| 1481.096 |
1481 |
Common Pleas |
Debt on an obligation |
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| Mich. (2nd) |
21 |
Edw. 4 |
28 |
55b-59b |
Tremayle, Thomas Sjt
Bridges, Thomas Sjt Brigges
Vavasour, John Sjt Vavis.
Sulyard, John Sjt Suliard
Starkey, Humfrey Sjt Humfrey est mon nosme, H. and not J.
the Justices
Starkey, Humfrey Sjt
Pygot, Richard Sjt Pigot
Pygot, Richard Sjt Pigot (mentioned)
Catesby, John Sjt or JCP Cat.
Pygot, Richard Sjt Pigot (mentioned twice)
the Justices
Vavasour, John Sjt Vavis.
Bridges, Thomas Sjt Brig. (for Norwich jurors)
Tremayle, Thomas Sjt
Sulyard, John Sjt Suliard
Calow, William Sjt Coll-, W.C. or J.C.
Townshend, Thomas Sjt Townes.
Bridges, Thomas Sjt Brig. (mentioned)
Pygot, Richard Sjt Pigot
Catesby, John Sjt or JCP
Pygot, Richard Sjt mon frere Pigot (mentioned)
Calow, William Sjt Coll- (mentioned)
Nele, Richard JCP
Catesby, John Sjt or JCP (mentioned)
Choke, Richard JCP
Pygot, Richard Sjt Pigot (mentioned)
Sulyard, John Sjt Suliard (mentioned)
Bryan, Thomas CJCP Brian |
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Norwich, citizens of
Norwich, commonalty of
Norwich, mayor of
J., men of
J., inhabitants of
S., R., hypothetical feofee
D., R., hypothetical grantee
A., hypothetical feoffee
J., hypothetical reversioner
Coventry, citizens of
W., monks of
Islington, men of
D., inhabitants of
D., mayor of
D., commonalty of |
Norwich, city of
J.
Oxford (Oxenford), a college in
Parliament
England (Engleterre, english), every city and borough of
Gloucester (Gloc')
Nottingham (Noting')
St. Stephen, chapel of
D.
St. M., church of
Cinque Ports
Coventry (Coventriae)
W., an abbey
Islington |
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Fitzherbert Graunt 30
Brooke Corporations 65 (not 63) & 93, Parliament 64, Pledinges 113, Laches 15, Patents 72 (not in margin) |
case of the Chapel of St. Stephen
case of Cinque Ports, 1 Edw. 4 (1461), ch. 3, would not make a bad charter good
13 Hen. 7, fol. 10, 5
38 Hen. 6, fol. 38
13 Edw. 4, fol. 8, accord
7 Edw. 4, fol. 40
8 Edw. 4, fol. 28
9 Hen. 6, fol. 62
4 Hen. 6, fol. 6 (twice)
3 Hen. 6, fol. 15
15 Edw. 4, fol. 14
Perkins, Profitable Boke 69, 70
2 Hen. 6, fol. 10
5 Hen. 7, fol. 17
5 Edw. 4, fol. 10
13 Edw. 4, fol. 8 (twice)
38 Hen. 6, fol. 37, 38 (twice)
29 Edw. 3, fol. 25
11 Hen. 4, fol. 40 (four times)
53? Edw. 4, fol. 7
9 Edw. 4, fol. 1
10 Hen. 6, fol. 14
11 Hen. 7, fol. 27, 28
14 Hen. 6, fol. 12
12 Edw. 4, fol. 18
8 Hen. 6, fol. 20
20 Hen. 6, fol. 14
18 Hen. 8, fol. 5
8 Edw. 4, fol. 28
11 Hen. 7, fol. 28 |
act of Parliament = 1 Edw. 4 (1461), ch. 1, sec. 3 (not 1) (all manner of liberties, privileges, etc. not revoked, repealed nor annulled by authority of Parliament or otherwise by process of law, granted in the times of Hen 4, Hen. 5, or Hen. 6, late kings of England in deed and not of right, to any mayor,bailiff or bailirfs, ... citizens, ... commonalty, ... having corporation, by whatsoever name or names they or any of them be called or named in any of the said grants, they shall be in like strength and virtue, as if they (were) granted in the times of Edw. 3 and Ric. 2, late lawful kings of England) (that all the grants made to cities and boroughs be effectual 'according to their contents') (special act of Parliament)
Statute de (Viris) Religiosis (1279), 7 Edw. 1 (mortmain)
18 Hen. 6 (1439), ch. 6 (no grant of lands shall be made by the king until office found) (if the king grants lands to me, etc. before any office is found for him, this patent is void) |
| En accion de Det sur obligation les parties fueront a issu sur tiel point, que serra trie per ceux del city de Norwich |
249 |
The parties were at issue on a point that would be tried by a jury of the city of Norwich.
At the second Distraint, the jurors appeared.
One of the jurors came to the bar when he was demanded to be sworn.
The juror said that the king had granted to them by his letters patent shown forth, that none of them would be put on a jury outside of Norwich, and prayed to be discharged.
The charter was read, and stated that the king had incorporated those of Norwich by the name of citizens and commonalty, and afterwards in the charter it was granted to the city that none of them would be put (on a jury outside of Norwich).
In alternating speeches, Sjt Tremayle and Sjt Vavasour and Sjt Starkey and Sjt Catesby (or JCP) spoke for plaintiff's (?) position that jurors of Norwich should not be discharged, and Sjt Bridges and Sjt Sulyard and Sjt Pygot spoke for the Norwich jurors' position that they need not serve on a jury outside the city.
The Justices said that they wanted to give judgment one way or the other this Term, so the Justices would agree that the jury would have a day, by assent (of the parties), until the octave of Hil. 1482, conditionally, that if it was adjudged against the jurors the jurors would keep their day, otherwise not, in avoiding their costs.
Thus it was done.
At another day, Sjt Vavasour came to the bar and rehearsed the case, and argued a second time for plaintiff's (?) position that jurors of Norwich should not be discharged, as did Sjt Tremayle and Sjt Calow.
Counsel for the Norwich jurors argued that they should be discharged from being sworn on a jury outside their city, as did Sjt Sulyard and Sjt Townshend and Sjt Pygot.
Catesby JCP, on 21 Nov. 1481, the morrow after he was made a Justice, said that the jurors of Norwich should not be discharged.
Nele JCP, Choke JCP, and Bryan CJCP all said that the grant to the Norwich jurors of exemption from being put on juries outside the city was good. |
Sjt Vavasour: donques en cest cas lour corporacion 'civibus & commuitatem' quel est auxy properment le nosme del corps, come le nosme del baptisme est le nosme d' auter person natural, donques quant cest clause apres est 'concessimus etiam civibus' &c. cest nosme est estranger al nosme del corporacion, & ne ont ascun tiel nosme
Sjt Sulyard: Et puit estre demande per le corps politik, ou per chescun corps private, &c.; Et a cest que est dit al act de Parliament, que ils ne prendre avantage de cest, pur ceo que il ne fuit my plede, Sir come jeo entende, l' act extende a un generalty, & de tiels acts general, home aura avantageg sans eux pledre, come de statut de Religiosis, home ne allege cest enplede, pur ceo que il est ley general de que chescun home doit prendre notice; Et auxy d' un chose que ne soy extende a tiel generalty home aura avantage, & serra pris come general ley, come serra le custome del Gavelkind & Borough english, & tiel custome use de temps, &c. serra ore prise de nous come un general ley; Et cest act est que touts les grants faits a cities & boroughs soit effectual 'secundum eorum contenta', quel act soy extend a un generalty per ceus parolx 'touts' &c. & cest acte est cy en Court exemplifie soubs le grand seale, &c.
Sjt Starkey: auxy properment quant ascun corps politic est fait, le nosme pur que il est corporate est son nosme, come le nosme de baptisme, s. Humfrey est mon nosme, que sue un corps natural, & come le corps natural ne puit aver ij nosmes come J. & H. nient pluis puit le corps politik aver ij nosmes distinctes & severes, donques le proper nosme de cest corps est 'cives & communitat-' & si ascun parcel de cest nosme ne soit expresse, il n' est lour nosme
Sjt Pygot: Et a cest que est dit que le jury covient de pleder l' act de parliament, & monstre ceo al Court, pur quel lour franches est confirme; Sir cest confimation est un general act, que touts les liberties & franches grantes a chescun city & borough d' Engleterre soient ratifies & confirmes, & pur ceo il est un ley universal & nient priuate, pur que il ne covient monstrer
Catesby Sjt or JCP: Et auxy come Sjt Pygot ad dit d' un act de Parliament que est universal ley, ascun home aura avantage de cest sans ceo plede, jeo agree bien cest; Come si home voile justifie l' entry en un acre de terre, pur ceo que terre fuit tenus de luy & le tenant alien sans licence en mortmain, & pur ceo il enter deins l' an, il ne monstre le statut de Religiosis pur ceo que est ley universal; Mes auterment est ou il est local ley que n' extende ouster un county ou ville, il covient cest monstre, come le custome de Glocester, ou Borough english, ou le puisne fits doit enherite, & auxy en Notingham si le puisne fits port Assise de Mortdancestor en cest Court, il covient de fine force (= by strict necessity) d' alleger le custome en son pleint ou count, come s' matter gist, mesme le ley est en Gavelkinde, pur ceo que il est un local ley, & nemi universal, issint cest act de Parliament que confirme touts liberties & franches n' est universal ley, mes soy extend deins chescun city & borough, & nemi pur tout le realm
Et les Justices disoient que ils voilent doner Judgment en l' un voy ou l' auter cest terme, issint que ils voilent agreer que le jury aura jour per assent tanque al utas S. Hillary, conditionel, s. s' il fui ajuge encounter eux que ils garderont lour jour, auterment nemi, en escheuing de lour costages, &c.
& issint fuit fait
Sjt Pygot: vous que estes Judges covient entende quant est per cest general act
Catesby JCP Lendemaine apres que il fuit fait Justice, dit; Et quant a ceo que mon frere Sjt Pygot dit; & auxy ad este en livers (= Year Books)
Nele JCP: car l' act est general, & moy semble que chescun act de parlement covient estre entendus general, & covient d' estre conus a chescun home deins le realme, car il est fait per tout le realme, car chescun home ad son attorney en parliament, s. les Chivalierz 'of the shire' (English) pur le pais, & les Burgesses del parliament pur les Cities & Boroughes, pur que adire que l' act est privat, cest ne poit estre a ma entente; car le prerogative le Roy est auxi hault a eux en le ii. clause, sicome il est en le primes, & est sicome il ust eux corporate per tiel nosme al commencement
Bryan CJCP: semble que cest Act que est monstre est especial, & nemy general, & e sumus tenus a prendre notice de cest come de general statut, sinon que le party cest monstre a nous; Et moy semble que le Roy ne poit granter a ascun home ascun exempcion de jure, car mesme le power il ad a discharger touts lez gents d' Engleterre, & donques ses commens failer de lour droit, car ceo est sicome le Roy granta a un home que il ne responndre a moy en ascun action que ne poit estre, mes le Roy poit granta a un home que il ne serra jure hors de tiel ville, ou de tiel precinct, &c. |
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College of St. Stephen at Westminster (royal free chapel). John Catesby was appointed JCP on 20 Nov. 1481. |
general law of which everyone ought to take notice; reasonable and effectual interpretation of grant; local law and universal law; statute in restraint of common law will be construed strictly; Nele JCP said that every act of Parliament ought to be presumed (entendus) general, and ought to be known (conus) to everyone within the realm, because it is made for all the realm, because everyone has his attorney (representative) in Parliament, that is, the knights 'of the shire' (in English) for the country (pais), and the burgesses for the cities and boroughs
Sjt Tremayle (twice) and Sjt Vavasour (twice) and Sjt Starkey and Sjt Catesby and Sjt Calow and Catesby JCP (the day after appointment) spoke for plaintiff's (?) position that jurors of Norwich should not be discharged; Sjt Bridges and Sjt Sulyard (twice) and Sjt Pygot and Sjt Bridges (as counsel for the Norwich jurors) and Sjt Townshend and Nele JCP and Choke JCP and Bryan CJCP spoke for the Norwich jurors' position that they need not serve on a jury outside the city
Sjt Tremayle: it seems that by this charter the jurors cannot be discharged from this jury (enquest), because in every grant that is made, he to whom the grant is made ought to have capacity to take this, because if the king grant to 'men' (hominibus) or 'inhabitants' (inhabitatibus) of J. 2 acres of land or another such thing, if they are not incorporated by such name beforehand, the grant is void, if nothing be reserved to the king; and if the king grant to 'men of J., their heirs and successors' a manor, rendering to the king a certain rent, by any matter touching this manor, yet this is not incorporated (corporat) to any other intent; and if the king grant to 'men' or 'inhabitants of J.', that they will be discharged of a toll, if they were not incorporated (corporat) before, it seems that the grant is void
Sjt Bridges (to the contrary): because by the grant of the charter they can choose annually one of them who will be the mayor, which mayor will be coroner and escheator within the same city; and also they can choose (eslier) two sheriffs, who will have before them cognisance of pleas; and now this clause extends itself to the citizens, that is, that none of them will be put on juries, and here there are different names in this corporation that are effectual according to the charter, because the mayor will enjoy his office, and the sheriffs (will enjoy) their offices by this charter, so why will the citizens not have advantage of this clause that extends itself to them themselves in the same charter?,
and no one wanted to deny, but if the words 'we grant also' had been out of the charter, it would have been good enough, and it seems that it is now all of the same effect, because 'citizens' is tantamount to commonalty and city (civi), because under (desoubs) each those names they are both comprised, and so it seems that those words 'we grant also' (concessimus etiam etc.) will be void, because it is not a grant to a stranger, yet he will take advantage; as if I enfeoff R.S. of an acre of land, and grant by the same deed to R.D. that I and my heirs warrant the said land, to the said R.S. the feoffment is good enough, and the warranty also, and yet the words granting to R.D. are void; and to what was said the other day that they cannot have advantage without demanding this according to their (name of) corporation and not particularly, this is not so, because this clause 'that they not be put on juries' etc. extended to the particular persons of the city, and particularly they ought to have advantage of this, as if the king grant to 'men of J.' that they will be discharged of a toll, they will have advantage of this particularly and severally also, so etc.
Sjt Vavasour (to the contrary): because every corporate body ought to take advantage and also make their grants and releases according to their (name of) corporation, and if they vary from this it is not good; as in Oxford the corporation of a college is by the name of master and scholars, if they make a release under their common seal by the name of scholars, in an action brought against them according to their (name of) corporation, this will not be barred, because it is variant from their (name of) corporation, it is the same law of the grant made to them, and if each of the scholars releases, the several deed is not barred, etc., because when they are not named according to their (name of) corporation, they are estranged from this body corporate, which cannot give advantage to them; as if I enfeoff one on condition to enfeoff one A. before such a day, if he does not do so, A. cannot enter, because he is a stranger to the condition, but the entry will be by me or my heirs who are privy to the condition, so in this case their (name of) corporation 'citizens and commonalty' (civibus & communitatem), which is as properly the name of the body (corps), as the baptismal name (le nosme de baptisme) is the name of another natural person, so when this clause afterwards is 'we grant also to the citizens', etc.) this name is a stranger to the name of the corporation, and they do not have any such name, so they cannot take advantage of this; and notwithstanding that the grant will be good, (they) ought to be demanded as the (name of) corporation is, and not as the particular (individual) persons; as if one grant to me that I and all my tenants will be discharged from a toll in such a market of which he (grantor) is lord, if afterwards he takes toll from any of my tenants, this particular person will have the action, but I will have an action of Covenant; or if the lord had had common for him and his tenants, etc. he ought to prescribe and not the tenants, so here, when the king granted to 'citizens (civibus), etc. that no one of them would be put,' etc., this body to whom the grant was made, and by this name ought to demand the privilege for the particular persons, etc.
Sjt Sulyard: it seems that they (jurors) will have advantage of the grant, because the grant is 'citizens and commonalty' that they will have such a franchise and gives to them various powers, that is, to choose (eslier) various officers, which officers by the same charter have particular names and powers as the mayor (has power) to be coroner, and the sheriff (has power) to hold pleas, etc., to have return of writs, it seems that the commoners (les comens) have the advantage of causes (cases, clauses?) that extend to them, that is, to be discharged from juries (jury duty); and it seems that those words 'we grant to the aforesaid citizens' will be understood (pris) as strongly as if it had been 'to the citizens and commonalty', because this word 'civibus' (to the citizens) is in the beginning (premiss.) and includes 'commonalty', so the name of the corporation is expressed and included by this word; and it seems that this grant 'to the citizens' (civibus) is not a stranger to the name of the corporation, because the words are 'citizens of the aforesaid city' (civibus civitate praedict-), which words prove that it was granted to the same citizens, and the king's intent was as appears plainly, that the citizens have advantage by this grant; and also that they (citizens) have advantage of this (grant) particularly (individually), because the grant extends to the parties, and anyone can take the advantage, and anyone can relinquish the benefit for the time (being), and at another time have the advantage of this,
which was agreed
(Sjt Sulyard, continuing:) and it (the advantage, benefit, privilege) could be demanded by the body politic (corps politik), or by any private body (corps private), etc.; and to what is said as to the act of Parliament (1 Edw. 4 (1461), ch. 1, sec. 3), that they do not take advantage of this, because it was not pleaded, Sir, as I understand, the act extends to a generality (generalty), and of such general acts, one will have advantage without their pleading (?), as of the statute de Religiosis (1279), 7 Edw. 1, one will not allege this in pleading, because it is the general law of which everyone ought to take notice; and also of a thing that does not extend itself to such generality, one will have advantage, and it will be taken as a general law, as the custom of Gavelkind will be, and borough English, and such custom used from time immemorial, etc. will now be taken by (de) us as a general law; and this act is that all the grants made to cities and boroughs be effectual 'according to their contents', which act extends itself to a generality by those words 'all' etc. and this act is exemplified here in Court under the great seal, etc.
Sjt Starkey: it seems that they (il) will not have advantage of this grant, because also properly when any body politic (corps polit-) is created (fait), the name by which it is incorporate (corporate) is its name, like a name of baptism, that is Humfrey is my name, who am a natural body, and as the natural body cannot have two names, as J. and H., no more can the body politic have two names distinct and separate (severs), so the proper name of this body is 'city and commonalty' (cives & communit-) and if any part of this name be not expressed, it is not their name; and in a Quo warranto if they (city) demand their franchise this demand ought to be made by their proper name, that is, 'city and commonalty' (cives & communit-), and not 'city' alone, because this is not their name of corporation, so for the same reason, they cannot take advantage of any grant by this name only, so the grant made to citizens (civibus) alone is void; and Sir, they are come too late (trope tarde) to have advantage, because where one will have cognisance (jurisdiction of the plea), if he does not appear on the first day he will not have the cognisance, now if they have appeared on the day of the second Distraint, so if they have now the king's privilege to take the issues lost (perdus) before the first Distraint,
which was denied by the Justices, and also it was said, that they (Norwich) had appeared in sufficient time (assets pur temps)
Sjt Starkey held clearly that they would have particular advantage, so he did not want to argue about this; and as to the act notwithstanding that it be general, yet this does not make the grants good, because the act is that the grants without 'citizens and burgesses' (Burgiis) be good 'according to their contents' (secundum eorum contenta', etc. so the grant made to 'citizens' only is void, and such grants cannot be aided by this statute
Sjt Pygot: it seems that the jury will have the plea, because the first grant by which they were incorporated (corporat) is 'We grant to the citizens and commonalty of the city of Norwich' and rehearses various privileges, etc.; and in the same patent it is comprised and 'moreover (insuper) we grant to the same citizens, to have the liberty (libertat-) written below, that is, that they not be put on juries', etc.; and all would agree (nul voiet denier, mes) if the second grant had been 'moreover we will' (insuper volumus) etc. that then the second grant would have been good, and now the king's intent and his will is apparent, that the citizens and commoners (comens) have the advantage of the second grant by the name of the first corporation, and so it is not a new grant, but is comprised in the first grant; and even though the patent rehearsed 'and moreover we grant', etc. these words will be interpreted (prises) and construed (construes) reasonably and effectually as the law provides (voet), as if I make a lease for a term of life, the reversion to one J. now this grant will be interpreted (pris) according to the words of the deed, because 'as here', so it would be void, which is contrary to the truth, because these (words) will be construed to mean that the reversioner has this by way of remainder, because it is impossible for land to revert to anyone other that him from whom it comes, and so in this case these words 'we grant' will be interpreted (prises) accordingly, the effect of these words 'we will' (volumus), and this is the king's intent, and so the grant is good; and to what is said the jurors ought to plead the act of Parliament (1 Edw. 4 (1461), ch. 1, sec. 3), and show this (act) to the Court, by which their franchise was confirmed, Sir, this confirmation is a general act, and all the liberties and franchises granted to every city and borough of England be ratified and confirmed, and so it is a universal law and not private, so they (il) ought not show this, as if one plead a grant made by the king Hen. 4, or Hen. 5, or Hen. 6 such franchises are void, unless a special act of parliament was made, 1 Edw. 4 (1461), ch. 1, (sec. 3), to confirm them, if one wants to demand such a franchise ought he show the act?, I say not
Catesby Sjt or JCP: it seems to me the contrary, because when a vill is incorporated (corporat) by the name of citizens and commoners, this is their entire name, and this name is thus annexed to this body politic (corps politike) from which they cannot be separated (severe) in any manner, because the name of citizens is not their name by itself (aperluy), nor no more the name of commoners (by itself), but both (citizens and commoners) is their entire name, and by this name they ought to implead and be impleaded, and also to challenge their franchise, because if the citizens put forward a warrant of attorney by the name of citizens to demand their franchise it is void, because they ought to (demand) by the name of their entire corporation; and I believe that everyone would admit (jeo croy que nul home voet denier, mes) if a manor be given to them by the name of citizens and commoners, even though this is a good feoffment, and then they by the name of citizens only want to make a feoffment of this manor, I say that nothing passes by this feoffment, because they ought to depart from the land or from a thing granted to them by the same name, as they had capacity, so this second grant 'to citizens' (is) void 'for the cause aforesaid', so they will be sworn (as jurors) even though the second grant rehearses that they will not be sworn outside the aforesaid city, because by this name they do not have capacity to take this grant; and I grant well (that) if the patent had been as Sjt Pygot has said, 'we will', etc. where it is 'we grant', etc., this would have been a good grant, but now it cannot be interpreted (prises) without effect, because the second grant was like a new grant; and I understand that if this privilege had been granted by a new patent by itself (aperluy) by this name 'to citizens' that it would be void in all respects (a tout entents); and also as Sjt Pygot has said of an act of Parliament that is a universal law, any one will have advantage of this without pleading this, I agree well with this; as if one wanted to justify the entry into an acre of land, because the land was held of him and the tenant alienated in mortmain without license (licence), and so he (lord) entered within the year, he (lord) does not show the statute de Religiosis (1279), 7 Edw. 3, because it is universal law; but it is otherwise where it is a local law that does not extend beyond a county or vill, he ought to show this, as the custom of Gloucester, or borough English, where the youngest son ought to inherit, and also in Nottingham if the youngest son brings an Assize of Mortdancestor in this Court, he ought by strict necessity (de fine force) to allege the custom in his plaint or count, as his matter lies, (and) it is the same law in Gavelkind, because it is a local law, and not universal, so this act of Parliament which confirms all liberties and franchises is not universal law, but extends itself within every city and borough, and not throughout the realm; and as to what has been said that this act has made the grant good, because the words are 'we confirm and ratify', all the grants made to every city and borough 'according to their contents', Sir, if the law says that the grant is good at first (adeprimes) I grant well that the act confirms the patent to be good, etc.; but if the law says that the grant is void at the commencement it is impossible that the act confirms this (grant) which 'never was' (nunquam fuit), because a confirmation ought to enure on a preceding grant, and Sir, they have no such name in their capacity as the second grant states (pl-), so the second grant ought to be void; and Sir, I saw this case adjudged where the chapel of St. Stephen was incorporated by the name of Dean and Canons and Vicar (Vic-), and then one gave land to them by the name of 'Priest or Chaplain of St. Stephen and his successors in perpetuity' (presbyter- sive capellan- S. Stephan- & successores suis imperpetuum' &c.) this grant was adjudged void, so etc.
and the Justices said that they wanted to give judgment in the one way or the other this Term
Sjt Vavasour: it seems to him that the charter will not be allowed, because the first name is the name of their corporation, and according to this they ought to purchase and take and make every grant of a thing that will be granted by them, and not by the name of 'citizens' only, which is only part of the name; and also it seems that the particular person cannot take the exception, etc. but the whole body, to whom it is granted, that is, according to their corporation; and this (the body corporate should plead this) at the day Venire facias was returned, and not now at the second Distraint, because they have delayed too long (surcesse lour temps, exceeded their time), as if they had (claimed) the cognisance (jurisdiction of the plea), 'as above'
Sjt Bridges (for Norwich jurors) (to the contrary): and I agree that a grant made by part of the body is not good, but it is not so here, because as to 'citizens and commonalty' each part purports the effect of the other (each part means the same as the other part) and are 'one and the same' (unum & idem); and if the king grant 'to the men of D.' that they can choose a mayor every year, and that they would implead and be impleaded by the name of mayor and commonalty, this grant made to 'the men of D.' was good and yet they are not corporate by this name (men); and in the other respect (a l' auter entent) I believe that the only ground to argue (n' est ground d' arguer mesque) the single (individual) person will have advantage of the exemption from the jury (duty) as was sufficiently answered the last day; and also it seems that the jury has appeared in sufficient time when it (jury) was demanded at the bar to be sworn (jure), because before this they did not have any advantage nor time to show their discharge because before this time the jury (il) was not in point to be charge against the exemption, etc.; and also it seems that the act of Parliament (1 Edw. 4 (1461), ch. 1, sec. 3) enforces our grant if it was not good before, because the act is that such a grant made to citizens and burgesses (boroughs) will be good 'according to contents', etc.; and this general act is sufficient enough (assets sufficient) matter in the content of the grant
Sjt Tremayle (to the contrary): and to what is said that 'commonalty and city' (communitas & cives) are the same (sont tout), yet it is not so, because they can change the name of the 'commonalty and city' to the 'city' only, because the terms of the grant, so etc. but where the king incorporates a vill by the name of mayor and commonalty, and then provides (voet) that the mayor will be escheator this is sufficiently pursuing; and if the king gives anything to the wardens of the church of Saint M. this is void, because they are not incorporate (corporat), etc. nor (are) the citizens (corporate) by this name alone (tamen); and as to the act of Parliament (1 Edw. 4 (1461), ch. 1, sec. 3) etc., if the grant was not good, nothing is amended by the act, and I was in a writ on such matter for the Cinque Ports, where it was ruled that the act would not make a bad charter good
Sjt Sulyard: it seems that they (Norwich jurors) will have advantage by the name of 'citizens' (civibus), because if a vill be incorporated by the name of mayor and commonalty, and the mayor dies (dei), during the time of vacancy they are only a commonalty solely, until a new mayor be chosen, and if there was an issue that they had pleaded beforehand, according to their name of corporation, they will not be made to choose a new mayor, the 'cont-' (?) of which is in use (en ure) often (sovent), so thus in this case
Sjt Calow (to the contrary): and as to the act of Parliament (1 Edw. 4 (1461), ch. 1, sec. 3), if the king gives land to me by the name of W.C. where my name is J.C., by force of which I enter, and then by the act of Parliament it is granted that the charter made to J.C. will be good and effectual, etc. this act does not amend my estate which I understand to have by the patent, because the act ought to be understood to make a thing good, which had a good meaning (purport), which this charter does not here; and in the other respect it seems there is a distinction between a grant made to a body corporate and where the grant makes the body, as to the first (case) the grant ought to agree with the (name of) corporation, or otherwise it is void, but where the charter creates (fait) the corporation, the corporation will be understood (pris) according to the words (parol) of the charter, but here they were incorporated (corp-) by the beginning (primes) of the charter, and what they now intend to have advantage of is a new grant, and not according to the beginning, etc.; and also it seems that the jury had exceeded their times (surcess. son temps) because in every case where the place appears with certainty in the writ, if any party would have the cognisance of this plea, he ought to demand this on the first day, but where the place does not appear with certainty, as in Debt, Covenant, etc., there if he comes soon upon the (plaintiff's) count, it is sufficient (assets per) time, so here it appears to them on the Venire facias, that they are summoned to be sworn, where they will be exempted from this, at which day they could have appeared, and demanded (to be discharged), etc. (and) because they did not do so, they have exceeded their time (surcesse lour temps, delayed too long)
Sjt Townshend: it seems that the charter is good for the same reasons that Sjt Bridges (for Norwich jurors) had; and that was the distinction (between) a thing that touches the city's inheritance (?) and a thing that touches every individual (singular) party, because a thing that touches the inheritance ought to use the charter according to their (name of) corporation, as if erroneous judgment be given against them, no particular party will have the writ of Error, but it will be brought according to their (name of) corporation, because the loss was to this body (corps) and not to any individual (singular) party, but as to a thing that touches the advantage of every individual (singular) person, each will have advantage of this by himself (aperluy); as if the king grant 'to the citizens of N.' that they will not pay a toll, and then one is distrained for the toll, he alone will have an action of Trespass; or if the king grants to them common to their animals in his woods, this grant ought to be understood (pris) for the advantage of every individual (singular) person, etc., so it is to be discharged from a jury (duty); and now they (il) had a perfect time to show this when they were (to be) sworn, as has been said, and it is not the same as (demanding) cognisance (jurisdiction), etc.; and as to the act of Parliament, if the king grants lands to me, etc. before any office is found for him, this patent is void by the statute of 18 Hen. 6 (1439), ch. 6, notwithstanding that an office be found afterwards; and then in the Parliament it was ordained, that a patent made to be would be good according to the content here, now by this Act the patent is made good that was not (good) beforehand, it seems thus is the case at bar, so etc.
Sjt Pygot (in agreement): and as to exceeding the time (surcess. del temps) it is not much disputed, that they (il) had come in sufficient time (assets pur temps), and it is not the same as cognisance (jurisdiction), because this ought to be done by a stranger, that is, the bailiffs of the franchise, where the tenant wants to allege that the land was ancient demesne, or within the Cinque Ports he could allege this notwithstanding that it would not be 2 or 3 days if he himself had not affirmed the jurisdiction of the Court beforehand; and if the king grant me that I will be exempt from every jury, if I (do not) appear (until) at the third Distraint, I will have advantage (of this); and as to the other matter it seems to me that the grant is good, and I grant well that if the king had granted a thing to them, which they (il) can only use according to their (name of) corporation, that it would have been void, as it is here of a grant of land or cognisance of pleas; but where the grant is for the advantage of every individual (sing-) person, it is otherwise, as in the case at bar; and also if the king had granted 'to citizens' that the sheriff will hold pleas not rehearsing the name of their corporation; and to my thinking this word 'we grant' (concedimus) is of the same effect, and has the same sense as this word 'we will' (volumus), because it proves this to be the king's will; and if the king by this word 'we grant' grants to an abbot that he had his successors will be discharged of a corrody, this is good, and the successors will be discharged by this, notwithstanding that there was no corrody in possession at the time of the grant as well as if it (the grant) was 'we will' (volumus), etc.; and if the king grants all the lands that he has in such a vill, that they would be discharged of the toll, this is good, yet they are not corporate by this name beforehand, and not by this charter, but they are to take an individual (singul-) advantage that goes to every individual (several) person, so here, so etc.; and it has been moved that the act of Parliament is special, so it ought to be pleaded, and also if it will not be pleaded that it (the act) could make the charter that was bad to be good, as to the first point it seems that the act is general, because it is that the grants made to all Cities, etc., which is in the generalty, as in Praecipe quod reddat, the bailiffs of a vill demand cognisance (jurisdiction) and show the charter of the liberty (franchise) granted to them in the time of Hen. 6, he will not show this to be confirmed by the present king (Edw. 4), that you who are judges ought to understand when it is by this general act; and to the other point, notwithstanding that the grant was not good, it seems that by the act it is made good, because if king Hen. 6 had granted land to me (that was) part of his crown, this grant is void; but if it be an act in the present reign that all the grants made by king Hen. 6 will be good and effectual according to their intent, etc. this is good enough; and then if I am impleaded I will show the patent, and not speak of the act, and yet it makes my patent good, etc. so here, etc.
Catesby JCP, the morrow after he was made a Justice, said that there were four things here to be understood, one was whether the grant made 'to citizens' would be good or not, the second (auter) is whether the jury would take advantage of this or the body corporate, and (third) whether or not the jury had exceeded their time (delayed too long), and (fourth) whether or not the patent, notwithstanding being made badly, would be made good by the act of Parliament; and as to the first point this grant was in restraint of common law, and will be interpreted strictly for the king's advantage, and because this (grant) did not accord to the (name of) incorporation it cannot be good; and as to what my brother Sjt Pygot said that if the charter had been 'we will' (volumus), this would have been good, I do not grant this, for the distinction that Sjt Calow has put; and if the king grant me any thing by another name than (the name) I have, this grant is void; and so where the grant is 'to canons' where they are corpoate by the name of 'dean and canons', this is void, because it is other than their (name of) corporation is, etc.; and as to the second point that the jurors themselves have the exemption, and also it has been in books (= Year Books), that the sheriff had returned such matter as this is, and it was held a good return, etc.; and also (third) they (il) had not exceeded their time (surcess. son temps, delayed too long), because their (son) time, as has been well said, was when they would be sworn (jure), and it is not like a cognisance (jurisdiction) to be demanded, because there the bailiffs will not have the cognisance (jurisdiction) because the Court had proceeded on the plea, and was lawfully seised of this, and so this grant ought to be to any other Court, so as to the act, it is that the grants will be good according to their contents; and in this case there is no such party 'citizens of the city', but 'commonalty of the city', so it seems that this last grant is only as if the king had said 'citizens of Coventry' that they, etc. (be exempt from juries), which would be void, because the grant is to another strange party, and not the name of the first body, so it is not good, and the Act of Parliament cannot make this effectual, which had no effect beforehand, so etc.
Nele JCP (to the contrary): because the last grant was (to) a new body (corporation) and (in) a new capacity, because in such a case the king's grant makes a corporation (corp-), as if the king would grant lands to the monks of W. (Westminster?) etc. this is good, and the abbot will take advantage of this; and also he (Nele JCP) said that if the grant had not been good at first, this act of Parliament has made it good enough, and (the statute) ought not be pleaded, because the act is general, and it seems to me that every act of Parliament ought to be presumed (entendus) general, and ought to be known (conus) to everyone within the realm, because it is made for all the realm, because everyone has his attorney (representative) in Parliament, that is, the knights 'of the shire' (in English) for the country (pais), and the burgesses for the cities and boroughs, so to say that the act is private, this cannot be to my thinking (entent), and by this act this grant is confirmed and strengthened (pluis fort), because it is ordained that it will be good according to the intent, so etc.; and on the other two points he (Nele JCP) agreed with Catesby JCP
Choke JCP: this grant is good, or otherwise the king cannot grant this to them in any way; and to what is said, that because they are incorporated (corporat) by one name, that a grant made to them otherwise than according to this (corporate name) will be void, this is not so to my thinking, because the king's prerogative is as high to them in the second clause as it was in the first, and it is as if he had incorporated them by such name at the beginning, and to demand this thing comprised in the second clause, they ought to ensure (ensuer) this as the nature of the corporation by the second clause, as if the king incorporates a vill by the name of bailiff and commonalty, and then incorporates them by the name of mayor, sheriff, and commonalty, this is good, and now they ought to use their name according to the second corporation, and yet they ought to continue all the possessions that they had beforehand by the name of bailiff and commonalty, and the king can grant a thing to the mayor and commonalty that does not lie in succession in this body, but is intended (entende) to the individual (singul-) persons, as if he (king) granted to them as it is here, that they will not be sworn, etc. or that they will be discharged of a toll; and it seems that 'citizens' (cives) is part of the name, because if they were not privy, but entirely strangers, they could not have advantage of this grant, because if the king would grant to Sjt Pygot that Sjt Sulyard will not be put on a jury, etc. this is void, but here he has given sufficient capacity to each of them to take this discharge, etc. so the words in the second clause (are good) etc.; and as has been well said they (Norwich jurors) have come in sufficient time, because before now they could not have had advantage of this, and it is not like cognisance (jurisdiction) for the cause that was shown before, but if a juror who has an exemption be sworn, and the jury (enquest) remains for lack (default) of jurors, at the next day, never afterwards will he have advantage of the charter; and it seems that this Act of Parliament is special, because it is only done for all cities and boroughs; and if one wanted to have advantage of this act, he ought to plead this, etc., but it seems here that the charter is good without the act, etc. so etc.
Bryan CJCP (in agreement): and it seems that this act that is shown is special, and not general, and we are not held to take notice of this as of a general statute, unless the party shows this to us; and it seems to me that the king cannot grant to anyone any exemption from jury (duty), because he (the king) has the same power to discharge all the folk of England, and so his commoners fail of their right, because this is as if the king grants to one that he will not answer to me in any action, which cannot be, but the king can grant to one that he will not be sworn outside of such a vill or of such a precinct, etc.; and Sir, here the juror has come in sufficient time, because if he (juror) had come in every day, this would be irrelevant (ne serra a purpose), because he could not be a juror without his companions, and the sheriff's return will not prejudice him, notwithstanding that he (sheriff) would not return the matter, but he will have the advantage this day, and every individual (singuler) person, and not the body corporate, because if all the commoners were impaneled, they together could not take the challenge, because this body cannot appear in person, ec. so each one ought to have advantage; and Sir, here the grant is good, notwithstanding that it not be made according to the name of corporation; as if the king granted 'to the men of Islington' that they would be discharged from a toll, this is a good corporation in this respect (a cest entent), but not to purchase etc.; and if the king grant 'to the inhabitants of D.' that they can choose a mayor, and after this choice (election) they plead and be impleaded by the name of mayor and commonalty of D. now this word 'inhabitants' is gone, and yet it was good, so here, where the king granted 'to citizens', that they would not be sworn outside, etc., this new grant will not enure to them, as there is no corporation in this regard, so etc. |
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Fitzherbert Graunt 30, fol. 56, also dated this Trin. 22 Edw. 4
Brooke Corporations 65, fol. 190v, a very long entry, mentioned the Chapel of St. Stephen's |
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Obligation
Party
Issue
At Issue
Point
Trial
City
Distraint
Second Distraint
Jury
Appearance
Juror
Demand
Swearing (jure)
King
Grant
Letter
Patent
Letters Patent
Showing Forth
Putting (mise)
Discharge
Charter
Reading (lie)
Corporate
Incorporate
Corporation
Incorporation
Name
Civibus 56
Citizen (civibus)
Commonalty
Communitat-
Concessimus
Nullus Eorum Ponatur In Jurat-
Seeming
Jury (enquest)
Capacity
Taking
Man (hominibus)
Inhabitant
Acre
Thing (chose)
Voidance
Void Grant
Reserve
Reserved To The King
Heir
Successor
Manor
Render
Certainty
Rent
Matter
Touch
Intent
Toll
Discharge From Toll
Year
Annual
Choice (eslier)
Mayor
Coroner
Escheator
Sheriff
Cognisance
Cognisance Of Pleas
Plea
Jurisdiction
Clause
Extension
Citizen
Putting On Jury
Name Of Corporation
Effect
Effefctual
Enjoyment
Office
Enjoyment Of Office
Advantage
Denial
Word (parols)
Sufficiency (assets)
Good Enough
Good Charter
Civi
Under (desoubes)
Comprising
Contents
Stranger
Taking Advantage
Feoffment
Warranty
Void Word
Day
Demand
Accord
Particular
Individual (particuler)
Person
Particular Person
Individual Person
Particularly
Separate (severalment)
Several
Contrary
Body (corps)
Body Corporate
Release
Variance
Bad Grant
Bad Release
College
Master
Scholar
Master And Scholars
Seal
Common Seal
Action
Bar
Same Law
Separate Deed
Deed (fait)
Condition
On Condition
Entry
Stranger To The Condition
Privity
Case
Propriety
Properly
Proper Name
Baptism
Baptismal Name
Name Of Baptism
Natural
Natural Person
Estrangement
Notwithstanding
Market
Lord
Taking Toll
Tenant
Covenant
Action Of Covenant
Common
Time Immemorial
Prescription
Privilege
Franchise
Power
Officer
Holding Plea
Return Of Writ
Commoner (comens)
Cause
Strength (auxy fort)
Premise
Beginning (premiss.)
Including
Inclusion
Expression
Proof
King's Intent
Plainness
Plain Appearance
Relinquishment
Benefit
Time
Having Advantage
Agreement (concess.)
Body Politic
Politic (politik)
Private Body
Private
Act
Parliament
Act Of Parliament
Understanding (entende)
Generalty
General Act
Without Pleading
Pleading
Statute
Religious
Allegation
In Pleading
General Law
Notice
Taking Notice
Custom
Gavelkind
Borough English
Usage
Borough
Secundum Eorum Contenta
Exemplification
Exemplifying
Great Seal
Natural Body
Distinctness
Separate (severes)
Proper Name
Parcel
Quo Warranto
Tamen
Reason
Same Reason
Void Grant
Lateness (tarde)
Too Late
Cognisance (conusance)
First Day
Second Distraint
Loss
Issues
First Distraint
Denial
Sufficient Time
Clarity
Particular Advantage
Argument
Burgess (Burgiis)
Aid
Aid By Statute
Rehearsal
Privilege
Insuper
Moreover
Liberty (franchise)
Volumus
Will (volunt)
King's Will
Construing
Construction
Interpretation (construes)
Reasonableness
Lease
Term Of Life
Reversion
According To The Words
Truth (verum)
Reversioner
Way (voy)
Remainder
Impossibility
Confirmation
General Act
Ratification
Universal
Universal Law
Private Law
Void Franchise
Special Act
Special Act Of Parliament
Vill
Corporate Vill
Entirety
Whole Name
Entire Name
Full Name
Annexation
Manner
By Itself (aperluy)
Impleading
Impleaded
Challenge
Warrant Of Attorney
Attorney
In (eins)
Void Demand
Belief (croy)
Good Feoffment
Passing
Nothing Passes
Manor
Departure
Cause
Ut Supra
Incapacity
Void Patent
Agreement
Justification
Tenancy
Alienation
Mortmain
License (licence)
Without License
Entry Within The Year
Within The Year
Otherwise
Local Law
County
Local Custom
Son
Youngest Son
Inheritance
Assize
Mortdancestor
Assize Of Mortdancestor
Necessity
De Fine Force
Allegation
Plaint
Count
Matter
Laying (gist)
Same Law
Realm
Good Patent
Commencement
Impossibility
enure
Preceding
Preceding Grant
Sight (veia)
Adjudging
Chapel
Dean
Canon
Vicar
Gift
Priest (presbyter-)
Presbyter
Chaplain (capellan-)
Perpetuity (imperpet-)
Judgment
Giving Judgment
Term
Way (voy)
Having Day
Assent
Octave (utas)
Conditional
Keeping (garde)
Keeping His Day
Avoidance (escheuing)
Eschewing
Costs (costages)
Avoiding Costs
Rehearsal
Allowance
Disallowance
Name Of Capacity
Purchase
Exception
Taking Exception
Whole Body
Venire Facias
Stay (surcesse)
Exceeding Time
Surcesse Son Temps
Delay Too Long
Exceeding Time Limit
Having Cognisance
Jurisdiction
Purport
Unum & Idem
Pleading And Being Impleaded
Mayor And Commonalty
Ground
Ground Of Argument
Exemption From Jury Duty
Jury Duty
Sufficiency
Sufficient Answer
Sufficiency (assets)
Point
Enforcement
Burgess (borough)
Content Of Grant
Pursuant
Following
Warden
Church
Churchwarden
Void Gift
Amendment 58
Port
Cinque Ports
Ruling
Badness (malveis)
Bad Charter
Death (dei)
Duration
Vacancy
Time Of Vacancy
Soley
Often (sovent)
Force
Estate
Good Thing
Good Purport
Place (lieu)
Certainty
Inheritance Of City
Singular
Individual (singuler)
Individual Party
Singular Party
Usage
Error
Erroneous Judgment
Writ Of Error
Payment
Paying Toll
Distraint For Toll
Trespass
Action Of Trespass
Wood
King's Woods
Individual Person
Singular Person
Perfect
Perfect Time
Office
Finding
Finding Office
Void Patent
Chapter
Ordaining
Ordinance
According To The Content
Dispute
Big Dispute (grandement)
Bailiff
Bailiff Of Franchise
Ancient Demesne
Affirmation
Affirmance
Affirmance Of Jurisdiction
Third Distraint
Sheriff
Question
No Question
Sense
Sense Of Word
King's Will
Abbot
Successor
Corrody
Good Discharge
Possession
In Possession
Motion
Special Act Of Parliament
Special Act
In The Generalty
Praecipe Quod Reddat
Crown
Part Of His Crown
Speaking (parler)
Morrow (Lendemaine)
Body Corporate
Restraint
Common Law
In Restraint Of Common Law
(Derogation)
Strictness
Strict Interpretation
Strict Construction
King's Advantage
Brother
Distinction (diversity)
Book (livers)
Year Books
Holding
Good Return
Proceeding
Seisin
Seisin Of Plea
Lawfulness (loyalment)
Lawfully Seised
Strange Party
Monk (moignes) 59
Presumption (entendus)
Knowledge (conus)
All The Realm
Representative (attorney)
Representation
Knight
Knight Of The Shire
Country (pais)
Burgess Of Parliament
Private Act
Thinking (entent)
Prerogative
King's Prerogative
Height (auxi hault)
Highest
As High
Ensue
Nature
Nature Of Corporation
Usage Of Name
Continuation
Laying In Succession
Sufficient Capacity
Remaining
Lack (defaut)
Lack Of Jurors
Default Of Jurors
Next Day
General Act
General Statute
Folk (gents)
Folk Of England
Failure
Failure Of Right
Right
Commoner
Answer To Action
Precinct
Irrelevance
Relevance
Ne Serra A Purpose
Purpose
Companion
Prejudice
Prejudicial
Impaneling
Panel
In Person
Proper Person
Good Corporation
Good Incorporation
Choice (eleccion)
Election
Enure
Regard |
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