| 1443.002 |
1443 |
Common Pleas |
Second deliverance |
Brief del' ii deliverance |
Portyngton, John Sjt (for D knight)
Yelverton, William Sjt
Yelverton, William Sjt (for P)
Newton, Richard CJCP
Yelverton, William Sjt
Newton, Richard CJCP
Yelverton, William Sjt
Markham, John Sjt
Brown, Thomas, Clerk of CP |
Pinchon |
Thomas |
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Kendal, Robert, tenant of Thomas H.
H., Thomas, lord and donor of the manor of Berlingham
Fits-Simon, D. son of John and donee of the manor of Berlingham and ancestor of defendant
Fits-Simon, John, father of D. and ancestor of defendant
Pinchon, Isabel or J., wife of Thomas |
Berlingham, manor of |
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Fitzherbert Avowrie 45, Nisi prius 9 (not in margin)
Brooke Avowry 54, Brief 184 & 437 (not in margin), Octo tales 5 (not in margin) & 17 (not in margin), Proces 65 (not in margin), Continuance 28 (not in margin), Discontinuans de proces 22 (not in margin), Issue joynes 87 (not in margin), Nonsuit 24 (not in margin, not 22 Hen. 6) |
Mich. 15 Edw. 3, in avowry, summons of wife
Hil. 48 Edw. 3, in avowry
21 Edw. 3, Fitzherbert Proces (cited in Fitzherbert) |
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| Thomas Pinchon suist un brief de Second deliverance envers John Fits-Simon Chivalier, John Stephen, & |
34 |
Defendant knight avowed the taking because plaintiff held of him by fealty and 10 shillings of rent that were in arrears, and conveyed the possession of the lordship to himself and the land to plaintiff and to plaintiff's wife.
Plaintiff prayed aid of his wife because defendant knight avowed on them both.
Aid of plaintiff's wife was granted.
Plaintiff's wife appeared by process and was joined to her husband, and they pleaded 'out of his fee'.
Defendant knight maintained his avowry.
The parties were at issue.
The sheriff returned that the Venire facias was served.
The jurors defaulted.
Defendants prayed a Distraint (against the jurors) and prayed a Decem Tales (for more prospective jurors) with a proviso.
Plaintiff argued that process should be awarded on his prayer, not for defendant knight (avowant).
Decem Tales was granted for defendant knight (avowant), without any proviso.
At the (next) day, the principal (panel) and the Decem Tales appeared.
Plaintiff said that the inquest (jury) ought not be taken, because plaintiff's wife was dead and had died since the last continuance.
Newton CJCP said that the Court would take the inquest (jury), because plaintiff's wife was not a party to the original writ.
After further argument, plaintiff said that the inquest ought not be taken because the other defendants who had justified as in aid of the avowant, did not have a day nor a continuance by the roll.
All the Court said that if that were the case, the writ would abate.
The roll was viewed,, and the process was well continued.
The inquest (jury) was taken.
When the jury were ready to give their verdict, plaintiff was nonsuited.
A clerk made a special entry in the 'Postea' in the record, which was greatly to the advantage of defendant knight (avowant), and different from the general form of entry in such a case. |
Et pur ceo que apres avowry fait le dit John Fits-Simon 'potius apparebit actor quam defendens' il y avoit x Tales grante a son prfiere, & sans ascun Proviso
en auters lieux en nostre livers (= Year Books) |
Sjt Yelverton (for D Fits-Simon): Robert Kendal was seised of a large marsh of 100 acres of land in his demesne as of fee, and held those same 100 acres of Thomas H. by fealty and 10 shillings of rent as of his manor of Berlingham; Thomas H. gave the same manor with the appurtenances in fee tail to D., son of John Fits-Simon and ancestor of the avowant (defendant knight), by force of which gift he was seised, and Robert Kendal then tenant of the 100 acres attorned to D.; defendant knight then conveyed the possession of manor lineally to defendant knight avowant by force of the tail, and conveyed the possession of the 100 acres of land to Thomas Pinchon now plaintiff, and to J. his wife in fee tail, and for rent in arrears after the death of his ancestor, and before the taking, he avowed the taking good and rightful on Thomas Pinchon and Isabel his wife, as on a tenant by the manner
Note in this case that the process is awarded against the wife:
because Mich. 15 Edw. 3 in such a case the wife was summoned, and in other places in our books (= Year Books) in such a case it is said at the bar that he have his wife in Court at a certain day
also note, the aid (was) granted before answer was made to the avowry.
and with this agreed Hil. 48 Edw. 3 and elsewhere
and note, that when the jury was ready to give their verdict, plaintiff Thomas Pinchon was nonsuited, and of this matter Thomas Brown, Clerk of CP made a special entry in the Postea as it appeared on the record, which was greatly to the advantage of defendant knight (avowant), and different from the general form of entry in such a case
Second deliverance = a writ whereby a plaintiff, after nonsuit in Replevin, could again secure possession by giving security (Blackstone 3: 150) |
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Fitzherbert Nisi prius 9 stated that in Avowry the avowant had Decem Tales granted at his prayer without any proviso, etc. see of Nisi prius in the title of Process 21 Edw. 3, good matter, etc. |
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Suit
Delivery
Knight
Avowry
Taking
Reason
Seisin
Marsh
Contents
Acre
Place
Parcel
Demesne
Fee
Fealty
Rent
Manor
Appurtenances
Gift
Ancestor
Avowant
Fee Tail
Force
Tenant
Attornment
Conveyance
Possession
Lineal Conveyance
Wife
Arrears
Death
Right
Rightful Taking
Manner
Answer
Aid Prayer
Grant
Process
Appearance
Joinder
Husband
Pleading
Hors De Son Fee
Out of His Fee
Maintenance of Plea
Issue
Sheriff
Return
Venire Facias
Service
Jury
Default
Distraint
Decem Tales
Proviso
Assignment
Award
Prayer
Actor
Principal
Tales
Inquest
Continuance
Darrein Continuance
Since the Last Continuance
Party
Original Writ
Stranger
Truth (voier)
Case
Justification
Aid
Day
Roll
Quid Inde
In Vain
Plea
Abatement
View
Note
Summons
Year Books
Agreement
Jury
Verdict
Nonsuit
Matter
Entry
Special Entry
Postea
Record
Advantage
Difference
Form
General Form |
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