| 1367.028 |
1367 |
Common Pleas |
Formedon |
Formedon
Voucher
Brief |
| Pasch. |
41 |
Edw. 3 |
8 |
10b-11a |
Meres, Roger de (alias Kirkton) Sjt Kirton (for P)
Belknap, Robert Sjt (for vouchee)
Cavendish, John de Sjt Candish (for P)
Fyncheden, William de JCP Finchden
Moris, Thomas Sjt (for P?) |
T. |
John of |
|
|
|
Richard, defendant's vouchee
Thomas, Richard's vouchee
P., Thomas, litigant against defendant |
|
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Fitzherbert Briefe 533
Statham Voucher 5 |
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| Un John de T. porta briefe de Formedon vers un Alice, que vouche a garranty un Richard, que entra en le |
29 |
| One John of T. brought a writ of Formedon against one Alice, who vouched to warranty one Richard, who entered into the warranty, and vouched one Thomas. Process was sued against Thomas until the octave of St. Martin, on which day R. came and said that, while the writ was pending, one Thomas P. had brought a writ of Formedon against Alice, who was supposed to be tenant, and had recovered by action tried, so this writ was abated; judgment of the writ. And the other (plaintiff) said that Richard was a stranger to this, in whose mouth such plea did not lie, and he also said that this recovery was made by collusion (covin) between the tenant (defendant) and the one who had recovered, to abate the plaintiff's writ, so that the plaintiff demanded judgment and prayed seisin of the land. And upon this they were adjourned until now, on which day the plaintiff prayed seisin of the land, (Latin begins) for the reason above (Latin ends). The vouchee said that, to that which the plaintiff had said, that he was a stranger to the second writ, he was sufficiently in privity, because he was tenant against the plaintiff, so that he would have every manner of advantage to plead in bar (arrest) of the plaintiff's action, or to the plaintiff's writ, as the tenant (defendant) herself would have, and the recovery was by action tried, which could not be by collusion, so that judgment etc. The plaintiff said that the tenant of the land would well be admitted (aviendra) to say that the demandant (plaintiff) had another writ pending, and the reason was because it was not right (reason) that he be charged with two writs by one person for the same tenancy, but the tenant by his warranty would not have such a plea; no more would he have this plea, because he was not in privity to plead such a dilatory plea. And although the title was found, still it could be that he did not have a cause of action, because it could be that he had released, so that etc. Fyncheden JCP said that in the case that the plaintiff had put, he believed that the tenant by his warranty would have the plea, but even if he would not have it, this was not a wonder (marvile), because he could have had it upon the entry into the warranty, and could have estopped the tenant (defendant) from the warranty for that reason, but in this case he could not have had the plea before now, because the recovery was after the entry into the warranty, and he was now tenant to have every manner of advantage that the tenant of the land would have, and since the tenant of the land would have such a plea, consequently he would have, and when the recovery was upon an action tried, it could not be understood that this was by collusion, because his title was found. The plaintiff (?) said that if the demandant (plaintiff) recovered against the tenant (defendant), and he recovered over against R., the demandant (plaintiff) could not sue execution against him who had recovered; therefore if the tenant (defendant) sued execution to the value against the vouchee, where he had not lost, the vouchee would have the Assize, so that it was not a mischief for him, although he did not have the advantage now. |
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