| 1456.104ss |
1456 |
King's Bench, Exchequer Chamber |
Attaint (Trespass) |
Atteynt |
| Trin. |
34 |
Hen. 6 |
(case 27) |
51 SS 104-107 |
Jenney, William Ieney
Heydon, John Heydone
Jenney, William Ieney
Fincham, John Fyncham
Jenney, William Ieney (mentioned)
Yelverton, William JKB Yeluertone
Illiingworth, Richard Illyngworthe
Nedeham, John Sjt Nedam
Billyng, Thomas Sjt Billynge
Wangford, William Sjt Wangforde
Littleton, Thomas Sjt Lytiltone
Danby, Robert JCP
Illiingworth, Richard Illyngworthe (mentioned)
Danvers, Robert JCP Dauers
Ayscough, William JCP Ascue
Yelverton, William JKB Yeluertone
Fortescue, John CJKB Forscu
Prysot, John CJCP Prisoit
Yelverton, William JKB Yeluertone |
(F.) |
(John) |
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Prior proceeding 1456.017 = Hil. 34 Hen. 6, pl. 16, fol. 30b-34a
Later proceeding 1456.082 = Mich. 35 Hen. 6, pl. 28, fol.19a-23b |
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| Atteynt en Banke le Roy aiourne en lescheker chambre et la deuant toutz lez iustices le mater fuist reherce |
127 |
Defendant (then plaintiff) brought a writ of Trespass against two (then defendants).
The two (then defendants) pleaded not guilty.
The two (then defendants) were found guilty and damages were assessed.
Plaintiff, one of the two then defendants, brought a writ of Attaint in his own name in King's Bench against the jury, maintaining that the jury swore falsely in everything that they said against plaintiff.
The matter was adjourned into Exchequer Chamber.
The matter was rehearsed, and the question was whether or not plaintiff could maintain this Attaint in his name alone.
Argument among apprentice, Serjeants, and Justices.
It was adjourned, but the reporter was not there.
Plaintiff afterwards abridged the damages from the assignment of false swearing. |
writ: 'quod falsum fecerunt sacrum in omnibus qui dixerunt versus eum'
Jenney: et per consequens dez damagez que sount accessorie 'quia omne accessorum sequitur suum principale' (Latin maxim); Et a autre entent il ensueroit graunde mischife si vne de eux a par luy ne puissoit maintenir atteint en soun noun soule quar posito que lez autrez deffendants soient de couyne (= covin, fraud) oue le pleyntif que tout lexecucioun dez damagez sera sue vers cesti que ore port atteint et lenprisonment auxi; et nauera nul remedie que serra encontre resoun
Heydon: lez damagez est vne chatel entere que ne poet estre seuere
Yelverton JKB: quod 'vigilantibus et non dormientibus iura subueniunt' (Latin maxim, laws help those who are awake and not those who sleep)
Sjt Wangford: Et a ceo que est dit que il poet auer execucioun dez bienz lune la ley nentende ceo si non quil soit surmitte en fait que lune fuist prise et auoit paie lez denerz donques il est colorable a doner a luy atteint en soun noun soule entant que il est en damagez et lautre en nul damagez mez icy nest nul tiel especial mater moustre
Danby JCP: pur le enconuenientice que purroit ensuer et mesme la ley
Ayscough JCP: le contrarie ne fuist vnquores aiuge et donques gist en le dscrecion dez iusitices
Yelverton JKB: le nonsuit lune serra le nonsuit dambedeux qar icy ne gist nulle some et seuerance ne en autre accion personel si non en case dexecucioun et la gist some et seuerance mez en cas de couenant de terre que touche enheretance en detinue dez chartrez ou lez a terme daunz pur ceo quilz touchent le realte ou perpetuite et entant ilz ne sount merement personelx
et adiournatur mez ieo ne fuy la mez ieo oy dit que le pleyntif apres abrige lassignement de faux serement de lez damagez etc. |
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William Jenney was created Serjeant in 1463. John Heydon was an apprentice who was never created Serjeant and died in 1461 (Baker, Readers and Readings, p. 14). John Fincham was an apprentice who was never created Serjeant (Baker, Readers and Readings, p. 13). Richard Illingworth was appointed CBEx on 10 Sept. 1462. |
Jenney and Illingworth and Sjt Billyng and Sjt Wangford and Danby JCP and Danvers JCP and Yelverton JKB argued for plaintiff's position; Heydon and Fincham and Sjt Nedeham and Sjt Littleton and Ayscough JCP argued for defendant's position
Jenney: each of them can have Attaint in his name alone of the principal, and consequently of the damages which are accessory, because every accessory follows its principal (quia omne accessorum sequitur suum principale) (Latin maxim)
Heydon: damages are a chattel entire that cannot be severed, and consequently the writ ought to be brought jointly by them all, and those who do not wish to be summoned and severed; and if the law be such that the nonsuit of one will be the nonsuit of all, then clearly it is law that the writ ought to be brought in all their names jointly, for I say that in no case where two will have cause of action, and the nonsuit of one of them will be the nonsuit of both, an action cannot be brought in any manner in the name of one of them alone
Fincham: damages are an entire thing (chose entire) in which there must be joinder, there must be joinder in Attaint just as in a writ of Conspiracy against two; and as to the mischief of covin (fraud) of which Jenney put the case
Yelverton JKB: laws help those who are awake and not those who sleep (Latin maxim) (vigilantibus et non dormientibus iura subueniunt) (Bracton, fol. 175b, 3:47: vigilantibus iura subveniunt; fol. 218b, 3:157: vigilantibus iura subveniant etcetera; fol. 225, 3:174: vigilantibus etc.; fol. 282, 3:320: vigilantibus iura subveniant. Cf. D. 42.8.24: ius civile vigilantibus scriptum est) also Trin. 15 Edw. 3, RS 239 (Thorpe))
Illingworth: it (the writ) was well brought in the name of one of them and this is unlike the cases that are put, where two have goods in common and anyone takes them out of their possessior or (where) one is obligor to two persons: in these cases the writ ought to be brought in the names of both, and if one does not want to sue, the other is without remedy, because it will be adjudged his folly that he is willing to take goods or to be obligee with such a one who does not wish to sue; but it is not so here, because here it was the plaintiff's act and not the default of the defendants; if in a writ of Trespass against two, one of them justifies becaue the plaintiff is his villein etc.l and they are at issue on the question of villeinage, and the other on another day comes and pleads the same plea, and how he as servant (of the other defendant) etc. and they are at issue on the same point, the first issue may be found for the plaintiff and the other (issue) against him, and this is not inconvenient in various ways
Sjt Nedeham: damages are a whole (enterez) and cannot be severed, and the nonsuit of one will be the nonsuit of both
Sjt Billyng: although the damages are a whole (enterez) , yet each of them is bound separately, and he can have execution of their several goods, therefore it is right that he who is aggrieved will have his Attaint
Sjt Wangford: the law does not intend (presume) this (that one can have execution of the goods of one of two defendants) unless there is submission in fact that one was taken (in execution) and had paid the money, then it is colourable to give him Attaint in his name alone
Danby JCP: if the first verdict be affirmed by one inquest (jury) while the other Attaint is pending, the second Attaint will abate on account of the inconvenience that would ensue; and the law is the same in the case that Illingworth put of Trespass brought by the villein against his lord and his (lord's) servant: the first inquest (jury) will put an end to further proceedings because of the inconvenience
Ayscough JCP: it has not yet been adjudged to the contrary and therefore lies within the discretion of the Justices
Yelverton JKB: the nonsuiot of one will be the nonsuit of both, because here no Summons and Severance lie nor in any other personal action except in a case of executors (or execution?) and there summons and severance lie; but in the case of a covenant of land which concerns inheritance, in the case of Detinue of charters or of a lease for a term of years, because these concern realty or perpetuity and in so far are not merely personal, and in the case of a writ of Right of wardship and in similar cases, when one is severed, the other will sue alone, and when he has recovery, the other will hold in common with him
same issue in 1455.090 = Mich. 34 Hen. 6, pl. 24, fol. 12b-13a and 1456.017 = Hil. 34 Hen. 6, pl. 16, fol. 30b-34a and 1456.082 = Mich. 35 Hen. 6, pl. 28, fol.19a-23b |
| M. Hemmant, ed. Select Cases in the Exchequer Chamber, 51 SS 104-107 (1933) (The Case of Attaint) |
Adjournment
Rehearsal
Case
Trespass
Certainty
Person
Pleading
Not Guilty
Rien Culpable
Finding
Guilt
Damages
Name
Supposition
Falsehood
Oath
False Oath
False Swearing
Matter
Maintenance Of Writ
Sole Writ
Seeming
Good Writ
Principal
Question
Without Question
Beyond Question
Consequence
Accessory
Following
Principal
Ensue
Mischief
Posito
Covin
Fraud
Execution
Imprisonment
Companion
Nonsuit
Abatement
Prison
Default
Remedy
Contrary
Chattel
Entirety
Severance
Joint Writ
Summons
Summons And Severance
Rest (remanantz)
Admission
Sole Suit
Clarity
Case
Cause Of Action
Action
Cause
Manner
Recovery
Defeat
Judgment
Defeat Of Judgment
Way (voie)
By Way Of Recovery
Coparcener
Parcenry
Partition (propurtie)
Plea
Plea In Abatement
Tenure
Several Tenure
Good Plea
Distinction
Entirety
Joinder
Conspiracy
Affirmation
Whole Thing
Chose
Vigilance
Sleeping
Common
In Common
Possession
Out Of Possession
Obligor
Remedy
Without Remedy
Folly
Reason
Quashing (disaferme)
Disaffirming
Justification
Villein
Issue
At Issue
Villeinage
Day
Pleading
Plea
Servant
Point
Inconvenience
Respect
Right Of Wardship
Wardship
Writ Of Right Of Wardship
Joint Recovery
Receipt
Debt
Writ Of Debt
Binding (lie)
Several Bond
Several Goods
Goods
Grief
Grievance
Charge
Joint Charge
Execution Of Goods
Understanding (entende)
Surmise
In Fact
Fact
Payment
Money (denerz)
Colour
Special Matter
Departure
Truth (voier)
Joint Attaint
Holding
Election
Choice
Verdict
Inquest (jury)
Affirmance
Pending
Ensue
Lord
End (fyne)
Agreement (concessit)
Discretion
Discretion Of Justices
Personal Action (category)
Case Of Execution
Executor
Covenant
Touch
Inheritance
Detinue
Charter
Detinue Of Charters
Term Of Years
Realty (category)
Perpetuity
Purity (merement)
Personalty (category)
Severance
Denial (negaverunt)
Remaining (demoure)
Parcel
Entry
Several Judgment
In Right
In Action
Hearing
Abridgement
Assignment |
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