Help, please, with Latin legal terminology - "in custod.marr."

[lipkatatar]

In the memoranda of Kings Bench cases (KB27) the defendants are referred to as being "in custod. marr." or "in custod. marr. mare(scal)". Does this have a meaning other than the defendants actually being held in custody?

[Vance Mead]

Yes, they were being held in the Marshalsea Prison.

[lipkatatar]

On Sunday, April 5, 2020 at 7:04:14 PM UTC+1, Vance Mead wrote:
> Yes, they were being held in the Marshalsea Prison.

Hi Vance! Thanks for the response.

I agree that the literal translation of the phrase "in custod. marr." would suggest that defendants were being held in the Marshalsea Prison, but would it have been practicable to have every defendant in every Kings Bench case taken to London to be imprisoned while awaiting trial. I was wondering whether the phrase was also used to cover a situation like "Police Bail"
where defendants were bound over to attend court when their case was called.

The use of the imaginary John Doe and Richard Roe to pledge that the parties to a dispute would turn up in court might suggest that defendants were not actually being held in prison.

[Vance Mead]

This sounds like a Bill of Middlesex, a legal fiction enabling the court of KB to get jurisdiction over cases like debt that had been heard in the court of CP.

The Court of KB had jurisdiction over criminal cases in Middlesex. So the plaintiff would allege a trespass in Middlesex. Then, when the defendant was in custody, the trespass allegation would be dropped and debt or detinue substituted.


https://en.wikipedia.org/wiki/Bill_of_Middlesex

[lipkatatar]

Thanks for the link re. "Bills of Middlesex". It would appear that the Bill of Middlesex was based on the "assumption" that the defendants were already held in custody. Is it then possible that the phrase "in custod. marr.", as far as such Kings Bench cases were concerned, was as much a legal fiction as the pledges made by the fictitious John Doe and Richard Roe, and that the defendants were not being held in prison?

[Vance Mead]

He had been arrested but bailed, but was under the authority of the Marshal and the jurisdiction of the Court.

See Sir John Baker, Oxford History of the Laws of England, pages 151-154:
https://books.google.fi/books?redir_esc=y&id=GWceAPzUrpwC&q=bill+of+middlesex#v=snippet&q=bill%20of%20middlesex&f=false

[lipkatatar]

Thanks again Vance, the chapter on the King's Bench was most informative.


Below is an extract from the UK National Archives that seems to confirm that the "custody" of defendants in Kings Bench cases was largely a legal fiction.


"The court of King's Bench had jurisdiction in civil pleas in cases brought against persons already in its custody. In the fifteenth century, if not earlier, litigants discovered the benefits of using King's Bench procedures in cases which would otherwise have been brought in the Court of Common Pleas or elsewhere; in consequence, the notion of the 'custody' became elastic. In 1452 it was ruled that a defendant on bail was 'in the custody of the marshal of the King's Bench' for the purposes of being sued in King's Bench. Thenceforward there developed a standard procedure whereby a plaintiff brought a 'bill of Middlesex', alleging a trespass within the court's geographical jurisdiction, and then, when process on that suit brought the defendant theoretically within custody, the defendant was sued for some other, allegedly genuine, matter. Thus, from the late fifteenth century onwards until 1832 (when the Uniformity of Process Act abolished the stratagem), the vast majority of persons alleged in preliminary process to be 'in the custody of the marshal' were in fact not; only those subsequently committed by rule or order of the court were really in custody."

https://discovery.nationalarchives.gov.uk/details/r/C1216