| 1460.019 |
1460 |
Exchequer Chamber |
(Prohibition) (Laesio fidei) |
Nota |
Fortescue, John CJKB
Hankford, William JCP1398-1413 (mentioned in cross-reference) |
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Fitzherbert Prohibicion 6 (not in margin)
Brooke Prohibition 8, Fine pur contempt 45, Jurisdiction 2 (not in margin, not 34 Hen. 6, not fol. 70) |
1410.104 = Trin. 11 Hen. 4, pl. 40, fol. 88a, Hankford JCP in a Prohibition |
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| Nota, que Fortescue en l' Eschequer Chambre devant Touts les Justices de l' un Bank & de l' auter |
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Fortescue CJKB: si un home s' affie que il paiera a un auter xl s. a certein jour, a quel jour il ne paie pas, si le party luy sue en Court Chrestien 'pro laesione fidei' que il aura Prohibition, pur ceo que ils ne poient tenir ple sur le principal; Et meme le Ley si un s' affie a faire un feoffement per tiel jour, a quel jour il n' ad pas fait le feoffement , s' il soit sue en Court Chrestien 'pro laesione fidei', il aura Prohibition 'causa qua supra': car cest suite est en maner compulsion a faire le party a performer une acte que touche le Court le Roy, & le conusance de cest chose append al' Court le Roy, & a nul auter Court, donq pur punir le party 'pro laesione fidei' de chose append al' Court le Roy, & nemy a eux, sera encontre reason
Quod fuit concessum per Ascuns & nullus contradict-
Quod nota
Et concordat dicto Hankford JCP Trinitatis 11 Hen. 4 en un Prohibicion sur tiel mattere, &c. |
laesio fidei in Court Christian
Fortescue CJKB: in one pledges his faith (s' affie) that he would pay 40 shillings (= 2 pounds) to another at a certain day, at which day he does not pay, if the party (pledgee) sues him (pledgor) in Court Christian 'pro laesione fidei' (for breach of faith), he will have (a writ of) Prohibition, because they (Court Christian) cannot hold a plea on the principal (matter); and it is the same law if one pledge his faith (s' affie) to make a feoffment at such a day, at which day he does not make the feoffment, if he be sued in Court Christian for breach of faith he will have (a writ of) Prohibition for the reasons aforesaid (causa qua supra), because this suit is in a way (en maner) compulsion to make the party perform an act that touches the king's court, and the cognisance of this thing belongs to the king's court and to no other court, thus to punish the party for breach of faith (pro laesione fidei) for a thing of which the cognisance belongs to the king's court, and not to them, will be against reason
which was agreed by some and contradicted by no one
in 1410.104 = Trin. 11 Hen. 4, pl. 40, fol. 88a, Hankford JCP said that in a case that came once in King's Bench, a man had made an oath to make feoffment of his land, and because he did not do it, he was vexed by the party in Court Christian as (one who committed) perjury, and because he was compelled to perform a thing concerning land and inheritance, it was adjudged in a similar manner as if he were sued on the principal in Court Christian.
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Brooke Jurisdiction 2, fol. 50r, was dated 34 Hen. 6, fol. 70: note by (blank) if one buy a horse from me and swear on the gospel (sur le evangelist) to pay 10 pounds for him (the horse) on such a day and he does not pay I will have Debt at common law and a citation 'pro lesione fidei' (pro laesione fidei, for breach of faith) at spiritual law (canon law), because these are different things, and (the action at canon law) does not offend common law, see 22 Edw. 4, fol. 18, and 2 Hen. 4, fol. 10, to the contrary, because it arose on a lay matter, but query if it be taken there that he would have no suit in court spiritual (ecclesiastical court, church court) to make him hold to his bargain or to punish perjury
Brooke Prohibition 2, fol. 164v, was dated 34 Hen. 6, fol. 70: it was said by one, that if one buy a horse for 5 pounds to be paid (solvendum) on such a day, and wears to make payment, and fails (to do so) at the day, Debt lies at common law, and an action in Spiritual law (canon law) 'pro lesione fidei' (for breach of faith), and Prohibition does not lie, because they are two separate things (severalles choses), see 22 Edw. 4, fol. 20, Brooke Consultation, and 2 Hen. 4, fol. 10, that he would not have a suit there (in ecclesiastical court) to make the party do the act, nor to punish him (pro punisione) (for penance), as it was seen there |
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| A.K.R. Kiralfy, A Source Book of English Law (Sweet & Maxwell 1957), pp. 436-437 |
Note
Pledge (s' affie)
Payment
Certainty
Day
Nonpayment
Party
Suit
Court Christian
Ecclesiastical Court
Church Court
Canon Law
Pro Laesione Fidei
Faith (fidei)
Breach (laesio)
Breach Of Faith
Breach Of Promise
Laesio Fidei
Prohibition
Holding Plea
Principal
Feoffment
Cause
Causa Qua Supra
Manner
Compulsion
Coercion
Performance
Act
Touch
King's Court
King
Cognisance (conusance)
Jurisdiction (conusance)
Belonging (append)
Against Reason
Reason
Unreasonable
Agreement (concessum)
Contradiction
Concord
Matter |
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