| 1455.102 |
1455 |
Common Pleas |
Debt on an obligation |
Dette |
| Mich. |
34 |
Hen. 6 |
36 |
19a-20a |
Aysshton, Nicholas JCP Nicholas Ashton
Choke, Richard Sjt (for D)
Littleton, Thomas Sjt (for P?)
Choke, Richard Sjt
Choke, Richard Sjt Richard not Thomas Coke (mentioned)
Wangford, William Sjt
Danby, Robert JCP
Danby, Robert JCP (mentioned)
Prysot, John CJCP Prisot
Littleton, Thomas Sjt Thomas not Robert (mentioned)
Danby, Robert JCP (mentioned)
Littleton, Thomas Sjt
Danby, Robert JCP
Littleton, Thomas Sjt Thomas not Robert (mentioned)
Danby, Robert JCP Robert not T. (mentioned)
Wangford, William Sjt
Danby, Robert JCP R. not T. (mentioned)
Prysot, John CJCP Prisot
Danby, Robert JCP
Aysshton, Nicholas JCP Ashton
Prysot, John CJCP Prisot
Wangford, William Sjt (for P?)
Choke, Richard Sjt
Prysot, John CJCP Prisot
Danvers, Robert JCP Davers
Wangford, William Sjt
Prysot, John CJCP Prisot
all the Judges
Wangford, William Sjt
Choke, Richard Sjt
Prysot, John CJCP Prisot
Choke, Richard Sjt |
Thornton |
John |
|
|
|
London, Sheriffs of
Littleton, Robert, hypothetical outlaw |
London (Londres)
Bristol, vill of or county of, and port of
Dursley (D. or Brusle), in Gloucester county
Gloucester, County of |
|
Fitzherbert Issue 97, Protestacion 7 (not in margin)
Brooke Fine levie 11, Repleader 6 (not Fitzherbert) |
Prior proceeding 1454.052 = Mich. 33 Hen. 6, pl. 16, fol. 38a-38b
cross-referenced in 1458.043 = Mich. 37 Hen. 6, pl. 8, fol. 5a
cited by Sjt Billyng (for D) in 1462.054 = Mich. 2 Edw. 4, pl. 27, fol. 25b and cited by Choke JCP in 1462.061 = Mich. 2 Edw. 4, pl. 34, fol. 28b
cross-referenced in 1465.132 = Mich. 5 Edw. 4, Long Quinto pl. [6], fol. 65a-68a
14 Hen. 6, estoppel from pleading misnomer, probably 1436.035 = 14 Hen. 6, pl. 35, fol. 8a-8b |
the statute = 1 Hen. 5 (1413), ch. 5 (additions, vill) |
| John Thornton auterfois suit brief de Dette directe a's Vicounts de Londres vers J. Wikes nuper de Bristol |
78 |
(Previously, plaintiff counted on an obligation naming defendant by (first) name and surname.
Defendant pleaded that on the day the writ was purchased defendant resided at another named vill, denying that he ever resided at the vill named in plaintiff's writ.
Issue was joined.)
Venire facias issued at the place named in plaintiff's writ.
The issue was tried before Aysshton JCP.
Defendant prayed judgment because the writ should abate.
Plaintiff(?) argued that defendant's plea was mispleaded because defendant was estopped from pleading contrary to his deed.
Lengthy argument about the estoppel.
Aysshton JCP said that that the place was outside the port of Bristol and called the vill of Bristol.
At another day, plaintiff (by another counsel?) argued that defendant's plea had not stated any vill and said that it had been adjudged 14 Hen. 6.
Prysot CJCP told plaintiff's counsel to show this judgment.
At the next term, Hil. 1456, it was awarded by all the Judges, that defendant should replead because the issue was misjoined (mespris) and suggested how defendant should frame his denial.
Defendant pleaded again as the Court suggested.
Plaintiff replied that defendant would not be received to plead this (would be estopped).
Defendant said that he wanted to imparl.
Prysot CJCP said that defendant could demur.
At another day, defendant demurred in law, and so this matter of estoppel was revived. |
Sjt Littleton: ne gisoit en sa bouche a plede misnomer; issint il sera estoppe a tout que est compris deins le dit obligation; donera a moy un novel adition, & cestuy qui appert ira a Dieu, & proces sera fait adevant envers l' auter per le novel surnom & addicion
Sjt Choke (for D): Cest addition de quel vill, &c. n' est material; Et jeo entende 'quod magis est' (= what is more) que si jeo suis oblige per le nom
Aysshton JCP: auxibien si obligation soit conue en point de Jugement; Et Sir, ne fuit parle devant de nul ville de Bristol, &c. & pur cest cause le Jury fuit estraungement aveugle (= misled, literally, blinded): car est un lieu hors d' un porte de Bristol, & ils appellent cest la Ville de Bristol
Prysot CJCP: Monstres cest Jugement, &c. |
Sjt Littleton (for P?): if one be obliged by a statute merchant or by a recognisance, he will be estopped (from denying) all that is contained within the statute (merchant) or recognisance because it is a matter of record; and Sir one will be estopped as well by a deed indented, which is the main matter in fact, and for the same reason (he will be estopped) by an unconditional (simple) obligation that is also a matter in fact, because if this matter is true (voier), it is as strong as a matter of record; if he be outlawed, he ( a person of the same name) is at no loss (perte), or if he be taken, he will have a writ of False imprisonment; he will say that he is not the same person
Sjt Choke (for D): if I am obliged by the name Thomas Coke where my name is Richard, if a writ be brought against me by the name of Thomas, I will plead to the writ notwithstanding tht the obligation be shown against me, moreso (a plus fort) here; if is of record here before (you), whether Bristol is a county or a vill
Sjt Wangford (for P?): in your case the law is completely (merement) contrary as I understand, because the name is material, and namely the proper (first) name, so he will be completely (merement) estopped by his deed, and answer to the same; (to Danby JCP) you could plead by protest that your name is Robert and not Thomas, and plead 'not your deed'; Sir, also the other matter of estoppel has been adjudged 14 Hen. 6, where one was obliged by one name of such vill, and was estopped to plead that he never resided there, because he was obliged by the same name (probably 1436.035 = 14 Hen. 6, pl. 35, fol. 8a-8b)
Danby JCP: thus you want to give him two names, which cannot be by any matter in fact, but perhaps by matter of record it could be otherwise, if he was the same person; if a stranger woudl acknowledge a fine of my land ... by the name of Robert Danby, and if it be entered of record, and there be no other Robert Danbys but me, I will be estopped always, in this case I will have no remedy, but if there be two Robert Danbys and one make a cognisance of the matter,where my person be aggrieved (mis en greve), in this case I can show that I am not the same person, but there be another Robert (Danby), etc.; but of a matter in fact such as an obligation, if there be two of one proper (first) name, etc. and he who was not obliged, was aggrieved, he will not say that he is not the same person who was obliged, etc. but if he be misnamed, he will plead misnomer or another thing, and if he be well named, etc. and be not the same person, he will plead 'not his deed', because he cannot do otherwise; but if he be the same person, and be misnamed in the writ notwithstanding that the writ be in accord with the obligation, yet he will plead misnomer, and not answer to the deed; if this would be law as you (Sjt Littleton) say, that is, if Robert Littleton be obliged for T. (Thomas) then this inconvenience will ensue, because everyone who would forge a false obligation against me by the name of Thomas Danby where my name is Robert, if I will be driven to anwer to the deed, and say 'not my deed', etc. then I admit my false name, that is, to be Thomas where it is Robert, so I will have two proper (first) names, thus I will be driven (coarcte) to this inconvenience, or otherwise I will confess a false deed
Prysot CJCP: if Thomas Sjt Littleton be obliged to me by the name of Robert Littleton, this obligation is void, because if I bring a writ against him by the name of Robert, the writ is bad (mauvais), and there cannot be an 'Alias dictus' for proper (first) names, because if Thomas Littleton be arrested for Robert, he will have a writ of False imprisonment against the sheriff; and if Robert be outlawed, he wil never be aggrieved, because by common understanding (presumption) he will not be adjudged the same person; and Sir, as Danby JCP has said, you would make him have two proper (first) names, which would be inconvenient by matter in fact, becuae he would always be estopped against the same party to have another name; we cannot adjudge Bristol to be a hamlet, nor a place known outside a vill or a hamlet, thus 'all Bristol' makes (up) the 'vill of Bristol'
Aysshton JCP: if one be obliged by a misnomer, if he afterwards causes the obligation to be enrolled, he will not be foreclosed to say the contrary, thus here, yer the obligation in itself was never a matter of record, but by enrollment it is an estoppel for the defendant to say 'not his deed'; and Sir, it was not said before of any vill of Bristol, and for this reason the jury was strangely misled (estraungement aveugle), because it is a place outside of a port of Bristol, and they called this the vill of Bristol
cross-referenced in 1458.043 = Mich. 37 Hen. 6, pl. 8, fol. 5a, estoppel by obligation
Sjt Billyng (for D) cited this case in 1462.054 = Mich. 2 Edw. 4, pl. 27, fol. 25b as precedent adjudging that plaintiff could not estop defendant
in 1462.061 = Mich. 2 Edw. 4, pl. 34, fol. 28b Choke JCP cited this case in an argument that defendant could not plead misnomer against his obligation
in 1465.132 = Mich. 5 Edw. 4, Long Quinto pl. [6], fol. 65a-68a it was said by some of the Justices that this case was adjudged once in Common Pleas in the time of Hen. 6, that a writ of Debt on an obligation was brought against one, and the writ was brought with an addition of the vill according to the obligation, that was 'J. Bath formerly of Bristol' (nuper de Bristollia), and the defendant pleaded that on the day the writ was purchased, he (defendant) resided (demurrant) at another vill of C. within the same county, denying that he had ever resided (demurrant) at Bristol (Bristowe); and he was precluded (conclude, foreclosed) and estopped by the obligation, and this was adjudged by advice of all the Court here in Common Pleas at that time |
|
|
Brooke Repleader 6, fol. 205r, identified defendant as N. wikes nuper de bristoll |
|
Direction
Sheriff
Late (nuper)
Gentleman
Count
Obligation
Accord
Name
Surname
Pleading
Day
Purchase Of Writ
Residence (conversant)
County
Absque Hoc
Vill
Judgment
Venire Facias
Issuance
Trial
Abatement
Repleading
Plea
Mispleading
Mouth
Laying (gisoit)
Misnomer
Obligation
Estoppel
Contents
Statute Merchant
Recognisance
Matter
Record
Matter Of Record
Deed
Indenture
Deed Indented
Main Matter
Matter In Fact
Reason
Simple Obligation
Unconditional Obligation
Truth (voier)
Strength (fort)
Addition
Immaterial
Materiality
Good Obligation
Statute
Understanding (entende)
Magis
Magis Est
What Is More
Showing
Case
Purity (merement)
Contrary
Proper Name
First Name
Answer
Person
Same Person
Reality
In Reality
In Rerum Natura
Stranger
Acknowledgement (conuse)
Fine
Entry
Entry Of Record
Always
Remedy
Grievance
Well Named
Voidance
Bad Writ (mauvais)
Alias Dictu
Alias Dictus
Alias
Arrest
Imprisonment
Falsehood
False Imprisonment
Outlaw
Outlawry
Common Understanding
Presumption (common entendement)
Inconvenience
Party
Loss (perte)
Declaration
Appearance
Cause
Receipt
Contradiction (contrariant
Denial (dedit)
Traverse
Nient Son Fait
Not His Deed
New Addition
Adieu
God (a Dieu)
Dismissal (ira a Dieu)
Process
New Surname
Ensue
Forgery
False Obligation
Driving (chase)
Admission
False Name
Coercion (coarcte)
Compulsion (coarcte)
Confession
Admission
Protest
Protestation
Truth (Verament)
Aid
Enrollment
Roll
Point
Point Of Judgment
Praecipe
Jury
Misleading (aveugle)
Strangeness
Blind (aveugle)
Place
Port
Calling (appellent)
Hamlet
Good Writ
Supposition
Of Record
Posito
Sans Ceo
Good Plea
Assurance (assertez)
Nec E Converso
Opposite (converso)
Matter Of Estoppel
Note
Term
Award
Mistake (mesprise)
Taking Issue
Misjoinder
Form
Imparlment
Reason
Demurrer
Demurrer In Law
Revival |
|
