| 1466.018 |
1466 |
Exchequer Chamber |
Attaint (Bill of Trespass) |
Issue sur deux affirmatives |
Markham, John CJKB
Jenney, William Sjt Genney (for D?) (mentioned)
Rogers, Thomas
Sulyard, John Suli.
Markham, John CJKB
Sulyard, John
Markham, John CJKB
Fincham, John
Metcalfe, Miles
Catesby, John Sjt
Bryan, Thomas Sjt Brian
Markham, John CJKB
Littleton, Thomas JCP |
(Gray) |
(Henry, gentleman of Kateringham) |
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B., J., hypothetical clerk |
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Fitzherbert Attainte 7 (not fol. 9)
Brooke Attaint 86, Issues joynes 36, Briefe 485 (not 481, not in Fitzherbert), Errour 163 (not in margin) |
presumably same case 1466.019 = Mich. 6 Edw. 4, pl. 17, fol. 7a
26 Hen. 8, fol. 5
33 Hen. 8, fol. 213 (Plowden? Dyer?)
2 Ric. 3, fol. 17
2 Hen. 7, fol. 15
38 Hen. 6, fol. 18
34 Hen. 6, fol. 32
26 Edw. 3, Lib. Ass. pl. 12
3 Hen. 6, fol. 8
Fitzherbert, Natura Brevium, fol. 121 a
9 Hen. 6, fol. 48
40 Edw. 3, fol. 48
6 Hen. 4, fol. 22
27 Hen. 8, fol. 12
33 Hen. 6, fol. 54
9 Hen. 7, fol. 5
11 Hen. 4, fol. 26
32 Hen. 6, fol. 27
6 Hen. 7, fol. 5
32 Hen. 6, fol. 17
9 Hen. 6, fol. 2
22 Edw. 3, Lib. Ass. ppl. 23
9 Hen. 6, fol. 10
3 Hen. 6, fol. 49? |
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| En l' Eschequer chamber @ Markham reherce coment un home avera sue un briefe de attaint, le quel |
102 |
Markham CJKB rehearsed that plaintiff's writ of Attaint stated 'whereas formerly by a verdict of 24 jurors', that defendant had pleaded that this assignment (of false oath) was not good and had argued that the verdict ought to have been special.
Markham CJKB argued that in plaintiff's assignment (of false oath) plaintiff should have assigned the false oath specially, and not generally.
Rogers argued that plaintiff's assigment (of false oath) and the verdict were good.
Sulyard argued that plaintiff's assignment ought to have been special and that the verdict (of the grand jury of 24) ought to have been certain. |
Markham CJKB: lou est trove per le petit jury que le attaint duist aver monsre 'in hoc falsam fecerunt sacramentum', car il dona, &c.; & lou nul chose est trove pur luy forsque argumentive, &c.
Sjt Catesby: sir a ma entent il ne serra entende, mes que ils ont enquire solonque le forme de ley, nient pluis que en mon case devant, &c. car peraventure les jurors primes ont enquise; mes il serra entende, quant ils done lour verdict, que ils ont enquise solonque le forme de ley, &c. |
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Thomas Rogers was created Serjeant in 1478 and died in 1478 (Baker, Readers and Readings, p. 24). John Sulyard was created Serjeant in June 1478 (Baker, Readers and Readings, p. 107). John Fincham was an apprentice who was never created Serjeant (Baker, Readers and Readings, p. 13). Miles Metcalfe was an Apprentice (Baker, Readers and Readings, pp. 23-24). |
Rogers and Fincham and Sjt Catesby argued for plaintiff's position; Markham CJKB and Sulyard and Metcalfe and Sjt Bryan argued for defendant's position
Markham CJKB: every declaration (count) ought to be certain, and not by general words; as in an Assize the writ is general, 'that he disseised him of freehold', but it is put with certainty by the plaintiff how (defendant disseised him) of one acre of land, etc.; and if the assignment be good yet the verdict ought to have been put (mise) with certainty, because where it was found by the petty jury (jury of 12) that the attaint ought to have been shown 'in this false making of oath', because he gave (bribes to the jury?), etc., because otherwise the plaintiff in this action ought to recover on an uncertainty, and where nothing is found for him except argument (argumentive), etc.
Rogers: when the defendant had hearing (oier) of the record, then they and also the court were made certain of the oath (serement), so it is all the same when the plaintiff assigned the false oath 'in all that they (defendant jurors) said' and if he (plaintiff) had said 'in this false oath', etc., and in this, etc., because they are the same (tout un) in effect; I put that one bring an action of Debt on an indenture (against me) for breach of certain conditions, and I answer generally, and I plead that I have performed all the conditions because the indenture is in Court, I am certain enough of the conditions; but if one bring an action of Debt on an obligation (against me), and I plead that the obligation was indorsed in such form, that is, that I perform all the conditions contained in the indenture, etc., in this case I ought to show the conditions with certainty, because the indenture goes with me, etc.; if two (parties) are at issue, if the jury finds for one of the parties, this is a good verdict, etc.; as if I bring an action of Trespass for breaking my close, (and) the defendant pleads that it is his freehold, and I reply that it is my freehold, and on this we are at issue, and it is found that it is my freehold, this is a good verdict, yet they (the jury) ought not shown how it is my freehold, etc. that is, a term of life (devie) or in fee tail, etc.
Sulyard: the assignment ought to have been special, as in a writ of Error, and this Attaint is of two matters, one for the fault of the first judgment as in a writ of Error, and another for attaint of the petty jury (jury of 12), etc.; and in a writ of Error if the defendant wants to pray that the plaintiff assign his errors, and he (plaintiff) says 'there was error in all', this is not a good assignment because the Court ought not assign and inquire of the errors, but the plaintiff will show them with certainty
Markham CJKB: in your case if the plaintiff assign an error notwithstanding that it is not error, if the Court (sua sponte principle) finds other errors of which the party (plaintiff) had said nothing, yet they ought to reverse the judgment, etc.
Sulyard: there is a distinction where the grand jury (jury of 24) affirmed the first oath (of the petty jury of 12), and where they disaffirmed it, because if they affirmed, then nothing will be done except that thee first judgment will be affirmed, etc.; but if they (the grand jury of 24) disaffirm (the verdict of the petty jury of 12), then the plaintiff in Attaint ought to recover what he had lost before and the jury (defendants petty jury of 12) will be attaint, etc. thus if the plaintiff recovers, there ought to be matter found forhim with certainty, and not by argument, because the judgment is final, etc.; and Sir, I put that one brings an Assize of Darrein presentment, and declares how his ancestor had presented one J.B., etc.,and that he was dead, etc, and the defendant pleaded that the said J.B. was still alive, and on this they (the parties) are at issue, and it is found that J.B. was alive, and he (plaintiff) brought Attaint, and they (the grand jury of 24) said (verdict) that the first jury (defendant petty jury of 12) made a false oath (falsum fecerunt sacramentum, etc.) they ought to say more, to my thinking, etc. or otherwise the plaintiff ought to recover where his title is not found, etc., so in this case the verdict ought to have been certain
Markham CJKB: the Attaint is in the nature of the first original (writ), as if one bring an Assize of Mortdancestor, and the defendant pleads that he (plaintiff) is a bastard, and they are at issue on this, and he (plaintiff) is found to be a bastard, and then he (plaintiff) brings Attaint, and they (the grand jury of 24) say (verdict) 'they (petty jury of 12) made a false oath' (falsum fecerunt sacramentum, &c.) now they (the grand jury of 24) ought to inquire of the dying seised of (plaintiff's ancestor), thus in your case
Fincham: if one brings Scire facias out of a fine to recover for another as cousin and heir, he will not show more in his declaration than that as cousin, etc. (he was heir), because the rest of the matter appeared by the record, so in this case, etc.; and also if one brings an action of Maintenance, (and) the defendant pleads that he did not maintain, if the jury finds that he (defendant) did maintain, it (the verdict) ought not say how he maintained, etc.
Sjt Catesby; I put that one bring an action of False imprisonment, and the defendant plead that another had sued an action of Debt against the plaintiff, by force of which a writ was sent to the sheriff to arrest (prendre) him (the plaintiff), and the defendant (should be the sheriff?) sent his precept to his bailiff, and the plaintiff rescued him (himself?), and the bailiff prayed that he who was now defendant to assist him (the bailiff), by force of which he (defendant) took him (plaintiff), which was the same imprisonment, etc., in this case the plaintiff can reply generally (that defendant arrested plaintiff) 'of his own fault' (de son tort demese) without such cause, and yet the (defendant's) justification comprised in itself three points, etc.; and if they be at issue in this case, the jury ought not show every point of the plea at the bar, that is, how the action was sued, and how the writ was sent to the bailiff, and how he (the bailiff) prayed the defendant to assist him, but he (plaintiff) will reply generally the one part of the verdict, etc. (?); and to what is said, that perhaps the grand jury (of 24) will inquire first of the damages, and then of the principal, etc., Sir, to my thinking it will not be understood so, but they (the grand jury of 24) ought to inquire according to the form of law, no more than in my case here, etc., because perhaps the first jurors (of 12) had inquired whether the bailiff prayed the defendant, and this whether any precept was sent to the bailiff, and thn in any such action was sued, etc., but it will be understood, when they give their verdict, that they had inquired according to the form of law, etc.; and in the same manner if one appeal against two, the one (defendant) as principal, and the other (defendant) asaccessory, and they plead 'not guilty' at one day, and the jury (l' enquest) says that they are guilty, this is a good verdict, and it will be understood firstly that they (the jury) gave their verdict as to the principal, etc. thus here, etc.
Sjt Bryan: to my thinking there is a distinction where the grand jury (of 24) affirms the first oath (of defendant petty jury of 12) and where they disaffirm it, because when they disaffirm (the verdict), they ought to show this specially, etc. as in a common case if there are two (parties) at issue, and the sheriff has returned the panel (petty jury of 12), and the defendant challenges the array, in this case he (defendant) will say a cause why he challenges (the array), because it is to defeat the sheriff's act (fait), but the plaintiff will reply generally (that the array was) well and duly made, etc. because he (plaintiff) is to affirm (the sheriff's making of the array); and in the same manner if one challenges the panel, he shows cause, etc., and so there is a distinction where they affirm a thing, and where they disaffirm it, etc.; and Sir, to my thinking the verdict ought to have been special, because I put that one bring an action of Debt against executors, and demand 100 pounds, and the executors plead (that they have) 'fully administered' (the testator's goods), where perhaps they have 100 pounds less 12 pence, etc., and the plaintiff replies (that defendant executors have) 'enough in their hands' (assets entermains), and on this they are at issue, and it is found that they have enough (assets), and the executors bring Attaint 'that (the jury) made a false oath', by this verdict the plaintiff in the first action will be barred from all, etc. and this will be against reason, etc., and so to my thinking the grand jury (of 24) ought to show specially, that is, 'in this (respect) that they (defendant petty jury of 12) said' that they (defendant executors) had enough (assets), 'falsely making an oath, which lacked (caruer-) 12 pence' of this (100 pounds), etc.; and in the same manner if one bring Formedon, and the tenant plead the warranty of his (plaintiff's) ancestor with enough (assets) (by descent), etc.; and Sir, to my thinking 'falsely making the oath', and 'well and lawfully making the oath' is not an issue, because both are in the affirmative, etc.
Markham CJKB: in your case of Debt brought against executors annd in the Formedon the party will have special Attaint
Littleton JCP: to what is said, that this is no issue, because both are in the affirmative, etc., Sir, in various cases where an issue is taken between two affirmatives, the issue is good enough, as in Replevin the defendant avows the taking as within his fee (and) the plaintiff replies 'out of his fee', here both are in the affirmative, but the one amounts to a contradiction of the other; also in a writ of Right the tenant will plead that I have more right to have the land in the manner and form as I hold it than you have to have this land in the manner as you demand, and the demandant will reply that I have more right, etc., and this is good, and yet they are both in the affirmative; and it was said that the plaintiff cannot have Attaint that the damages were too little, etc.; and it was said if one bring a writ of Waste, and count how the waste was committed partly by cutting the thorns, in this case notwithstanding that he (plaintiff) assign the waste in such (thorns) which cannot be waste (n' est my wastable), yet the writ will not abate, because the writ is general, etc.; and it is the same law in a writ of Dower, and in an Assize, etc. but if the writ be special; as if one brings a writ of Debt and demand 20 pounds and then he confesses that he will only have cause to have 10 pounds, in this case the writ abates, etc. |
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1466.018 = Mich. 6 Edw. 4, pl. 16, fol. 5b-7a |
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Rehearsal
Suit
Appearance
Folio
Commencement
Formerly (nuper)
Verdict
Jury
Jury of Twenty-Four
Seeming
Assignment
Good Assignment
Bad Assignment
Special Verdict
Oath (serement)
Falsehood
False Oath
General Verdict
General Assignment
In Lieu Of
Declaration
Certainty
Word (parols)
General Words
Assize
General Writ
Disseisin
Freehold
Acre
Finding
Petty Jury
Trial Jury
In Hoc Falsum Fecerit Sacramentum
Gift
Otherwise
Action
Recovery
Uncertainty
Thing (chose)
Argument
Argumentative
Argumentive
Contrary
Sufficiency (assets)
Certain Enough
Hearing (oier)
Record
Sameness (tout est un)
All (in omnibus)
Effect
In Effect
Debt
Action Of Debt
Indenture
Condition
Breach (enfreints)
Answer
General Answer
Performance
Obligation
Endorsement
Form
Contents
Case
Showing
Good Verdict
Thinking (entent)
Issue
At Issue
Party
Trespass
Action Of Trespass
Close
Breaking Close
Term Of Life
Fee Tail
Special Assignment
Error
Writ Of Error
Matter
Judgment
Prayer
Assignment Of Errors
In Omnibus Est Erratum
Inquiry
(Sua Sponte)
Speaking (parle)
Reversal
Reversal Of Judgment
Distinction (diversity)
Grand Jury
Affirmance
Disaffirmance
Loss
Finality
Final Judgment
Darrein Presentment
Ancestor
Presentment
Death
Life
Full Life
Title
Nature
Original Writ
Mortdancestor
Bastard
Bastardy
Dying Seised
Seisin
Scire Facias
Fine
Cousin
Heir
Relative (cosin)
Rest (remnant)
Maintenance (offence)
Action Of Maintenance
Maintaining
Bad Assignment
Damages
Inquiry Of Damages
Cause
Misnomer
Tort (wrong)
Nul Tort Nul Disseisin
Principal
False Imprisonment
Imprisonment
Action Of False Imprisonment
Force
Sending (direct)
Sheriff
Arrest (prendre)
Precept
Bailiff
Rescue
Making Rescue
Assistance
Own Wrong
Son Tort Demesne
General Plea
General Cause
Justification
Point
Plea
Perhaps (peraventure)
Understanding (entende)
Presumption (entende)
Form Of Law
According To The Form Of Law
Manner
Appeal
Accessory
Pleading
Not Guilty
Day
Guilt
First Verdict
Common Case
Sheriff
Return
Panel
Challenge Of Juror
Array
Defeat
Act (fait)
Well Made (bien)
Duly Made
Well And Duly Made Array
Challenge Of Panel
Challenge Of Array
Showing Cause
Special Verdict
Executor
Demand
Administration
Fully Administered
Assets Entermains
Assets On Hand
Hand
Quod Falsam Fecerunt Sacramentum
Bar
Against Reason
Reason
Special Showing
Lacking (caruer-)
Formedon
Warranty
Bonum & Legale Fecerunt Sacramentum
Affirmative
Special Attaint
Two Affirmatives
Good Issue
Replevin
Avowry
Taking
Within His Fee
Fee
Out Of His Fee
Hors De Son Fee
Amount
Contradiction (contrary)
Writ Of Right
Right
More Right
Manner And Form
Holding
Too Little Damages
Waste
Writ Of Waste
Count
Parcel
Cutting (encouper)
Thorn
Wastable
Wasteable
Abatement
General Writ
Dower
Writ Of Dower
Special Writ
Confession |
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