| 1469.116 |
1469 |
Common Pleas |
Debt on damages recovered |
Det |
| Mich. |
9 |
Edw. 4 |
27 |
41b-42b |
Danby, Robert CJCP
Jenney, William Sjt Genney (for P?)
Jenney, William Sjt W. Genney W. fits & heire J. Genney (mentioned twice)
Moyle, Walter JCP Moile
Jenney, William Sjt W. Genney (mentioned)
Choke, Richard JCP
Littleton, Thomas JCP
Jenney, William Sjt W. Genney (mentioned twice)
Choke, Richard JCP
Danby, Robert CJCP
Danby, Robert CJCP R. Danby (mentioned)
Jenney, William Sjt W. Genney (mentioned)
Littleton, Thomas JCP
Littleton, Thomas JCP W. Littleton (mentioned) |
Hastings (Hasting or Hastinges) |
E. |
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at Stile, W., hypothetical
at Stile or at Noke, J. or John, hypothetical grantor
Littleton, W., hypothetical assignor |
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Fitzherbert Variaunce 23, Monstrauns 106, Graunt 23 (not Brooke)
Brooke Misnomer 68 (not Fitzherbert), Court barron 16, Recorde 32, Trialles 51, Pledinges 86 (not in margin), Failer de recorde 8 (not in margin) |
Later proceeding 1469.118 = Mich. 9 Edw. 4, pl. 29, fol. 42b-43b
7 Hen. 6, fol. 1a
4 Edw. 4, fol. 26 (twice)
10 Edw. 4, fol. 19 (twice)
3 Hen. 4, fol. 1, 5
28 Hen. 6, fol. 10
14 Hen. 6, fol. 1
41 Edw. 3, fol. 23
10 Hen. 7, fol. 9
34 Hen. 6, fol. 49
16 Hen. 7, fol. 14
11 Hen. 4, fol. 12
10 Edw. 4, fol. 9
22 Hen. 6, fol. 43
3 Hen. 6, fol. 26
11 Hen. 7, fol. 25
14 Hen. 4, fol. 31
22 Hen. 6, fol. 42, Brooke Nonsuit 27 (?)
Trin. 39 Edw. 3, fol. 17, Fitzherbert Faux recoverie 28
10 Edw. 4, pl. 3, fol. 2b, Brooke Fauxifier 28 |
Statute of Labourers |
| En Det per E. Hastings, & counta coment il per le nosme E. Hastings recovere certeiin terre |
58 |
Plaintiff counted that plaintiff, by his name, recovered certain land in ancient demesne, and counted with certainty of damages of 100 marks, and brought an action of Debt for the damages.
Danby CJCP told plaintiff that by his count plaintiff had abated his writ, noting a variance between plaintiff's name in the writ and the name by which plaintiff had recovered.
Sjt Jenney (perhaps counsel for plaintiff) said that the name was the same and even if not the same name, the writ should not abate for this variance.
Choke JCP said that plaintiff's writ was not good unless plaintiff had surmised that he was known by the one name and by the other.
Littleton JCP said that plaintiff's count about another name was surplusage and void |
Danby CJCP: Hastings & Hastings sont divers nosmes
Sjt Jenney: Il semble que sont tout un somme (should be nosme), car il est escrie ove tielx dashes, s. Hastings coment que il sue per le nosme de Hastings ceo est tout un, &c.
Danby CJCP: En les cases que sont mis lou home plede que un tiel fuit retenus 'per nomen' ou enfeoffa, ou fist contract 'per nomen', ceo n' est forsque voide, car tielx acts sont bones, coment que ils ne sont per lour nosmes & surnosmes, car il ne besoigne dire jeo R. Danby vende a vous W. Genney tiel chival, mes generalment jeo vous vende ou jeo vous enfeoffe, &c. issint de tielx matter en fait, mes home ne poet recover envers auter en Court de recorde ou nient de recorde si non que il nosme le defendant per nosme & surnosme, &c.; Et issint diversity |
100 marks = 66 pounds 13 shillings 4 pence
Sjt Jenney: it seems that they are all the same name, because it is written with such dashes, that is, Hastings, even if he sue by the name of Hastings, this is the same (tout un); and Sir, even if they will not be understood to be one same name, yet the writ is good, becuase a writ will not abate for a variance between the writ and the record in fact, except where the record in fact ought to be shown to the Court in his (plaintiff's) declaration, as in Debt on an obligation or Scire facias to execute a fine, ther they ought to agree (accorder); but if one bring an action of Debt on damages recovered, there is no need to show the record, but when the defendant has traversed this, the plaintiff vouches the record, etc., there if there be such a variance as there is here, the writ will not abate, etc.; and if in an Assize for rent brought by me by the name of W. Jenney, the defendat pleads 'out of his fee', I reply (die) that u=one such by his deed granted the rent to me 'by the name W. son and heir of J. Jenney', notwithstanding this variance my plaint is good enough, becuase this deed was not shown in my plaint, etc.
Moyle JCP: the plaintiff cannot count that he did such a thing or bought such an thing 'by the name, etc.' but the defendnat in Debt on a contract by W. Jenney can plead that he made an obligation to this same plaintiff 'by the name W. at Stile', because if he pleads generally that he had made the obligation to him, this will be found against him, because it will be understood to be another person to whom the obligation was made, etc.
Choke JCP: there is a distinction between recovery in Court (as a matter) of record, and in this court (in which plaintiff recovered) which is not of record, as (a court of) ancient demesne or court baron, because against such a record one will not plead (dirra) no such record, etc. because there is no record, but he (defendant) cannot plead (dire) 'no such recovery', and this will be tried by jury (per pais),
which was agreed
(Choke JCP, continuing:) and Sir, here when he (plaintiff) counted that he recovered 'by the name E. Hastinges', etc. that is understood (to be) another surname, etc. he ought to surmise in fact that he was known by the one name and the other, or otherwise his name cannot be good, etc.; but in this case he could have counted generally that he recovered, etc., without saying 'by the name of', etc.; and so it would have been good, etc. because this will be tried by jury (per pais), etc., but in the action had been for damages recovered in a Court of record, there it (writ) ought to accord to the name comprised within the record, or otherwise count (dira) tha the recovered 'by the name of', and to have made a surmise, that he was known by the one and the other, etc., as above
Littleton JCP (to the contrary): as you said, if he had counted that he recovered, without saying 'by the name of', etc. then what is said, 'by name' is nothing but a surplusage, which is void, and this will not make the count bad (malveis), which would be good if it were omitted (enterlesse); as if I will bring a writ on the Statute of Labourers against W. Jenney, and I count (die) that he 'by the name of W. Jenney' was bound with me, this does not make my count bad (malveis), because this is only void; and Sir, I grant well that one does not need to count (dire) that one did such a thing by such a name, etc. where he pleaded matter in fact such as feoffment or contract, etc., but where he pleads matter in writing (escript) or of record that J. at Stile, by the name of J. at Noke granted or released, etc. but yet if he pleaded matter in fact 'by the name of' as above, this would not make his plea bad (malveis); as if I declare in a writ of Debt that names several a lease (?) to the defendant by copy of the court roll (copyholders) certain land 'by the name of' etc.; and to what is said that he (plaintiff) ought to have surmised that he was known by the one name and the other, this will be understood (entendue) that he had both names, when he said that he recovered, etc.; as in the case that Sjt Jenney put of an Assize for rent, where in his title he said that 'J. at Stile by the name of John at Noke' granted, he (plaintiff) will not count (dire) that he was known by the one and the other, because this will be understood, etc.
Choke JCP: if he had brought an action on a recovery in a Court of record, and had said that he 'by the name of E. Hastings' recovered, there perhaps he did not need to have surmised, as above, because the defendant will be estopped to say that he had such a name, but this recovery is not an estoppel, so when he (plaintiff) acknowledged that he recovered by another name than by which he is now named, etc. he ought to make a surmise, etc.
Danby CJCP: in the cases that are put where one pleads that one such was retained 'by the name' or enfeoffed, or made a contract 'by the name', this is only void, because such acts are good even if they are not their names and surnames, because he does not need to count (dire) 'I R. Danby sell to you W. Genney such a horse', but generally 'I sell to you' or 'I enfeoff you', etc., so for such matter in fact, but one cannot recover against another in a Court of record or not of record unless he name the defendant by a name and a surname, etc.; and so a distinction; and one will not plead that one did such a thing 'by the name', but where he showed (as a matter) of record or writing, and not matter in fact, etc., thus here, quen he as admitted (conue) that he recovered, by the name of E. Hastings, he ought ot be named according to this recovery, because this is the title of the action, because it will not be understood that he had both names unless he made a surmise of this, ec.
Littleton JCP: if I bring a writ of Waste against one by the name of W. Littleton and counted that he had made waste in land that he held for a term of life of me, by assignment of W., and that he granted the reversion to me by the name of J. at Stile, etc. this is good, yet I do not use the action by the same name by which the reversion was granted to me, etc. |
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1469.116 = Mich. 9 Edw. 4, pl. 27, fol. 41b-42b
Fitzherbert Variaunce 23 had the two names E. Hastinges and E. Hastinges, Rycharde Danby, William Genny
Brooke Misnomer 68 had J. Hasting and J. Hatinges
Brooke Pledinges 86, fol. 140r: ou home port action per nosme Hastinges et coment que il recover per nosme Hastings |
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Count
Name
Recovery
Certainty
Ancient Demesne
Damages
Action
Abatement
Accord
Agreement
Accordingly
Title
Title Of Action
Seeming
Writing (escrie)
Dash
Suit
Understanding (entende)
Same Name
Good Writ
Variance
Record
Fact
In Fact
Record In Fact
Showing
Declaration
Obligation
Debt On An Obligation
Scire Facias
Execution
Fine
Execution Of Fine
Debt On Damages Recovered
Need (besoigne)
Traverse
Voucher
Voucher Of Record
Assize
Rent
Assize For Rent
By The Name Of
Pleading
Out Of His Fee
Fee
Hors De Son Fee
Deed (fait)
Grant
Per Nomen
Son
Heir
Notwithstanding
Plaint
Sufficiency (assets)
Good Enough
Good Plaint
Thing (chose)
Buying (achate)
Debt On A Contract
Contract
Making Obligation
General Pleading
Generally
Finding
Person
Distinction (diversitie)
Court Of Record
Court Not Of Record
Court Baron
No Such Record
Nul Tiel Record
No Such Recovery
Trial
Jury (pais)
Per Pais
Trial By Jury
Agreement (concessum)
Surname
Surmise
Submission
Knowledge (conus)
Otherwise
Good Count
Bad Count
Case
General Count
Contents
Comprising
Ut Supra
Contrary
Surplusage
Voidance
Void Count
Bad (malveis)
Omission (enterlesse)
Statute
Labourer
Binding (tenus)
Feoffment
Matter In Writing
Matter Of Record
Grant
Release
Bad Plea
Plea
Lease
Copy
Court Roll
By Copy Of Court Roll
Copyhold
Perhaps (peraventure)
Estoppel
Retainer
Making Contract
Act
Good Act
Sale (vende)
Horse
Distinction (diversity)
Waste
Writ Of Waste
Term Of Life
Tenant For Life
Assignment
Ex Assignatione
Assignation
Reversion
Grant Of Reversion
Usage (use)
Post
Placito |
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