| 1491.010 |
1491 |
Exchequer, Exchequer Chamber |
Information, Error |
Information
Execution
Error
Execution
Certiorari
Supersedeas
Audita querela
Certiorari
Adjornment
Fees
Prerogative
Restitution |
all the Justices
Serjeants
Huse, William CJKB Hussey Hussy
Bryan, Thomas CJCP Brian
Morton, John LC le Chancellor
Rede, Robert Sjt
Kebell, Thomas Sjt Keble
Hobart, James AG Hobberd Attorney le Roy Hobert attourney le Roy (for P the king)
Justices of the Peace (mentioned)
Kebell, Thomas Sjt Keble Kebille
Hobart, James AG Hobberd
all the Justices (mentioned)
Morton, John LC le Chancellor (mentioned)
Kebell, Thomas Sjt Keble (for Ds?)
the Justices (of KB) (mentioned) |
Rex |
|
|
|
|
King's Council
Treasurer |
Steel Yard (Stillierd or Steleyerd), (Gildhalla Teutonicorum)
Windsor, king's council at
Common Pleas (Comon Banc)
King's Bench (Banc le Roy)
Parliament |
|
| Brooke Nonabilitie 54, Errour 147, Discontinuans de proces 33 59?, Recordare 8, Judges 17, Faux judgement 12, Proces 109, Nonsuit 63, Supersedeas 37 |
12 Hen. 4, fol. 22
9 Hen. 6, fol. 13
5 Hen. 7, fol. 3
10 Hen. 7, fol. 24 (twice)
14 Hen. 7, fol. 20
7 Hen. 6, fol. 31
22 Hen. 6, fol. 46 accord
7 Hen. 6, fol. 44
2 Hen. 7, fol. 12
5 Edw. 4, fol. 2 accord
27 Edw. 3, fol. 78
20 Edw. 3, fol. 29
4 Edw. 4, fol. 46
24 Edw. 3, fol. 29
40 Edw. 3, fol. 16 accord
7 Hen. 6, fol. 31, 47
29 Hen. 6, Fitzherbert Return de vicount 21, fol. 177v |
the statute = 31 Edw. 3 (1357), stat. 1, ch. 12 (Error from the Court of Exchequer shall be examined by the Chancellor and Treasurer 'taking to them the Justices and other sage persons') |
| En l' Eschiquer Chambre, devant Touts les Justices & Serjeants, Hussey & Brian esteant absente ove le |
46 |
An Information was made in the Exchequer for the king against defendants merchant strangers for various merchandise shipped without payment of customs.
Process continued until judgment was given against defendants foreign merchants.
Former defendants foreign merchants (now plaintiffs in error) sued a writ of Error returnable before Morton LC (the Chancellor) and the Treasurer at a certain day according to the statute of 1357.
At the return day, Morton LC (the Chancellor) and the Treasurer did not appear, and so the writ (of Error) was discontinued.
So former defendants foreign merchants (now plaintiffs in error) sued another writ of Error in the same form returnable (at another day).
The (Morton LC (the Chancellor) and the Treasurer) did not come into the Exchequer Chamber according to the statute.
The (second) writ (of Error) was also discontinued.
Former defendants foreign merchants (now plaintiffs in error) sued the third writ of Error.
One (the informer) now demanded execution for the king while the third writ of Error was pending.
Sjt Rede said that the king would not have execution until the claim of Error was determined.
Hobart AG (the King's Attorney) said for the king that 'we' ought to have execution of right.
Sjt Kebell said that every writ of Error was a stay (Supersedeas) in itself. |
Sjt Rede: Semble que le Roy n' aura execution: car le tiers brief d' Error est pendant, que est Supersedeas in luy mesme tanques l' errour soit discusse, & issint est comon use, & est melior reason a suffre deley al' party, s. al' Roy tanques l' errour soit termine, que faire execution, quel execuction peraventure sera prove mal; Et dit que si un Recordari issint in le Comitate, le Vicount n' ad puis pouvoir in le mattre; OU si brief de Faux Jugement soit agarde al Court d' un Seignior, ils n' ont pouvoir de faire ascun chose apres; Et ad este veu que l' ou un brief de Faux Jugement ad este agard al' Court d' un Seignior, & il ne voule tenir Court, un brief de Distraint ad este agarde a luy distrein a tenir s' Court, car auterment le party n' auroit s' briefe de Faux Jugement onques servi, car il covient estre servi a un Court
Hobart AG (the King's Attorney) (for P the king): Et jeo dy que nous dussions aver execution de droit, quand on ad fait s' suite, & ad un Jugement: uncore il n' ad l' effect de s' suite, mes l' execution est l' effect, &c. donq il n' est reason a delayer le plaintiff infiniment, & nul defaut in eux que l' errour n' est discusse, & quand est efaut in cesti qui suit le brief d' Error, le execution sera fait
Sjt Kebell (for Ds?): Et ceux cases furent bien agrees pur Ley, & nous sommez in mesme le cas icy; Et Sir, le party defendant n' est pas tenu a faire les Justices venir in l' Eschiquier Chambre, car le Roy est tenus a faire droit al' parties: & le Juge n' est tenu a venir al' request des plaintiffs in le brief d' Error: ne ils nesont tenus a eux donner fee, ne argent, mes ils sont appointes juges in cel' mattiere per Acte de Parliament: et issint le non venue d' eux ne poit estre ascribe le defaut in eux; Et in nul cas le non venue des Justices ne sera ascribe le defaut les parties, soit cest per jour in Assise ou auterment, les tenants (?) n' auront damage per le non venue, &c.; Et ausi in cel' cas, il est reason a deferre execution, ou auterment ils sont sans remedy; Car si l' argent soit paie au Roy, & in ces cofres, vous n' avez pouvoir de donner Jugement de restitucion, come vous poiet en le cas d' un comon person, que est grand (should add? : diversite) (MS: greindre), &c |
|
The Hanse Merchants had a staple in London; their special house was called Gildhalla Teutonicorum, or by English people the Steel Yard (Cowell, Interpreter, s.v. Hanse). John Dynham was Treasurer from 14 Jul. 1486 to 16 Jun. 1501. |
Sjt Kebell said that the party was not bound to make the Justices come into Exchequer Chamber, the king was bound to do right to the parties, the judge was not bound to come at the parties' request, nor were the parties bound to give the Justices fees or money, but an Act of Parliament appointed them judges in this matter, and the Court did not have power to force the king to make restitution of money once paid to the king and in his coffers, unlike the case of a common person (king can do no wrong, sovereign immunity principle)
on the Hanse merchants' house in London, Hemmant noted also Rot. Parl. vol 6, col. 123 (14 Edw. 4)
on customs pai to the king for import or export of merchandise, Hemmant noted 14 Edw. 3 (1340), stat. 1, ch. 21
Sjt Rede: it seems that the king will not have execution, because the third writ of Error is pending, which is a stay (Supersedeas) in itself until the (claim of) error be discussed, and so it is common usage and it is the better reasoning to permit (suffre, to suffer) delay to the party, that is, to the king, until the (claim of) error be determined (term-), to make execution, which execution perhaps will be proved bad; and (Sjt Rede) said that if a Recordari issued (issint) in the county (court), the sheriff did not then have power (jurisdiction, pouvoir) in the matter; or if a writ of False judgment be awarded to the (local) court of a lord, they (suitors) do not have power (jurisdiction, pouvoir) to do anything afterards; and it has been seen that where a writ of False judgment has been awarded to the (local) court of a lord, and he (lord) does not want to hold court, a writ of Distraint has been awarded to distrain him (lord) to hold his (local) court, because otherwise the party would not ever have his writ of False judgment served, because it ought to be served in a court (session)
Hobart AG (the King's Attorney) (for P the king) (to the contrary): and I say that 'we' ought to have execution of right: when one has made his suit and has had a judgment, yet he has not had the effect of his suit, but the execution is the effect, etc. so it is unreasonable to delay the plaintiff infinitely, and there is no fault in them (who have judgment) that the (claim of) error is not discussed, and when there is fault in him who sued the writ of Error, the execution will be made; and if a writ of Error be sued in Common Pleas returnable in King's Bench at a certain day, if the plaintiff in a writ of Error does not sue to remove the record into King's Bench, the judges can award execution notwithstanding the writ of Error; also if a writ of Error be returned at a certain day, which day is more distant, and has a longer time than is needed, in Mich. Term, in the beginning (commencement) they want to make this return in Hil. Term now the judges do not defer execution, because there there is fault (defaut) in the parties; also a Certiorari to remove an Indictment, etc. if the party does not sue to remove this, but suffers this to lie (giser), the Justices of the Peace proceed to execution
which Sjt Kebell expressly denied (negavit), and (Sjt Kebell) said that execution would not be made of a prisoner after such Certiorari for any goods, because perhaps the judgment was (for) felony in the case
Hobart AG said that those cases were agreed as good law by all the Justices being assembled for this matter, and so inasmuch as it appears that this was the third writ of Error, etc. and Morton LC the Chancellor and the Treasurer not coming here was fault (defaut), etc.
Sjt Kebell (to the contrary): because I understand that every writ of Error is a stay (Supersedeas) in itself; and so it is in Audita querela sued by the party; and so the Certiorari put by you yourself (Hobart AG (for the king)), they have a stay (Supersedeas) in law to execute, and there is no distinction (diversite) between this Supersedeas and a Supersedeas that expresses the command, etc.; and if one be nonsuited in a writ of Error or in Audita querela once, he will never have Supersedeas (stay) or Audita Querela to be a Supersedeas (stay) to him, but afterwards he will have the writs, and the execution will not cease, but there fault appears expressly in him (who nonsuited), but it is not so here; because if it be thus that a writ of Error be sued, and this returned in King's Bench, and at this day the writ (of Error) is discontinued by demise of the king, or by nonappearance of the Justices (of KB), or the party defendant dies, etc. the party will have another writ of Error, and this writ will be a stay (Supersedeas) to him, or if the Term be adjourned, etc.; and those cases were well agreed as law, and 'we' (defendants foreign merchants?) are in the same case here; and Sir, the party defendant is not held to make the Justices (Chancellor and Treasurer) come into the Exchequer Chamber, because the king is held to doright to the parties: and the judge is not bound to come at the request of the plaintiff in the writ of Error, nor are they bound (tenus) to give them a fee, nor money (argent), but they are appointed judges in this matter by Act of Parliament, and so the their (Chancellor's and Treasurer's) nonappearance cannot be ascribed to the defendant; and in no case will the nonappearance of the judges be ascribed to the parties' fault, be this by (giving) day in Assize, or otherwise, the tenants (defendants) will not have damage by the nonappearance (of the Justices), etc.; and also in this case, it is reasonable to defer execution, or otherwise they are without remedy; because if money (argent) be paid to the king, and in his coffers (cofres), you (the Court) do not have jurisdiction (pouvoir, power) to give judgment of restitution, as you (the Court) can in the case of a common person, which is important (grande) (distinction?), etc.
similar matter in 1493.010 = Pasch. 8 Hen. 7, pl. 7, fol. 13a |
| BL MS Hargrave 105 |
|
1491.010 = Hil. 6 Hen. 7, pl. 9, fol. 15b-16b
Brooke Recordare 8, fol. 191r, identified Rede, Justice, not appointed JKB until 24 Nov. 1495, not CJCP until 26 Nov. 1506; identified Hobbard AG, Sjt Kebil
Brooke Supersedeas 37, fol. 251v, identified Hobarde AG |
|
| M. Hemmant, ed. Select Cases in the Exchequer Chamber, 64 SS 158-160 (1945) (case 46) (Error in the Exchequer) |
Serjeant
Being
Absence
King
With The King
Council
King's Council
Case
Information
For The King
Making Information
Merchant
Stranger
Merchant Stranger
Steel Yard
Steel
Yard
Merchandise
Shipping (eschippes)
Customs
Uncustomed
Process
Continuation
Judgment
Until Judgment
Giving Judgment
Suit
Writ Of Error
Error
Return
Returnable
Chancellor
Treasurer
Certainty
Day
Accordingly
Statute
Return Day
Nonappearance
Discontinuance
Discontinuation
Form
Same Form
Third Writ
Demand
Execution
Execution For The King
Pending The Writ
Seeming
Supersedeas
Discussion
Usage (use)
Common Usage
Reasoning
Reason
Better Reasoning
Sufferance
Delay
Party
Delay To The King
Term
Perhaps (peradventure)
Proof
Bad Execution
Recordari
County (Comitate)
County Court
Sheriff
Power (pouvoir)
Jurisdiction
Matter
Falsehood
False Judgment
Writ Of False Judgment
Award
Lord
Lord's Court
Local Court
Anything
Sight (veu)
Holding Court
Distraint
Writ Of Distraint
Distraining
Otherwise
Service Of Writ
Attorney
King's Attorney
Contrary
Right
Execution Of Right
Doing Suit
Effect Of Suit
Unreasonable
Reasonableness
Delay
Infinity
Infinite Delay
Fault (defaut)
Common Pleas
King's Bench
Removal (remuer)
Record
Removal Of Record
Judge
Award Of Execution
Notwithstanding
Distance
Distant Day
(Future)
Length
Long Time
Need (besongne)
Term
Commencement
Beginning
Making Return
Deferring
Deferring Execution
Party's Fault
Certiorari
Indictment
Removal Of Indictment
Laying (giser)
Peace
Justice Of The Peace
Proceeding
Expression
Express Denial
Denial (negavit)
Prison
Prisoner
Goods
Execution Of Goods
Felony
Agreement
Good Law
Assembly
Assembling
Appearance
Understanding
Supersedeas
Stay (Supersedeas)
Audita Querela
Putting (mis)
Distinction (diversite)
Command
Express Command
Nonsuit
Once
Never
Supersedeas In Law
Cessationn
Ceasing
Ceasing Execution
Express Fault
Demise
Demise Of The King
Death Of The King
Nonappearance (non venue)
Death (morust)
Adjournment
Adjournment Of Term
Good Agreement
Binding (tenus)
Doing Right
Fee
Giving Fee
Money (argent)
Bribe?
Appointment
Appointment Of Judge
Act
Parliament
Act Of Parliament
Ascribing
In Assize
Day In Assize
Otherwise
Damage
Without Remedy
Payment
Payment To The King
Coffers (cofres)
(Treasury)
Restitution
Person
Common Person |
|
