a Committee of some of the greatest Members of the House, Selden, Hollis, Maynard, Palmer, Hide, &c. that the Earl Marshal can make no Court without the Constable, and that the Earl Marshal's Court is a Grievance. Rushworth 2 Vol. 1056. Nalson's 1 Vol. 778.
Spelman ad idem. Judgment affirmed.—Spelman in his Glossary, verbo Mareschallus, seems to say, 'twas officium primo Servile, and that he was a meer Servant to the Constable, and gives much such another Account of it, as Camden doth. And Pag. 403. is an Abstract or rather Transcript of all that is in the Red Book in the Exchequer about the Nature of this Office; and there 'tis said, that if the King be in War, then the Constable and Marshal shall hold Pleas, and the Marshal shall have the Amerciaments and Forfeitures of all those, who do break the Commandments of the Constable and Marshal. And then it was further alledged by the Counsel for the Defendant in the Writ of Error, that they knew of no Statute, Record, or ancient Book of Law or History, that ever mentioned the Earl Marshal alone, as having Power to hold a Court by himself: So that taking it as a Court held before an incompetent Judge, a Prohibition ought to go, and the Party ought not to be put to his Action, after he has undergone Imprisonment and paid his Fine, since it hath the Semblance of a Court, and pretends to act as such. And if it be a Court before the Earl Marshal alone, in case it exceeds the Jurisdiction proper to it, a Prohibition lies either by Force of the Common Law, which states the Boundaries and Limits of that Jurisdiction: Or by Force of the Statute of 8 [67] Rich. 2. which is not repealed by the subsequent Law in that Reign. And if such Prohibition do lie in any Case, that here was Cause for it; the Subject Matter of the Articles being only a Wrong (if any) to a private Officer, who had his proper Remedy at the Common Law: And therefore it was prayed that the Judgment should be affirmed; and it was affirmed.
Smith & Ux' v. Dean and Chapter of Paul's, London, and Lewis Rugle [1695].
[15 Lds. Jo. 682. Name of second Deft. given as "Rogell."]
Reversal of Recoveries in Copyhold Manors. Whether Equity will compel the Lord to hold Plea for that Purpose.—Appeal from a Decree of Dismission made by the Lord Jeffreys; the Bill was to compel the Dean and Chapter, as Lord of the Manor, to receive a Petition in Nature of a Writ of false Judgment, for Reversing a Common Recovery suffered in the Manor-Court, in 1652. whereby a Remainder in Tail, under which the Plaintiff claimed, was barred, suggesting several Errors in the Proceeding therein: And that the said Lord might be commanded to examine the same, and do Right thereupon.
To this Bill the Defendant Rugle demurred, and the Dean and Chapter by Answer insisted, That 'twas the first Attempt of this Kind, and of dangerous Consequence, and therefore conceived it not fit to proceed on the said Petition, unless compelled thereto by Course of Law. That Rugle being the Person concerned in Interest to contest the Sufficiency of the Common Recovery, they hoped the Court would hear his Defence, and determine therein before any Judgment were given against them; and that they were only Lords of the Manor, and ready to obey, &c. and prayed that their Rights might be preserved: This Demurrer was heard and ordered to stand.
Argument for the Appellant.—And now it was insisted on by the Counsel with the Appellant, that this was the only Remedy which they had; that no Writ of Error or false Judgment lies for Reversing of a Recovery or Judgment obtained in a Copyhold Court; that the only Method was a Bill or Petition to the Lord, in Nature of a Writ of false Judgment, which of common Right he ought to receive, and to cause Errors and Defects in such Recovery or Judgment to be examined. And for this were cited Moore 68. Owen 63. Fitz. N.B. 12. 1 Inst. 60. 4 Rep. 30.
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