The Plaintiff demurs, and the Defendant joins.
Judgment below for the Plaintiff.—From the Exchequer Court this was adjourned propter difficultatem into the Exchequer Chamber, and afterwards by Advice of the Judges there, the Court gave Judgment for the Plaintiff, which was affirmed by the Chancellor and Treasurer, &c.
Argument for the Plaintiff in Error.—And now it was argued on the Behalf of the Plaintiff in the Writ of Error, that this Judgment was erroneous, and fit to be reversed.
That the Constable and Marshall have equal Power, &c.—And first, to maintain the Court as set forth, 'twas insisted on 1. That when there was а Constable and Marshal, the Marshal had equal Power of Judicature with the Constable, as each Judge hath in other Courts. 2. That the Constable had in that Court Power of Judicature alone, when there was no Marshal. And 3. That the Marshal had the like, when there was no Constable.
Precedents.—That they had both equal Power of Judicature, appeared by all their Proceedings; by their Libels or Bills, in the Case of John Keightley, Esq; against Stephen Scroop: The Libel is, In the Name of God, Amen. Before you my Lords the Constable and Marshal of England in your Court of Chivalry, and prays that the said Stephen, by their Sentence definitive, may be punisht. 1 pars Pat. 2 Hen. 4. m. 7. And the same Stephen libelled against Keightley to the thrice Honourable Lords the Constable and Marshal of England. So the Libels were directed to both, and both sat judicially.
Precedents.—The same appears by the Sentence or Judgment given in that Court: Bulmer libelled against Bertram Usau coram Constabulario & Mareschallo, qui duellum inter partes allocaverunt & assignaverunt locum & tempus. Rot. Vascor' 9 H. 4. m. 14. It doth likewise appear to be so by the Appeals from their Judgments to the King; they are both sent to, to return the Rolls of their Judgments. Rot. Claus. 20 Edw. 1. m. 4. In the Appeal brought by Sir Robert Grosvener against Richard Scroop, 'tis upon the Sentence given by the Constable and Marshal in the Suit before them concerning a Coat of Arms. Rot. Claus. 12 Rich. 2. m. 4. Appeal by Bond vers. Singleton, 'tis in a Cause of Arms in our Court before our Constable and Marshal, wherein Sentence was given by them. 1 pars Pat. 17 Rich. 2. m. 12. Thus it appears by a Commission for the Execution of the Office of Constable of England, Committimus vobis officium hujusmodi Constabularii ad querelam Thomæ Moor in hac parte una cum Edmundo de Mortimore Mareschallo Angliæ audiendum. Secunda pars Patent' 48 Edw. 3. m. 20. in dorso. As also by [60] a Claim at the Coronation of H. 5. before Beauchamp Earl of Warwick then Lord Steward, John Mowbray Earl Marshal, Son to the then Duke of Norfolk, claimed under a Grant in 20th of Rich. 2. of the Office of Earl Marshal of England, to hold Court with the Constable, and to hold Pleas before them; and Copies of these Precedents were said to have been ready in Court.
Precedents. There are Judges who also Ministerially execute their Judgment.—Further, to prove the joint Authority, were cited several of our old Books, 48 Edw. 3. fol. 3. in a Case of Debt upon an Indenture by which P. was retained by the Defendant, with two Squires of Arms for the War in France: Belknapp said, of such Matter this Court cannot have Conusance, but 'tis Triable before the Constable and Marshal. In the Case of Pountney and Bourney 13 Hen. 4. 4. the Court of King's Bench call it the Court of the Constable and Marshal: And in 37 H. 6. 3. upon another Occasion, Prisot said, this Matter belongs to the Constable and Marshal: And Coke 4 Inst. 123. says that they are both Judges of the Court: And that the Constable sometimes gave Sentence, is no Argument that the Marshal was no Judge with him; it only proves him the Chief, who in most Courts doth usually give the Rule: Nor is the Earl Marshal's Receiving Writs from the Constable to execute his Commands, any Argument that he sits there only as a Ministerial Officer, and not as a Judge; for he may be both; as in many Corporations Mayors are Judges of the Court, and yet have the Custody of their Gaols too; and so have the Sheriffs of London their Compters, tho' they strictly are Judges of their several Courts.
2. That the Constable alone.—During the Vacancy of the Earl Marshal's Office, the Constable alone had the Judicature; as in 11 H. 7. on Holyrood-day, the
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