Reports and cases collected by the learned, Sir John Popham, knight ... ; written with his own hand in French, and now faithfully translated into English ; to which are added some remarkable cases reported by other learned pens since his death ; with an alphabeticall table, wherein may be found the principall matters contained in this booke.

The same Term in the same Court. The Case of the Major, Bayliffs, and Jurates of Maidstone.

IN a Quo warranto depending against the Mayor, Bayliffs, and Iurates of Maidstone in Kent, Serjeant Finch of Counsell with them of Maidstone, put the case briefly in effect thus: In the Quo warranto against them, it was ordered by the Court that they should have day to plead untill afornight after Trinity Term, and the truth was that they had not pleaded according∣ly, wherupon Iudgment was entred in the Roll, and the Writ of Seisin a∣warded, and execution therupon; and afterwards by a private order in the Vacation by the chief Iustice and Iustice Jones, it was ordered that the Iudgment should be staid, and the truth was, that it was never entred a∣mongst the Rules of the Court, and therfore he prayed that the Iudgment might not be filed, but that the last order might be observed, and that they might amend their Plea.

Hendon Serjeant on the other side said, that it could not be, for by the Iudgment given the King was intitled to have the profits of Franchises which he shal not lose; & he cited the case which is in F. N. B. 21. Error in B. R. cannot be reversed the same Term before the same Iustices without a Writ of Error, but otherwise it is in C. B. and he said, that the same course was observed in Eyre, there can be no pleading in Eyre after the Eyre determi∣ned, and upon this he cited the case of 15 E. 4. 7. before the Iustices in Eyre, if the Defendant does not come the Franchises shall be seised into the Kings

hands, nomine destinctionis, and if the party who ought the Franchise doth not come during the Eyre in the same County, he shall forfeit his Franchise for ever, so here after Iudgement entred, there can be no plea per que &c. Finch we have order from the Court for stay of Iudgement, & here no perfect Iudgement was given: and this is not without president, and he cited one Chamberlains Case, where the Iudgement was nigh to perfection &c. but he did not put the Case Creve ch: Justice: in this case there was the assent of the Attorney generall, who prosecuted the Quo Warranto, and so the cases put by Hendon to no purpose, Jones upon F. N. B. 21. J. took this difference, true it is that the Kings Bench cannot reverse a Iudgement although it be in the same term without a Writ of Error, but this is where error lies in * 1.1 the same cause in the same Court, as upon outlawry, but if no error lies in this Court for the same cause, but in Parliament▪ then the Kings Bench may reverse the Iudgement without Writ of Error being the same term. And the Iudgement here was ever of Record, for the Roll untill it be fixed a∣mongst other Rolls is no Record.

And for the Case of 15. E. 4. 7. it is not like our case in reason, for when * 1.2 the Eyre is determined the power of the Iustices in Eyre is also determined, but it is not so here, for the Iustices have power from Term to Term; But Noy argued further for the King, that it is a Iudgement of another Term, and Execution awarded upon it, and said that it is without president that now it should be avoyded, and upon the awarding of execution, the King un∣der his seal hath averred that judgement is given which cannot be falsified, and for Chamberlains Case he said that there was an assent in it. Doderidge, the Question which now is moved, is but this, whether a Iudgement entered in a private Roll (as a memorandum), and afterwards there is an order that the Iudgement shall not be filed, if the Iudgement upon this shall be stayd: and speaks to it, and by him the Case of 15. E. 4. 7. is nothing to this purpose, for Iustices in Eyre were Iustices by commission, and they had not the custo∣dy of their Records, and so it differs from this case.

And Jones Justice (which was not denyed) if a Iudgement be pronounced here and be not entered, the Iudges may alter it the next Term. It was said by Noy in this case that all Franchises in England are against common Right, and execution of Iustice, and for the present purpose, he cited one Sir John Wells Case, where in a Quo Warranto the Defendant had day to plead, or otherwise that judgement should be entered to seise, and he failed to plead at the day, and the Iudgement was not filed, and yet he could not be relieved: But it was sayd by some of the Iustices, that this was a case of great extremity. But by Hendon it was affirmed in the Exchequer in one Sandersons Case, and in the principall case the matter was adjourned for a fortnight, and ordered that the plea should be accorded.

Notes

• * 1.1

  Where the Kings Bench may re∣verse its owne judgmēt with∣out Writ of Er∣ror, and where not.
• * 1.2

  When a Roll ••s become a Re∣cord,