| 1372.069 |
1372 |
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Quare ei deforceat (Quod ei deforceat) |
Quare eis deforc
Explees
Counat
Judicium
Jointenants
Opinio Curiae |
| Mich. |
46 |
Edw. 3 |
1 |
21a-22a |
Tauke, William Sjt Tank (for P)
Belknap, Robert Sjt (for D)
Fyncheden, William de CJCP FInch
Wychyngham, William de JCP Wich
Tanke, William Sjt Tank
Fyncheden, William de CJCP Finchden
Belknap, Robert Sjt
Tauke, William Sjt Tank
Wychyngham, William de JCP Wichingham
Tauke, William Sjt Tank (addressed)
Fyncheden, William de CJCP Finchden
Meres, Roger de (alias Kirkton) JCP Kirton
Fyncheden, William de CJCP FInchden
Tauke, William Sjt Tanke (mentioned)
Percy, Henry Sjt Persay
Fyncheden, William de CJCP FInchden
Tauke, William Sjt Tanke
Tauke, William Sjt Tank
Belknap, Robert Sjt
Fyncheden, William de CJCP FInch
Tauke, William Sjt Tank
Belknap, Robert Sjt
Fyncheden, William de CJCP FInchden
the whole Court
Belknap, Robert Sjt
Fyncheden, William de CJCP Finchden
Tauke, William Sjt Tanke
Belknap, Robert Sjt
Tauke, William Sjt Tanke
Belknap, Robert Sjt |
two |
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B., donee in tail, plaintiffs' father
John, plaintiffs' father
R., donor to plaintiffs' father
Alice, first wife of plaintiffs' father |
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Fitzherbert Quod ei deforceat (not Quare eis deforc) 7
Brooke Quod ei deforceat (not Quare eis deforc) 5
Brooke Explees 2 & 8
Brooke Count (not Counat) 31
Brooke Jointenants 6
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statute (writ will not abate for default of form of count, if there is sufficient matter)
the statute = Westminster 2nd (1285), 13 Edw. 1, ch. 4 (giving quod ei deforceat after recovery by default): |
| Deux port' Quare ei deforceat vers un home, & counta per @ Tank, coment un fuit seisi de mesme le terre |
86 |
Two brought a Quare ei deforceat against a man, and counted how one was seised of the same land in his demesne as of fee, and gave the same land to B. and to his wife and to the heirs of their two bodies, by force of which etc., and bound the esplees in their person by force of the gift, and made the descent from B. and his wife to the demandants (plaintiffs) as sons and heirs etc., because the tenements were of gavelkind, and showed how they were seised after the death of their ancestor, and bound the esplees in their person. The defendant said, judgment of the count, because the Court saw plainly how this was a writ that comprised title in itself, in which case they should have counted of their own seisin, and should have bound the esplees solely in their own person. Fyncheden CJCP said that there was a statute (un estate) that provided that the writ would not abate for default of form of the count, if there was sufficient matter, and he had shown how they were seised, and although he had pleaded more out of an abundance of caution (exabu'da'ce) of the gift, and of the possession of their ancestors, it was not right (reason) that the count abate. Wychyngham JCP said that if I bring a writ of Right of the possession of my ancestor, and I bind the esplees in his person, and afterwards make the descent to myself, and bind the esplees in my person, the count is abatable; so here. The plaintiffs said that it was different in this case than it would be in another common case, because it could not be understood in common understanding (ente't) that two males could hold to them and to the heirs of their two bodies, and for that reason they had shown their special matter. Fyncheden CJCP said that, as to binding the esplees, it was not a great default, since there was other sufficient matter, and as to the descent, if the plaintiffs had not declared it in counting, the defendant should have taken advantage against them, because it could not be understood that two males would be heir; therefore he told the defendant to answer as to the count.
The defendant said, judgment of the writ, becasue the Court saw plainly how the plaintiffs' estate was several, so two different writs should be given, and not one writ. The plaintiffs said that they had shown how their estate was in common, and they had come by one title, and they put the case that if they had brought a writ of Formedon of the possession of their ancestor, they would bring the writ in common, and would make the descent in common, so it seemed to them in this case, since their estate commenced by the same course, that the writ should be good in common. Wychyngham JCP said to the plaintiffs that they did not plead to the defendant's exception; her intent was such, because the plaintiffs' writ was, (Latin begins) which he claims to hold to him and the heirs of their bodies (Latin ends), in which case it would be impossible that two males would have heirs of their bodies, so that the writ was bad. Fyncheden CJCP said that the plaintiffs' counsel had spoken to the same intent, and Wychyngham JCP well knew that this writ was given by the statute, and the statute was general, so that it seemed that, as general as the statute was, the writ would be. Meres JCP said that if this action were taken upon a loss, then it was necessary that the writ be conceived in accordance with the estate and the possession that he had at the time of the loss, and this was in common, so that it seemed that their writ should be in common. Fyncheden CJCP, (Latin begins) his opinion changed (Latin ends), said that one would not always take regard to their possession, but to their estate in right, as if tenements were given to two, and to the heirs of one, their possession was in common, and if they lost by default, one would have a Quare ei deforceat in right of the half, and the one who had the fee would be put to his writ of Right, and thus separate writs, yet their possession was in common, and for this reason it was to pay regard to their estate in right, and this was several. To that which plaintiffs' counsel said of Formedon in the descender, there it was not a wonder (mervaile), because this action was taken of the possession of their ancestor, and the tenements descended to them in common in right, and in accordance with the descent, it was necessary that the action of Formedon be taken. A serjeant said that in the case that Fyncheden CJCP had put, of tenements leased to two and to the heirs of one, it would be a great mischief if they did not have a writ of Right in common, because otherwise the advantage that they had of joint tenancy would be lost, if they had different actions, and if two joint tenants, being enfeoffed in fee, lost by default, they would have a writ of Right in common, and the writ would be (Latin begins) which he claims to be his right and heritage (Latin ends), and nevertheless it would be impossible that the heir of one and the other would have the land in common, and this was to save the estate of the survivor; so it seemed here. Fyncheden CJCP said, to the mischief that the serjeant put of the survivor, it was not a mischief, because after the one who had fee simple had recovered the half by a writ of Right, and the tenant for life had recovered the other half by a writ of Quod ei deforceat, then they could enter and hold in common, and have the advantage by the survivorship as before, as if two joint tenants were disseised, and brought the Assize, one was summoned and severed, and the other sued forward and recoverd the half, and at another time the other brought the Assize and recovered the other half, they could enter and hold in common as joint tenants, and to what the serjeant said, that joint tenants of fee would have a writ of Right in common etc., because each of them had fee in the tenancy, so that the action would accord with their estate, but it was different where one had only a term of life. The plaintiffs said that at the common law they would have the Assize of Mortdancestor in common, and they would have the Assize in common, by reason of their possession in common, so it seemed that they would have this action in common for their possession in common, which they had at the time of the loss. In addition to this, the plaintiffs said that they would have the Assize in common, and a writ of Entry sur disseisin of a disseisin committed against themselves, because they were to recover their possession in common, yet this was in the right, so that it seemed that they would have this writ in common. The defendant said that she knew that they would have an Assize for the possession, it was not (declar') of their separate (several) right, but this was their writ of Right, and they had shown their estate to be several, in counting the count, so that it seemed that the estates were not similar.
Fyncheden CJCP, (Latin begins) his opinion changed (Latin ends), said that if he brought a writ of Trespass against several and recovered, and because some were not sufficient, he sued execution against one, he could have an Attaint alone, or otherwise he and the others in common; thus it seemed here, and their estates did not conflict (ne contraria't my), because fee tail and fee tail did not conflict (ne contraria't my), but fee tail and a term of life conflicted (contraria't), and of this they would not have one writ perhaps. The plaintiffs said that they would have an Attaint in common by reason of a false oath made against them; why not this action? The defendant said that in an Attaint it was only to attaint the false oath, which was all one, so it was proper that they have an action in common, and she put the case that the writ had been brought against the two, and one had lost by default, and the other afterwards at another time by default; she said that they would not have an action in common; no more here. Fyncheden CJCP said, to what the defendant said, that an Attaint was wholly to defeat the false oath, it was not, because nontenure was a good plea in this writ; therefore in realty. And in the other case that the defendant put of two losses, the judgments and the losses were different there, so that their actions were different, but in their case at the bar, the loss was in common, and the judgment was one, so that the case was not similar. (Latin begins) And the opinion of the whole Court was (Latin ends) that the writ was good.
The defendant said that, to save an answer to herself at another time, when this case came, she wanted to pass over willingly. Fyncheden CJCP told him that she was too courteous (? courties). The defendant said that the plaintiffs should not have an action, because she said that she had brought a writ of Dower etc., and she alleged the record with certainty, and because the tenements were gavelkind, as the plaintiffs had said, process was sued until she recovered of tthe endowment of John, the plaintiffs' father; judgment. The plaintiffs asked the defendant to say that she was ready to maintain the title. The defendant said yes. The plaintiffs said that, a long time before her husband had anything in the tenancy, one R. was seised in his demesne as of fee, and gave the same tenements to the plaintiffs' father, the defendant's husband, and to Alice, his first wife, to them and to the heirs of their two bodies, and they said that their father died, and they were in as issue in tail of his first wife; judgment, if the defendant, who was the second wife, could maintain this title against them. The defendant said that, a long time before (not admitting the fee tail) one R. was seised etc., and gave to her husband and his wife Alice and to the heirs of the body of the husband, without this that they had to themselves and to the heirs of their two bodies; ready etc. (Latin begins) And the other side said the contrary (Latin ends). |
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