| 1469.118 |
1469 |
Common Pleas |
Debt |
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| Mich. |
9 |
Edw. 4 |
29 |
42b-43b |
Danby, Robert CJCP
Littleton, Thomas JCP
Fairfax, Guy Sjt
Jenney, William Sjt Genney
Jenney, William Sjt Genney (for P?)
Danby, Robert CJCP
Jenney, William Sjt Genney 43
Danby, Robert CJCP
Littleton, Thomas JCP
Jenney, William Sjt W. Genney (mentioned twice)
Nedeham, John JCP Nedham
Moyle, Walter JCP Moile
Catesby, John Sjt (for D?)
Jenney, William Sjt W. Genney gentleman J. Genney (mentioned thrice)
Littleton, Thomas JCP |
Hastings (Hasting or Hastinges) |
E. (or W.) |
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at Stile, William, hypothetical defendant
D., bailiff of (Baill'i), hypothetical accountant
Hastings, W.
at Stile or at Gappe, John, hypothetical plaintiff
Genney, J. |
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Fitzherbert Graunt 23 (not Brooke)
Brooke Variance 52 (not Edw. 42), Pledinges 86 (not in margin), Monstrans 159 (not in margin), Nosme 27 (not in margin) |
Prior proceeding 1469.116 = Mich. 9 Edw. 4, pl. 27, fol. 41b-42b
12 Hen. 6, fol. 3
20 Edw. 4, fol. 19, 20
14 Hen. 6, fol. 1
34 Hen. 6, fol. 49
2 Hen. 6, fol. 9 (twice)
3 Hen. 4, fol.1
7 Hen. 4, fol. 8
4 Hen. 6, fol. 1 |
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| Pluis de Det. @ Danby. Si le plaintiff ust counte generalment que il recovera en ancient demense |
51 |
Danby CJCP said that plaintiff's writ would abate.
Littleton JCP, Sjt Fairfax, and Sjt Jenney (perhaps counsel for plaintiff?) said that (plaintiff's writ would not abate and) a jury's verdict would be found for plaintiff, because plaintiff was the same person who recovered.
Nedeham JCP agreed with Littleton JCP that the other name counted by plaintiff was immaterial, surplusage, and void.
Moyle JCP and Sjt Catesby (perhaps counsel for defendant?) argued that plaintiff's writ would abate for the variance. |
Sjt Jenney: Home ne poit aver ii. nosmes de baptisme, mes home poet bien aver ii. surnosmes, & estre conus per l' un & l' auter, &c.
Danby CJCP: mes home ne poet recover envers auter si non que il soit nosme per nosme & surnosme, &c. |
Danby CJCP: if the plaintiff had counted generally that he recovered in (a court of) ancient demesne without saying 'by the name of', etc. and the defendant had pleaded (dit) 'no such recovery', etc. if this be trut that he (plaintiff) recovered there 'by the name of E. Hastings', then it will be found that this plaintiff, that is, 'E. Hastings' did not recover, thus when he himself showed in his count that he recovered by another name than he is now named, it seems by the variance that the writ will abate, etc.
Littleton JCP, Sjt Fairfax, and Sjt Jenney: in your case it will be found for the plaintiff, because he is the same person who recovered, and what he counted, that he recovered 'by the name' etc., is only void
Sjt Jenney: if I bring an action of Debt on arrears of account against William at Stile, and count that he 'by the name of William at Stile' accounted, for this variance the writ will not abate, because what is said 'by the name' is void, etc.
Danby CJCP: in your case it is not material (immaterial) that he accounted 'by the name', because the auditors have done such, 'Compotus Baill'i de D.' without saying his name, etc.; and Sir, if this plaintiff had recovered by the name of W. Hastinges and had brought this writ by the name of E. Hastinges as he had done, and had counted generally that he recovered, etc.; and the defendant said that he did not recover, ec. would this be found against the plaintiff, that is, that he did not recover?, I say yes, and yet he is the same person, etc.
Sjt Jenney: one cannot have two baptismal names, but one can well have two surnames, and can be known by the one and the other, etc. and in my case of Account if I had counted generally that the defendant, that is, John at Stile accounted, etc. and he (defendant) said 'no such account, etc. this will be found against him, and yet he accounted by another ame, etc.; and the cause is because he is the same person, so here
Danby CJCP: in your case it is immaterial (n' est material) that he accounted by one naem, etc. but one cannot recover against another unless he be named by name and surname, etc.
Littleton JCP: in an Assize for rent brought by J. at Stile, he makes his title in his plaint as he well can if he wants and shows a deed, by which the rent was granted to him 'by the name of J. at Gappe', thus the plaint is good, because he does not have a necessity to make a title, etc. in his plaint, but in Debt on an obligation there he ought by necessity to show the deed, etc.; and if W. Jenney made a lease for a term of years by a deed by the name of W. Jenney, if he bring an action of Waste, and counts (dit) that he by the name of W. Jenney by the deed leased, this count is good enough, because the action is not brought on the deed, but on the matter in fact, that is, the waste, etc.; and so here this action is brought on a recovery, which is only a matter in fact, and triable by jury (per pais), so inasmuch as he is the same person who recovered, as it will be understood, when he said that he recovered 'by name', and it will be understood that he had both names, so the count is good, etc.
Nedeham JCP (in agreement): if all the record before the suitors were burned (arse), yet the plaintiff ought to have execution of the damages, and try the recovery by jury (per pais), so this is only like matter in fact, in which case his name is immaterial (n' est material), but whether this person recovered or not, this is the effect of the matter
Moyle JCP: it seems that the writ will abate, because when he brought this action by the name of E. Hastings, and counted that he recovered by another name, he proved by his own showing (monstrance) that the recovery is not good, because he proved that there was no such name as this (name) by which he recovered, because it will not be understood that he had both names if it was not shown,e tc.; but if one recover against a parson, and then he was made bishop, the plaintiff will have a Scire facias against him by the name of bishop, and he will count (dirra) that he recovered against him by the name of parson, because in this case he could not do otherwise, because he ought to name himself according to his name of dignity, etc.; but in this case because the cause of this action is the recovery, and he showed that he recovered by one name and brought this action by another name, it seems that the writ will abate, etc.
Sjt Catesby (in agreement): it will not be understood that he had both names, if he did not make a surmise, and even if he wanted to surmise that he was known by the one (name) and by the other, yet it does not seem that it can be good, because it ought to accord to his recovery here as well as if it (the writ) had been brought on a recovery in a Court of record, and (plaintiff) had counted generally that he recovered, and the defendant had pleaded (dit) 'no such recovery', and the plaintiff had brought a record by which he recovered by the name of E. Hastinges, by this variance he would have failed of his record (or recovery), because E. Hastings is not all the same (tout un), thus in the same manner here when he (plaintiff) counted that he recovered by another name, it seems that it (the writ) abates, etc.; and if one be obliged to W. Jenney, and he (Sjt Jenney) brings an action by the name of W. Jenney, gentleman, for this surplusage the writ abates, because it ought to be according to the deed (fait, also 'fact'), etc.(humour, joke); but it is otherwise on the part of the defendant, etc., but one can vary from his deed or record, as has been said, if he be made a knight or a bishopp afterwards, etc.; and Sir, if W. Jenney brings Formedon in the remainder, and he shows forth a deed by which the remainder was entailed (taile) to him by the name of J. Genney, the writ will abate, and yet he does not show the deed in his count, etc.
which Littleton JCP denied, and said that it is good enough if he be the same person, etc. |
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1469.118 = Mich. 9 Edw. 4, pl.29, fol. 42b-43b
Brooke Variance 52, fol. 306r, identified plaintiff E. Hastinges
Brooke Pledinges 86, fol. 140r: ou home port action per nosme Hastinges et coment que il recover per nosme Hastings |
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Count
General Count
Generally
Recovery
Ancient Demesne
Per Nomen
Name
No Such Recovery
Nul Tiel Recovery
Truth (voier)
Finding
Showing
Another Name
Naming
Seeming
Variance
Abatement
Case
Person
Same Person
Voidance
Void Count
Action
Arrears
Account
Debt On Arrears Of Account
Immaterial
Materiality
Auditor
Compotus
Bailiff (Baill'i)
By The Name Of
Baptism
Name Of Baptism
Baptismal Name
Surname
Knowledge (conus)
No Such Account
Nul Tiel Accompt
Cause
Assize
Rent
Assize For Rent
Title
Making Title
Plaint
Good Plaint
Deed (fait)
Grant
Necessity
Obligation
Debt On An Obligation
Lease
Term Of Years
Waste
Action Of Waste
Sufficiency (assets)
Good Enough
Good Count
Matter
In Fact
Fact
Matter In Fact
Trial
Triable
Jury (pais)
Triable By Jury
Per Pais
Inasmuch As
Understanding (entende)
Both Names
Ad Idem
Suitor
Burning (arse)
Burned
Burnt
Execution
Damages
Execution Of Damages
Effect
Effect Of The Matter
Proof
Showing (monstrance)
Own Showing
Parson
Bishop
Making Bishop
Scire Facias
Otherwise
Dignity
Name Of Dignity
Cause
Cause Of Action
Surmise
Submission
Accord
Agreement
Accordingly
Court Of Record
Bringing Record
Failure
Failure Of Record
Failure Of Recovery
Manner
Gentleman
Surplusage
Part
Knight
Knighthood
Formedon
Remainder
Formedon In The Remainder
Entail
Fee Tail
Denial (negavit)
Good Writ |
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