| 1372.113 |
1372 |
|
Audita querela |
Audita querela
Averrement
Condition
Judicium |
| Mich. |
46 |
Edw. 3 |
45 |
33a-33b |
Percy, Henry Sjt Persay (for D)
Belknap, Robert Sjt (for P)
Fyncheden, William de CJCP Finch
Belknap, Robert Sjt
Percy, Henry Sjt Persay
Percy, Henry Sjt Persay (mentioned) |
|
|
|
|
Brooke Audita querela 6
Brooke Averment (not AVerrement) 51
Brooke Condicions (not Condition) 32 |
|
|
| Audita querela port vers un R. Tye & sa Mier, & le briefe rehercea coment, que il fuit tenus a eux en lxxx. li. |
32 |
| Audita querela brought against one R. Tye and his mother. The writ recited how the plaintiff was bound to the defendants for 80 pounds by a statute merchant, and they had granted by an indenture shown forth that if he would pay 80 marks of rent at certain terms for a manor which he had leased to him for a term of four years, and also if he made repair (amend') of certain houses etc., and other covenants, that the said statute would be held as null, and although he had paid all of the 80 marks, and the writ recited an acquittance (Latin begins) that certain (penes) remained (Latin ends), still the defendants had sued execution of the said statute, and the plaintiff showed forth an acquittance of payment except the rent of one term, and he showed this, how he had paid a certain sum for the expenses of the said R. and a certain sum in repair of houses, that is, of a chamber, and others at the defendants' command and assent, which he was not bound to repair at his own expense, as appeared by the indenture, which sum of payment amounted to the sum of the 10 marks of which he did not show any acquittance. The defendants said that the plaintiff's writ said that he had paid them the whole rent by acquittance, and in right of the 10 marks he did not show any acquittance, and they demanded judgment of the contradiction (contrariouste). The plaintiff said that the writ said that he had kept all the covenants, which matter was veritable in fact, although the recital of the acquittance was not fully performed in the manner that the writ said, which the defendants did not deny. Fyncheden CJCP said that the effect of the statute was to be surety for the rent, and this proved well, because it accorded well with the sum of the rent; therefore the payment of this was one of the covenants in the indenture, and if the 20 marks of the rent were in arrears, even if all the other covenants comprised in this were kept, still the statute was due, and the writ said that all the covenants were fulfilled; it seemed to Fyncheden JCP that the writ was good enough, notwithstanding that the plaintiff did not show as many acquittances as the writ recited; therefore in right of this he told the defendants to answer. The plaintiff's counsel was very (lie), because he had thought that the writ would be abated and the plaintiff imprisoned. The defendants took to the discordance between the statute and the defeasance, that the name Richard Tye was not fully continued, as it should, and because there was sufficient understanding that he was all one person, and the defendants had taken exception to the matter before, and the challenge now was only to the form, he was ousted. Then he said that he should have leased 16 cows at the time of the demise of the manor; he alleged that 12 were delivered back to him, and that four were dead in murrain (cattle infection), and the other said that he had not delivered so many, ready, saving to himself the other covenants afterwards, and then the issue was that he would not have allowance for the cows that had been sold in right of a parcel, as he had alleged for his expenses sold, and he had received the money (les deniers) and put it into his expenses, and the house that he had repaired, so he had broken the covenant; ready etc. |
|
