Sunday, October 29, 2017

The Queen against Aires (King's Bench, 1717)

Source: Thomas Leach, Modern Reports, Or, Select Cases Adjudged in the Courts of King's Bench, Chancery, Common Pleas and Exchequer, Volume 10 (3rd Edition, 1795) [258]

Case heard in Michaelmas Term, the First of George the First [1714], before the Court of King's Bench, and adjourned to Hilary Term, the Third of George the First [1717], when judgment was given for the king.


[*258] The Queen against Aires

A SCIRE FACIAS was brought by the late queen, to repeal her own letters patents, whereby she had granted some fairs to Thomas Aires, in the town of Winster, in the county of Derby.

The scire facias set forth, that precedent to the grant of the fairs a writ of ad quod damnum issued out; but that it was clandestinely executed, so that the jury found that the grant was not ad damnum of any-body; when it was ad grave damnum of the Earl of Rutland, who had fairs in the manor of Bakewell, four miles distant.

The defendant, protestando that it was not clandestinely and fraudulently executed, pleaded, that the grant of the fairs to him was not ad damnum of the Earl of Rutland, or any-body whatsover.

Upon this issue was joined in chancery.

A venire was awarded out of that court, returnable into the court of king's bench, and the court of king's bench awarded a distringas; upon which the cause was tried; and the jury found, that it was ad grave damnum of the Earl of Rutland.

Mr. Salkeld moved in arrest of judgment,

First, that the scire facias was abated by the death of the queen. But the common law, there is no difference between the king and the subject; but the death of the plaintiff had in both cases abated the suit. Indeed, were this an original writ, it would be helped by the statute i. Anne, c. 8. but being a judicial writ, it is not. In the case of Sir Oliver Butler (a) it was held, that a scire facias is a judicial writ.

[*259] Northey, Attorney General, answered, that this was not judicial but an original writ; that judicial writs are those only that are founded upon judgment and judicial process; but that this was no consequence of any judicial proceeding, or founded upon the former letters patent, but purely the fraud; and that there are many scire facias's in the Register, among the original writs (b)

The second exception was, that upon issue joined the court of chancery (not being a proper court for trial of a matter of fact) is at a full stand, and the court of king's bench ought to have awarded the venire; whereas here the venire is awarded by the court of chancery, returnable into the court of king's bench. And the case of Martin v. Blackston (c) was cited.

To this exception it was answered, that the constant practice is, for the chancery to award the venire facias, returnable into the court of king's bench. So is the case of Jeffreson v. Morton and Dawson (d) and Sir George Reynel's Case (e). And that case of Martin v. Blackston, as reported by W. Jones, 82. does not make against it.

The Court. There is no other way to give day in this court but by awarding a venire out of chancery returnable here; and it is always done so.

The third exception was, that the fairs granted to Mr. Aires were four; one upon June the twenty-third, another October the seventeenth, a third November the twenty-eighth, another April the twelfth: those granted to the Earl of Rutland were upon March the twenty-ninth, May the seventeenth, and August the twenty-fifth. It appears plainly that the days are very different; and, for aught appears upon the record, the places where these fairs are to be held may be forty miles distant; for the record says only, “that they are four miles distant,” but does not add “and no more.” [*260] Now it was said, that it was not to be presumed, that where time and place are so different, the one set of fairs could be prejudicial to the other.

The Attorney General replied, that time and place were matters of evidence for the jury, not the Court, to consider of; that damage or no damage very often depended on different circumstances; and that it was possible for a market to be held on the same day, and close by another, without prejudice; as in London.

The fourth exception was, that a scire facias was not the proper remedy; but that it should have been by action on the case, to have recovered in damages.

The Attorney General, in answer to this exception, cited, Dyer, 197, 198. 11. Co. Rep. 74. 8. Rep. Prince's Case, Fitzherbert, tit. “Brief,” 651. 2. Vent. 344. Sir Oliver Butler's Case 3. Lev. 220, where it is held, that the crown de jure ought to suffer the subject to use their name.

The fifth exception was, that the Earl of Rutland had not set forth a sufficient title to the fair, by alledging it to be appendant to a manor.

The sixth exception was, that being an issue out of chancery, and sent to the common law only for trial, the record ought to be remitted into chancery, and judgment given there, and not here. Raym. 178.

But the Court said, this point had been so firmly settled, in the case of Jeffreson (a), that they would not suffer it to be debated.

Adjournatur. To be set down in the paper (b).


(a) 3 Lev. 220.

(b) The Court were all of opinion, that this was helped by the statute of the i. Anne, c. 8. S. C. post. 355.

(c) Palm. 410. S.C.W. Jones, 82.

(d) 2. Saund. 6. 23

(e) [No text.]

(a) 2. Saund. 26. [Note on following page.]

(b) In Hilary Term, 3. Geo. i. judgment was given for the king.

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