| 1409.069 |
1409 |
Common Pleas |
Debt on an Obligation |
Dette |
| Mich. |
11 |
Hen. 4 |
58 |
31b-32a |
Thirning, William CJCP
Hankford, William JCP
Thirning, William CJCP
Apprentice
Thirning, William CJCP
Wakefield, Chief Clerk of CP
Belknap, Robert CJCP 1374-1388 recalled by Wakefield
Hill, Robert JCP
Wakefield, Chief Clerk of CP
Hill, Robert JCP
Wakefield, Chief Clerk of CP |
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Statham Processe 51
Fitzherbert Condempnacion 10
Brooke Default 20, Enquest 16 |
cross-referenced in 1421.070 = Mich. 9 Hen. 5, pl. [19], fol. 13b
perhaps cross-referenced in 1459.032 = Trin. 37 Hen. 6, pl. 9, fol. 29a-29b |
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| Auterfoits brief de Dette fuit port sur un obligation vers un home, que vient per Exigent, & plede |
22 |
Defendant came by Exigent and pleaded that he made the obligation was made by duress of imprisonment.
Plaintiff made no reply.
(Defendant defaulted.)
An apprentice came in Common Pleas and prayed judgment of record for plaintiff. |
vient un apprentice deins le place en le Commen Bank as Justices, & pria judgment de recorde.
Thirning CJCP: Pur que prists vous jour ovesque luy, sans don response a son plee; en melior plite (= plight, condition, status); le cause del action
Lapprentice: Issint sir en cest case il ad conue le fesans de le obligation, me il le ad void per plee sur matter en fait, quil il ne meintein pas
Wakefield, Chief Clerk of CP:Jay view en temps Sir R. Belknap CJCP 1374-1388 le partie estre condemne en tiel case; Quel proces voile agarde vers luy d'oyer son judgment?; S'il vient adonques, que serra fait? |
'Apprentice' came 'within the place' in the Common Bench to the Justices, and prayed judgment of record
Thirning CJCP: Why do you take day with defendant, without answering to defendant's plea? And there is no reason that you are now in a better condition than you would be if you had replied. If now you maintain that defendant was at large when he made the obligation, and were at issue on that, you would only have the inquest now.
'The apprentice' argued that defendant could not acknowledge making the obligation and then plead a matter in fact (duress by imprisonment).
It seemed that the unnamed 'apprentice' made an elementary mistake, reported not as an example of good pleading, but the reverse.
Thirning CJCP: No, ... here the deed is not acknowledge effectual at any time, and on this deed the action is founded
Wakefield, Chief Clerk of CP:I have seen in times of Sir Robert Belknap CJCP 1374-1388 the party condemned in such case.
Hill JCP disagreed with Chief Clerk Wakefield, and Wakefield asked Hill JCP a series of questions, ending with one he could not answer.
perhaps cross-referenced in 1459.032 = Trin. 37 Hen. 6, pl. 9, fol. 29a-29b described as where the plaintiff had judgment to recover by default in a personal plea |
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Statham Processe 51 attributed a speech to Sjt Skrene (for P) that plaintiff could recover because defendant had confessed the acction and avoided it; but yet it seemed that if any process should issue against defendant, it should be a distraint (not Capias) etc.; quaere if defendant could plead any plea when he came by such a process.
Jenkins 80 (2nd century, case 59), 145 Eng. Rep. 57: 9 H. 5, 13. By all the judges in the Exchequer Chamber. Enquest, Default and appearance. 11 H. 4, 31. Debt. The defendant pleads a release made to him by the plaintiff, the plaintiff replies that this release was made by duress, and upon this they are at issue; the defendant makes default, the inquest shall be taken by default: but if the defendant being sued in debt, had pleaded non est factum, and had made default at the trial, he should be condemned without taking an inquest. This has been the practice of the law formerly. The reason seems to be, if the defendant had appeared, and an (Jenkins 82, 145 Eng. Rep. p. 58) request had been taken, and it had been found against him, the King should have a fine; and the default of the defendant hinders this. In trespass the defendant pleads a release, and issue is joined upon it that it is not the plaintiff's deed, and the defendant makes default; in this case an inquest shall be taken; for trespass is uncertain for the damages, and a jury ought to find them; the debt-is certain, and appears to the court. |
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Obligation
Exigent
Duress
Imprisonment
Plea
Replication
Apprentice
Judgment
Record
Answer
Reason
Plight
At Large
Issue
Inquest
Avowry
Avowant
Damages
Detinue
Acknowledgment
Condemnation
Voidance
Matter in Fact
Tort
Excuse
Effect
Action
Cause of Action
Acquittance
Condition
Default
Process
Capias |
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