| 1481.095 |
1481 |
Common Pleas |
Detinue of a horse |
Detinue |
| Mich. (2nd) |
21 |
Edw. 4 |
27 |
55a-55b |
D., R., attorney (for P)
Ely, J., attorney (for D)
all the Justices
Bryan, Thomas CJCP Brian
Tremayle, Thomas Sjt
Bryan, Thomas CJCP Brian
Starkey, Humfrey Sjt
Bryan, Thomas CJCP Brian
Starkey, Humfrey Sjt
Nele, Richard JCP
Choke, Richard JCP
Nele, Richard JCP (mentioned)
Vavasour, John Sjt Vavis.
Bryan, Thomas CJCP Brian
Bridges, Thomas Sjt Brig. (for P?)
Tremayle, Thomas Sjt (for D)
Calow, William Sjt Collow
Bryan, Thomas CJCP Brian
Tremayle, Thomas Sjt
Bryan, Thomas CJCP Brian
Tremayle, Thomas Sjt Tremaile |
Stain' |
Ro. |
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D., R., attorney for Ro. Stain'
Ely, J., attorney for John Jenner
B., J. |
Exeter (E., Exon.), in Devon county
Devon, County of |
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| Brooke Travers 264, Ley gager 94, Done 48, Detinue 42 (not in margin) |
22 Hen. 6, in Debt (det), perhaps 1444.033 = Hil. 22 Hen. 6, pl. 33, fol. 45b-46a
Pasch. 28 Hen. 6, in Account and Error, 1450.010 = Pasch. 28 Hen. 6, pl. 9, fol. 7a-7b
Mich. 22 Edw. 4
12 Edw. 4, fol. 12
8 Edw. 4, fol. 4
39 Hen. 6, fol. 46, 47 (twice)
1 Edw. 5, fol. 2
Perkins, Profitable Boke 29. 30.160
22 Hen. 6, fol. 54
22 Edw. 4, fol. 29
9 Edw. 4, fol. 4
34 Hen. 6, fol. 42
13 Edw. 4, fol. 4
8 Hen. 6, fol. 31
12 Edw. 4, fol. 14 |
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| Johanne Jenner nuper de E. in comitate Devon' mercator, summon' fuit ad respondend R. Stain' de pl-it-, quod reddat unum equum |
46 |
Plaintiff, by attorney, demanded by his writ return of a horse priced 5 marks that defendant unjustly detained, which plaintiff had delivered to defendant on a certain day at a certain place for safe keeping, and which plaintiff had requested defendant to redeliver back to plaintiff, but defendant though requested did not redeliver the horse to plaintiff.
Defendant appeared by attorney, denied force and injury, and pleaded that plaintiff had delivered the horse to defendant to deliver the horse to another, which delivery defendant made, denying that plaintiff delivered the horse to defendant to redeliver back to plaintiff.
All the Justices of CP held this plea was no plea, because defendant could wage his law.
So defendant pleaded that plaintiff delivered the horse to defendant for safekeeping, which horse at the time of delivery for various horse diseases, was collapsing and, before plaintiff requested that defendant deliver (back the horse), within four days of the bailment, the horse died.
Plaintiff replied that the horse, at the time plaintiff delivered the horse to defendant, was healthy and strong enough to work, denying that at the time of delivery the horse was collapsing from various infirmities (illnesses), as defendant had alleged.
Defendant rejoined (to the contrary).
The parties were at issue.
Bryan CJCP said that by the bailment made to deliver over the property was in him to whom the delivery would be made, so defendant's plea was only that plaintiff gave this horse to a stranger, which was no plea.
Defendant's counsel and Bryan CJCP disputed who would have an action if a bailee had failed to bail over to another.
Nele JCP said that defendant's orginal plea was not good.
Plaintiff (?) replied that defendant's second plea was double, that one was the bailment to bail over, which was a matter of bar, and the other was the death of the horse, so defendant was excused from rebailing.
Defendant rejoined that the plea was single enough, because the horse's death excused defendant from delivering the horse over, and defendand had to plead the delivery over, or to show reasonable cause why defendant did not deliver the horse over.
Sjt Calow agreed.
Bryan CJCP told defendant that it was a good plea for defendant to admit (conustre) the bailment and that the horse had the illness (infirmity), that is, that the horse died before the request.
Defendant told Bryan CJCP that defendant had pleaded thusly, that the horse died three days after the bailment.
Bryan CJCP told defendant to plead that the horse died before the request.
Defendant pleaded thus.
Then the plea was entered, 'as above'. |
Bryan CJCP: Par le bailment fait a deliver ouster le property fuit en cesty a que le livere serra fait, issint le plaintiff n' est auter, mes le plaintiff cest done a un estranger, quel n' est plee
Sjt Starkey: Cest parol livere est indifferent (= ambiguous), le quel vostre entent est a done le chose per cel parol, ou a bailer, mes le comen entent est quant vous liveres un chose a un auter, que le property remain en vous |
John Jenner, late of Exeter in Devon county, merchant, was summoned to answer Ro. Stain' of a plea, that he return a horse priced at 5 marks (= 3 pounds 6 shillings 8 pence) which (defendant Jenner) unjustly detained, etc. and whereas the same plaintiff Ro . Stain' by R.D. his attorney said that the same Wed. 21 Jun. 1480 (20 Edw. 4) at Exeter (Exon) delivered the said horse to (defendant) John Jenner for safe keeping, and the same (plaintiff) Ro. Stain' requested redelivery, but (defendant) John Jenner though requested did not deliver to (plaintiff) Ro. Stain', but refused to deliver and still refuses and unjustly detains (the horse), as was said, etc.;
and (defendant) John Jenner by J. Ely his attorney appeared and denied (defende) force and injury, and pleaded that plaintiff Ro. Stain' ought not maintain this action against him (defendant), because (defendant) said that (plaintiff) Ro. Stain' on the day and year aforesaid at Exeter delivered to the same John Jenner to deliver the horse to J.B., which delivery John Jenner made to J.B., denying that Ro. Stain' delivered the horse to redeliver (back to R. Stain')
and by all the Justices this plea was held for naught (pur nul), because he (defendant) could wage his law, and so it (the plea) is a nullity (est nul), but they held that if the action had been for charters or other things for which the defendant can wage his law, that he (defendant) would have the plea
so he (defendant) said, that (plaintiff) Ro. Stain' delivered the horse at Exeter for safe keeping, which horse at the time of delivery was collapsing from various illnesses (infirmities), that is, botch and glanders (two horse diseases. a tumor in the groin and swelling under the jaw) (botes & glandres), of the horse's body, so before (plaintiff) Ro. Stein' requested that (defendant) John Jenner deliver, that is, on Sat. 22 Jul. 1480, at B. in Devon county, the horse died (obiit)
and (plaintiff) Ro. Stein' replied that (plaintiff) that the horse, at the time plaintiff delivered it to defendant, was healthy and strong enough to work, denying that the horse at the time of delivery was not collapsing from various infirmities, as defendant John Jenner had alleged
Bryan CJCP: by the bailment made to deliver over, the property was in him to whom the delivery would be made, so the plaintiff is not otherwise than that the plaintiff gave this to a stranger, which is no plea
Sjt Tremayle (for D): the plaintiff in this case will have an action of Detinue if it (the horse) be not delivered over
Bryan CJCP: no, truly, but he to whom the bailment will be made will have (avant) the action, and I understand that those words 'to deliver to another' as as strong (fort) as a gift
Sjt Starkey: if you deliver a thing to me this is not a gift to me
Bryan CJCP: I understand (entende) that it is
Sjt Starkey: this word delivery is ambiguous (indifferent), whether your intent (entent) is to give the thing by this word, or to bail, but the common understanding (comen entent, presumption) is that when you deliver a thing to another, the property remains in you
Nele JCP: the plea is not good in Detinue that the plaintiff bailed to the defendant to deliver over, denying that the plaintiff bailed to defendant to rebail to him (plaintiff), but in Account the plea is good; and the distinction (diversity) is, because in Detinue the bailment ought to be answered in pleading, and in Account nothing but the receipt, so your plea is not good without a traverse
Choke JCP: for charters the plea is good, as Nele JCP has said, but where the defendant wages (can wage) his law he will not have a traverse to the bailment
Sjt Vavasour: yes, Sir, in various cases one will have a traverse to the conveyance, or he can wage his law, as in Debt on an arbitration, 'no such arbitration' is a good plea, and in Debt on arrears of account before an auditor, 'no such account' is a good plea
Bryan CJCP: in Debt for chattels it is a good plea to plead that he plaintiff, since the bailment, had given them (the chattels) to the defendant, and yet he (defendant) can have his law (wage his law),
which was agreed
Sjt Bridges (for P?): it seems to me that the plea is double, one is the bailment to bail over, which is a matter of bar, and the other is the death of the horse, so he (defendant) is excused from rebailing, etc.
Sjt Tremayle (for D): the plea is single enough, because the death (of the horse) excuses us from delivering it (the horse) over, and we ought to plead the delivery over, or to show reasonable cause why we did not deliver the horse over
which Sjt Calow agreed
Bryan CJCP (to Sjt Tremayle): it is a good plea for you to admit (conustre) the bailment and that the horse had the illness (infirmity), that is, that the horse (il) died before the request
Sjt Tremayle (for D): Sir, I have pleaded (dit) so, that the horse (il) died three days after the bailment
Bryan CJCP: you ought to plead (dire) that the horse (il) died before the request,
so Sjt Tremayle (for D) pleaded thus,
and then the plea was entered, 'as above'
22 Hen. 6, it was held for clear law, in Debt (det) the defendant pleaded (dit) that it was bailed to rebail over, so the defendant averred delivery without traversing the plea, that is, that he (plaintiff) did not bail for him (defendant) to rebail, this was not held a plea; and there you can see of what effect the words 'to bail' (you) have pleaded are, and how the bailment was answered, but the action there was for charters, perhaps 1444.033 = Hil. 22 Hen. 6, pl. 33, fol. 45b-46a
Pasch. 28 Hen. 6, in Account the defendant showed that he (defendant) offered the said sum to the plaintiff, and he himself (plaintiff) agreed, and wanted the defendant to retain the money in satisfaction of such sum, for which the plaintiff was indebted to the defendant, and it was adjudged no plea, and the defendant sued a writ of Error on this (1450.010 = Pasch. 28 Hen. 6, pl. 9, fol. 7a-7b) |
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in 1481.095 = Mich. 21 Edw. 4, pl. 27, fol. 55a-55b, at the end of the report: 22 Hen. 6, it was held for clear law, in Detinue (det) the defendant pleaded (dit) that it was bailed to rebail over, to which the defendant will have delivery without traversing the plea, that is, that he (plaintiff) did not bail for him (defendant) to rebail, this was not held a plea; and ther you can see of what effect the words 'to bail' (you) have pleaded are, and how the bailment was answered, but the action there was for charters |
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Late (nuper)
Formerly
County
Merchant
Summons
Answer
Plea
Return
Horse
Price
Injustice
Detaining
Unjustly Detaining
Attorney
Day
Year
King
Delivery (deliberasset)
Safekeeping
Custody
Safety
Safe Custody
Request
Redelivery
Contradiction
Appearance
Denial (defende)
Force (vim)
Injury
Action
Maintenance Of Action
Absque Hoc
Holding (tenus)
Naught (pur nul)
No Plea
Wager Of Law
Charter
Thing
Time (tempore)
Infirmity
Illness
Sickness
Botch
Glanders
Horse Disease
Body (corpor-)
Collapse
Next
Following
Death (obiit)
Verification
Demand
Judgment
Allegation
Preclusion
Health (sanus)
Labour
Potency
Strength
Rejoinder
Issue
At Issue
Commencement
Pleading
Manner
Protest
Protestation
Horse (chival)
Large Price
Malady
Bailment
Delivery Over
Property
Gift
Stranger
Case
Truth (vere)
Understanding (entende)
Word (parolx)
Strength (fort)
Ambiguity (indifferent)
Ambiguous Word
Intent (entent)
Common Understanding
Presumption (comen entent)
Remaining
Bad Plea
Good Plea
Without Answer
Rebailment
Re-Bailment
Account
Distinction (diversity)
Receipt
Traverse
Without Traverse
Conveyance
Traverse To Conveyance
Arbitration
Debt
Debt On An Arbitration
No Such Arbitration
Nul Tiel Arbitration
Debt On Arrears Of Account Before An Auditor
Arrears
Auditor
No Such Account
Nul Tiel Account
Detinue (det)
Having His Law
Agreement (concessit)
Seeming
Double Plea
Matter
Bar
Matter Of Bar
Excuse
Single
Single Plea
Sufficiency (assets)
Single Enough
Showing
Reason
Reasonableness
Reasonable Cause
Cause
Admission
Confession
Acknowledgement
Infirmity
Entry
Entry Of Plea
As Above
Ut Supra
Clarity
Clear Law
Averment
Sight (veier)
Effect
Effect Of Words
Offer
Agreement
Retaining
Money (argent)
Satisfaction
Indebtedness
Adjudging
Suit
Error
Writ Of Error
Sight (Vide)
Sequenti |
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