| 1481.101 |
1481 |
Exchequer Chamber |
Assize of Novel disseisin |
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| Mich. (2nd) |
21 |
Edw. 4 |
33 |
63a-63b |
all the Justices
Nedeham, John JKB1471-1480 Assize J
Huse, William CJKB Hussey
the Justices
Bryan, Thomas CJCP Br. (?)
Nele, Richard JCP
Fairfax, Guy JKB
Bryan, Thomas CJCP Bri. (?)
Vavasour, John Sjt Vav. (mentioned)
all the Justices
Fairfax Guy JKB
Choke, Richard JCP Ch.
Huse, William CJKB Hussey
Bryan, Thomas CJCP Brian
Huse, William CJKB Huss.
the Justices
Vavasour, John Sjt Vavisor
Jenney, William JKB Genn l' un des Justices del Bank le Roy
Huse, William CJKB Hus.
Fairfax, Guy JKB fairf. |
Lincoln (or E) |
Dean and Chapter of |
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T., prebendary of the Chapter of Lincoln (or E.) |
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Fitzherbert Challenge 60
Brooke Challenge 180 (not in margin) |
Prior proceedings 1478.001 = Hil. 17 Edw. 4, pl. 1, fol. 7a and 1481.059 = Pasch. 21 Edw. 4, pl. 28, fol. 31a-33b and 1481.067 = Mich. 21 Edw. 4, pl. 3, fol. 11b-12b
Later proceeding 1482.029 = Hil. 21 Edw. 4, pl. 29, fol. 20b-21a
Plowden, Commentaries 124 Ver. case
1470.053ss = Trin. 10 Edw. 4, pl. 8, 47 SS 107-108, Trin. 10 Edw. 4, fol. 12
10 Edw. 4, fol. 12 (twice)
15 Edw. 4, fol. 17
13 Edw. 4, fol. 37
2 Hen. 4, fol. 21
17 Edw. 3, Lib. Ass. pl. 14
49 Edw. 3, fol. 2 |
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| En l' Eschequer chambre touts les Justices fueront assembles, & Hussey monstre a eux coment auterfoits le |
53 |
(Previously, plaintiffs dean and chapter arraigned and Assize of Novel disseisin against defendant.
At the day of the Assize (jury), defendant challenged a juror, and showed how such persons were plaintiffs dean and chapter, and that the challenged juror was brother to one of the chapter.
The Justices of Assize would not allow defendant's challenge.
The Justices of Assize made a bill of this exception.
Nedeham JKB, then Justice of Assize, sealed the bill.
Defendant sued a writ of Error on this bill before King's Bench.
At various times this was argued.)
All the Justices were assembled in Exchequer Chamber.
Huse CJKB showed all this to them and said that defendant's challenged was a principal challenge (that should have been allowed).
The Justices were undecided ('aeque dubium').
Huse CJKB said, as to a distinction made by Sjt Vavasour, that the Justices should say nothing of this, because no one here could discern the distinction.
This was agreed.
Huse CJKB and Bryan CJCP spoke for defendant's position that defendant's challenge was good.
Fairfax JKB spoke for plaintiff's position, that defendant's challenge was properly disallowed.
The opinion of all the Justices was tha tthe challenge was good, except Fairfax JKB.
Further discussion of other challenges.
Then when the Justices had risen (leves), Sjt Vavasour posed a strange hypothetical.
Then on the morrow the judgment was given by Jenney JKB that defendant's challenge was a principal challenge; and that the first judgment will be reversed.
Huse CJKB and Fairfax JKB were then present. |
the Justices: cest 'aeque dubium'
Fairfax JKB: Et pur ceo n' est a presume que son frere voile estre favorable al Dean & Chapiter |
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Cathedral of St. Mary at Lincoln. John Nedeham JKB died 25 Apr. 1480 |
corporate identity separable or not from individual identity
Fairfax JKB spoke for plaintiff's position, that defendant's challenge was properly disallowed; Huse CJKB and Bryan CJCP spoke for defendant's position, that defendant's challenge was good
Huse CJKB: it seems to me that this is a principal challenge; and the strongest that is said that it will not be a principal challenge is because (prebendary) T. to whom the juror is a brother, is not a party and has not loss nor advantage by this judgment, nor does his (prebendary T.'s) death abate the writ of Assize, nor will his (prebendary T.'s) release bar it, which proves to their thinking (entent) that this (prebendary) T. is a stranger to this body corporate that is plaintiff, that is, the dean and chapter, so the challenge will not be good; and also this is a distinction (put) by some, that where an Assize has been brought by the abbot or against the abbot to say that one of the jurors is brother to one of the monks (moignes), that this will be a good challenge, and not in this case, and I understand that there is no distinction (diversitie), nor where the mayor and commonalty are parties; and if all the canons were dead except one, I say that it would be a good challenge that the juror is brother to he who, etc.
the Justices: this is equally doubtful (on both sides) (aeque dubium),
(Huse CJKB, continuing: (?)) and of mayor and commonalty, but if I grant certain land to the dean and chapter to do such a thing, and they grant to me that if it not be done, that they and each of them would forfeit 10 pounds to me; in an action of Debt, etc. against them, it is a good challenge that a juror is brother to one of them
Bryan CJCP: if two of the commonalty disseise the mayor and commonalty, in an Assize brought against them the array (of prospective jurors) will not be of them (the commonalty) because the law presumes (entende) them partial (favourable); and in an action brought by the mayor and the commonalty, or against them, it is a good challenge to say that the juror is brother or relative (cosin) to one of the commonalty, so here
Nele JCP: if the juror be the party's godson (le Godson), or the party is the juror's curate (Curate), as if the juror be of his (the party's) parish, this is spiritual affinity, and yet it is a good challenge, so here
Fairfax JKB: it seems to me that it is no challenge, because every principal challenge ought to be such that the jury will be presumed (entende) partial (favourable) to the party, as in the cases of godparents (Goship) and curate (Curat), or where the tenant for life is impleaded, to say that the juror is related (cosin) to, or within the distraint (disress) of the reversioner, or in an action brought against a parson of a church, to say that the juror was tenant (?) (t-) or relative (cosin) etc. to the patron, I grant all the cases, because the remainderman or reversioner will have loss (pred-) and the patron also, because his patronage will be impaired; and also in an action brought by an executor it is a good challenge to say that the juror is brother or relative (cosin) to one of them, and this is reasonable notwithstanding that they are to recover to another's use, because if the issue be found (verdict) against them, they will be amerced from their own goods, and so the challenge is good; but as it seems to me there is a big distinction (diversity) between a monk and a prebendary, and I agree well that where the abbot or prior is a party that it is a good challenge to show that the juror is brother or relative (cosin) to one of the monks (moign-z), because if the abbot recovers or loses (perde) the thing in demand, the monk's sustenance will be better or the worse (le pejor), and (the monk) cannot have other sustenance than from the house , and cannot depart elsewhere to another place, and is 'dead in law' (mort en ley) and cannot have possession, but a prebendary (Prebend-) has separate possession by himself (aperluy), and is a person able (personable) to do anything, and can depart at his pleasure; and so it is not presumed (n' est a presume) that his brother would be partial (favourable) to the dean and chapter, as in the other case; and here it is shown that the chapter will not have advantage, because it will be charged to find a chantry priest, and if he will not do anything, yet this canon will not have any part of the land, but the corporation (corporate) (has the land); and neither the release nor the death of (prebendary) T. will be relevant (ne serra purpose), nor will his goods nor chattels be put in execution by reason of any recovery against the body corporate, so this (prebendary) T. is not a party to the action, nor to have advantage or loss by this, so etc.; and if a juror had espoused the party's sister (soer), this is a good challenge, but it is no challenge that the party's son has espoused the juror's sister, because they are not parties to the action
Bryan CJCP: as to the distinction that Sjt Vavasour would have put between dean and chapter (and) mayor and commonalty, Sir, say nothing of this, because no one here can discern the distinction,
which was agreed
(Bryan CJCP, continuing:) and if a canon brings an action, or an action is brought against him by any tenant who belongs (appertient) to his prebend, it is a good challenge to say that the juror is of the pension (penc-) or under (desoubz) the distraint (of) the chapter, but it is no challenge that the juror is brother to one of the canons, because their possessions are divided and severed, and none of them is party to the other's body (corpz l' auter)
and the opinion of all the Justices was that the challenge was good, except Fairfax JKB
Choke JCP: if the juror be related (cosin) at the ninth degree to the party, if he can show how he is relative (cosin) it is a good challenge
which all agreed
Huse CJKB: in Trespass if the defendant said that the place where (the trespass was supposed) was the freehold of one B., and justifies as his (B.'s) servant and by his command, and prays aid (of B), etc. and they are at issue (as to) whether B. commanded him (defendant) or not, it is a good challenge that the juror is relative (cosin) to B. and yet he is not a party to the action
Bryan CJCP: I deny this, because if one justifies as bailiff or servant, and this is traversed, he will not have the aid (eid) etc.
Huse CJKB: I only pose (mitt-) this to prove the challenge good, and yet B. is a stranger to the writ nor has he any loss (perd-), etc. and Trin. 10 Edw. 4, fol. 12, this was held a good challenge by all the Court (1470.053ss = Trin. 10 Edw. 4, pl. 8, 47 SS 107-108)
then when the Justices had risen (leves) Sjt Vavasour said that in Praecipe quod reddat brought against an abbot for land that was of their foundation, it is a good challenge to the array (of prospective jurors) to say that the founder was a sheriff, and the array was made by him or his bailiff, for the possibility that he (the founder) would have to have (back) the lands if all the monks died (humour?, fanciful hypothetical)
and then on the morrow the judgment was given by Jenney JKB that defendant's challenge was a principal challenge; and that the first judgment will be reversed
Huse CJKB and Fairfax JKB were then present
which note |
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1481.101 = Mich. 21 Edw. 4, pl. 33, fol. 63a-63b |
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Assembly
Showing
Previously (auterfoits)
Dean
Chapter
Arraignment
Assize
Disseisin
Day
Challenge Of Juror
Juror
Person
Brother
One Of The Chapter
Justice Of Assize
Allowance
Disallowance
Bill
Making A Bill
Exception
Bill Of Exceptions
Sealing
Seal
Error
Writ Of Error
Suit
Time (foits)
Argument
Seeming
Principal Challenge
Strength (pluis fort)
Loss (perd-)
Advantage
Judgment
Death (mort)
Abatement
Writ Of Assize
Release
Bar
Proof
Intent
Stranger
Body (corps)
Corporate
Body Corporate
Bad Challenge
Distinction (diversity)
Abbot
Monk (moignes)
Good Challenge
Case
Understanding (entende)
Mayor
Commonalty
Party
Canon
Death (mortz)
Equality
Doubt
Equal Doubt
Aeque Dubium
Grant
Certainty
Thing (chose)
Grant
Forfeiture
Debt
Action
Action Of Debt
Array
Presumption (le ley entende)
Favour
Partiality (favorable)
Relative (cosin)
Godson
Godparent
Godchild
Curate
Parish
Spiritual
Spiritual Affinity
Affinity
Godship
Tenant For Life
Term Of Life
Impleading
Distraint (distr-)
Within The Distraint
Reversioner
Reversion
Parson
Church
Parson Of Church
Patron
Remainderman
Remainder
Loss (pred-)
Patronage
Impairment (empaire)
Executor
Reason
Reasonableness
Notwithstanding
Use (use)
To Another's Use
Issue
Finding
Verdict (trove)
Amercement (amercies)
Goods
Own Goods
Monk (moigne)
Prebendary
Agreement
Agreeing Well
Prior
Demand
Thing In Demand
Sustenance
Better (melior)
Worse (pejor)
Better Sustenance
Worse Sustenance
House (Of Religion)
Departure
Elsewhere (illonques)
Place (lieu)
Dead In Law (mort en ley)
Possession
Separate Possession (several)
By Himself (aperluy)
Ability
Person
Able Person
Pleasure
At His Pleasure
Presumption (presume)
Having Advantage
Charge
Finding
Chantry
Priest
Chantry Priest
Canon
Part
Corporation (corporate)
Irrelevance (ne serra purpose)
Relevance
Purpose
Ne Serra Purpose
Chattel
Putting (mises)
Putting In Execution
Execution
Espousal
Sister (soer)
Son (fits)
Speaking (parles)
Discernment
Agreement (concessit)
Pertaining (appertient)
Prebend
Pension (penc-)
Of The Pension
Under (desoubz)
Under The Distraint
Severance
Separate Possessin
Party To The Body
Opinion
Exception (praeter)
Degree
Ninth Degree
Ninth Cousin
Trespass
Freehold
Justification
Servant
Command
Aid Prayer
At Issue
Bailiff
Traverse
Aid (eid)
Folio
Holding (tenus)
Rising (leves)
Arising
Praecipe Quod Reddat
Foundation
Founder
Sheriff
Possibility
Death (devierent)
Morrow (lendemain)
Giving Judgment
First Judgment
Reversal
Presence
Note |
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