| 1367.011 |
1367 |
Common Pleas |
Praecipe quod reddat |
Journeis accompts
Jointenancy
Estoppel
Opinio Curiae
Counterplee de vouche
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| Hil. (not Mich.) |
41 |
Edw. 3 |
11 |
4a-5a |
Moris, Thomas Sjt (for P)
Meres, Roger de (alias Kirkton) Sjt Kirton (for D)
Cavendish, John de Sjt Candish (for P)
Fyncheden, William de JCP Finchden
Cavendish, John de Sjt Candish
Fyncheden, William de JCP Finchden
Moris, Thomas Sjt
Fyncheden, William de JCP Finchden
Moris, Thomas Sjt
Fencotes, John de Sjt (for D)
Cavendish, John de Sjt Candish
Meres, Roger de (alias Kirkton) Sjt Kirton
Fyncheden, William de JCP Finchden
Cavendish, John de Sjt Candish
the whole Court
Fencotes, John de Sjt
Moris, Thomas Sjt
Cavendish, John de Sjt Candish
Moris, Thomas Sjt
Fyncheden, William de JCP Finchden |
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Walter, alleged joint tenant, vouchee |
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Fitzherbert Estoppel 3
Fitzherbert Journes (not Journeis) accompts 7
Fitzherbert Counterple (not Counterplee) de vouche 23
Brooke Journes (not Journeis) accompts 4
Brooke Estopell (not Estoppel) 29
Statham Joyntenanncy (not Jointenancy) 1
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21 Edw. 3, fol. 33 |
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| Praecipe quod reddat fuit port vers deux, que alleage que ils n'avoient riens, si non jointment ovesque le |
57 |
| A Praecipe quod reddat was brought against two, who alleged that they had nothing except jointly with a third, not named in the writ; judgment of the writ. The plaintiff said that the writ was brought against J. of T. and W. of K., and he said that before now he had brought a similar writ against J. alone, at which time he said that he had nothing except jointly with one W. of K., which exception the plaintiff had acknowledged, so that the writ abated, and freshly, that is, by journes accomptes (counted days, the 15 or 16 days of grace allowed for the purchase of a new writ after the abatement of the old) he had brought this writ against him and against W., so that now he would not be received to allege joint tenancy again with another. And because he himself was foreclosed of this plea, (Latin begins) therefore consequently (Latin ends) W. was also, without this that he could have this challenge, so that the plaintiff did not understand that the one or the other would be received to allege joint tenancy with any other. The defendants said that although J. had alleged joint tenancy previously, nevertheless W. had not done anything, so that he would have the plea, and consequently John, because otherwise they would lose their warranty, and it would be imputed to the plaintiff's folly that he had not brought his writ against all the tenants, so that the writ was abated. The plaintiff said that at least it seemed that John would not be admitted (n'aviendra) to abate the writ again by joint tenancy, because his mouth was estopped, because he had accepted that he held jointly only with W., so that in right of the half the plaintiff prayed seisin of the land, and as to W., he wanted to imparl. Fyncheden JCP said that if the plaintiff recovered the half, that would be a disseisin made to the third, in whom the joint tenancy was alleged, and also it would be mischief to the warranty, so that it was the plaintiff's folly that he had mistaken his writ. The plaintiff said that if a writ were brought against two, and one wanted to render to the demand, and the other alleged joint tenancy with another, the demandant (plaintiff) would recover seisin of the half. Fyncheden JCP, in doubt (dubito), said that it had been said that if a writ were brought against two, and one made default after default, and the other said that he held jointly with a third, that the demandant (plaintiff) would maintain his writ without recovery of the half. Query. The plaintiff said that if the Court awarded that he should answer, he would answer enough. Fyncheden JCP told the plaintiff to answer at his peril, because he would have only one judgment from the Court. Therefore the plaintiff said that, on the day his first writ was purchased, J. and W. were tenants of the whole, without this that Walter, in whom they now alleged joint tenancy, had anything, so that he prayed seisin of the land. The defendants said that this was not a plea, because W. was not party to the first writ, so that since the plaintiff did not deny that Walter held jointly with them on the day this writ was purchased, judgment of the writ. The plaintiff said that since he had nothing on the day the first writ was purchased, nothing that he could do afterwards would turn in prejudice to the plaintiff; judgment etc. And the plaintiff said that, if this writ were to abate, he would never have a good writ, because by such feoffments he would always be ousted, so that he did not know how to bring his writ. The defendants said that W. was a stranger to the first original writ, so that he did not need to maintain the tenancy of the first original writ, not by consequence John. Fyncheden JCP said that if they had been sole tenants on the day the first writ was purchased, he would not abate this writ by anything done ex post facto, because when John had alleged joint tenancy in the first writ with W. and the plaintiff had freshly brought this writ against the two, it was in effect dependent on the first writ, so that nothing done ex post facto would turn the demandant (plaintiff) to delay, because if I bring a writ against a man, and the writ abates for another cause than for joint tenancy, and by journes accomptes I bring another writ against him, and he alleges joint tenancy with another, I will be received to say that you were sole tenant on the day the first writ was purchased; in the same manner here, because this writ was wholly dependent on the first original. The plaintiff said that it was not similar, because there one and the other were all brought against the same person, but here W. was not party to the first original writ, so that he did not need to maintain anything except the tenancy that he had on the day this writ was purchased. And the opinion of the whole Court was that the writ was good, notwithstanding that W. was a stranger to the first writ. Therefore the defendants vouched W. to warranty, and prayed that he be summoned. The plaintiff said that the Court saw plainly how before now the defendants had alleged joint tenancy with Walter, so that since they had supposed him to be joint tenant with them, the voucher did not lie. The defendants said that it was not of record that they had alleged joint tenancy, nor would it be entered in the roll; therefore they prayed their voucher. The plaintiff said that it was of record that they had said that he was joint tenant with them, because this was only (heri), and when the defendants themselves had shown that he held jointly with them, the voucher did not lie. Fyncheden JCP said that the defendants ahd alleged that they held jointly with Walter, and the plaintiff had said that they were sole tenants on the day the first writ was purchased, and by the plaintiff's plea he himself had ousted him from this exception; therefore he could not have advantage from his acknowledgment, nor of anything which he himself had rebutted. Therefore have the voucher. |
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