Jurisdictions, Part 97
Court of Marſhalſey.
FIRST, In the booke called the Diverſity of Courts fol. 110. It is ſaid, that the Court called the Marſhelſey is an ancient Court of Record, and made to have good government and order within the Kings Houſe, for preſervation of the King and his Servants, and to this Court are certaine bounds limited, by 13 R. 2. chap. 3. that in all places where the King in his own perſon ſhall come and make ſtay there, within the Verge limited to his Graces Court, that it ſhall not paſſe the ſpace of twelve Miles to be accounted from his Lodging, Fitzh. 141. B.
And in diverſity of Courts it is ſaid, that this Court hath power to inquire of Treaſon, Murder, and Felony, and to take appeales of them, and alſo of Maymes, if they be made within the Verge, and between perſons of the Kings Houſe.
And ſaid there alſo, that if one of the Houſe of the King ſue another which is not of the Houſe, he ſhall plead to the Juriſdiction of the Court, and if they will not this exception allow, he ſhall have a VVrit of Errour and that ſhall be reverſed in the Kings Bench, Fitzh. 242. A. Seek in treſpaſſe:
And the Judges in this Court, are the Steward, and Marſhall of the Kings Houſe, for in theſe is the order of the Kings Houſe.
Note that by the Statute, Articuli ſuper chartas, c. 3. that the Steward and the Marſhall ſhall hold no Plea of Freehold, nor of Debt, Covenant, nor of any bargain made between any of the Kings People, but only of treſpas made within the Kings Houſe, or other treſpaſſe made within the Verge, and of Contracts and Covenants, which one of the Kings Houſe made with another in the ſame Houſe, and not otherwhere. And they ſhall plead no Plea of treſpaſſe, except the parties were arreſted by them before the King departed the Verge where the treſpaſſe was committed, and they ſhall plead ſpeedily from day to day, ſo that it may be pleaded and determined, before the King depart out of the limits of the ſame Verge, where the treſpaſſe was done, and if they cannot be determined within the limits of the Verge, the Pleas there ſhall ceaſe, and be determined at the common Law, and the Steward ſhall not take conuſance of Debt nor of other things, but of ſuch perſons only which are of the Kings Houſe, nor ſhall hold any other Plea by obligation, and if they do any thing againſt this Ordinance, let their doing be held for nothing, ſee, Fitzh. 241. B. D.
10. H. 6. fol. 13. Action was brought upon this Statute, for that the Defendant impleads the Plaintif in the Marſhalſey for treſpaſſe, whereof one, nor the other was of the Kings Houſe, and there it is granted by the Court, that of treſpaſſe within the Verge, one or the other ſhall be of the Houſe, as well as of action there upon other contract: Seek, for it ſeems otherwiſe by the words of the Statute, and it is uſed now the contrary, diverſity of Courts agrees as above, ſee the title of, 38 Brook.
7 H. 6. f. 33. A VVrit was ſued upon the Statute (Articuli ſuper Chartas) Ed. 1. chap. 3. That none ſhall be impleaded in the Marſhalſey if one party were not of the Kings Houſe, there did aver the Defendant vext him, &c. the other ſaith no ſuch record.
Brook tit. Action upon the Statute 38. That the Marſhalſey ſhall not hold Plea of Contracts, unleſſe, as well the Plaintif as the Defendent are of the Kings Houſe, for if it be otherwiſe the Defendant may plead to the Juriſdiction, and if the Plaintif remove out of the Kings Service, hanging the Plea, the Defendant may plead that, and abate the Juriſdiction and the Plea, contrary if the Defendant remove out of the Kings Service, and there it was held though the treſpaſſe made within the Verge lie there between any, though they be not of the Kings Houſe, contrary of Debt and Covenant, and therefore ſeek of action upon the caſe there between ſtrangers upon Aſſumpſit, for it ſeems that it is a Contract.
6 R. 2. Tit. 49. Br. Action upon the Statute, Debt upon Recovery of Dammages before the Marſhall, in an action of Covenant before the Marſhal, that is a good Plea to the Juriſdiction, that none of the parties was of the Kings Houſe at the time, &c. For the Statute of (Articuli ſuper chartas) cap. 3. will as above, and therefore it is (coram non Judice) if it be otherwiſe.
19 Ed. 4. fol. 9. By Littleton, and not denied, where one is out-lawed in the common Bench without Originall, it is not void, but errour, but Judgement given in the Marſhalſey between parties which are not of the Kings Houſe, is voide, for they have no power to hold the Plea, and if execution of that Judgement be ſued, the other ſhall have treſpaſſe upon it.
Then for that, that the Statute of (Articuli ſuper chartas) aforeſaid, limits what actions ſhall be ſued in the Marſhalſey, it ſeems that information upon penall Statutes ſhall not be ſued there, for the Attorney of the Queen, nor informer ſhall not inform there, and this is no Suite between the parties that the Statue of Artic. provides, and they are no ſuch actions, and for that Mr. Poole Steward there, did well to reiect the informations of penall Statutes aforeſaid out of the Court, and in this Court and the Court of Pipowders the Suite is, J.S. complaines againſt J.D. and your information is, Memorandum, that ſuch a day J.S. came here into the Court, &c. And gave the Court ſo to underſtand that, &c. And there is another form, and where there are diverſe Statutes which gives liberty to ſue for penalties in any Court of Record of the King by expreſſe wordes, yet it was never ſeen in any ſuite by information, for ſuch penalties in the Chancery, Court of Wards, Court of Requeſts, for ſuits there are by Engliſh Bills and matters of conſcience, and Leet is a Court of Record of the King, and yet no information ſhal be there, and ſo it ſeems in a Court of Pipowders, & they do not uſe in theſe Courts Engliſh, nor in Leet where the matters are by preſentment of the Jury to be informed there, nor in Court of Pipowders, unleſſe the Lord hath the panalties by the Kings Grant, for in theſe Courts the attendance of the Kings Attorney is not requiſite, and who ſhall account and pay the King, his halfe in theſe Courts, and for that it is hard to ſue information there, ſee 44 Ed. 3. Tit. 1. Action populer B.
And though that ſome Statutes by expreſſe words are, That it is lawfull to ſue for theſe penalties of Statutes, in any Court of the King, of Record, this is to be intended in ſuch Courts which have been uſed, as in the Common Bench, the Kings Bench, the Exchequer; and for that the Statute of Acton Burnell, fol. 136. is, That where an Extent upon a Statute Merchant is found too high; it is forthwith that the extenders ſhall anſwer, for this is to be intended at the day of extent, and not forthwith, 2 H. 4. fol. 19. So this is taken by intendment, as above, 8 H. 4. fol. 11. Alſo the Statute of Donis condicionalibus, the letter is, That Fine by Tenant in taile (in right is nothing) for that is to be taken as wiſe men have taken it, that is to ſay, That the Iſſue in taile be put to a Formedon, and cannot enter, 11 H. 6. fol. 19.
Alſo the Statute of the yeare 8 H. H. 6. chap. 10. is, That upon Indictment ſhall goe two Capias and Exigent, and that the ſecond Capias ſhall be with Proclamation, at a place which hath addition: If he be Indicted in another County then where he dwells, and it be not ſo, the Outlawry ſhall be void; and this is taken by this Booke of 11 H. 6. fol. 19. It ſhall be avoided by Writ of Errour, and not voyd, according to the expreſſe words of the Statute.
Alſo it is not uſed where Faires or Markets are granted, to grant to the Lords of that, forfeiture of penall Statutes, that that is not granted to the Steward and Marſhall, and for theſe cauſes, Informations ſhall not be ſued there.