| 1466.013 |
1466 |
Exchequer Chamber, King's Bench |
Redisseisin (and also Felony) |
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Fairfax, Guy Sjt
Bryan, Thomas Sjt Brian
Littleton, Thomas JCP
Choke, Richard JCP
all the Justices
Illingworth, Richard CBEx
Markham, John CJKB
Catesby, John Sjt
Sulyard, John
Pygot, Richard Sjt Pigot
Yelverton, William JKB
Markham, John CJKB |
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Fitzherbert Execution 13, Judgement 49
Brooke Executions 98, Corone 146 (not 147, not Fitzherbert), Charter de pardon 44 (not in margin) |
cross-referenced in 1496.011 = Hil. 11 Hen. 7, pl. 11, fol. 15a-15b, per Sjt? Constable
cross-referenced in 1499.005 = Hil. 14 Hen. 7, pl. 5, fol. 15a-16b, per Sjt Constable
cross-referenced n 1499.011 = Pasch. 14 Hen. 7, pl. 2, fol. 19b-21a, per Sjt Mordaunt
6 Hen. 6, fol. 6, 7
14 Hen. 7, fol. 15 & 20
44 Edw. 3, fol. 44
9 Hen. 4, fol. 5
28 Hen. 6, fol. 9
10 Hen. 4, fol. 14
19 Hen. 6, fol. 47
29 Edw. (not Hen.) 3, fol. 13, 14
9 Hen. 4, fol. 5
4 Edw. 4, fol. 9
8 Hen. 6, fol. 21
21 Hen. 7, fol. 31
6 Hen. 4, fol. 16
4 Edw. 4, fol. 11, 20
4 Edw. 4, fol. 26
11 Hen. 7, fol. 15
6 Hen. 4, fol. 16
4 Edw. 4, fol. 9 |
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| En l' Eschequer chamber un case fuit monstre, s. un home fuit condempne en un Redisseisin, |
60 |
Defendant was condemned.
A Capias issued against defendant for the king's fine.
By force of the Capias, defendant was arrested (pris) and committed to prison.
Defendant was then outlawed for felony.
The king then pardoned defendant of all manner of felonies.
Plaintiff, at whose suit defendant was condemned, appeared and prayed that defendant should remain in prison until plaintiff be satisfied.
Whether or not defendant would remain in prison was the matter shown in Exchequer Chamber.
Sjt Fairfax and Sjt Bryan argued that defendant should be released from prison (deliver).
Littleton JCP argued that plaintiff should have execution against defendant.
Illingworth CBEx argued that defendant should be released from prison (deliver).
It was adjourned.
Then in King's Bench, Markham CJKB argued (that plaintiff should have execution against defendant).
Then it was awarded that defendant remain in prison until defendant had made satisfaction (gree) with plaintiff (le party). |
Sjt Fairfax: a ma entent si un chose que est mere chattel soit a un foits extient, il serra enapres remove per un chose que vient 'ex post facto', & en ceo case per cel attindre de felony le party avoit perdu touts maners executions, car quant il fuit attaint, si le party voilet aver prise execution de son corps, il ne purra my aver ewe, car per l' utlagary son corps fuit punishable a le volunt le Roy, & si le Roy voit il purroit aver luy pendue (= hanged), donques de son corps il ne purroit aver execucion, pur ceo que felony est pluis highnesse de le condempnation, Et omne majus tollis ad se minus (Latin maxim, the greater prevails over the lesser); Et auxi le Roy avoit interest en son corps, & lou le Roy ad interest, un comen person ne poit aver interest ovesque luy, &c.; Et de ses biens il ne purroit my aver execucion, pur que per l' attaindre toutes ses biens furent forfaits al Roy, &c.; Et de ses terres il ne purra aver execucion, pur ceo que pur l' attaindre ses terres fueront forfaits per voy d' escheat, &c. donques ceo prove bien, que son execution fuit a un foits extient, & a ma entent il ne poit my estre remove per son charter de pardon, &c.; Mes si un vellein (should be villein) soit utlage de felony, & puis le Roy luy pardon, ore le Seignior poit luy seiser, pur ceo que est enheritance, &c.; Et en ceo case quant il condempne ore, le party fuit a recover damages, le queux fueront forsque chattel, &c. per que moy semble il serra deliver
Sjt Bryan: puis est attaint de treason, & ad judgement d' estre trahe & pendus & quarter, & puis le Roy luy pardona de son quartering, & commanda al Marshal quant il est treit & pendus per judgement, que adonques le Marshal delivera d' aler alage, ore en ceo case le partie n' avera nul action vers le Marshal, donques ceo prove bien que son execution fuit extinct per cel attainder, issint &c.
Littleton JCP: il demurra en prison, car a ma entent il serrot encountre reason que per son contumacy, le quel est son fait demesne, que il averoit avantage pur ceo, &c.; Sir, lou et dit que l' execucion fuit merement extient, il n' est my issint, mes il fit mise en suspence, & le cause que il ne purra aver execution fuit pur ceo que le Roy avoit interest, &c.; Mes a ore quant le Roy per ses charters de pardon ad fait luy person able
Choke JCP: si un home soit attaint de felony, & puis il est pendus, mes n' est my tout oustrement mort, & puis est revive, &c. ceo est pluis fort case, pur ceo que il avoit execucion a un temps, &c.
Et fuit dit per touts les Justices que le judgement ne fuit execute, car le judgment est que il serra pendus tanques il soit mort, &c.
Illingworth CBEx: jeo pose que si un home est condempne, & puis est endite de felony & arraigne sur ceo & trove culpable, & puis il prist son clergie, & est commise al Ordinarie, &c. ore le partie n' avera uncore execucion
Sjt Catesby: A ceo que est dit per son contempnancy demesne il n' avera avantage, sir jeo pose que un home est endite de felony, & auxi de treason, & puis il est utlage de felony, &c. & puis le Roy grant a luy charter de pardon, ore il ne serra arraigne del treason, donques ceo prove bien que son contempnancie donera a luy avantage
Sulyard: Si iii. homes port divers appeals de robberie vers un home, & il est trove culpable al suit l' un, ore il ne serra arraigne al suit les auters; Et le Roy grant a luy chartre de pardon, & l' auter releas a luy execution, uncore il ne serra arraigne al suit le auters, donques ceo prove bien per cel attaindre, &c.
Yelverton JKB: Lou mischief & enconvenientise veignant ensemble, le mischief serra suffra & l' enconvenientise serra rebutte, & si un soit trove culpable en robberie al suit d' un, il est enconvenient que il serra auterfoits arraigne al suit d' un auter, car il ne poit estre mort forsque un foits (= he can only die once), &c.
Markham CJKB: Un home n' avera avantage per son fait demesne, mes il avera disavantage en plusors cases, car si home soit utlage de felony, & puis il est Moigne professe, uncore il serra punish, & si un home soit condempne icy devant nous, & puis enter en religion, le party avera action de det, &c. mes si un home soit condempne a luy il n' avera avantage, &c. |
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John Sulyard was created Serjeant in June 1478 (Baker, Readers and Readings, p. 107). |
mention of a hypothetical botched execution, felon hanged but not dead so revived, traitor sentenced to drawing, hanging, and quartering, pardoned of the quartering, sentence that one be hanged until he is dead
Littleton JCP (and Markham CJKB) argued for plaintiff's position; Sjt Fairfax and Sjt Bryan and Illingworth CBEx (and Sulyard? and Yelverton JKB?) argued for defendant's position
Sjt Fairfax: to my thinking, if a thing that is a mere chattel be once extinct, it will afterwards be removed by a thing that comes after the fact ('ex post facto'), and in this case by this attainder of felony the party has lost all manner of executions, when he (defendant) was attaint, if the party wanted to have taken exectuion of his (defendant's) body, he could not have had this, because by the outlawy his (defendant's) body was punishable at the king's will, and if the king wanted to hang him (defendant), then he (plaintiff) could not have execution of his (defendant's) body, because felony is more heinous (pluis highnesse) than condemnation (for debt); and the greater tolls the lesser ('Et omne majus tollit ad se minus', etc. Latin legal maxim); and also the king had an interest in his (defendant's) body, and where the king has an interest, a common person cannot have an interest alongside him (the king) (ovesque luy), etc.; and of his (defendant's) goods, he (plaintiff) cannot have execution, because by the attainder all his (defendant's) goods were forfeit to the king, etc.; and of his (defendant's) lands, he (plaintiff) cannot have execution, because by the attainder his (defendant's) lans were forfeit (to his lord) by way of escheat, etc. thus this proves well that his (plaintiff's) execution was at one time extinct (extient), and to my thinking it (the extinction) cannot be removed by his (defendant"s) charter of pardon, etc.; but if a villein be outlawed for felony, and then the king pardons him, now the lord can seize him (the villein), because it is (the lord's) inheritance, etc.; and in this case when he (defendant) wass condemned, now the party (plaintiff) was to recover damages, which were merely a chattel, etc. and so it seems to me that he (defendant) will be released (deliver)
Sjt Bryan: I put that one is condemned, as the case is here, and then he (defendant) is attaint of treason, and has judgment to be drawn (trahe) and hanged (pendus) and quartered, and then the king pardoned him (defendant) for his quartering, and commanded the Marshal that he be drawn (treit) and hanged (pendus) by judgment, that then the Marshall would deliver (defendant?) to go at large, now in this case the party (plaintiff) will not have any action against the Marshal, thus this proves well that his (plaintiff's) execution was extinct by this attainder, so (defendant should be released).
Littleton JCP: to my thinking it would be unreasonable (encountre reason) that by his (defendant's) contempt (contumacy), which is his own act (son fait demesne), that he (defendant) would have advantage by this (avoiding execution by plaintiff), etc. ; Sir, where itis said that execution was entirely (merement) extinct, it is not so, but it (execution) was put in suspense (en suspence), and the cause for which he (plaintiff) could not have execution was because the king had an interest, etc.; but now when the king by his charters of pardon hs made his (defendant's) person able, and the king has excluded himself (the king) from his title, now the party (plaintiff) will have the same advantage as he had before the action, etc.
Choke JCP: if one was arraigned for felony, and was found guilty by verdict, this verdict is a judgment in itself, because if the king wanted to pardon him (defendant felon) of all manner of felonies, yet he will be hanged (pendus), but in the charter it ought to be said (that defendant felony be pardoned of) 'all executions', etc.; but if one be attaint of felony, and then he is hanged (pendus), but is not completely dead (n' est my tout oustrement mort), and then (defendant felon) is revived, etc. this is a stronger case (pluis fort), because he had execution once, etc.
and it was said by all the Justices that the judgment was not executed, because the judgment was that he (defendant felon) be hanged until he was dead, etc.
Illingworth CBEx: the execution was extinct at one time, etc.; because I put that if one is condemned, and then is indicted for felony and arraigned on this and found guilty, and then he takes his clergy (benefit of clergy), and is committed to the ordinary, etc., now the party (plaintiff) will not have execution, no more here, etc.
Markham CJKB: to what is said, that if they (defendant) are committed to the ordinary, that the party (plaintiff) will not have execution, etc., and I think well, because when he (defendant) is committed to the ordinary, he (defendant) is completely (tout oustrement) discharged in this Court, but in this case he (defendant) is always in our custody (nostre garde), et.
Sjt Catesby: to what is said that by his own contempt (contempnancy) he will not have advantage, Sir, I put that one is indicted for felony and also for treason, and then he is outlawed for felony, etc. and then the king granted him (defendant) a charter of pardon, now he (defendant) will not be arraigned for the treason, thus this proves well that his contempt (contempnancie) will give him advantage, etc.
Sulyard: if three (plaintiffs bring separate (divers) Appeals of Robbery against one (defendant), and he (defendant) is found guilty at the suit of one (plaintiff), now he (defendant) will not be arraigned at the suit of the others (two plaintiffs), and he king grant him a charter of pardon, and the other (plaintiff) release execution to him (defendant), he (defendant) will not be arraigned at the suit of the others (two plaintiffs), thus this proves well that by this attainder (defendant should be released)
Sjt Pygot: if one be condemned in 20 actions at (the suit of) 20 (plaintiffs), they (plaintiffs) can have separate (divers) judgments, and separate executions, etc. but if it be for felonies there is no judgment nor execution except death, etc.
Yelverton JKB: where mischief and inconvenience befall together, the mischief will be suffered and the inconvenience will be avoided (rebutte) (principle that the law will sooner suffer a mischief than an inconvenience), and if one be found guilty of robbery at the suit of one (plaintiff), it is inconvenient that he will be arraigned at the suit of another (plaintiff), because he can only die once (il ne poit estre mort forsque un foits, &c.)
Markham CJKB: one will not have advantage by his own act (de son fait demesne), but he will have disadvantage in various cases, because if one be outlawed for felony, and then he is professes a monk, yet he will be punished, and if one be condemned here before us, and then enter into religion, the party will have an action of Debt, etc., but if one be condemned to him (plaintiff) he will not have advantage, etc.
cross-referenced in 1496.011 = Hil. 11 Hen. 7, pl. 11, fol. 15a-15b, per Sjt? Constable (Huse CJKB (? died?): in my own time I have seen that one (defendant) was taken by a Capias pro fine in a Redisseisin, and he (defendant) was also in execution by the party (plaintiff); Sjt Kebell (for ): certainly I was of counsel with the same matter; Sjt? Constable: certainly the contrary was held 6 or 7 Edw. 4)
in 1499.005 = Hil. 14 Hen. 7, pl. 5, fol. 15a-16b, per Sjt Constable: in the time of Edw. 4, one was attaint in a Redisseisin, and the party (defendant) was arrested (pris) for a fine to the king, and (it was) adjudged that he (defendant) would not go out (ne issera) until the party (plaintiff) would be satisfied
in 1499.011 = Pasch. 14 Hen. 7, pl. 2, fol. 19b-21a, per Sjt Mordaunt: it has been adjudged, that in Redisseisin where he (defendant) was arrested (pris) for the fine to the king, they (Justices) did not want to allow (souffre) him (defendant) to go after he had found surety for the fine, before satisfaction (gre) be made to the party, and this was in the time of Edw. 4 |
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Fitzherbert Execucion 13, fol. 316v, was also cited in the margin of 1466.011
1466.013 = Mich. 6 Edw. 4, pl. 11, fol. 4a-4b |
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Case
Showing
Condemnation
Capias
Issuance
Fine
King
Fine To The King
Force
Arrest (pris)
Taking
Committal
Prison
Outlawry
Outlaw
Felony
Pardon
King's Pardon
Manner
Party
Suit
Appearance
Remaining (demure)
Satisfaction
Matter
Seeming
Deliverance
Thinking (entent)
Thing (chose)
Chattel
Mere Chattel
Purity (mere)
Once (un foits)
Extinction
Removal
Ex Post Facto
Attainder
Attainder Of Felony
Loss
Execution
Attaint
Body (corps)
Execution Of Body
Punishment
Punishable
Will (volunt)
King's Will
At The King's Will
Hanging (pendue)
Heinous (highnesse)
Height
Omne Majus Tollit Ad Se Minus
Greater
Lesser
The Greater Prevails Over The Lesser
Interest
King's Interest
Common Person
Person
Goods
Execution Of Goods
Forfeiture
Execution Of Lands
Way (voy)
Escheat
Proof
Good Proof
Charter Of Pardon
Villein
Lord
Seizure
Inheritance
Recovery
Damages
Chattel
Mere Chattel
Treason
Judgment
Drawing
Drawn
Drawn, Hanged, And Quartered
Quartered
Quartering
Pardon Of Quartering
Command
Marshal
Judgment
At Large
Action
Contrary
Reason
Against Reason
Unreasonable
Reasonableness
Contempt (contumacy)
Contumacy
Own Act (son fait demesne)
Advantage
Suspense
Putting In Suspense
Cause
Ability
Able
Exclusion
Title
Arraignment
Finding
Guilt
Verdict
By Verdict
Omnes Executiones
Attaint Of Felony
Altogether (tout oustrement)
Death
Revival
Strength (pluis fort)
Time
Execution Of Judgment
Hanged Until Dead
Indictment
Clergy
Taking His Clergy
Benefit Of Clergy
Committal
Ordinary
Adjournment
King's Bench
Discharge
Always
Custody (garde)
Contempt (contempnancy)
Own Contempt
Outlawry For Felony
Appeal
Appeal Of Robbery
Robbery
Guilt
Finding Of Guilt
Release
Release Of Execution
Execution Of Death
Mischief
Inconvenience
Sooner Suffer A Mischief Than An Inconvenience
Together
Sufferance
Avoidance (rebutte)
Rebuttal
Disadvantage
Monk
Profession (Of Religion)
Monk Professed
Entry Into Religion
Religion
Debt
Action Of Debt
Award
Satisfaction (gree) |
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