| 1456.105ss |
1456 |
Exchequer, Exchequer Chamber |
(Information) |
Cas in leschekere Chambre |
| Mich. |
35 |
Hen. 6 |
(case 29) |
51 SS 114-118 |
Barons of the Exchequer
Choke, Richard King's Sjt Chokke
Fortescue, John CJKB
Billyng, Thomas Sjt Billinge
Choke, Richard King's Sjt Chokke (mentioned)
Fortescue, John CJKB
Prysot, John CJCP Prisote
Hindstone, William KIng's Sjt Hingestone
Laken, William Sjt Laykone
all the Justices
Fortescue, John CJKB
Choke, Richard King's Sjt Chokke (mentioned)
Choke, Richard King's Sjt Chokke
all the Court
Fortescue, John CJKB
Wangford, William Sjt
Nottingham, William AG Notyngham lattourney le Roy
Fortescue, John CJKB moun seignour Fortescu (mentioned)
Moyle, Walter JCP
Prysot, John CJCP Prysote
Fortescue, John CJKB
Prysot, John CJCP Prisot
the Exchequer |
Rex |
by T.B., keeper of the king's jewels & informant |
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Marston (Marstone), John (Iohan), keeper of the king's jewels
Shipton (Shiptone), J. (I.) |
Exchequer
London (Loundrez), City of
Man, Isle of (Yle de Mann)
King's Bench
Windsor Castle (Castle de Windisor) |
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variant report or related proceeding 1456.087 = Mich. 35 Hen. 6, pl., 33, fol. 25b-29b
perhaps cross-reference as Samdenherd's case in 1478.021 = Pasch. 18 Edw. 4, pl. 15, fol. 3b
recently (or tarde) in KB before Fortescue CJKB, in Trespass, defendant justified by a Capias from Windsor Castle, defendant could not prescribe a custom to arrest in any county
9 Hen. 6, in a Trespass of toll, perhaps 1430.074 = Mich. 9 Hen. 6, pl. 28, fol. 45a-46a
cross-referenced in 1460.031 = Mich. 39 Hen. 6, pl. 3, fol. 1b-2a |
statute of claims = 34 Edw. 3 (1361), ch. 16 (le statut de claymez) (that the plea of nonclaim of fines, which from henceforth be to be levied, shall not be taken nor holden for any bar in time to come) |
| Le cas fuit tiel Iohan Marstone Gardien dez iewels nostre Seignior le Roy mist en plege certeins iewels del |
146 |
The successor keeper of the king's jewels came into the Exchequer and showed to the Barons that his predecessor had pledged certain of the king's jewels to one who pledged them to defendant, and the successor keeper prayed a remedy for the king.
On this suggestion, process issued against defendant.
Defendant appeared and said by protest that the jewels were not worth so much, and that they did not have the king's mark on them, and defendant pleaded the custom of London from time immemorial that if one pledged his own goods or the goods of anyone else, that he should not deliver them (back) until the money is paid, and that the jewels were pledged to defendant for 300 pounds and that defendant was not yet satisfied of that amount.
King's Sjt Choke argued that defendant's plea was not good because the custom was against reason and against common right, and would not in any case bind the king.
Further argument about the custom.
The Justices all said that a grant from the king before time immemorial ought to be shown in the prescription (defendant's plea).
Fortescue CJKB told plaintiff king's Serjeants to show him a custom that was unreasonable.
By advice of all the Justices it was awarded in the Exchequer Chamber that plaintff king would have his jewels back again. |
(for D): et par protestacion que les iewels ne furent taunt in valeu et par protestaction quilz nauoyent nulle signe del Roy ne de sez progeniturz; la Cyte de Londrez est vne auncien Cyte
King's Sjt Choke: ou que le tenant a vollunte voille prescriber de mitter sa terre in morgage tous ceux prescripcionz ne vaont quar il est encontra resoun et comen droit et in preiudice dune autre persone; quilz prescriberount quune auera mez biens in plegge par Estraunge et que le properte serra in moy et chargable par autre persone issint le prescripcion est voide; Et sir si home ad tolle in vne haut Chimyne le cariage dele Roy ne payra nulle tolle issint icy; mez sir si home voille prescriber quil poet naufrer chescun que vient sur sa terre cel prescripcion ne vault quar il est incontre le ley et droit mez icy il nest my issint; Et sir si vne chiual de Roy soit vendux in vne markett; mez sir si home voille prescriber quil poet naufrer chescun que vient sur sa terre cel prescripcion ne vault quar il est incontre la ley et droit
Fortescue CJKB: Sir home ne poet prescriber in tolle throghe et cest lou vne haut chymyne gist par la terre dune seignour mez quaunt vne Chymyne gist sur la terre dune seignour il poet prescriber et cest appelle tolle trauerse et pur ceo quil est incontre droit dauer chymyne sur moun terre il poet prescriber; que chescun home que voil auer cariage sur ma terre quil payeroit 1 d. et issint increseroit in vne custome; si le Roy vst graunt auant le temps de memori a vne home 'omnem justiciam' par ceux parolx generalx ou relesse a vne abbey 'omnem pastum' silz voillent auer avaylle de ceo ilz doient moustrer cel chartre et le continuance; Arguez et moustrez vne Custome que est encontre resoun quar sont plurieus Customez allegez mez nulle incontre resoun et la ley est fondu sur resoun et resoun est ley quar si terre soit departable intre male ou que le puisne fitz inherita cest resoun mez sir si la Cyte de Loundrez voille prescriber que si ascun Estraunge in la Cite defende (= assault?) ascun home quil lierra a lui de lui naufrer cest prescripcion est incontre droit et resoun 'quia licitum est vim repellere' (legal maxim, Dig. 43.16.1.27) et pur ceo moustrez vne prescripcion que est boun et foundist incontre resoun; Et Sir in le Yle de Mann il est til Custome que si ascune prent felonusment vne Berbet ou vne Befe quil sera pendu mez pur vne Chiuale il est autre et al resoun est quil ne poet carier vne Chiuall hors del Yle etc.; si le Roy ad graunt a vne home quil sera quite de pontage il serra quite de toutz cariagez mez de reparelle nemi; si le Roy done ascunz biens a moy come un perese (= pearl) ou vne garde (= ornamental trimming) ou ascune iewel saunz matere de recorde que ieo ne puis iustifier le prisel; Et auxint si home voille prescriber dauer de chescun que demurre sur soun seignourie dauer vn fyne quaunt il marie sa fyl ou fitz cel prescripcion intre frank hommez est voide; nul chose est tollable si noun chosez que sont in vies come Chiualx Befes berbettes et tilx semblablez
Sjt Billyng: Come Burghe englishe Gavelgynde ou la feme est endowable del moyte et lez fitz departent la terre ceux sont encontre comen ley et vncore eux sont vsez et admittez; Come si vne home ad felonusment prise vne Chiual et puis il lui vende a autre persone in overt feyre nulle accion gist vers cesti que lui ad ahcate sil ad paye le tolle par lui
King's Sjt Hindstone: come lez casez de Burghe englishe etc. et sir il est vne Custome que lez filez doient departir terre oue lour frerez et sir il est graunt resoun quar auxibien est el sa file come il est soun fitz et il poet doner sa terre a sa fil mez lou il est eoncotre resoun et ley autre est; Come si en bref de Neste porte in Loundrez ilz vollent alleger vne prescriptcion que si ascun villein vst demure deinz la dit Cite par vne an quil serra par ceo enfranches cel prescripcion ne vault quar il est incontre droit que ieo perdray moun enheritunce par prescripcion
Sjt Laken: et sir le custome que le puisne frere inheritera deuant legne est auxibien incontre comen droit et ley come cest
Moyle JCP: icy le properte est tout diz in le Roy quar il auera boun bref de dettenu vers lautre
Prysot CJCP: il nest graunt question (litotes); tilx prescripcionz que causera le Roy de traueller (= to travel?, to labour or work?) ou destre attendance ne vaont vers lui come suit a Court et tilx semblablez |
Fortescue CJKB said that law is founded on reason and that reason is law
King's Sjt Hindstone and Nottingham AG and Moyle JCP argued for plaintiff king's position (the custom was void); Sjt Billyng and Sjt Laken and Sjt Wangford argued for defendant's position (the custom was good)
King's Sjt Choke changed position in a later speech, arguing first for plaintiff king's position and later that the plea (and so the custom) was good enough
Fortescue CJKB argued for defendant's position in this report and for plaintiff king's position in the Vulgate report
the case: John Marston, keeper of the king's jewels, pledged certain of the king's jewels to one J. Shipton who pledged them to Simon Eyre (Sympkyne Eyre); then John Marston was dismissed (discharge) and one T.B. was chosen (eslieuz) keeper
King's Sjt Choke: one cannot prescribe in any thing unless its beginning be lawful and reasonable; a city can prescribe to devise land, this is a good prescription, because one can give his lands as well as his goods, but Sit, when the thing prescribed is contrary to reason and in prejudice to another person, it is otherwise; one may prescribe that the custom of the city of London is to devise land in tail, this prescription is not valid, or if the tenant for life or a term of years, or the tenant at will, shall prescribe that they can make a lease for a longer term than the lease they have, or if the tenant at will shall prescribe so as to put his land in mortgage; it is against right that this shall be prescribed, and that, though the property is mine, it shall be chargeable by another person; and Sir, if one has right of toll on a highway, the king's carriage will pay no toll; and Sir , if one of the king's horses is sold in a market,the king will not have an action (the whole Court disagreed with this); but Sir, if one would prescribe that he can wound anyone who comes on his land, this prescription is not valid, because it is against law and right
Fortescue CJKB: Sir, one cannot prescribe in through toll (toll paid to pass through two or more gates in a turnpike, OED) (this is where a highway lies alongside a lord's land), but when a road lies on a lord's land, it is possible to prescribe (and this is called toll traverse); and because it is contrary to right to have a road on my land, prescription is possible because it can have a lawful beginnning, because it might begin at first by each one who wants to take his carriage on my land paying 1 penny and thus it would grow (increseroit) into a custom; (addressing King's Serjeants): argue and show us aa custom that is contrary to reason, because several customs have been alleged but not one of them is contrary to reason, and the law is based on reason and reason is law; because if land will be divided between male heirs (departable intre malez) or if the youngest son will inherit, this is reasonable (cest resoun); but Sir, if the city of London will prescribe that if any stranger in the city protects (defende) any one that it will be lawful to wound him (de lui naufrer), this prescription is against right and reason because it is lawful to resist violence ('quia licitum est vim repellere' (legal maxim) Dig. 43.16.1.27 (Ulpian, Edict, lib. 69, Uim ui repellere licere Cassius scripit idque ius natura comparatur), and so show us a prescription that holds good and yet is fundamentally unreasonable (que est boun et foundist incontre resoun); and Sir, in the Isle of Mann there is a custom that if anyone steals a sheep or an ox he will be hanged, but in the case of a horse it is otherwise, and the reason is that a horse cannot be carried beyond the Isle (in Vulgate report it was because a horse could not be eaten); if the king granted to one that he would be exempt from bridge toll (pontage), he will be exempted (from paying toll) for any carriages but not from repairing the bridge (which was allowed); if the king gives any goods to me such as a pearl (perese) or an ornamental trimming (vne garde) or any jewel, without matter of record, I cannot justify the taking of them; if one would prescribe that he should have a fine from everyone who lives on his seigniory when his daughter or his son marries, this prescription is void amongst freemen (which was agreed); nothing is subject to toll except things that are alive such as horses, oxen, sheep and suchlike
Sjt Billyng: Sir, there are many customs observed in this realm that are more opposed to the common law than this, as borough english, gavelkind, where the wife has dower of half, and where the sons divide the land, all these are contrary to the common law and yet they are used and admitted; if one has feloniously taken a horse and then he sells it at an open fair (overt feyre) to someone else, no action lies against him who has bought it, if he has paid toll for it.
Fortescue CJKB and Prysot CJCP concurred with this, and they said that they are chargeable unless toll has been paid, for oftentimes issue has been joined because toll has not been paid, so the prescription is good enough, etc.; if the king had before time immemorial granted to one all rights of justice (omnem justiciam) by these general words or released to an abbey all pasturage; the disseisor in an Assize will not have the view, nor shall the vouchee at large but the alienee in a writ of Entry will have it
King's Sjt Hindstone: and Sir, there is a custom that the daughters ought to have a share in the land with their brothers, and Sir, this is quite right, because the daughter is just as much her father's child as the son is, and he can give his land to his daughter, but in cases which are against reason and law it is otherwise; suppose in a writ of 'nativo habendo' brought in London they shall allege a prescription that if a villein has remained within the said city for a year, he shall on this account be enfranchised, this prescription is not valid, because it is against right that I will lose my inheritance by prescripton, so here the prescription is not good
Sjt Laken: Sir the custom that the youngest son will inherit before the eldest is as much against common right as law as this is
Sjt Wangford: Sir, in the City of London they have such custom that if one be indebted to another in the City and another is indebted to the debtor they would arrest this debt in the hand of he who is indebted to the debtor and Scire facias will issue against the party to come within the year and show whehter he had any matter, etc.
Nottingham AG: Sir, recently in King's Bench before my lord Fortescue CJKB it was adjudged in a writ of Trespass; the defendant justified by a Capias directed to him from Windsor Castle and showed a prescription how by virtue of such Capias it has been the custom from time immemorial to arrest one in whatever county in the realm he may be, and this was adjudged to be no prescription
Moyle JCP: Sir, it seems to me that this prescription is not good, because it is quite contrary to right; if anyone comes to the city on my horse, will it be a good prescription to prescribe that my horse may be taken for his debt?; truly not; and the law is the same here: the property is always in the king, because he is entitled to a writ of Detinue against the other; Sir, there is a distinction between a custom that puts a charge on the land and one that does not; because if land that is in gavelkind (Gavelgynde) comes to the king by escheat or in anotherr way, the brother of him who before had the land will share with the king, but it is otherwise with a custom that puts a charge on chattels or the person; if one has prescribed that he has waif (Wayf), thus is the king discharged
Prysot CJCP: before the statute of claims (34 Edw. 3 (1361), ch. 16) if one had made no claim within a certain day, he had no remedy by fine levied at common law, yet this was not prejudicial to the king, so there is little question in this case except that the king's jewels will be discharged; such prescriptions as will cause the king to travel or to be in attendance are not valid against himself, such as suit of court or the like
a Simon Heir of London mentioned in 1456.070 = Mich. 35 Hen. 6, pl. 16, fol. 10b-11a
in 1460.031 = Mich. 39 Hen. 6, pl. 3, fol. 1b-2a, Sjt Littleton stated that in the case of Simkin heir in the Exchequer for jewels (Juels), the king there had his action against him (Simon Eyre), and had no other count except that the king was possessed of the jewels (Juels), etc. and delivered them into the possession of Simon (Simkin) Eyre (heir): and this was held a good declaration for the king, and he (Simon Eyre) (was) charged without any other matter, by advice of all the Justices in the Exchequer Chamber, and Prysot CJCP said that the case that you (Sjt Littleton) alleged that the king had against Simkin (Simon Eyre) was his (the kIng's) Suggestion, and not a writ of Detinue
Through toll (toll paid to pass through two or more gates in a turnpike, OED) mentioned in 1330.198ss = 3 & 4 Edw. 3, Quo Warranto pl. [24], 97 SS 87-99 (Northampton Eyre) and 1330.248ss = 3 & 4 Edw. 3, Quo Warranto pl. [74], 97 SS 135 (b) (Northampton Eyre), and 1348.266ass = 22 Edw. 3, Lib. Ass. 58, fol. 98b, and 1433.054 = Pasch. 11 Hen. 6, pl. 32, fol. 39b and 1456.087 = Mich. 35 Hen. 6, pl., 33, fol. 25b-29b and 1456.105ss = Mich. 35 Hen. 6, (case 29), 51 SS 114-118; Statham Tolle 4, fol. 178v, undated: Tronghtolle est lou home prent tolle dez bestez & merchandisez queux passonnt parmy le ville mesquez ils ne soient venduz &c. (Through-toll (Trongtolle) is where one takes toll of the animals and merchandise that pass through the vill, although they are not sold, etc.). Through toll in this sense is mentioned in 1346.300rs = Mich. 20 Edw. 3, pl. 107, RS 543-551. |
BL MS Harleian 5159
Bodleian MS Lat. misc. C. 55 (Farrer) (report in Vulgate) |
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1456.105ss = Mich. 35 Hen. 6, (case 29), 51 SS 114-118 |
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| M. Hemmant, ed. Select Cases in the Exchequer Chamber, 51 SS 114-118 (1933), Vulgate report (118-129) and record (129-132) |
| K.B. Memoranda Roll, Mich. 35 Hen. 6, rot. 9 |
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2005-11-27 |
Case
Keeper (Gardien)
Jewel
King
King's Jewels
Pledge
Lord
Discharge
Dismissal
Choice (eslieuz)
Appearance
Showing
Matter
Remedy
Suggestion
Process
Action
Protest
Value
Sign
Mark
King's Sign
King's Mark
Progenitor
Plea
City
Old City (auncien)
Usage
Time Immemorial
Goods
Own Goods
Delivery
Satisfaction (content)
Money (argent)
Seeming
Good Plea
Cause
Prescription
Avail
Thing (chose)
Lawfulness (loyale)
Commencement
Reason
By Reason
Knowledge (say)
Good Prescription
Devise
Gift
Against Reason
Prejudice
Person
Contrary
Custom
Fee Tail
Term Of Life
Tenant For Life
Term Of Years
Tenant For Years
Tenant At Will
At Will
Will (volunte)
Lease
Term
Mortgage
Common Right
Right
Against Common Right
Stranger
Property
Charge
Voidance
Exception
Exemption
Descent
Accrual
Entry
Toll
Six Months
Month
Passing
Quare Impedit
Road (Chimyne)
High Road
Highway
Height (haut)
Carriage
King's Carriage
Payment
Through Toll
Thorough Toll
Traverse Toll
Against Right
Way (chymyne)
Lawful Commencement
Increase
Growth (increseroit)
Realm
Against Common Law
Common Law
Borough English
Gavelkind
Wife
Endowment
Moiety
Half (moyte)
Son
Partition (departent)
Admittance
Condition
Better Condition
Claim
Felony
Taking
Felonious Taking
Horse
Sale
Openness (overt)
Fair (feyre)
Fair Overt
Laying (gist)
Buying (achate)
Payment Of Toll
Affirmance
Affirmation
Oftentimes
Issue
Taking Issue
Sufficiency (assez)
Daughter
Brother
Naifty (Neste)
Nativo Habendo (Neste)
Allegation
Villein
Residing (demure)
Year
Enfranchisement
Freedom (enfranches)
Loss
Inheritance
Younger Brother (puisne)
Elder Brother (legne)
Party
Grant
Omnem Justiciam
Right Of Justice
Word
General Words
Release
Abbey
Pasturage (pastum)
Charter
Continuance
Special Showing
Disseisor
Assize
View
Voucher
At Large
Vouchee
Vouchee At Large
Alienation
Alienee
Writ Of Entry
King's Horse
Market
Negation
Wounding (naufrer)
Against Law
Good Plea
Argument
Foundation
Male
Male Heir
Division (departable)
Younger Son
Defence
Licitum Est Vim Repellere
Isle
Island
Sheep
Ox
Hanging
Carrying
Indebtedness
Debtor
Arrest
Debt
Hand
Scire Facias
Issuance
Attorney
King's Attorney
Jugdment
Recent (tarde)
King's Bench
Trespass
Writ Of Trespass
Justification
Capias
Sending (direct)
Castle
Virtue
By Virtue
county
Purity (mer)
Executionj
Truth (verament)
King's Property
Detinue
Writ Of Detinue
Compulsion
Debt (dute)
Relevance (apurpos)
Purpose
A Purpos
Distinction
Escheat
Manner
Chattel
Waif
Binding
Belonging (attent)
Clarity
Statute
Fine
Levying
Question
Acquittance
Bridge Toll (pontage)
Pontage
Repair
Agreement
Pearl
Record
Matter Of Record
Marriage
Freedom (frank)
Freeman (frank hommez)
Tollable
Life (vies)
Similarity
Sight
Cause
Travel
Work (traueller)
Attendance
In Attendance
Suit
Suit Of Court
Advice
Award
Having Back
Note |
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