| 1491.014 |
1491 |
King's Bench |
Indictment (of felony) |
Accompt
Extortion
Quaere
Leet |
Kebell, Thomas Sjt Keble (for D?)
Wode, Thomas King's Sjt Wood (for P the king?)
Kebell, Thomas Sjt Keble
Fairfax, Guy JKB
Fyneux, John King's Sjt Fineux
Tremayle, Thomas JKB Tremaile
Kebell, Thomas Sjt Keble |
Rex |
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Exchequer (l' Eschiquier) |
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| Brooke Inditementes 27, Lete 21 |
Mich. 38 Hen. 6, xxxviij Henrici vj, 1459.070 = Mich. 38 Hen. 6, pl. 16, fol. 7a, Fitzherbert Tourne de vicount 2, fol. 222r
44 Edw. 3, fol. 23 (previous plea?)
40 Edw. 3, fol. 48 (previous plea?)
22 Hen. 6, fol. 21 (previous plea?)
33 Hen. 6, fol. 36 (previous plea?)
30 Edw. 3, Lib. Ass. pl. 43
39 Hen. 6, fol. 44
38 Hen. 6, fol. 7 |
31 Edw. 3 (1357), stat. 1, ch. 15 (not 14) (the sheriff's tourn shall be held one time within the month after Easter and another time within the month after Michaelmas, and if they hold them in other manner, that they they shall lose their Tourn for the time) (provides 'that the sheriff will hold his Tourns two months in the year, and shows which, and says further 'that if he (sheriff) holds (his Tourn) at another time, he will lose he Tourn for the time')
Magna Carta (1297), ch. 35 (nor any sheriff or his bailiff shall keep his Tourn in the hundred but twice in the year) |
| Un home fuit endite devant le Vicount en son Tourne iv jours puis le Mois apres Pasche, & |
59 |
Defendant was indicted before the sheriff in his Tourn four days after the month after Easter (perhaps Sat. 7 May 1491 or Sat. 15 May 1490).
(Defendant pleaded that this Indictment was void.)
Whether this Indictment was void or not was the matter (in dispute).
Sjt Kebell argued that the Indictment was void because the sheriff held his Tourn outside o f the two months permitted by a statute of 1357, so the sheriff had lost his Tourn.
King's Sjt Wode argued that the Indictment was good because the statute only deprived the sheriff of his fines, amercements, and other profits of his Tourn, and did not deprive the king of the punishment of felony.
Sjt Kebell argued that either the 1357 statute or the Indictment was bad.
Fairfax JKB and Sjt Fyneux said that the Indictment was not void.
Tremayle JKB said that the Indictment was void. |
Sjt Kebell (for D?): Me semble que ceo fuit void: car le Statut de Anno 31 Edw. 3 capitulo 15 (not 14) fuit fait per 'l' eas de people', s. que ils ne seront troubles in temps de Quadragesime, mes que ils poient attendre les prieres & service de Dieu, & in Aoust que ils ne seront troubles de lour harvest; Et l' estatut est, que il perdra son Tourne, donq il ne poit aver Tourne, & 'ex consequenti' l' Enditement est void
King's Sjt Wode (for P the king?): Car coment que le Statut est, 'que le Vicount perdra son Tourne', ceo n' est forsque de cest qui append a luy s. fines & amerciments: mes coment que le Viconte perdra son Tourne, uncore cest qui est presente pur Roy est bon; Et icy le Vicount n' ad rien; car ceo est pur le Roy, s. le punition de cest felon-, & a luy attient, & nemy al' Vicount: purque le Statut sera observe pur Viconte, il perdra son Tourne de ceux choses que appenent a luy, mes de ceux choses que appenent au Roy, il ne perdra, s. le felon-, car ceo n' est son Tourne mes pur le Roy; Car le Vicount sera charge per le ('ab antiquo') use, que il accompte a un summe certain 'de proficuis Comitate', & sera charge in l' Eschiquier per cest summe per son accompt, & n' ad rien estre leve de cest mes les profits de son Tourne, s. fines & amerciments, & auters choses: purque coment que il perdra cest per le Statut de choses que appenent a luy, uncore de cest que n' attient a luy, ne de ceo que il ne poit aver ascun profit, mes que attient au Roy cest serra bon, donq icy le felony n' est ascun avantage al' Vicount, mes le Roy aura le punition, pur quel cause pur cest felony le presentment est bon
Sjt Kebell (for D?): Sir, le Roy ad le Tourne, & nemy le Vicount: car le Vicount n' ad le Court, mes solement le Roy, & le Vicount est officer, & pur Ley l' Roy aura touts le profits del' Court, & le Court est au Roy & nemy al' Vicount: mes coment que il sera charge d' accompte de un sum certein 'de proficuis Comitate', coment que il n' ad rien, & pur ceo il use a prendre les profits, ceo ne prove que le Court, s le Tourne est al' Vicount, car cest charge n' est forsque de mal usage, & face le Vicount extortioner; Et issint in mon conceit, le Tourne est le Court le Roy, & les profits auxi, & nemy al' Vicount: & donq le Statut est void, sinon que le presentment soit void; & 'ex consequenti' le presentment void
Fairfax JKB and King's Sjt Fyneux: Et al' Common Ley le Vicount purront aver tenu auxy tants des Tournes come luy plaist: & pur ceo que il aura mults Tournes, les queux furent tenus suffisants in un an, mes donq use le Vicount a tenir eux quand luy plaist, & donq sovent fois fuit tenu in le grand 'disease d' people', s. inn le temps del' priere, & quand le 'people' disont lour prieres in Quadragesima, & in Aoust en temps de harvest, pur quel cause le Statut de Anno 31 Edw. 3 fuit ordeine: Et ceux que font le Statut s' ils entendre que le Tourne sera void tenu dehors le temps assigne de chose que n' est al' Viconte, le Statut sera, que le Tourne tenu a auter temps sera void: car ceo est auxi brevement parle come que le Vicont perdra s' Tourne, & ceo sera void quant a luy, & nemy quant au Roy
Tremayle JKB: Car le Tourne est al' Vicouunt & s' Court, & nemy le Court le Roy; Et come ad estre rehearse, le Vicount aura les amerciments, fines, & auters choses, il n' ad ascun auter chose de lever sa grandesumme que chescun Vicount est charge sur son accompt, sinon de cest Court: & issint coment on serra arraigne des enditements devant le Vicount sera un bon enditement, uncore ceo ne prove pas que le Court est al' Roy; Car on poit aver un Leet, & cest Court est al' party, & nemy al' Roy, & uncore les enditements sont la, & le Roy eux punira: & issint des auters Courts sembles, mes le Vicount ad cest Court per s' charge, donques s' il soit le Court le Vicount, cest inditement est void, pur ceo que le Statut est, le Viconte perdra son Tourne; Et come Sjt Kebell ad dit, in xxxviij Henrici vj on fuit endite in un Tourne de Robbery, & le Tourne fuit tenu 'ultra Mensem', & la adjuge que l' enditement fuit void |
counsel defendant in indictment?,
Sjt Kebell and Tremayle JKB spoke for defendant's position (indictment void); King's Sjt Wode, Fairfax JKB, and King's Sjt Fyneux spoke for the king's position
Sjt Kebell: it seems to me that this was void, because the statute of 31 Edw. 3 (1357), stat. 1, ch. 15 (not 14) was made for the ease of the people, that is, that they will not be troubled in Lent (temps de Quadragisme), but that they can attend to the prayers and service of God, and in August (Aoust) that they will not be troubled in (de) their harvest; and so the statute provides (c-) 'that the sheriff will hold his Tourns two months in the year, and shows which, and says further 'that if he (sheriff) holds (his Tourn) at another time, he will lose he Tourn for the time', so if he (sheriff) will lose his Tourn, the presentment (indictment) is void, because the presentment cannot be good, if he (sheriff) has no Tourn; and the statute is 'that he will lose his Tourn', so he cannot have a Tourn, and consequently (ex consequenti) the Indictment is void
King's Sjt Wode (to the contrary): because even though the statute (31 Edw. 3 (1357), stat. 1, ch. 15) is that the sheriff will lose his Tourn, this is only (that the sheriff will lose) what belongs (append, pertain) to him, that is, fines and amercements, but even though the sheriff will lose his Tourn, yet what is presented for the king is good; and here the sheriff has nothing, because this is for the king, that is, the punishment of this felony, and belongs (atteint, pertains) to him (king), and not to the sheriff, so the statute will be observed by the sheriff, he will lose his Tourn of those things that belong (appenent, pertain) to him, but of those things that belong (appenent, pertain) to the king, he will not lose, that is, the felony, because this is not his (sheriff's) Tourn but the king's; because the sheriff will charge by the usage, as of old (ab antiquo), that he will account for a sum certain 'of profits of the county', and (the sheriff) will be charged in the Exchequer for a certain sum by his accounting, and had nothing to be levied for this but the profits of his Tourn, that is, the fines and amercement, and other things, so even though he (sheriff) loses this by the statute from things that belong to him, yet for what does not belong (n' appent, not pertain) to him (sheriff), nor from that from which he can have no profit, but what belongs (attient, pertains) to the king this will be good, so here the felony is not any advantage to the sheriff, but the king will have the punishment, for which cause for this felony the presentment (Indictment) is good; so etc.
Sjt Kebell (to the contrary): and as to what is said, that the sheriff will lose his Tourn, that is, the things that belong (appenent, pertain) to him (sheriff), so he will lose his Tourn, and what is to the king would be good, Sir, the king has the Tourn, and not the sheriff, because the sheriff does not have the (local) court, but solely the king, and the sheriff is an officer, and by the law the king will have all the profits of the (local) court, and the court is to the king and not to the sheriff, but even though he (sheriff) will be charged to account for a sum certain of 'profits of the county' (de proficuis Comitate), even though he has nothing, and so he (sheriff) used to take the profits, (but) this does not prove that the (local) court, that is, the Tourn is the sheriff's, because this charge is only a bad usage (mal usage), & makes the sheriff an extortioner; and so to my thinking (conceit), the Tourn is the king's court, and the profits also, and so the statue is void, unless the presentment (Indictment) be void, because the statute is, 'the sheriff will lose his Tourn for the time,' and this will be interpreted (pris) and construed that the Tourn will be lost, which is the king's, because the sheriff has no Tourn, and so the Indictment is void, because this Tourn is a nullity (est nul), and consequently (ex consequenti) the presentment (Indictment) (is) void; note Mich. 38 Hen. 6 (1459.070 = Mich. 38 Hen. 6, pl. 16, fol. 7a) it was adjudged that it (Indictment) was void
Fairfax JKB and King's Sjt Fyneux (to the contrary): and at common law the sheriff could have held as many Tourns as he pleased (plaist), and because he (sheriff) would have many Tourns to the people's trouble and discomfort (disease) Magna Carta (1297), ch. 35 (gave) a remedy, and so he (sheriff will have only two Tourns , which were held sufficient in a year, but then the sheriff's used to hold them (Tourns) when he pleased (plaist), and so oftentimes they were held in the grave discomfort (grand disease) of people, that is, in the times of prayer, and when the people said their prayers in Lent (Quadragesima), and in August (Aoust) in times of harvest, for which cause the statute of 31 Edw. 3 (1357), stat. 1, ch. 15 was ordained, that the sheriff will hold his Tourn in the month of the feast of Easter, and the statute said, if he (sheriff) hold (Tourn) in another time the sheriff will lose his Tourn, so this will be interpreted (pris) as to the things that the sheriff had, that is, amercements and fines, and various things
query the certainty of them
(Fairfax JKB and King's Sjt Fyneux, continuing:) and as to (de) such things the Tourn will not be good, but the things that do not belong (attient, pertain) to him (sheriff), but to the king, the Tourn will be good, and as to felony (felon) the sheriff has nothing (to do) nor any profit, and because the felon is the king's and no profit to the sheriff, the presentment (Indictment) is not void, but good; and those who made the statute if they understood (entendrent) that the Tourn would be void held outside the time assigned for a thing that is not the sheriff's, the statute would be tha tthe Tourn held at another time would be void, becuse this is as briefly spoken as that the sheriff will lose his Tourn, and this Tourn will be void as to him (the sheriff) and not as to the king; so etc.
Tremayle JKB (to the contrary): because the Tourn is the sheriff's and is his (local) court, and not the king's court; and as has been rehearsed, the sheriff will have the amercements, fines, and other things, he (sheriff) does not have any other thing to levy his large sum, (for) which each sheriff is charged on his accounting (account), except from this (local) court: and so as one will be arraigned for indictments before the sheriff on a good Indictment, yet this does not prove that the (local) court is the king's; because one can have a Leet, and this (local) court is the party's, and not the king's, and yet there are indictments there, and the king will punish them (indicted felons), and so of other similar (local) courts, but the sheriff has this (local) court by his charge, so if it be the sheriff's (local) court, this Indictment is void, because the statute (31 Edw. 3 (1357), stat. 1, ch. 15) is 'the sheriff will lose his Tourn'; and so he (sheriff) cannot have another Tourn at another time, by which cause thus another Tourn held at another time is void, and so he cannot have a Tourn: 'Ergo' the presentment (Indictment) (is) void; as if the statute had been that one who has a Leet will be held in the same form (two certain months), and if the lord held (the Leet) in another form, he will lose his Leet, in this case if a Leet be held at another time, and one (defendant) is indicted in this Leet, this Indictment is not good, but is void, even though the king will punish this (felony), not the lord; and as Sjt Kebell has said, in 38 Hen. 6 (1459.070 = Mich. 38 Hen. 6, pl. 16, fol. 7a) one was indicted in a Tourn for robbery, and the Tourn was held 'outside of the month', and there it was adjudged that the Indictment was void; so etc. |
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1491.014 = Pasch. 6 Hen. 7, pl. 4, fol. 2a-3a, per Tremayle JKB: Sjt Kebell has said, in 38 Hen. 6 one was indicted in a Tourn for robbery, and the Tourn was held 'outside of the month', and there it was adjudged that the Indictment was void |
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Indictment
Sheriff
Before The Sheriff
Tourn
Sheriff's Tourn
Day
Month
Voidance
Void Indictment
Matter
Seeming
Statute
Year
Chapter
Making Statute
Ease
People
People's Ease
Trouble
Troubling
Time
Lent (Quadragesime)
Attending
Attention
Prayer (prieres)
Service
God
Service To God
August
Harvest
Holding Court
Holding Tourn
Twice
Twice In The Year
Showing
Showing When
Further (oustre)
Time
Other Time
Loss (perdra)
Losing His Tourn
Loss Of Tourn
For The Time
Presentment
Void Presentment
Good Presentment
Bad Presentment
Consequence
Ex Consequenti
Contrary
Belonging (append, attient)
Pertaining (append, attient)
Fine
Amercement
Presentment For The King
Nothing
Punishment (punition)
Felon
Felony
Charge
Of Old
Ab Antiquo
Usage (use)
Account
Accounting
Sum
Certainty
Certain Sum
Profits
County
County Court
Profits Of The County
De Proficuis Comitate
Exchequer
Charged In The Exchequer
By His Account
Levying
Raising (leve)
Profits Of Tourn
Thing (choses)
Advantage
Cause
King's Tourn
Solely
Officer
By Law
Profits Of Cocurt
Taking Profits
Proof
Bad Usage (mal usage)
Extortion
Extortioner
Thinking (conceit)
Notion (conceit)
King's Court
Void Statute
Interpretation (pris)
Construction
Statutory Interpretation
Statutory Construction
Nullity (nul)
Annulment
Note
adjudging
Common Law
At Common Law
Pleasure (plaist)
Pleasing
Discomfort (disease)
Magna Carta
Charter
Remedy
Sufficiency
Oftentimes
Cause Of The Statute
Ordinance
Ordaining
Month (memsem)
Feast
Easter
Query
Good Tourn
Understanding (entendre)
Void Tourn
Outside The Time Assigned
Assignment
Brevity
Speaking
Few Words
Rehearsal
Large Sum
Arraignment
Good Indictment
Leet
Party
Local Court
Similarity
Sheriff's Court
Ergo
Form
Same Form
Lord
Robbery
Ultra Mensem
Outside The Month |
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