| 1482.114 |
1482 |
King's Bench |
Appeal of Robbery |
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| Pasch. or Trin. |
22 |
Edw. 4 |
46 |
19b-20a |
Sulyard, John Sjt Suliard (for D)
Lovell, Thomas Lovel Apprentice (for P)
J., a Justice? (mentioned)
Sulyard, John Sjt Suliard
Fairfax, Guy JKB Fairefax
Lovell, Thomas Lovel
Fairfax, Guy JKB Fairefax
Jay, Richard Jay Apprentice
Fairfax, Guy JKB Fairefax
Lovell, Thomas Lovel
Fairfax, Guy JKB Fairefax
Huse, William CJKB Hussey
Huse, William CJKB Hussey |
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Vernay, John, steward
at S., J., coroner |
K., in Barkensted' honour
Barkensted', honour of |
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| Brooke Appeal 114, Battaille 7 (not 17), Propertie 34, Inditements 46, Continuance 51, Travers 273 |
Prior proceeding fol. 12?
Appeal, plaintiff imparled, possibly 1481.124 = Mich. 21 Edw. 4, pl. 56, fol. 71a-72b
Stamford, Plees del Coron 96
ante fol. 12
20 Edw. 4, fol. 6
10 Edw. 4, fol. 15
26 Hen. 8, fol. 4
10 Hen. 7, fol. 28
20 Hen. 7, fol. 2
4 Edw. 3, Lib. Ass. pl. 1
Stanford, Plees del Coron 179
1 Edw. 3, fol. 17
Stanford, Plees del Coron 180? a |
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| Un Appeal de Robbery fuit sue en Bank le Roy envers W. Whitewood, & le plaintiff counta |
55 |
Plaintiff counted that defendant on 1 May with force and arms, that is, bows, arrows, etc. feloniously took a 'lokil de correy', priced 4 pence and (took) 16 shillings, against the peace.
Defendant pleaded, by a Serjeant, as to any felony committed in the manner and form as plaintiff had counted, not guilty, ready by defendant's body (wager of battle).
Plaintiff prayed, by an Apprentice, that defendant be ousted from (trial by) battle, because on such a day and year before (a court) defendant was indicted of the robbery, which Indictment was here in the Court, and plaintiff pleaded that against this matter defendant ought not wage battle.
Defendant prayed reading (loy) of the Indictment.
The Indictment was read, and stated that the Indictment was taken before a steward.
Fairfax JKB said that the Indictment was void because the steward's court was not named, but the Appeal was good.
Plaintiff, by the Apprentice, prayed that plaintiff could imparl.
Fairfax JKB said that this was unreasonable, because the defendant had pleaded a plea that has put his life in jeopardy, so it was reasonable that plaintiff reply or otherwise to dismiss defendant out of Court.
Another Apprentice said imparlment by a plaintiff in an Appeal had been seen recently.
Fairfax JKB said it was unreasonable and told plaintiff to advise himself while the Court was sitting (sedente Curia).
Plaintiff did so.
Plainiff then appeared, said that defendant ought not wage battle, and replied that immediately after the felony was committed, plaintiff made fresh suit and hue and cry until plaintiff found defendant, and pursued defendant until to this Court, and arrested (prestomus) defendant, and had from defendant 30 pence part of the sum of 16 shillings (taken), and plaintiff put this (30 pence) in Court, and demanded judgment if against this matter defendant would be received to wage battle.
Fairfax JKB said that this matter was insufficient to oust defendant (from wager of battle) because plaintiff put here money (argent) to oust defendant (from trial by battle), but it would be more strongly presumed now that it was plaintiff's own money, than (that it was) from defendant's robbery of plaintiff, and Fairfax JKB told plaintiff that plaintiff ought not show this to the Court, but plaintiff should have said that plaintiff took defendant with the mainour (ove le man-) (with stolen goods, redhanded), which was not traversable.
Huse CJKB said that plaintiff's reply was sufficient matter to oust defendant from battle, and mainour (stolen goods taken with defendant) was not traversable, and plaintiff's showing of the mainour to the Court did not aggrieve plaintiff.
More was said of this, but the reporter was absent.
The opinion was that plaintiff's reply was a sufficient matter to oust defendant from wager of battle.
Huse CJKB said that there was another matter shown that was (also) sufficient to oust defendant from wager of battle, which was that plaintiff was 60 years old, when the law would presume that plaintiff lacked power and sufficient strength to wage battle, so Huse CJKB told defendant (appellee) to be well advised.
It was adjourned. |
(for P:) ovesque force & armes .s. arches (= bows) sets (= arrows) seis, &c. un lokil de correy (= perhaps locket d' or? gold locket?) price iiii. d. & xvi. s. de loial argent felonice prist, &c. & encontre le peace, &c.
Sjt Sulyard (for D) dit, que quant a ascun felony fait en le manner & forme, &c. come le plaintiff ad count, de rien culpable, prist per nostre corps
Lovell (for P): nous priomus quel soit ouste de battail, car tiel jour & an devant J. &c. il fuit endite de le Robberie le quel enditement est icy en le Court, & demande judgement si eonctre cest matter, &c il doit gager battail
Sjt Sulyard (for D): Nous priomus loy de enditement,
& fuit lie le quel fuit en tiel manner: 'Inquisic- capta x. die Maii, Anno, &c. apud' K. le quel K. fuit parcel de honor de Barkensted' 'coram John- Vernay Seneschallo, qui dicutn super sacramentum suum quod' W. Whitewood & tout accordant al appeal, &c.
Fairfax JKB: Cest enditement n' est pas sufficient, car come appere l' enditement est 'Inquisit- capta, &c. coram John- Vernay Seneschallo', & il n' est expresse a que il est Seneschal, n' en quel Court le inquisicion fuit prise; Et en cest case come si un inquisicion fuit prist devant J. at S. 'coronatore' 'tamen', & ne dit de quel County il est Coroner, l' enditement est void, & pur ceo issint en cel case, & l' appeal est bon & l' enditement void
Lovell (for P): Nous priomus que poiomus emparle
Fairfax JKB: Ceo serroit enconter reason, car le defendant ad plede un plee per quel il ad mise son vie en jeopardie, pur quel est reason que le plaintiff replie ou auterment purra dimitte le defendant hors de Court
Jay: il ad est vieu devant ses heures que le plaintiff en appeal ad emparle al plee le defendant
Fairfax JKB: Il fuit le pluis enconter reason, per que vous plaintiff soies advises 'sedente Curia'
& issint il fist
Et puis vient Lovell, & dit quel ne doit gager batail, car nous disomus que maintenant apres felony fait, nous fesomus fresh suit & hue & crie, &c. tanque nous luy trovomus, & pursue luy tanque a cel Court, & prestomus luy, & avous de luy xxx. d. parcel de mesme la summe de xvi. s. & mitta cest en Court, & demande judgement si enconter cel matter il serra resceu pur gagera battaile
Fairfax JKB: Cest matter n' est pas sufficient moy semble pur luy ouste car vous mittes cy argent pur luy oustre, & un denier ne poit estre scie de auter denier, & pluis fort serra entendu ore que fuit de vostre argent demesne, que de cel; Et auxi si fuit un sufficient matter, vous ne covient de monstre cest al Court, mes purra dire que vous luy prestes ove le man- (mainour), le quel n' est my traversable
Huse CJKB: Semble que cest fuit sufficient matter pur luy oustre, car est dit en nostre livers (= our books, Year Books) un sufficient matter pur luy oustre de battel, dire quel fuit prise ove man- (mainour), le quel n' est pas traversable, donques si cest soit bon plee, & nemy traversable, donques le monstrance de cest ne faire le plee le pluis male, & le man- (mainour) n' est pas traversable, car donques ensueroit ii. issues, un quel voile dire que le man- (mainour) fuit son proper biens, & nemy les biens le plaintiff, & si cest fuit trove l' un voy ou l' auter uncore il covient respondre oustre al felony, & cest serroit trie, & issint ii. issues; Et issint moy semble que entant que il ust est bon matter sans le monstrans de cest moy semble que le monstrans ne grevera luy,
& pluis de cel fait parle a quel jeo fui absent, mes le opinion fuit, que fuit un sufficient matter
Et Huse CJKB dit auxi, que est un auter matter monstre le quel moy semble un sufficient matter pur luy oustre de la battel, & ceo est que le plaintiff est maime, & jeo scie bien que est dit en nostre livers (= our books, Year Books), si le plaintiff soit maime per le appellee, donques il ne gagera battel, mes certes come moy semble ove reason que coment que il ne fuit maime per le appellee, mes per un auter s' il soit maime, donques il est reason que le appellee soit ouste de battail, car le ley n' est cy un reasonable que il voile luy gager battail, lou il est maime & ne poit pugne, issint moy semble en cest case il est reason quel soit ouste de battel; Et auxi il appiert devant nous que le plaintiff est del age de lx. ans, & jeo entende que le ley est si le appellant soit deins age, que donques le defendant ne gagera battel vers luy, & le cause est pur ceo que le ley ne poit entende que un enfant deins age n' ad poiar sufficient pur luy aider; Et mesme le reason moy semble est de home que est pas l' age, issint quel soit d' age de lx. ans ou pluis, en quel case le ley bien entende que il n' ad poiar ne strength sufficient, pur que vous appelle soies bien avises,
& adjorne, &c. |
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Thomas Lovell was an Apprentice (Baker, Readers and Readings, p. 109). Richard Jay was created Serjeant in 1486. |
Fairfax JKB: this indictment is insufficient, because as appears the Indictment is 'inquest taken, etc. before John Vernay, Steward', and it does not express to what he is steward, nor in which court the inquest was taken; and in this case as if an inquest was taken before J. at S. coroner, and does not say in which county he is coroner, the indictment is void, and so thus in this case, and the appeal is good and the indictment void
Lovell (for P): we pray that we can imparl
Fairfax JKB: this would be unreasonable, because the defendant has pleaded a plea by which he (defendant) has put his life in jeopardy (at risk), so it is reasonable that the plaintiff reply or otherwise (we) could dismiss the defendant out of Court
Jay: it has been seen recently that the plaintiff in an Appeal has imparled to the defendant's plea (possibly 1481.124 = Mich. 21 Edw. 4, pl. 56, fol. 71a-72b)
Fairfax JKB: it was the more unreasonable (precedent not followed), so you, plaintiff, be advised 'while the Court is sitting' (sedente Curia)
and plaintiff did so
and then Lovell (for P) appeared and said that he (defendant) ought not wage battle, because we say that immediately after the felony was committed, we made fresh suit and hue and cry until we found him (defendant), and pursued him (defendant) until to this Court, and arrested (prestomus) him (defendant), and have from him (defendant) 30 pence (= 2 shillings 6 pence) part of the sum of 16 shillings, and (plaintiff) put this (30 pence) in Court, and demanded judgment if against this matter he (defendant) would be received to wage battle
Fairfax JKB: this matter is insufficient, as it seems to me, to oust him (defendant) (from wager of battle) because you (plaintiff) put here money (argent) to oust him (defendant), and a penny cannot be known from another penny (fungible), and it will be more strongly presumed now that it was your (plaintiff's) own money, than (that it was) from this (defendant's robbery of plaintiff); and also if it was a sufficient matter, you ought not show this to the Court (as a reply, but it could be said that you took him with the mainour (ove le man-) (with stolen goods, redhanded), which is not traversable
Huse CJKB: it seems that this was sufficient matter to oust him (defendant) (from trial by battle), because it was said in our book (nostre livers, Year Books) (that) a sufficient matter to oust him (defendant) from battle (is) to say that he (defendant) was taken with mainour (stolen goods, man-), which is not traversable (1319.045ss = Hil. 12 Edw. 2, pl. 45 (a), 70 SS 92 and 1412.030abr = Hil. 13 Hen. 4, Statham Corone 96, pl. 59r and 1449.072abr = Mich. 28 Hen. 6, Statham Corone 56, fol. 58r), so if this be a good plea, and not traversable, then the showing of this does not make the plea worse (le pluis male), and the mainour (stolen goods, man-) is not traversable, because then two issues would ensue (double pleading), one that he (defendant) would rejoin (dire) that the mainour was his own goods, and not the plaintiff's goods, and if this was found the one way or the other yet he (defendant) ought to answer over to the felony, and this would be tried, and so two issues; and so it seems to me that inasmuch as it has been good matter without the showing of this (mainour) this seems to me that the showing (by plaintiff) will not aggrieve him (plaintiff)
and more was said of this, to which I (reporter) was absent, but the opinion was that it was a sufficient matter
and Huse CJKB said also, that there is another matter shown that it seems to me (is) a sufficient matter to oust him (defendant) from the battle, and this is that the plaintiff is maimed (judicial notice?), and I know well that it is said in our books (nostre livers, Year Books) (that) if the plaintiff be maimed by the appellee (defendant), then he (defendant) will not wage battle (1412.030abr = Hil. 13 Hen. 4, Statham Corone 96, pl. 59r), but certainly, as it seems to me with reason that even though he (plaintiff) was not maimed by the appellee (defendant), but (plaintiff was maimed) by another if he (plaintiff) be maimed, then it is reasonable that the appellee (defendant) be ousted from battle, because the law is not so unreasonable that he (defendant) would wage battle (against) him (defendant), where he (plaintiff) is maimed and cannot fight (pugne), so it seems to me in this case it is reasonable that he (defendant) be ousted from battle; and also it appears before us (judicial notice) that the plaintiff is of the age of 60 year, and I understand that the law is (that) if the appellant (plaintiff) be within age (infant), then the defendant will not wage battle against him (infant plaintiff), and the cause is because the law cannot presume (le ley ne poit entende) that an infant within age has sufficient power to aid himself; and it is the same reason, it seems to me, for one who is past the age (of fighting), so when he (plaintiff) be of the age of 60 years or more, in which case the law well presumes (le ley bien entende) that he does not have power nor sufficient strength, so you, appellee (defendant), be well advised |
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1482.114 = Pasch. or Trin. 22 Edw. 4, pl. 46, fol. 19b-20a, per Huse CJKB it was said in our book (nostre livers, Year Books) (that) a sufficient matter to oust him (defendant) from battle (is) to say that he (defendant) was taken with mainour (stolen goods, man-), which is not traversable |
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Appeal
Robbery
Suit
Count
Day
Year
With Force And Arms
Vi & Armis
Vi Et Armis
Force
Arms
Bow
Arrow
Seis
Lokil
Correy
Price
Lawfulness (loial)
Money (argent)
Lawful Money
Felony
Feloniously
Taking (prist)
Against The Peace
Peace
Manner
Form
Not Guilty
Rien Culpable
Ready By Our Body
Body (corps)
Apprentice
Ouster
Battle
Ouster From Battle
(Trial By Battle)
Indictment
Demand
Judgment
Matter
Against This Matter
Wager
Wager Of Battle
Reading (loy)
Inquisition
Inquest
Inquiry
Parcel
Honour
Coram
Steward (Seneschallo)
Oath (sacramentum)
On Oath
Accord
Accordingly
Insufficiency
Appearance
Expression
Local Court
Case
Coroner (coronatore)
Tamen
Only
County
Voidance
Void Indictment
Good Appeal
Imparlment
Unreasonable
Against Reason
Reason
Pleading
Plea
Putting (mise)
Life
Jeopardy
Risk (jeopardie)
Reasonableness
Reply
Otherwise
Dismissal
Out Of Court
Sight (vieu)
Recently (devant ses heures)
Advice
Sitting
Sedente Curia
Appearance
Immediacy (maintenant)
Fresh Suit
Making Fresh Suit
Hue And Cry
Finding
Pursuit
Arrest (prestomus)
Parcel
Sum
Receipt
Insufficient Matter
Money (argent)
Penny (un denier)
Knowledge (scie)
Ignorance
(Fungible)
Strength (fort)
Presumption (entende)
Own Money
Showing
Taking With The Mainour
Mainour
(Stolen Goods)
(Red-Handed)
Traverse
Traversable
Not Traversable
Seeming
Book (livers)
Our Books
Year Books
Ouster From Battle
Good Plea
Showing (monstrance)
Worse (le pluis male)
Worse Plea
Bad Plea
Ensue
Two Issues
Double Pleading
Goods
Own Goods
Way (voy)
Answer
Answer Over
Trial
Inasmuch As
Good Matter
Grievance
Aggreived
Speaking (parle)
Absence
Opinion
Maiming
Mayhem
Knowing Well
Certainty
Appellee
Reasonable Law
Fighting (pugne)
Age
Sixty Years Old
Appellant
Within Age
Infancy
Infant
Cause
Presumption (le ley entende)
Power (poiar)
Aid
Past The Age
Old Age
Strength
Sufficient Strength
Advice
Adjournment
Folio |
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