| 1367.031 |
1367 |
Common Pleas |
Praecipe quod reddat |
Counterplee de resceit
Resceit
Enfant
Droit |
| Trin. |
41 |
Edw. 3 |
1 |
12b-13a |
Cavendish, John de Sjt Candish (for P)
Belknap, Robert Sjt (for intervenor)
Cavendish, John de Sjt Candish
Thorp, Robert de CJCP Thorpe
Fyncheden, William de JCP Finchden
Cavendish, John de Sjt Candish
Belknap, Robert Sjt
Chelre, Edmund de Sjt (for P)
Meres, Roger de (alias Kirkton) Sjt Kirton (for intervenor)
Cavendish, John de Sjt Candish
Meres, Roger de (alias Kirkton) Sjt Kirton
Fyncheden, William de JCP Finchden
Meres, Roger de (alias Kirkton) Sjt Kirton |
T. |
J. of |
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Edmond, intervenor, infant
L., John of, donor to defendant and her husband
Thomas, remainderman in tail, intervenor's brother
Simon, Edmond's heir
K., Robert de, party to fine
M., Richard of, party to fine
John, Thomas's alleged son |
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Fitzherbert Resceit 88 (not 160)
not Fitzherbert Enfant 16
Brooke Droit de recto 2
Brooke Counterple (not Counterplee) de resceit 2
not Brooke Enfant 2 |
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statute = Westminster 2nd (1285), 13 Edw. 1, ch. 3 (receipt of wife and reversioner) |
| Un J. de T. porta un Praecipe quod reddat, vers un Alice, que fist default apres default, sur que vient un |
54 |
One J. of T. brought a Praecipe quod reddat against one Alice, who made default after default, upon which one Edmond came and said that one John of L. was seised of the same land in his demesne as of fee, and gave the same land to her who was now tenant (defendant) and to her husband and to the heirs of their bodies, and for default of such issue, the remainder to one Thomas in fee tail, and for default of issue, the remainder to the right heirs of Thomas, and he said that the husband was dead without heir of his body, and Thomas was dead without heir of his body, and he was brother and heir to him, and he prayed to be received, and because he was within age, he prayed that the proceeding stand over. To this the demandant (plaintiff) said that he had nothing in the remainder, as a result of which they had a day until now, and now Edmond did not come. Therefore one Simon came and said that a fine was levied between one Robert of K. of the one part and R. of M. of the other part, by which Richard acknowledged the tenements to be the right of Robert, as those which he had of his gift, for which the said Robert granted back the same tenements to R. for the term of his life, and after his death, the remainder to the tenant (defendant) and her husband in fee tail, and for default of issue the remainder to one Thomas in fee tail, and for default of issue, saving the reversion to him and to his heirs, and Simon said that the husband of the tenant (defendant) was dead without heir of his body, and Richard was dead, and Thomas was dead without issue, and Edmond was dead, and he prayed to be received as right heir of Edmond. The plaintiff said that the Court saw plainly how before now the tenant (defendant) had made default, and one Edmond had prayed to be received, and the receipt was traversed, at which time Simon had not come, so he had overrun his time limit (surcesse vostre temps), so that the plaintiff prayed seisin. The intervenor said that he had said that he was heir of Edmond, and that he was dead, so that etc. The plaintiff said that this could not be, because the intervenor prayed to be received by reason of a reversion, and Edmond had prayed by reason of a remainder, so that the intervenor was not receivable as his heir, if he did not pursue the same cause, and he did not do this, so that etc. Thorp CJCP said that Edmond was within age at the time of the prayer, so that what he did then would not be so prejudicial to him himself but that he could afterwards pray by reason of another reversion, and so could his heir. The plaintiff said that it could not be understood that he prayed as heir of Edmond, if he did not pursue the same cause, and the plaintiff said that he would not have any other cause than Edmond had. Fyncheden JCP said that if an infant within age was nonsuited in a writ of Right, still he could have another writ of possession (category), because a supposition would not foreclose him of an action. And the reason was because all that he pleaded within age was by the information of his guardian, and when he was of full age, he could have discretion to plead better, and here it was a greater mischief than if he was by way of action, because although he was rebutted of an action, still he could have another, but here if he were ousted from the receipt, he would lose the land, and as well as he himself could plead a new plea, so could his heir.
The plaintiff passed over, and said that Thomas, to whom the remainder was entailed after the death of the tenant (defendant), had issue, one John, who was still alive, who had an intervening (mesne) estate by the same fee tail, and the plaintiff did not understand that the intervenor would be received. The intervenor said that since the plaintiff did not deny that he had the fee simple, which right should be saved, he prayed the receipt. The plaintiff said that the receipt was given by statute, and this was to the one to whom the reversion belonged after the death of the immediate tenant, so that since the intervenor did not deny that Thomas had issue, the plaintiff prayed seisin etc. The intervenor said that whoever was tenant of the freehold, the one who had the fee would be received by the law, and always accepted to defend the fee. And he said that it had been adjudged that, if land was leased for a term of life, the remainder to another for the term of his life, saving the reversion to the lessor, that the one in the reversion had been received, notwithstanding the mesne remainder, and also here. The plaintiff said that the law did not give such advantage to him who had the fee, because the writ was maintainable against the tenant, who had the freehold, and before the statute the one in the reversion was not receivable, so that when there was an intervening (mediate) fee, the intervenor could not be received. The intervenor said that the statute spoke generally, that the one in the reversion should be received, and the fee was to be lost by this writ, so that when the one to whom the remainder was immediately did not want to be received, it was right (reason) that the intervenor be received to save the fee. Fyncheden JCP said that in the case that a remainder was entailed over for a term of life, the one in the reversion of the fee had been received, and the reason was because the one in the remainder did not have a higher estate than the tenant himself, but in the case here, there was an intermediate (mediate) fee between him who prayed now and the tenant (defendant), who could have been received if he had come, so that it seemed to the Court that the intervenor was not receivable. And then the intervenor said that there was no such John in existence (in rerum natura); ready etc. |
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