| 1473.008 |
1473 |
Common Pleas |
Entry sur disseisin |
Entre |
the Justices
Fairfax, Guy Sjt Fairefax (for P)
Littleton, Thomas JCP
Choke, Richard JCP
Bryan, Thomas CJCP Brian
Catesby, John Sjt
Choke, Richard JCP
Catesby, John Sjt
Littleton, Thomas JCP |
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Fitzherbert Graunde cape 4
Brooke Resommons 28 |
18 Hen. 6, fol. 14, 15, 16
13 Hen. 4, fol. 9
1 Edw. 5, fol. 2
42 Edw. 3, fol. 8 (twice)
38 Hen. 6, fol. 33 (twice)
9 Hen. 6, fol. 12
10 Hen. 7, fol. 21 (twice)
1 Hen. 7, fol. 1
37 Hen. 6, fol. 32 (twice)
1 Hen (not Edw.) 6, fol. 2
9 Hen. 5, fol. 12 |
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| En briefe d' Entre sur disseisin les parties fueront a issue, & Venire facias sue, & puis le parol mis sans |
45 |
The parties were at issue.
Venire facias was sued (by demandant (plaintiff)).
Then the proceeding (parol) was put without day (adjourned) because of the absence of the Justices.
Then (demandant (plaintiff)) sued a Resummons against tenant (defendant).
In the same (?) writ of Habeas corpora the first jurors were returned now.
The writ was returned served, that is, that they (jurors) were resummoned.
Tenant (defendant) now defaulted.
The question was whether Grand Cape or Petty Cape would be awarded.
Demandant (plaintiff) said that Grand Cape should not be awarded, because then the issue first taken by the parties would be waived.
Littleton JCP said that Grand Cape should be awarded so that tenant (defendant) could wage his law of nonsummons, and that demandant (plantifff) could then choose whether to release the default and let the first issue stand.
Choke JCP and Bryan CJCP said that Petty Cape should be awarded.
Sjt Catesby asked whether |
Sjt Fairfax (for P): if Grand Cape will be awarded then the first issue would be waived, and this would be unreasonable, that by the tenant's (defendant's) act we (plaintiff) would waive our issue
Littleton JCP: now Grand Cape will be awarded, because Petty Cape is not awardable, but where the party (defendant) appeared and had a day over by the Court, and defaulted, etc. but here the tenant (defendant) was without day, and by the Resummons he (tenant) is made a party to appear in Court, so if he default Grand Cape will be awarded as well as on the first Summons; and Sir, for the tenant's (defendant's) advantage that he will have Grand Cape, so that he can wage his law, if he wants, that he was not resummoned, but on a Petty Cape one never wages one's law, so, etc.; and Sir, to what is said that then the issue is waived, this is true (voier), because by the tenant's default, the process was discontinued against the jurors, and they are without day, and so it will be if a Petty Cape is awarded but at the day of (return of) the Petty Cape or Grand Cape the demandant (plaintiff) can choose (eslier) to hold to the default or not, and if he (plaintiff) holds to the default the issue is utterly (tout oustrement ) waived, and all the matter will lay (girr-) on the default, and if the tenant knows (scavoit) this (knew that he had been summoned and intentionally defaullted?), the writ will abate, but if the defendant cannot know (ne poit scaver) this, the demandant (plaintiff) will recover (?), but the demandant (plaintiff), if he wants, will release the default and then the first issue will stand (estoiera) in its force, that he will have Habeas corpora, or other process against the jury
Choke JCP: it seems that he will have the Petty Cape, because here the first appearance is revived, this if all this be revived, and now the tenant (defendant) defaults, Petty Cape will issue, but if in a Praecipe quod reddat the proceeding (parol) is put without day before appearance, there on the default made on the Resummons, Grand Cape will issue, thus a distinction (diversity)
Bryan CJCP (in agreement): (if) in Debt the parties are at issue, and the Venire facias is served, and then the proceeding (parol) is put without day, and revived by the Resummons against the party (defendant), and Habeas corpora against the jurors in the same writ, if the defendant be returned summoned and does not appear, the jury (enquest) will be awarded by his default, and if it be returned 'he has nothing' (by which he can be attached) then a Cape 'ad audiendum' the jury will be awarded (defendant will be taken to hear the jury's verdict), as he (plaintiff) would hve on the first original (writ), that is, three (writs of) Cape and Exigent, because here all the matter is renewed (renue) (?); and day was given as well to the jury as to the party, etc. and so here day was given to the jury and to the party (defendant), and this Resummons against the party is only like a Scire facias to garnish him to hear (d' oier) the jury, etc., so it seems that the Petty Cape will be awarded, and Sir if he (tenant (defendant) was not resummoned he will say so on the (return of) Petty Cape, and it will be tried by jury (per pais) as well as imprisonment or flood (creten d' eau) (reasons for which a defendant's default would be excused)
Sjt Catesby: will one (defendant) plead in a Reattachment on an Assize that he was not attached by 15 days?, etc.
Choke JCP: if it be a general Reattachment he (defendant) will plead this, etc. but it is otherwise of a special Reattachment, which revives the issue joined previously, etc.
Sjt Catesby Sir, on a Petty Cape the demandant (plaintiff) can release the default because by the default all the issue is waived, and the jury is without day, etc.
Littleton JCP: he (plaintiff) will release the default as well on a Petty Cape as on a Grand Cape, because if the tenant (defendant) be at issue, etc.; and day is given over, at which day the tenant is prevented from appearing by flooding (disturbe per eau), or is in prison, so the he defaults, the demandant (plaintiff) cannot do otherwise than to pray a Petty Cape, because there is no other process, so then if the tenant (defendant) appears if the demandant (plaintiff) wants to hold to the default, his writ will abate, because his tenant (defendant) can well save his default, so in such a case where he (defendant) has sufficient matter to save his default the demandant can release (the default), etc.; and Sir, even though the issue is waived, now if he (plaintiff) releases the default the first issue will stand 'as above', and he (plaintiff) will have process against the jury, etc.; and Sir, if the tenant (defendant) in a Praecipe quod reddat vouches an infant within age, the proceeding is stayed, and put without day, and then Resummons is sued, and he (defendant) defaults, Grand Cape will be awarded, and yet the tenant (defendant) can vary from his first voucher, etc. so, etc.; and if the proceeding after issue (joined) be put without day by a Protection, yet the issue will be revived, etc.; and Sir, as to the case of Debt it is not like this case, because he (plaintiff) will never recover this, etc. but it is otherwise in a plea of land (category), etc. |
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Fitzherbert Graunde cape 4, fol. 27v, dated this Trin. 13 Edw. 4, fol. 1 |
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Disseisin
Party
Issue
At Issue
Venire Facias
Suit
Proceeding (parol)
Putting (mis)
Without Day
Day
Absence
Absence Of The Justices
Resummons
Habeas Corpora
Juror
First Jurors
Return Of Writ
Service Of Writ
Default
Grand Cape
Award
Petty Cape
Question
Waiver
Waiver Of Issue
First Issue
Unreasonable
Reason
Act
Awardable
Appearance
Day Over (oustre)
Summons
First Summons
Advantage
Wager Of Law
Nonsummons
Never
Truth (voier)
Process
Discontinuance
Choice (eslier)
Holding To Default
Utterly (tout ousterment)
Matter
Laying (girroit)
Knowledge (scavoit)
Ignorance
Abatement
Recovery
Release
Release Of Default
Stand (estoiera)
Force
In Force
Jury (jure)
Seeming
First Appearance
Revival (revive)
Praecipe Quod Reddat
Distinction (diversity)
Ad Idem
Original Writ
Debt
Nonappearance
Jury (enquest)
Nihil Habet
Nothing
Cape Ad Audiendum Jur_
Hearing
Capias Ad Audiendum
Case
New Process
Exigent
Renewal (renue)
Scire Facias
Garnsihment
Hearing (d' oier)
Trial
By Jury (per pais)
Jury (pais)
Trial By Jury
Imprisonment
Flood (creten d' eau)
Water
Rising Water
Reattachment
Assize
Attachment
Fifteen Days
(Fortnight)
General Reattachment
Special Reattachment
Revival Of Issue
Disturbance
Prison
In Prison
Otherwise
Prayer
Well Saving
Saving Default
Saving Of Default
Ut Supra
voucher
Infant
Within Age
Infancy
Stay (demurt)
Postponement
Variance
Protection
Dissimilarity
Similarity
Plea Of Land (category) |
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