| 1307.039rs |
1307 |
Common Pleas |
Cosinage |
|
| Pasch. |
35 |
Edw. 1 |
[2] |
RS [467]-471 |
Toutheby, Gilbert de Sjt Toudeby (for D)
Passelewe, Edmund de Sjt Passeley (for P)
Passelewe, Edmund de Sjt Passeley
Toutheby, Gilbert de Sjt Toudeby
Passelewe, Edmund de Sjt Passeley
Staunton, Hervey JCP Stauntone
Passelewe, Edmund de Sjt Passeley
Howard, William JCP
Staunton, Hervey JCP Stauntone
Passelewe, Edmund de Sjt Passeley
Staunton, Hervey JCP Stauntone
Passelewe, Edmund de Sjt Passeley
Toutheby, Gilbert de Sjt Toudeby
Passelewe, Edmund de Sjt Passeley
Howard, William JCP
Passelewe, Edmund de Sjt Passeley
Howard, William JCP |
Isabel |
infant |
|
|
|
John, nephew of Margery
Margery, aunt of John & sister of Isabel (I)
Isabel (I), mother of John and sister of Margery
Henry III, King of England
Luke, Reymond de, donee & first husband of Elise & father of Isabel (I)
Elise, wife of Reymond de Luke and of Geoffrey & mother of Isabel (I) and of Margery
Geoffrey, second husband of Elise & father of Margery |
Chancery (la chancelerie) |
|
| |
Code of Justinian, C. de heredibus l. cogi possesorem = C. 3.31.11 ('cogi possessorem re') |
|
| Cosinage ubi calumpniatur resorcio quia non fiebat in sanguine integro. Une Isabele que fust deinz age |
76 |
(for P) dit qil ne deveit de ces, rege inconsulto, respondre
e Isabele suist au rei, e le roi manda a les justices quod non obstante &c. procederent secundum leges et consuetudinem &c.
Sjt Passelewe (for P): Nous ne sumes point a le bref de dreit einz a la possession, ou suffit de maintenir la possesion
Sjt Toutheby (for D): vous estes estraunge e en la possessioun e en la dreit, quel dreit nous prest de averrer par roule de la chancelerie
Staunton JCP: (ad idem) Passeley, vous est legister, e il ad un tel lay escrit (= written law, Roman law) qe parle de cete matere, 'cogi possessorem re' &c. (a title of the Code of Justinian, C. de heredibus l. cogi possesorem = C. 3.31.11; Bracton fol. 114, 2:323), e il est einz, e si vous voilez aver le hors e aver la terre, mustrez et fetes vous title; Par roule de chauncelerie
Sjt Passelewe (for D): Nous pledoms pur un enfaunt deinz age, a qi la curt serra plus tendre, e la ley plus favourable, e nous ne pouns nent saver record de la chauncelerie; e dautre part, en auncien temps chescun bref e de dreit e de possessioun girreit ben ver le roi, de quei nest ore rens raunge mes qe tant qil voet qe home siwe ver luy par bille ou home siwist avant par bref
Howard JCP: le roi seisie ces tenements cum forfes, pur ceo qil estoient alienez saunz son conge
Et sic commorantur salvis utrique parti rationibus suis usque in ocabis Michaelis |
Cosinage, where the resort was challenged because it was not made in the whole blood
Isabel (plaintiff) sued to the king, and the king ordered the Justices that, notwithstanding &c., they should proceed according to law and custom
Sjt Passelewe (for P) we are not in a writ of right, but in a writ of possession, where it is sufficient to maintain the possession
Sjt Toutheby (for D): you are a stranger both as to the possession and as to the right, which right we are ready to aver by the Chancery roll
Howard JCP: the estate which (defendant) Thomas has is from the king, and he is now to be pleaded with ust as if the king was seised thereof, and if the king were seised thereof, and you were party with him, it would avail you nothing without title, no more &c.
Staunton JCP (to the same effect): to Sjt Passelewe (for P), you are a lawyer (legister, a learned lawyer), and there is a written law (= Roman law) which speaks of this matter 'the person in possession is to be compelled' etc. (a title of the Code of Justinian, C. de heredibus l. cogi possesorem = C. 3.31.11; Bracton fol. 114, 2:323),, and he is in, and if you wish to have him out and to have the land, show and make your title.
Sjt Passelewe (for P); we are pleading for an infant under age, to whom the Court will be more tender and the law more favourable, and we cannot know anything of the records of Chancery, but we are willing to aver the posession &c. by a good jury, and we pray judgment; and on the other hand, in old times (en auncien temps) every writ, whether of right or of the possession, lay well against the king, a nd nothing is now changed except that one must now sue against him by bill where formerly one sued by writ
Howard JCP: the king seized these tenements as forfeited, because they were alienated without licence
Horwood noted (RS xv) a passage of some importance regarding the means by which the king was formerly made amenable to the claims of a subject; one of the counsel said that in old times every writ, whether of right or of possession, lay well against the king, but that now the king willed that one should sue against him by petition (or bill) where one formerly sued by writ (Bracton bk 1, ch. 8 and bk. 5, ch. 4 layed it down that a writ did not run against the king, and bk 4, ch. 10 that an awsize did not lie against the king, but that the proceeding must be by petition; but 22 Edw. 3, fol. 3b said that in the time of Hen. 3 and before the king was impleaded like any other man, but Edw. 1 ordained that one should sue the king by petition. In 24 Edw. 3, fol. 55b Willoughby JCP said that he had seen a writ 'Praecipe Henrico regi Angliae instead of a petition now given by reason of his prerogative. In 43 Edw. 3, fol. 22a, Sjt Cavendish said that in the time of Hen. 3 the king was only as a common person, because then one might have a writ of Disseisin against the king and all orther kinds of actions just as against any other person. The ordinance of the Council and of the 12 chosen by the Commons made in the year 1258, and confirmed by Hen. 3 in the following year, seems plainly to give the subject the right to sue by writ against the king (Rymer's Foedera vol. 1, pl. 381, 1816 ed.) (See Brinton Coxe's note at p. 28 of his translation of Gutenbock's Braction and his Relation to the Roman Law)
in 1312.102ss = Pasch. 5 Edw. 2, pl. 41, 33 SS 97-98, Sjt Friskeney said 'ley veet, etc. 'Coge possessorem dicere suum titulum' (perhaps reference to C. 3.31.11) |
| Alfred J. Horwood, Year Books of the Reign of Edward the First: Years XXXIII to XXXV (1305-1307), Rolls Series no. 31, part A, vol. 5 (London 1879), pp. [466]-471 |
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