| 1372.080 |
1372 |
|
Trespass for attack and wounding |
Trespas
Count
Discontinuance de proces |
| Mich. |
46 |
Edw. 3 |
12 |
25b-26a |
Fyncheden, William de CJCP Finchden
Moubray, John de JCP Mombray
Fyncheden, William de CJCP Finchden
Tauke, William Sjt Tanke (for D Nicholas)
Tauke, William Sjt Tanke
Fyncheden, William de CJCP Finchden
Percy, Henry Sjt Persay
Fyncheden, William de CJCP FInchden
Tauke, William Sjt Tanke
Fyncheden, William de CJCP Finchden |
Wikes |
William |
|
|
Fitzherbert Trespas 202
Brooke Trespas 56
Brooke Count 32 & 79
Brooke Discontinuans (not Discontinuance) de proces 7
Statham Trans 31 |
|
|
| William Wikes port briefe de Trespas devers Nich. Braybroke & W. G. proces continue tanque le dit Nich. |
41 |
| William Wikes brought a writ of Trespass against Nicholas Braybroke and W. G. Process continued until Nicholas came on the fifteenth of Easter in the 45th year and pleaded not guilty. W. came at the octave of St. John afterwards, against whom William Wikes, the plaintiff, counted, (Latin begins) that he together with the aforesaid Nicholas etc. had made an attack on him and had wounded him etc. And the said William made a certain justification, defending himself etc. (Latin ends). And Nicholas at the next term challenged the count, and still challenged the count, because the plaintiff had counted that William had committed the trespass against him together (simul) with Nicholas on another day than he had counted against him by his first count. Fyncheden CJCP said that he himself had affirmed the count good by his justification, and Nicholas was a stranger to this count, and what he alleged was not of great importance, since he had pleaded to the action. Moubray JCP said, in case he was found guilty. Fyncheden CJCP said he would do so, although the other had not pleaded, but made default, and he would have each plea that could extinguish the action, such as a release of a later time, or other matter that went to the action, but it would be hard (fort) to take advantage of the variance of the count affirmed by his companion. The defendant Nicholas said that he had not had time before now to take advantage of this variance and admission of the party, which should be taken as strongly as a judgment, and the plaintiff himself had acknowledged (conue) the reverse by the last count of that which he had supposed by the first count, so that the defendant demanded judgment and prayed that all abate. (Latin begins) And so it was seen (Latin ends) that he would be received to abate the writ accepted as good by his companion, because he was privy and party to this, and a stranger to the count of his companion. The defendant prayed that the count abate, because in the event that he brought an Assize against several, and he himself counted that one named in the writ was not a disseisor, the writ would abate; so it seemed here, since the plaintiff himself had acknowledged the reverse of his first count by counting the second count of another day, and also it was right (reason) that it be abated, but for the reason that one made a mistake of the count, and if this were found by verdict it would be different, but in this case it was as strong as the plaintiff's admission or as his release. Fyncheden CJCP said that it was necessary to maintain this action by force of the original writ, and the original writ supposed only one trespass, so that there was only a mistake of his count, and there was no doubt that, in case a writ were brought aggainst several for battery, goods carried off, and of grass eaten, and one defendant came on one day, and another on another day, so that the plaintiff by his count supposed that the trespass was committed on different days, what advantage would any of them have of this variance after the counts were accepted? (Latin begins) as if to say, none (Latin ends). A serjeant said that if there were such a count, great inconvenience would follow, because it could be that the one against whom the last count was counted would be found guilty of mayhem or of another trespass, to great damages, and the one against whom the first count was made would be found not guilty; nevertheless he would pay the damages entirely if the other had nothing. Fyncheden CJCP said that a good Justice could examine the inquest on the trespass supposed in the first count, because although one would have the advantage of debating this, it must be the second count, and Nicholas was a stranger to this, so that etc., but he would well have a plea in abatement of the writ, or a release, or discontinuance of process, as one who was privy. The defendant then demanded judgment of the process, because after the plaintiff had pleaded with Nicholas, he took a day afterwards against William for a year, thus discontinued. Fyncheden CJCP said that although the plaintiff took a day in that manner, for that reason the Court did not hold the process discontinued, because the plaintiff could delay himself, without this that the defendant would have advantage of that, and for this reason he told the plaintiff to sue his process. |
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