| 1455.064 |
1455 |
Common Pleas |
Detinue of charters (sur trover) |
|
| Trin. |
33 |
Hen. 6 |
12 |
26b-27a |
Prysot, John CJCP Prisot
Nedeham, John Sjt Nedham (for D)
Wangford, William Sjt (for P)
Prysot, John CJCP Prisot
Littleton, Thomas Sjt
Wangford, William Sjt (mentioned)
Prysot, John CJCP Prisot
Littleton, Thomas Sjt |
(Carles) |
|
|
|
|
Appulton' or Apulton, John, tenant in tail
A., donor in fee tail
B., donor in fee tail
S., C., donor in fee tail
D., Thomas, donor or feoffor
Jane, donee in fee & mother of plaintiff
A., hypothetical donor
B., hypothetical finder |
London (Londres)
Sale |
|
Fitzherbert Detinue 19
Brooke Charters de terre 9, Trespas 29 (not in margin), Detinue 10 (not in margin), Tender 28 (not in margin) |
cross-referenced in Eason v. Newman (1596) in Baker & MIlsom, Sources 537 |
|
| Detinue fuit porta de chartres en Londres envers Philippe Malpaz. Le pleintif counta d' un box enseale, |
35 |
Plaintiff counted of a sealed box, and that a charter gave land to plaintiff's mother in fee tail, and that the boxes came to defendant by finding (per inventionem).
Defendant pleaded that plantiff counted of a sealed box and also of specific charters.
Prysot CJCP said that plaintiff could have notice of which charters were in the box.
Defendant pleaded that plaintiff counted of a second charter by which another held the land as well as plaintiff.
Plaintiff replied that plaintiff could have Detinue for a box of charters concerning lands to which plaintiff had no title.
Prysot CJCP said that plaintiff should give notice to the finder (defendant) and request that he re-deliver them (the boxes) to plaintiff.
Sjt Litleton argued that the writ was good.
This was not answered.
Prysot CJCP said that plaintiff had a separate cause of action if he had a separate and not joint title.
Sjt Littleton said privately that this count (declaration) 'per inventionem' (sur trover, by finding), is 'a newfound holiday'. |
(for P): trois personnez 'defuncti' (= dead)
Sjt Nedeham (for D): il ad counte coment iii personz 'defuncti' furent seisi
Sjt Littleton: mes si jeo eux tue ou eux laboure en ma labour (= cultivation) demesne; mes paraventure si eux feue (= burn) ou enfrend les seals
Sjt Littleton dit secrettement que cest declaracion 'per inventionem' est un 'new founde Haliday' (English), car l' ancien declaration & entre ad este tout temps en tiel cas coment les charters 'ad manus & possessionem defendentis devenerunt' generalment, & ne monstra coment: mes s' il fuit sun un bailment perenter le plaintif & le defendant auter sera, &c. |
(for P): charter in which three joint tenants, A., B., and C.S. gave to John or Jane Appulton' in fee tail, (by another deed) Thomas had given the land to A., B., and C.S. (and one Jane) in fee; Jane married and had issue the plaintiff, and at Sale the boxes came to the defendant by finding (per inventionem)
Prysot CJCP: by the finding itself he (defendant) commits no tort, but the tort begins by the detaining after he (defendant) has notice
Sjt Littleton: it seems to me that in the case that Sjt Wangford puts the loser of the charter will have an action of Detinue without having any title; thus if I distrain for rent and afterwards the termor offers me the rent and arrears and I deny him the distress (goods or animals distrained), yet he will not have an action of Trespass against me, but a writ of Detinue, because I acted lawfully in the beginning when I took the distress, but if I killed (the animals distrained) or worked them on my own cultivation (labour), he will have an action of Trespass (that is, trespss ab initio); so here, when he (defendant) found the charters, this was a lawful act, and for his refusal to deliver them on request he will not have an action of Trespass but an action of Detinue, because no trespass is yet committed, just as, if one delivers to me goods to keep and to return to him and I detain them, he will not have a writ of Trespass, but only a writ of Detinue; but perhaps, if they are burnt or the seals are broken or some such act is done, then the action may be maintained.
Sjt Littleton said privately (secretment) that this declaration 'by finding' is a newfound Haliday, because the old count (declaration) and entry had always been in such case that the charters 'came to defendant's hands and possession' generally, without showing how, but if it was on a bailment between plaintiff and defendant it would be otherwise
another Detinue with a count 'per inventionem' (sur trover) was reported at 1455.060 = Trin. 33 Hen. 6, pl. 8, fol. 25b |
| C.H.S. Fifoot, History and Sources of the Common Law (Stevens & Sons 1949), pp. 42-43 |
Charter
Count
Box
Seal
Sealed Box
Person
Death (defuncti)
Defunct
Seisin
Fee
Gift
Fee Tail
Name
Tenements
Donor
Conjunctim
Joint Tenant
Concessit
Right (jus)
Appurtenances
Marriage
Huband
Possessor
Possession
Issue
Finding
Trover
Per Inventionem
Demand
Judgment
Declaration
Special Charter
Special Declaration
Special Count
Notice
Deed
Feoffment
Belonging (appende)
Concern
Understanding (entende)
Loss (perde)
Touch
Title
Action
Case
Finder
Request
Rebailment
Trespass
Wrong (tort)
Commencement
Beginning
Detaining
Cognisance
Cause
Cause Of Action
Seeming
Distraint
Rent
Termor
Offer
Arrears
Denial
Lawfulness (loyal)
Lawful Commencement
Taking
Slaying (tue)
Labour
Work (labour)
Cultivation (labour)
Own Work
(Ab Initio)
(Trespass Ab Initio)
Lawful Finding
Delivery
Keeping (garder)
Burning (feue)
Fire (feue)
Breaking (enfrend)
Breaking Seal
Act
Maintenance Of Action
Answer
Good Count
Proof
Joint Action
Name
Abatement
Secrecy
Privacy (secretment)
Newfound
New Found Holiday
Holiday
Holy Day
Old Declaration
Always
General Count
General Declaration
Showing
Bailment |
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