry, and that he (defendant) arrested (prist) (plaintiff) because one (J.S.) was poisoned, and that the common voice was (that) he (plaintiff) had done this, which is not sufficient cause to suspect him (plaintiff); as if the plaintiff had been seen to give him (poison victim J.S.) food and drink (manger & boire), so that he was suddenly ill on this (sur ceo malade incontinent), or any other suspicious cause to which the party (plaintiff) can have a traverse, because it is not certain who made this (common) voice; and the other cause is because he had justified the entry and the arrest for suspicion of felony as servant to the sheriff, of which thing everyone has as much authority as the sheriff or escheator, and everyone can be an officer in such case (citizen's arrest), so when the sheriff has no more authority than another, in this case he (defendant) cannot make such an arrest on the sheriff's authority, or (on the authority) of anyone else by his command, but by his own authority, in which case he ought to plead, as above, that this such felony was committed,
as all the Court agreed that he (defendant) ought to have alleged that one (J.S.) was poisoned, which is traversable
which note
(Sjt Kebell, continuing:) and because of suspicion, and (because) of a cause of suspicion, he (defendant) suspected him (plaintiff), for such cause (defendant) arrested him (plaintiff), and not by command of the sheriff or of any other person, because he (defendant) himself had authority to arrest in such a case, in which case he cannot justify on the authority of another when he (defendant) had authority of himself, and for such cause the justification by command of the sheriff is not good, but ought to be (pleaded) in his (defendant's) own right
Sjt Fysher: it seems that the cause of suspicion is good enough, because it will be understood by common reason (presumed?) when there in a common fame, etc. that such was done, so it will be understood (entendu) that this (common fame) is not without cause; and as to the justification, this seems good, because perhaps he (defendant) does not know of such felony, where perhaps no such felony was committed, and so he would be at mischief if he (defendant) would be compelled to justify in his own name or perhaps he would not have wanted to have done this without the sheriff's authority, etc. or command, and now by the command it is in lieu of his master; so etc.
Sjt Jay (to the contrary): and it seems that the cause is not sufficient without showing a 'ground' cause, such as a bloody knife (un cultel de sang defile) and suchlike: but folk can say what they do not know (dire ceo que ne conisant), etc.; and as to the other matter, the justification is not good: because where the sheriff commands his servant to do a thing, of which thing his servant has as much authority in law as the sheriff himself (has), then the command is void, and the servant will be punished as a trespasser notwithstanding the command, so here in this case everyone has equal power (equal pouvoir) and authority, and so the sheriff cannot command him (defendant) to do this, no more than he (defendant) can command the sheriff, but if the sheriff as a writ and a precept to do this, then he (sheriff) can make a further precept, and there the justification is sufficient
Sjt Wode (to the contary): and as to the cause of suspicion, it is sufficient, because a common voice and fame is an important regard in our law; because by the statute () if the jury cannot find the truth, yet they will say the common voice and fame, and this will be certified; and as to another matter it seems to me that the justification is good: and Sir, there is a distinction where one justifies by his own authority, and where by authority of another; because it will be understood (entendu) that when the servant does this by the sheriff's command, he (servant) does not do this of his own wrong (de son tort demesne), because perhaps he has no suspicion of him, and if the case be not good, yet by the sheriff's authority he can justify; as on a precept by the sheriff on an original (writ), where there is no such original (writ), or where the sheriff takes a Posse comitatus with him without sufficient cause, the servant can justify well enough by the sheriff's command, because what they do (lour fesance) is by authority
Danvers JCP (in agreement): and it seems that common voice and fame is a sufficient cause, because if one be indicted for a felony, this is sufficient cause of suspicion to arrest him without process
which Bryan CJCP affirmed
Sjt Jay and Sjt Kebell denied this, and (said that) this is not sufficient cause to arrest (prende) him (plaintiff), unless by command of a Capias
and so it seemed to Danvers JCP: and when an indictment is sufficient, all the moreso (a fortiori) popular opinion (un 'vulgar- dict-) is sufficient; and it seems the justification is good, because if hue and cry be made in a village, the village in which hue and cry is made is bound to be ready, if one is arrested on such cry, yet it will be justified on the statute of Westminster 1st (1275), ch. 9; and so is the statute (Westminster 1st (1275), ch. 9?) that they will arrest at the sheriff's command, so if he be not ready to go with the sheriff he will make fine
Townshend JCP (in agreement): because the common voice and fame is sufficient cause of suspicion if no felony has been committed
which was thoroughly denied Quod fuit penitus negatum
and he (Townshend JCP) said that the writ of Odio et atia was ordained to suffer one to go to the bailiff by writ to inquire of his condition: and so his behaviour (demesner) in the country (in le Pais) is of great weight (est grandement estre pondere) in law; and to the justification, it seems to me that it is good enough: because if one comes in the night against the form of the statute of Winchester (1275), ch. 4 (not 3) and hue and cry be levied etc. if a vill arrests (prend) him by force of the statute, they are not punishable, because they have authority by the statute to do thus: and so by the sheriff's command which is a sufficient cause for him (defendant) to arrest such a man, thus fame by the country (per le Pais), by the command of the sheriff, who is the king's minister (is sufficient cause)
Bryan CJCP: as to the cause of suspicion, it is sufficient enough (assez suffisant) by the common presumption, as has been said, and as the law is in the case of the indictment previously, there are sufficient causes of suspicion; and to say that it is not traversable, yes, Sir, (it is) well enough (traversable) on a writ of Odio et atia (Odio & atia); and Sir, there can be a strong (grand) presumption when there is common voice and fame, and as has been said, the jury will inquire of the common voice and fame when they do not know the truth; and the common course and usage of the law has always been that when one is delivered, the jurors will inquire how the fame and the common voice ran (courge) as to him in his country (courge sur luy in son Pais); and as to the justification, it seems that he cannot justify for the previous cause, that is, for their equal authority, as has been said before; and there is a distinction where the sheriff asks one etc. (to aid the sheriff in an arrest) by virtue of a writ, because there he has authority to make a command, but here each has equal authority; Ergo the command is immaterial (nient material); but as to the justification by authority of the aforesaid statute, Westminster 1st (1275), ch. 9, etc. where such a hue and cry is levied, it is not sufficient if not felony has been committed, because the statute is that they will be ready to arrest felons, but by the statute of Winchester (1285), as has been said before, one can arrest another who comes in the night during prohibited times, notwithstanding that there be no felony, because the statute commands this; but in the case at bar it is at the common law, and the sheriff cannot command anyone to do (such a thing), and if it be done by the (sheriff's) command he (who does it) is at his peril
and so at last it was held by all the Court, that he (defendant) could not justify as servant, but on his own authority, and also the opinion of the Court was that the common voice and suspicion was sufficient cause of suspicion; so defendnat amended his plea as to justification, and justified in his own name: and said that he entered for such suspicion as before, and arrested him (plaintiff) and the sheriff was there, and had arrested him (plaintiff) before, which is the same entry of which he (plaintiff) has conceived this action, etc.
Reporter: see Mich. 4 Hen. 7, fol. 18, in accord |
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Brooke Replication 57, fol 211r: Trespass, or false imprisonment, the defendant justified in that (eo que) the plaintiff had poisoned (poysone) one J.S., it is a good reply that he did not poison (poysona) the said J.S., per Curiam
Brooke Trespas 416, fol. 300, dated 5 Hen. 7, fol. 5: note by Huse CJKB and Fairfax KB everyone can arrest nightwalkers, because this is for the common good (comon welth), and so agreed 4 Hen. 7, fol. 18 (should be 1, 2) |
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Entry
House
Imprisonment
Pleading
Not Guilty
Rien Culpable
Poison
Poisoning
Voice
Common Voice
Fame
Common Voice And Fame
Force
Servant
Sheriff
Finding
Arrest (prist)
Taking
Bringing
Prison
Exception
Taking Exception
Plea
Cause
Allegation
Insufficiency
Sufficiency
Sufficient Cause
Insufficient Cause
Suspicion
Cause To Suspect
Sight (veu)
Gift
Food
Drink
Food And Drink
Malady
Sickness
Illness (malade)
Incontinent
Suddenness (incontinent)
Suspicious Cause
Party
Traverse
Certainty
Uncertainty
Who Made This Voice
Justification
Suspicion Of Felony
Felony
Homicide
Sheriff's Servant
Everyone
Authority (authorite)
Escheator
Officer
Case
On Authority
Sheriff's Authority
Command
Own Authority
Ut Supra
Agreement
Note
Suspecting
Person
Bad Justification
Good Justification
Right
Own Right
In His Own Right
Seeming
Sufficiency (assez)
Good Enough
Good Cause
Understanding (entendu)
Reason
Common Reason
Without Cause
Not Without Cause
Perhaps (paradventure)
Knowledge
Ignorance (n' est sachant)
Mischief
At Mischief
Compelling
Compulsion
Name
Own Name
In His Own Name
Without Authority
Lieu
In Lieu Of
Master
Place
In His Master's Place
Contrary
Showing
Ground
Ground Cause
Ground Of Cause
Knife (cutltel)
Blood
Defilement
Bloody Knife
Suchlike (similia)
Similarity
Folk (gens)
Matter
Thing
As Much Authority
Voidance
Void Command
Punishment
Trespassor
Trespasser
Notwithstanding
Equality
Equal Power
Power (pouvoir)
Precept
Making A Precept
Further Precept (oustre)
Sufficing (ensuffisant(
Regard
Much Regard
Our Law (nostre Ley)
Statute
Jury
Finding
Truth (verite)
Certification
Distinction (diversite)
De Son Tort Demesne
Of His Own Wrong
Wrong (tort)
Good Case
Bad Case
Original Writ
Posse Comitatus
Posse
Doing (fesance)
By Authority
Indictment
Indictment Of Felony
Process
Without Process
Arrest Without Process
Affirmation
Denial (negaverunt)
Capias
Strength
A Fortiori
Vulgar- Dict-
Popularly Called
Hue
Cry
Hue And Cry
Village
Binding (lie)
Readiness (prest)
Chapter
Going With The Sheriff
Fine
Making Fine
Thoroughness (penitus)
Denial (negatum)
Odio
Atia
Writ Of Odio Et Atia
Odio Et Atia
Odium
Hate
Ordaining
Ordinance
Sufferance
Allowance
Bailiff
Inquiry
Writ Of Inquiry
Writ To Inquire
Conditions
Demeanor
Behaviour (demesner)
Country (Pais)
In The Country
Weight (pondere)
Pondering
Heavy Weight
Night
Coming In The Night
Nightwalker
Form
Form Of The Statute
Against The Form Of The Statute
Levying
Raising
Levying Hue And Cry
Vill
Punishable
Fame By The Country
Minister
King
King's Minister
Cause Of Suspicion
Sufficient Enough
Presumption
Common Presumption
Heavy Presumption (grande)
Course
Common Course
Always
Usage
Delivery
Acquittal (delivre)
Running (courge)
In His Country
Equal Authority (egal)
Demand
Virtue
By Virtue Of
Ergo
Immaterial
Materiality
Material
Time
Prohibition
Prohibited Times
Common Law
At Common Law
Peril
At His Peril
At Last
Holding (tenu)
Opinion
Sufficient Cause Of Suspicion
Amendment
Amendment Of Plea
Conception
Action
Conception Of Action
Reporter
Sight (Vide)
Folio
Accord |
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