| 1468.018 |
1468 |
Chancery |
Subpoena for breach of promise |
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Jenney, William Sjt Genney
Stillington, Robert LC Le Chancelor
Jenney, William Sjt
Stillington, Robert LC Chanc' |
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Fitzherbert Sub pena 7 (not 4 Edw. 4)
Brooke Conscience 14 (not Subpoena) |
2 Hen. 4, fol. 16
22 Edw. 3, Lib. Ass. pl. 70
7 Hen. 7, fol. 12 |
perhaps invocation of Praerogativa Regis, temp. incert., attributed to 17 Edw. 2, ch. 11 (not 9) (Rex habebit custodiam terrarum fatuorum naturalium) (1 Stat. Realm 226) |
| Un Subpoena fuit sue en le Chancerie, de ceo que lou le defendant aver fait le plaintiff le procur- de |
14 |
Plaintiff sued Subpoena because defendant had made plaintiff the procurer (or procurator or proctor) of defendant's benefice, and had promised plaintiff faithfully (per fidem) that defendant would indemnify plaintiff for the occupation (of defendant's benefice), and plaintiff showed that defendant resigned his benefice without plaintiff's knowledge, and that plaintiff was vexed for plaintiff's occupation of the benefice after defendant's resignation.
Defendant (?) said that plaintiff would be put to sue in Court Christian for defendant's breach of faith.
Stillington LC (the Chancellor) said that the plaintiff would have his remedy here in Chancery. |
Sjt Jenney (for D?): Il semble que il serra mise de suer en court Christien per l' enfreindre de sa faith, auxibien come si jeo promise & affie un feme de luy espouser, si jeo ne face, el suera en court Christien, & nemy en cet court, &c.
Stillington LC (le Chancelor): Vous dites voier pur l' enfreindre del faith il doit suer la 'si peticione ipsam canonice injuria', mes en ceo case pur ceo que il est endamage per le non performance del promise il avera remedy icy
Sjt Jenney (for D?): Sir auxi cest promise est un covenant, & il est son foly que il (should insert: ne) voilet aver ewe fait, & issint que il purra ewe remedy per nostre ley, car si jeo vous promise de faire a vous un meason, si jeo ne face, vous averes remedy per Subpoena, &c.
Stillington LC (Chanc'): Il avera, &c. & issint poies dire si jeo enfeoffe un home en trust, &c. s' il ne voit faire ma volunt, jeo n' avera remedy per vous, car il est ma foly d' enfeoffer tiel person que ne voit faire ma volunt, &c. mes il avera remedy en cest court, car Deus est procurator futurorum (should be fatuorum) |
Sjt Jenney (for D?): it seems that he will be put to sue in Court Christian for the breach of his faith, as well as if I promise and become engaged to (affie) a woman to marry (espouser) her, if I do not do it (marry her), she will sue in Court Christian, and not in this court, etc., so here
Stillington LC: you (Sjt Jenney) speak truly (that) for breach of faith he (plaintiff) ought to sue there (in Court Christian) if he prays the same canonical injury, but in this case because he (plaintiff) is damaged by the nonperformance of the promise, he will have a remedy here (in Chancery)
Sjt Jenney (for D?): Sir, this promise is also a covenant, and it is his (plaintiff's) folly that he wanted to do this (or: that he did (insert: not) want to have a deed, and so he could have had a remedy by our law (if plaintiff had had a deed), because if I promise to build you a house, if I do not do this, you will have a remedy by Subpoena, etc.
Stillington LC: he (plaintiff) will have it, etc. and so you can say if I enfeoff one in trust (use), etc. (to do my will) if he (the feoffee) does not want to do my will, I will have no remedy according to you (per vous), because it is my folly to enfeoff such a person who does not want to do my will, but he (such a plaintiff) will have a remedy in this case, because God is the guardian (procurator) of fools (futurorum, should be fatuorum)
Fifoot: In 1468 a Subpoena was sued in the Chancery for the breach of a parol promise. The defendant argued that the plaintiff's only remedy lay in the Church courts. The Chancellor was short with him. 'You say that for breach of faith he must sue by the Canon Law; but in this case, because he is damaged by the non-performance of the promise, he shall have a remedy here.' The defendant persisted that, had the plaintiff taken the trouble to obtain the defendant's promise under seal, he could have sued in Covenant, and that it was 'his folly not to have had a deed.' But the Chancellor dismissed the suggestion with the beneficent if uncomplimentary maxim, Deus es procutator fatuorum.
Contrast 1482.086 = Pasch. 22 Edw. 4, pl. 18, fol. 6a-6b |
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Cooper's Practice Cases 550, 47 Eng. Rep. pp. 646: Subpoena upon promise to build a house. If a man promise me to build me a house, and does not build it, I shall have remedy by subpoena. Brooke's Abridgement, Conscience, &c. 14; Year Book, 8 Ed. 4, 4.
Fitzherbert Sub pena 7, fol. 187v, dated Pasch. 4 Edw. 4, fol. 4: Subpoena for this, that where the defendant had made the plaintiff the proctor (proctour) of his benefice and he promised him by faith (par fidem) that he would hold (garder) him indemnified (indempne), and showed that the defendant resigned his benefice unbeknownst to the plaintiff, and for the occupation the plaintiff was indemnified (indempne); Chancellor: because he is damaged (en damagez) by the nonperformance of the promises he will have a remedy here, and for the breach of faith (enfreynder del foye) he will sue in court Christian (court xpien); Sjt Jenney: if I promise you to have made a house for you, etc. if I do not make it you nave no remedy by subpoena; Chancellor: he will have a remedy in this case, because god is the protector of fools, ended Chauncellor: il avera remedy en cest caz, car deus est procurator fatuorum |
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| C.H.S. Fifoot, History and Sources of the Common Law (London, Stevens & Sons 1949), p. 303 (paraphrase of part) |
Subpoena
Suit
Procurer
Procurator
Proctor
Benefice
Promise
Faith
By Faith
Per Fidem
Keeping (gardera)
Guarding
Indemnity
Indemnification
Occupation
Showing
Resignation
Knowledge
Ignorance (nient sachant)
Vexation
Seeming
Court Christian
Church Court
Ecclesiastical Court
Breach (l' enfreindre)
Breach Of Faith
Engagement (affie)
Affiance
Betrothal
Espousals
Marriage
Woman (feme)
Suit In Court Christian
Chancellor
Truth (voier)
Petition
Canonice Injuria
Injury
Canonical
Canon Law
Case
Damaging
Damage
Performance
Nonperformance
Remedy
Having Remedy
Covenant
Folly
Deed (fait)
Our Law
Building
House
Remedy By Subpoena
Feoffment
Trust
In Trust
Use (trust)
Will (volunt)
Doing His Will
Person
God (Deus)
Procurator Fatuorum
Idiot (fatuorum)
Fool
Futurorum
Deus Est Procurator Fatuorum
Procurator Futororum |
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