| 1268.009ss |
1268 |
Norfolk Eyre |
Naifty |
de nativis
neyvete
aliter ubi petens fuit seisitus de petito |
|
0 |
Hen. 3 |
Norfolk 1 |
122 SS 24-33 |
all these attributions were likely ascribed arbitrarily by copyists of the manuscripts to some of the serjeants and justices active when they copied their manuscripts:
Warrewik [Warwick], Nicholas de Sjt Warr' (for Ds)
Hegham [Higham], Roger de Sjt Heyham Warr' (for P)
Mettingham, John JCP? Bereford
Hegham [Higham], Roger de Sjt Heyham Warr
Warrewik [Warwick], Nicholas de Sjt Warr' Spig'
Gosefeld [Gosfield], Richard de Sjt Warr' Spigur' (for P)
Mettingham, John JCP? Bereford
Hegham [Higham], Roger de Sjt Heyham Warr' Spigur'
Spigurnel, Henry Sjt Warr' (for Ds)
Gosefeld [Gosfield], Richard de Sjt Ass' Spigur'
Mettingham, John JCP? Bereford
Hegham [Higham], Roger de Sjt Heyham
Mettingham, John JCP? Bereford
Gosefeld [Gosfield], Richard de Sjt Spigur' Warr'
Spigurnel, Henry Sjt Warr'
Mettingham, John JCP? Bereford
Bereford, John JCP1292-1309 (version IV)
Weyland, Thomas CJCP 1278-1289 (version IV) |
Ingoldsthorpe (I., Longlays, Engleys) |
John of |
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| Fitzherbert Villenage 38 |
same case 1304.173rs = Pasch. 32 Edw. 1, pl. App. [16], RS 512-514 |
|
| Johannes de Ingelisthorp tulit breve de nativo super W. filium Ricardi de Nottesham et J. de E. fratres suos |
37 |
Mettingham J: Nous trovoms qe fraunc ley est plus favorable a sauver e a meynteir home en son franc estat qe a li condempner ou amener en servage, dount depus qe vous dites q il est vostre vileyn e yl dyt q il est fraunc, ley over, e nous devoms plustost overer, pur li sauver e li sustenir en son fraunc estat qe pur vous meyntenir en cel estat a li retrere e amener en servage, quar clere chose est q il est franc jesqes taunt qe vous li eiez prove estre le revers par son saunk (version III, reconstructed from four MSS)
regula: Et sciendum quod in brevi de nativo habendo non debent poni nisi duo nativi et hoc introductum fuit primo in odium servitutis (version IV); In brevi vero de libertate probanda possunt poni quotquot voluerit impetrator et hoc est in favorem libertatis
Bereford J: Ley est plus favorable a sauver e a meyntenir homme en son franc estat qe de ly comdampner ou mettre en servage (version IV); Dunt depus qe vous dites q il est vostre vileyn e il dit q il est franc ley eovre plus pur ly etc. qar clere chose est q il est franc si la qe vous puissez prover la revers par son sang |
headnote: otherwise where the claimant is seised of the one he is claiming (version IV)
Brand noted that version 1 of this report was printed as though an enrollment from Pasch. 34 (1304) in Alfred J. Horwood, Year Books of the Reign of Edward the First: Years XXXII and XXXIII (1304-1305), Rolls Series no. 31, part A, vol. 4 (London 1864), pp. 512-514 (Appendix, pl. [16])
the case does not appear in the plea roll of the 1286 Norfolk eyre; the civil pleas roll of the 1269 Norfolk eyre does not survive; names of serjeants and justices would have been 'updated' to the reign of Edw. 1
(for P) he (plaintiff) offers sufficient suit and a live voice (vivam vocem) that this is so; this possessory writ (istud breve de possessione); this might give rise to a great problem ... if someone had one hundred villeins and all fled form the land of their lord at the same time; this would be very unfair (hoc esset lex dura)
(for Ds) they (defendants) say that they are free and living as free men; this writ is based on both possession and right, so that possession and the right cannot be separated; the main thing is a successful cclaim to the body and this is a matter of right and for right to be proven without suit in the form of proof by kin is not something known in law
Sjt Heyham (for P): Tallage in tallaging him high or low at my will (version III)
Sjt Warrewik (for Ds): ransom of flesh and blood (rechat de chare e de saunk (version III)
Mettingham J: we find that free law is more predisposed to save and maintain one in his free estate than to condemn him or lead him into servitude, and so, since you (plaintiff) say that he is your villein and he (defendant) says that he is free, and we ought rather to act to save him and support him in his free estate than to maintain you in this to bring him back and reduce him to servitude, for it is clear that he is free until you have proved him the reverse by his blood (version III) (presumtion of liberty)
Sjt Heyham (for P): the law is more favourable to save him than it is to condemn in the case where he (defendant) brings proof to prove his freedom: it allows him rather to prove than us to destroy his proof; but here in this case we are in the opposite case
Sjt Spigurnel (for Ds) if ... at the end of his (plaintiff's) count (plaintiff) forgot the suit and proof we understand that he would be barred from action permanently for the act of forgetfulness (obliance) in accordance with the nature of his writ; the writ of Naifty is the highest writ there is to try the blood; he has brought no proof of blood kinsmen to prove the blood which is being claimed
rule: note that in the writ of Naifty no more than two villeins should be included and this rule was originally introduced out of hatred of servitude, but in this writ for the proof of freedom the writ's acquirer may include as many as he likes and this out of favour for freedom (version IV); also if the villein should have remained on the king's demesne for less than a year and a day then his lord may have this writ; for the villein claiming freedom it is highly useful to get the Pone for proving freedom
Bereford JCP: Law is more predisposed to save and maintain one in his free estate than to condemn him or put him into servitude (version IV); since you (plaintiff) say that he (defendant) is your villein and he says that he is free the law works in his favour, etc. for it is quite clear that he remains free until you can prove the contrary by his blood
Brand: In an action of Naifty the plaintiff attempted to rely on his own recent seisin of the defendants and his previous seisin of their grandfather and father as title without producing any suit of their kin. The defendants asked for judgment since the production of kin was essential to any claim in this action. The plaintiff argued that there were circumstance where the lack of other surviving members of the kin would make this impossible but, under questioning by the justices, admitted that the father of the defendants was still alive and claimed he was living as his villein and on his villein land. His failure to produce him was held fatal to his claim and the court adjudged that they were to be quit of his claim in perpetuity.
(naifty) |
LI MS Hale 188, fol. 109r
CUL MS Dd. 7.14, fol. 399r
LI MS Misc. 738, fols. 95r-95v
BL MS Addit. 37657, fols. 151r-151v
BL MS Harley 2183, fols. 14r-14v
LI MS Hale 188, fol. 7r
Gonville & Caius College Cambridge MS 715/721, fol. 13r |
|
version II had 48 lines, version III had 91 lines, version IV had 110 lines, version V had 14 lines
same case 1268.009ss = temp Hen. 3, Norfolk pl. 1, 122 SS 24-33 (Norfolk Eyre) |
|
| Paul A. Brand, The Earliest English Law Reports, vol. 3, 122 SS 24-33 (London 2005) (?68-9 Norfolk. 1) |
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