| 1372.077 |
1372 |
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Wardship |
Garde
Monstrans de faits
Double plee
Monstrans
Judicium |
Percy, Henry Sjt Persay (for D)
Fyncheden, William de CJCP Finchden
Moubray, John de JCP Mombray
Percy, Henry Sjt Persay (for P)
Fulthorpe, Roger de Sjt (for D)
Percy, Henry Sjt Persay
Fyncheden, William de CJCP Finch
Meres, Roger de (alias Kirkton) JCP Kirton
Fyncheden, William de CJCP Finch
Percy, Henry Sjt Persay
Fyncheden, William de CJCP Finch
Meres, Roger de (alias Kirkton) JCP Kirton (mentioned) |
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Fitzherbert Monstrauns (not Monstrans) 152
Fitzherbert Double plee 14
Brooke Monstrance (not Monstrans) 23
Brooke Double plee 26
Statham Monstranz 5
Statham Voucher 16 |
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| Garde fuit port, & demande la gard pur ceo que l'enfant tient de luy per homage, fealty, & escuage, & auxy |
25 |
Wardship was brought, and the plaintiff demanded the wardship because the infant held of him by homage, fealty, and scutage (escuage), and also by cornage, which gave wardship and marriage according to the usage of the country. The defendant said, judgment of the count, because the plaintiff took two matters to have the wardship, one as by right, the other by usage; the defendant prayed to be discharged of one. Fyncheden CJCP said that one could hold of the king by grand serjeanty, which gave wardship, and the king could confirm his estate to hold of him by scutage (escuage), and the avowry would be made upon him in that manner, and this count was in lieu of avowry. Moubray JCP said that it was not right (reason) that he be charged to answer both pleas, because one was to be tried at the common law, and the other by usage, and the Court had nothing to do to know their usage, since common right would serve (serroit) them. Then the plaintiff was driven to hold to one.
Then the defendant vouched. The plaintiff said that the Court saw plainly how the defendant showed that a certain one had leased the wardship to him, for which reason he vouched him, and that which he demanded was only a chattel, of which he would not have the voucher without putting forward a deed of lien (line), and he did not do this; therefore judgment. The defendant said that he showed and said that he had leased him the wardship, which matter gave the voucher. The plaintiff said that a thing that had passed by grant, such as reversion, remainder, or lease of wardship, which could pass by words without livery, if one wanted to have the voucher, it was necessary to show a deed that gave him warranty; otherwise it was not right (reason) that it be in delay of the plaintiff. Fyncheden CJCP said that it could be that he had leased him the wardship by words, and afterwards had made him a warranty; was it not right (reason) that he have the voucher then? Meres JCP said that in a writ of Dower, if the tenant (defendant) vouched the husband's heir within age, he would not have the voucher if he did not show a deed to bind him, and this was because the wife would not be delayed without cause; so it seemed to him here. Fyncheden CJCP said that it was right (reason) that he show forth the deed of lien (lieu) in case of dower, and Meres JCP could not take it as a precedent (traiter example) in another case, and this on account of the favour that was allowed in dower, because in dower if the vouchee counterpleaded the warranty, the wife would recover immediately without awaiting the issue taken between them, and this would not be done in another case. Then the plaintiff said that it could be that he had nothing, then he would be delayed without cause. Fyncheden CJCP said that it was the plaintiff's folly that he had not used his action in time (p' temps) against the wrongful intruder (abator), and then the defendant had the voucher by award contrary to the opinion of Meres JCP, without putting forward a deed.
Percy Sjt speaks first for defendant and subsequently for plaintiff. |
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