| 1481.100 |
1481 |
Common Pleas |
(Annuity) |
|
| Mich. (2nd) |
21 |
Edw. 4 |
32 |
60a-63a |
Starkey, Humfrey Sjt (for P prior)
Nele, Richard JCP
other Justices of CP
Starkey, Humfrey Sjt
Vavasour, John Sjt Vavis.
Justices of CP
Nele, Richard JCP Jeo come Justice
Bridges, Thomas Sjt Brigges
Pygot, Richard Sjt Pigot
Starkey, Humfrey Sjt Stark (mentioned)
Calow, William Sjt Coll.
Starkey, Humfrey Sjt Stark (mentioned)
Pygot, Richard Sjt Pigot (mentioned)
Catesby, John Sjt or JCP
the Justices
Catesby John Sjt or JCP
Choke, Richard JCP
Bryan, Thomas CJCP Brian
Catesby, John Sjt or JCP
Choke, Richard JCP
Bryan, Thomas CJCP Brian
Catesby, John Sjt or JCP
Bryan, Thomas CJCP Brian
Catesby, John Sjt or JCP (mentioned)
Pygot, Richard Sjt Pigot (mentioned)
Sulyard, John Sjt Suliard
Bryan, Thomas CJCP Brian
Pygot, Richard Sjt Pigot (for D prior)
Bryan, Thomas CJCP Brian
Pygot, Richard Sjt Pigot (mentioned)
Pygot, Richard Sjt Pigot
Choke, Richard Sjt
Bryan, Thomas CJCP Brian
Serjeants
Nele, Richard JCP
King's Bench |
Merton |
W., Prior of |
|
|
|
Henry III, King of England
John, King of England
Thurkelby (Thurkilby), Roger, of Watsonde, Justice in 1254 fine
Ereington (Erdington), Egidio (Giles) of, Justice in 1254 fine
Eustachium, predecessor Prior of Merton
Richard, predecessor Prior of Bingham
Walborn', W. of, tenant
A., H., attorney for Prior of Merton
Norfolk, Sheriff of
Newark (Newstead) by Stamford, Prior of, party in 1329 cross-reference
Vaux (Vane), Sir J. (John) of, Justice in 1282 fine
John (two of that name)
Langley. party in cross-reference
M., payee |
Westminster
Salt'
Kelling-s
Bingham, church of
M. (Merton), church of
Dale, manor of
S., manor of
King's Bench |
|
Fitzherbert Scire facias 52, Covenaunt 12
Brooke Covenant 44 (not in margin), Relation 33 (not in margin), Errour 178 & 181 (both not in margin), Reservation 36 (not in margin), Tenures 40 (not in margin) |
Prior proceedings 1478.095 = Mich. 18 Edw. 4, pl. 24, fol. 18a and 1479.002 = Hil. 18 Edw. 4, pl. 2, fol. 22a-22b and 1479.036 = Mich. 19 Edw. 4, pl. 7, fol. 2b-3b and 1479.042 = Mich. 19 Edw. 4, pl. 13, fol. 4a-5a and 1480.008 = Hil. 19 Edw. 4, pl. 8, fol. 7b-9a and 1481.001 = Hil. 20 Edw. 4, pl. 1, fol. 16a-17a & pl. 8, fol. 4 and 1481.016 = Pasch. 21 Edw. 4, pl. 8, fol. 4b-5a
Later proceedings 1484.010 = Mich. 2 Ric. 3, pl. 10, fol. 5a-7a 1484.047 = Mich. 2 Ric. 3, pl. 47, fol. 18b-20a
Related proceedings 1482.074 = Pasch. 22 Edw. 4, pl. 6, fol. 1b-2a and 1482.106 = Pasch. 22 Edw. 4, pl. 38, fol. 14a-14b
1329.079 = Trin. 3 Edw. 3, pl. 2, fol. 21b (c. 2, f. 21), prior of Newark juxta Stamford in Replevin
1448.071abr = Trin. 26 Hen. 6, Fitzherbert Assise 13, fol. 45v, 26 Hen. 6
case of Langley, perhaps perhaps 1442.058 = Trin. 20 Hen. 6, pl. 6, fol. 37a, possibly 1430.018 = Hil. 8 Hen. 6, pl. 18, fol. 27b-28a
2 Ric. 3, fol. 5
7 Edw. 4, fol. 3
3 Edw. 3, pl. 2, fol. 21
7 Edw. 4, fol. 6
22 Edw. 4, pl. 6, fols. 1 & 2
37 Hen. 6, fol. 21
30 Edw. 3, fol. 18
19 Edw. 4, fol. 9
7 Hen. 6, fol. 11
14 Hen. 4, fol. 3
42 Edw. 3, fol. 9
2 Ric. 3, fol. 6
33 Hen. 6, fol. 27
2 Ric. 3, fol. 5, 6
Perkins, Profitable Boke 122
12 Edw. 4, fol. 11
19 Edw. 4, fol. 81
10 Hen. 7, fol. 23
22 Edw. 4, fol. 32
11 Hen. 7, fol. 4
21 Edw. 3, Lib. Ass. pl. 64
2 Ric. 3, fol. 10
14 Edw. 4, fol. 3, 8
35 Hen. 6, fol. 34
19 Edw. 4, fol. 3
2 Ric. 3, fol. 5, 6
Perkins, Profitable Boke 16?
Perkins, Profitable Boke 120, 121
33 Edw. 3, fol. 52 (?)
12 Edw. 4, fol. 11
Littleton, Tenures 124
Littleton, Tenures 147
49 Edw. 3, fol. 8 |
|
| Residuum del Scire facias per le Prior de Merton sur le note del fine en tiel forme. Haec est finalis |
189 |
Plaintiff prior brought Scire facias to execute on arrears of an annuity and showed a fine.
Defendant prior demurred on the matter Mich. 1478.
Plaintiff prior demanded execution against defendant prior (of a fine levied in 1254).
Nele JCP said as Justice that plaintiff prior would never have execution.
No other Justices were in Court at this time.
Plaintiff prior's counsel showed that in 1329 a fine of 1226 was adjudged good, so this case being of the same effect, it seemed that plaintiff would have execution.
Various other notes of fines were shown by Sjt Vavasour later when the Justices came.
Nele JCP said that plaintiff prior would not have execution, because there was no original writ
In alternating speeches, Sjt Bridges and Sjt Calow spoke for plaintiff's position that the 1254 fine could be executed, and Sjt Pygot and Catesby JCP or Sjt and spoke for defendant's position that the 1254 fine could not be executed.
Catesby Sjt or JCP would have said more, but the Justices rose (surrexer-).
At another day, Catesby Sjt or JCP said that plaintiff prior would not have execution.
Choke JCP said at length that plaintiff prior would have execution.
Bryan CJCP agreed.
Catesby Sjt or JCP disagreed, and said that it was ruled otherwise in the case of Langley.
Bryan CJCP said that plaintiff prior's annuity was good.
At another day Sjt Sulyard spoke for plaintiff's position.
Bryan CJCP explained a distinction made on a previous day to counsel for defendant prior.
Counsel for defendant prior argued with Bryan CJCP
Choke JCP started to argue something, and would have said more.
But Bryan CJCP demanded of the Serjeants whether they had anything else to say so that the Court would be advised of this until the morrow, or otherwise the Court would make a rule for nothing that was yet said, because the majority (greater part, pluis part) of the Court were of one opinion.
On the morrow Nele JCP, because he was not of the majority's opinion, departed out of the Court (place), and the other Justices told plaintiff to sue execution.
Immediately while the Court was sitting a writ of Error was put in.
The writ of Error was well disputed in King's Bench |
in crastina animarum, Anno Regis Henrici filii Regis Johanne 39 coram Rogero Thurkelby de Watsond' & Egidio de Ereington Justices; unde placitum conventionis sumus fuit inter eos
Nele JCP: Jeo come Justice die que uncore n' aves execution,
& a cest temps ne fuerent auters Justices en le place
Sjt Starkey (for P) monstra coment en Trin. 3 Edw. 3, ch. 2, fol. 21, le Prior de Newark juxta Stamford avowa en un Replevin, & monstra en son avowry, coment Anno 10 Hen. 3 fine cest leva devant Sir J. de Vane, perenter le predecessor le Prior & auters, sur un brief d' Annuitie
Sjt Pygot: en ancient temps les Justices voilent accepte fine, quel a cest jour serra voide, mes le cause que tiels fines serront suffres & admittes pur bon, est le continuance (co-tin-), car ils voilent peraventure accepte fine, per cestes parolx, s. 'Deo & Ecclesiae', & le cause fuit que ceux que fuerent Judges a cel temps, ne fuerent conusant de le ley, mes ore quant homes ont studies le perfeccion de le ley, devomus entendre lour acts, auxi pres lour entents come nous poimus per reason; Et come jeo entende chescun fine covient d' aver original & estre accordant a cest; & si egalty dez services ust este devant
Et a auter jour Sjt Sulyard dit, que en brief de Rationabilis divisis d' un pischary un fien fuit leve, pur que le defendant grant al plaintiff un annuity de v. s. pur le pischery, &c. & cest plus estrang3 cas que est, & tamen agarde bon, pur que &c.
Bryan CJCP: Jeo mervaile much que il prist tant regard de cest que varier del original car jeo voile veier quel declaration est fait sur cest brief, jeo croy que ils voilent prendre le fine en lieu del declaration, & donques poient demander Jugement pur le variance |
|
Augustinian Priory of St. Mary Virgin at Merton, Surrey. Benedictine Priory of St. Mary Virgin at Binham, Norfolk. Perhaps Augustinian Priory of St. Mary Virgin at Newstead, Lincolnshire by Stamford, Northamptonshire or Benedictine Priory of St. Leonard at Stamford, Lincolnshire. Roger de Thurkilby, itinerant Justice from 1240 to his death in 1259, noted in Foss, Biographica Juridica, p. 660. Giles de Erdington appeared in records as a judge from 1251 to 1267, in Foss, Biographica Juridica, p. 234. John Catesby was appointed JCP on 20 Nov. 1481. |
Sjt Pygot said that judges in former times were not cognisant of the law, but now that men have studied the perfection of the law, we (lawyers) ought to understand their (former judges'?) acts, as near their intent as we can by reason
Sjt Starkey (as counsel) and Sjt Bridges and Sjt Calow spoke for plaintiff's position that the 1254 fine could be executed; Nele JCP and Sjt Pygot and Catesby JCP or Sjt and spoke for defendant's position that the 1254 fine could not be executed
long Latin (heavily abbreviated) note of the fine in such form: this is a final concord at Westminster on the day after All Souls, 39 Hen. 3 (= Tue. 3 Nov. 1254) between Eustace, Prior of Merton, and Richard, Prior of Bingham of 5 marks and 5 shillings rent with appurtenances in Salt- and Kelling-s, that the Prior of Bingham acknowledge and grant for himself and his successors an annuity to the Prior of Merton
Sat. 4 Jul. 1478 (18 Edw. 4), writ of Scire facias
Sjt Starkey (for P) showed how in 1329.079 = Trin. 3 Edw. 3, pl. 2, fol. 21b, the Prior of Newstead (Newark) juxta Stamford avowed in a Replevin, and showed in his avowry, how 10 Edw 1 (not Hen. 3) (1282 or 1281) a fine was levied of this before Sir John of Vaux (J. de Vane), between the prior's predecessor and others, on a writ of Annuity, and that the deforceant for this annuity granted to the prior and his successors out of such land so much of rent with a clause of distraint, and at this time such a fine was adjudged good, so this case being of the same effect (citation of judicial precedent) it seems that we (plaintiff Prior of Merton) will have execution,
and various other notes of fines were shown by Sjt Vavasour when the Justices had come
Nele JCP: it seems to me (luy) that he (plaintiff Prior of Merton) will not have execution, because no fine can be good without an original (writ), and (execution) ought to be for such a thing that was in existence (in esse) before the fine; and it did not appear by the words of the fine that this annuity was (in existence) before the fine, and it was not shown by deed or by prescription that it (the annuity) was (in existence) before the fine, so etc.; and also here there is not any original (writ) by which any fine will be levied of any annuity, because the fine is for 5 marks and 5 shillings (total = 3 pounds 11 shillings 8 pence) of rent, etc. 'whereof the plea of Covenant was, and rent and annuity are entirely different, and it is not the same as such a thing that can be naturally on a fine; as if I acknowledge (conus-) all the right that I have in an acre of land to you, and by the same fine you grant to me an annual rent of 10 shillings out of the same land, this is a good rent, and yet there is no original (writ) for rent; but the cause for which rent is issuing from the same land, and (such rent) naturally can be reserved on the grant and render, and if two (parties) want to come into this Court and the one says that the other wrongfully detains his lands, if we give judgment on this it is void, or if he (a party) wanted to levy a fine without an original (writ) it is of no effect, or in Trespass or Detinue it (a verdict) is found for the plaintiff and we give judgment that the plaintiff recover his debt and damages, this is void; and so it is if the parties want to levy a fine for ta thing that is in the original (writ), or not following it (pursuant) it is not good, and so is this annuity (not good); and at least it is error; as if we give judgment on a Grand Cape, where there is not any original (writ), or those of a Court Baron hold a plea for more than 40 shillings (forty shilling limit), so etc.
Sjt Bridges: and as to what is said, that a fine cannot be levied without an original (writ), Sir, in former times (ancient temps) it could (sense of history, legal history), and one will make recognisance without an original (writ) in this Court, and now for this (fine) one will have a Scire facias, or if an advowson descends to coparceners and they want to agre by an enrolled indenture to present by turns (per turne), each of them when her (son) time comes will have a Scire facias by the same reasoning, to my thinking (conceit) to levy a fine; but we are not in the case (put by Nele JCP), because now there is a writ of Covenant, and notwithstanding that the note (of the fine) does not accord in every word, yet it (the fine) is good, and the original (writ) is for 5 marks 5 shillings, and also the fine rehearses that the prior would have this annuity at M. (Merton) for the rent service, and the covenant was such by an indenture, that is, that where the Prior of Bingham held certain tenements of the Prior of Merton by fealty and certain services and so much rent, that the Prior (of Merton) would discharge him of all the services, and that he (Prior of Bingham) and his successors would pay to the Prior of Merton (M.) annually 71 shillings 8 pence (= 3 pounds 11 shillings 8 pence = 5 marks 5 shillings); and notwithstanding that the indentures are matters in fact, so that now it cannot be pleaded, yet it could reduce (?) you to acknowledge the intent of the fine; and it seems that a fine can be levied for something that is not contained in the writ, as the case that has been put of a cognisance of right of land and the rent reserved on a grant and render, this is a good rent by the fine, yet nothing is said (ne fuit parlance) of this in the original (writ), and it was not in existence (en esse) before the fine; and I take a distinction between Praecipe quod reddat and a fine, because the Praecipe quod reddat ought to be for a thing that is in existence (en 'esse') etc. or otherwise it is not good, but a thing can commence by a fine that was never in existence (in 'esse') before; as if an Assize of Darrein Presentment be brought against a parson, patron, and ordinary, and they appear, and by a license (licence) they agreed (accorde) in such a manner, the plaintiff acknowledge all the right that he had in the patronage to the defendant patron (for) which the defendant granted an annuity out of the same church to the plaintiff in fee, this was adjudged good, and he will have a Scire facias fo rthis, and yet it was not in existence (en 'esse') beforehand, and the original (writ) did not speak of this annuity, etc.
Sjt Pygot (to the contrary): and in former times (ancient temps) the Justices would accept a fine which at this day would be void, but the reason (cause) that such fines are permitted (suffres) and admitted as good, is the continuance, because they would perhaps accept a fine by these words, that is, 'to God and to the Church', and the reason (cause) was that those who were judges at that (cel) time were not cognisant of the law (ceux que fuerent Judges a cel temps, ne furerent conusant de le ley, mes ore quant homes ont studies le perfeccion de le ley, devomus entendre lour acts, auxi pres lour entents come nous poimus per reason), but now when men have studied the perfection of the law, we (lawyers) ought to understand their (former judges'?) acts, as near their intent as we can by reason; and as I understand every fine ought to have an original (writ) and ought to be accordant to this, because the note is 'whereof a plea of covenant' etc.; and here there was no covenant of any annuity, but (rather) of rent, and it is not like a case of rent reserved, because the rent reserved out of the same thing that is named in the original (writ), and there the fine is for a partition (purparty) (?), and how the rest follows (rem- est pursuant); and so it is in this case of Darrein Presentment, because the same church is charged of the same annuity, and does not extend itself to the parson; and also there ought to be an original (writ) for which the fine will be levied, because if the original be for 20 acres, and the fine is levied for 40 acres, as to the 20 acres the party will be discharged, because there was no original for this; and as to the case that Sjt Starkey has put, I grant well that one can grant that he distrains in another place for his rent; and Praecipe quod redddat to levy a fine for what is in demand is good, because for this original (writ) thus to expound the effect and the intent of the words they prove that there will be rent service and not annuity, because it appears that the original was for rent service, and the note is that he will pay so much for all manner of services, which will be understood that he has released to him all the services except the rent, so this is not changed, and everyone would admit (nul voit denier, mes) that if 'aforesaid' had been rehearsed or expressed ('mesque') would have been clear rent service, and there are words that are understood (pernon) as strongly (auxy fort) that are in the note, that is, that he will pay the sum; and also the services will be done to the chief lord by the Prior of Merton, and also the Prior warranted to him the tenements, for the aforesaid services, which proves that it is rent services, and so equality (egalty) of services had been before; in a writ of Mesne brought against the Prior of Merton by the Prior of Bingham will be barred, because he himself by the fine is obliged to do the services for the Prior of Merton so it seems that you understand this to be rent service; as if there are two Johns at one writ, the one plaintiff and the other defendant, and the writ summons 'the aforesaid John' you ought to understand this John who is defendant, so here, you understand by the words that it is the same rent service that now will be paid at Merton so this action does not lie, etc.
Sjt Calow (to the contrary): and to this, that the words that the Prior of Bingham will do the services for the Prior of Merton, so he will be barred in a writ of Mesne, prove that it is rent service, this is not so, because if the intermediate estate (mesualty, mesnalty) be extinguished (extinct) as it is our intention to prove, so it is reasonable that he be barred, and also he will do the services; and the case put by Sjt Starkey, which Sjt Pygot has granted, because it was in former times (ancient temps) will be good with the possession afterwards; and as good a case is that this fine that was levied in times of Hen. 3 and the ossession is until lately (ore tarde); and also there can well be a fine or concord for a thing that was not in the original (writ), as in a writ of Warranty of charters, the fine can well be levied for the land, etc. and yet the writ does not speak (parle) of land, so this fine is (not) as well levied on the writ of Covenant, etc.
Catesby JCP or Sjt (to the contrary): and it is agreed that the words of the fine that this rent was before the fine and in existence (en 'esse') at the time, because the words are between one such plaintiff (queretur) and one such deforceant, and one canot be a deforceant of a thing that is not in existence (en 'esse'), which proves that it is rent service; and this Prior of Merton will be estopped to say the contrary of this, because in every case where one brings Praecipe quod reddat for a manor, he will be estopped from saying that there was no such manor, so here, when he has supposed the defendnat deforced of rent, it will be understood tha tthe rent was for land that he held of him, which ought to be rent service, so when it is rehearsed in the fine that he (Prior of Bingham) would pay the 5 marks 5 shillings at Merton, and would do the services to the chief lord for the Prior of Merton 'for all services, exactions, and demands, how can it be understood otherwise than as rent service; and there are stronger words, that is, the Prior of Merton grants to warrant to the Prior of Bingham the tenements 'for the aforesaid services', and and Catesby JCP or Sjt would have said more, but the Justices rose (surrexerent)
at another day,
Catesby Sjt or JCP: Sir, when the writ supposed the deforcement of the rent in Dale and S. with the appurtenances, this will be understood rent service, so this annuity is not on any original (writ), and the cases where the peace is made ought to be expressed or implied in an original (writ), as the case of cognisance of right of land, and the rent reserved on the grant and render, or common, or so many cartloads (carects) of wood to take on the same land, all those implicitly are in the original (writ), because the land etc. is charged with this, but if the fine be for a thing that is neither expressed nor implied in the original (writ), it seems that this is voidd; as if the writ be 'for the manor of D.' and acknowledge the right of this manor to you, and you grant and render to me the manor of S. this render is void, or if you grant that I will have the manor of S. in exchange for this the fine as to this is void, because no original (writ) is expressed or implied from this; and also it appears by the fine that this is rent service, because the fine is 'for all other services', and this canot be unless this be some service, by these words 'other services' it is implied that (the rent is for the services); and also the Prior has warranted the land for the aforesaid services, which proves that it is rent service; and the words are also that the Prior of Bingham will do the services to the chief lord for the Prior of Merton; and by the law no one will do the services for another, unless he be his tenant, so by a cause that appears he is tenant, and the Prior of Merton intermediate (mesne),
which was denied by Choke JCP and Bryan CJCP, because it seemed to them that the intermediate estate (mesnaltie) is extinguished (extinct), so he did the services for himself
and then Catesby Sjt or JCP said that this fine in a way (en manner) (is) a confirmation to hold by lesser service, as if I hold of you certain land by homage, fealty and scutage (escuage), and 10 shillings of rent, and you confirm my estate rendering to me 12 pence (= 1 shilling) for all services, this is good, and these is 12 pence (= 1 shilling) are part of the old rent; and in this fine there is no word that the Prior of Merton will extend (extinguish) his lordship, and to my thinking it is all the same to pay 71 shillings 7 pence (= 5 marks 5 shillings) at Merton and to pay the said 71 shillings 8 pejnce (= 5 marks 5 shillings) on the land held, and if it had been so, everyone would admit (nul voite denier mesque) it had been rent service, so etc.
Choke JCP (to the contray): because for rent services the writ will be for so much rent with the appurtenances in D. and fora rent charge for so much of rent issuing from so much land in D., so to what is said that there ought to be a warranty on the original (writ) expressed or implicit (implicite), I grant that if it be purely (mere) contrary it is not good, as if the original (writ) be for land, and he wants to acknowledge the right of so much of pasture or of meadow or of wood, this is not good, nor vice versa (nec e contra), yet if it be held (tenue) sufficient (est assetz) until it be defeated or reversed, and you grant that on a fine of cognisance of right of land the cognisance can reserve a rent on the grant and render, this is good enough by the fine, and to what yousay, because pursuant fine (?) has been levied and good and in such a manner, that is, that 'he hold a covenant' for 20 acres of pasture, the deforceant (deforceor) acknowledges all the right by which the cognisee grants to the cognisor, common of pasture to 20 oxen, 20 sheep and other animals for a certain time, and for this time and three weeks beofre the grant he will not put in the animals; and also in a writ of Covenant for land one can grant the reversion, yet there is not any original (writ) expressing this, nor, etc.; and as well this annuity is pursuant and conveniently granted when the grnat is 'for services', etc. because you have a form in a fine, that is, to say 'that for this recognisance', etc. the aforesaid cognisee gave to the cognisor 100 marks (= 66 pounds 13 shillings 4 pence), and the words are turned (torns), that is that the cognisee gave to the cognisor 100 marks, by which he acknowledge, etc. would this fine not be good?, yes, certainly, so you are in the same case, because if the words had been that the Prior of Merton had acknowledge all the right etc. to the Prior of Bingham, by which he ought to grant the payment of the money at Merton, etc. there is no question that it had been an annuity, so when the words are turned (tornes) that the Prior of Bingham, for himself and for his successors, to pay so much money at Merton for the services, etc. this is as strong as (auxi fort come) (if) the other had acknowledged all the lord's right for this annuity, because the words of the fine is the speech (parlance) and the agreement of both parties; and it appears that the Prior of Bingham had a grant to render annualy the 71 shillings 8 pence (= 5 marks 5 shillings) at Merton; and you never saw that the tenant can grant any rent service to the lord, ,and no rent was payable there before, and there is no grant to be issuing out of any land, so there is no rent charge, which rent is this so, certainly nothing but an annuity; and I understand that if the words had been that the Prior of Bingham had granted to pay the money etc. at Merton, by which the Prior of Merton had released to him the services, it would have been clearly an annuity; and as to those words that he would do the services for the Prior of Merton, that this will prove that it is rent service, no, Sir, but those words are void, because if there are a lord and tenant, and the lord releases to the tenant by a deed indented all the right that he had etc. 'rendering one penny and doing service to the chief lord', and this for the lord, those words are void, because by the release his lordship (Seigniory) is extinguished (extinnct), and no service can be done for him when he has no interest in the tenancy; and in a fine on an avowry the note was that the cognisor by the grant (to) the cognisee would have the denomination (presentment?) every second time, and (it was) awarded good, so it seem to me (that) the fine (is) good, and the services extinguished (extinct) for this, and what is granted is no rent but an annuity, so it seems to me that the plaintiff will have execution
Bryan CJCP (in agreement): and I say that in former times (ancient temps) fines could be levied without an original (writ), and if such a fine would be levied at this day before us, it would be good until it be reversed by a writ of Error, as appeared 26 Hen. 6 (1448.071abr = Trin. 26 Hen. 6, Fitzherbert Assise 13, fol. 45v), if one be brought into Court on a Capias in Trespass where there is no original (writ), and plead and is condemned, etc. this is good, until it be reversed
Catesby Sjt or JCP said no, that it was ruled otherwise in Langley's case (perhaps 1442.058 = Trin. 20 Hen. 6, pl. 6, fol. 37a (Capias for which there was no original writ, attorney disciplined) or possibly 1430.018 = Hil. 8 Hen. 6, pl. 18, fol. 27b-28a
and Bryan CJCP said that where on a writ of Covenant one acknowledged on the manor of Dale and levied a fine of the manor of Sale, this is not error; and here the services are extinguished (extincts) by the words of the fine, which are that the Prior of Bingham would pay etc. for all services and demands, because the words of the fine preclude (conclude, foreclose, estop) both of the parties, because they (words) are in the third person, that is, on the concord rehearsed by the Court, as if it had been by indenture (where) every word is the word of both parties; and to the notion (conceit) that Catesby JCP or Sjt moved as to deforcement, etc. if the note will be for land, yet it will be 'between such plaintiff and such deforceant', and not 'demandant and tenant', which proves that it is in the personalty (category), and it makes no difference (ne fait matter, is immaterial) which of the parties be possessed of the thing from which (the money issued), etc., because the parties are precluded (concludes, foreclosed, estopped) by the fine, and if any party be possessed it is good, so this word 'deforceant' is not of such effect as is understood (by Catesby JCP or Sjt), and also where the lord confirms (that) the estate (of) his tenant renders a penny 'for all services', that this is part of the old lordship, I deny that I take a distinction between 'rendering' and 'holding' because 'rendering' includes no tenancy in any manner, and 'holding always includes an tenancy, because if the lord confirms his tenant's estate 'renderning' and 'paying' (solvend-) so much for all manner of services, the services are extinguished (extincts) and he rent is not any rent service, but if he confirms his tenant's estate 'reserving' or 'holding' so much 'for all services' this is part of the old services, or says 'reserving' alone, in those cases the lordship remains; and if I enfeoff you in fee of certain land by an indenture 'holding' of me be so much rent 'for all services', this is void, but if it had been 'rendering' (reddend-), this would have been a good rent charge, if there was a clause of distraint in the deed, so here the fine is hat he will pay so much for all the services, and if it will be rent service, then the fine is self contradictory, that he will pay this for all the services, and also will do fealty which is incident to rent service if it be rent service; and becuse the note is that the Prior (of Bingham) ought to pay the money at Merton, this cannot be rent service, which is extinguished (extinct) as has been said, nor is it rent seck nor rent harge, because it is not issuing out of any land, so it oughtto be understood an annuity; and to what is said that the note oughtobe of such a thing that is expresed in the original (writ) or implied, I take for my part the same ground that Sjt Pygot took the other day, that is, when the fine was levied for what is expressed in the original (writ) so proceedin in the same fine in such which are implied, as to reserve rent in the same land; and also I say to grant common or an annuity for the thing acknowledged, so it seems to me the annuity is good
and at another day Sjt Sulyard said that in a writ of Rationabilis divisis of a fishery (pischary) a fine was levied, so the defendant granted to the plaintiff an annuity of 5 shillings for the fishing ground (pischery) etc. and this was the strangest case there is, and yet it was awarded good, so etc. (continues argument Sjt Sulyard made in 1479.042 = Mich. 19 Edw. 4, pl. 13, fol. 4a-5a)
Bryan CJCP: I marvel much (wonder) that he took such regard of what varies from the original, because I want to see what declaration is made on this writ, I believe that they want to take the fine in lieu of the declaration, and so they can demand judgment for the variance
Sjt Pygot (for D) showed the same reasoning that he showed the other day, that it would be rent service, etc.
Bryan CJCP, because Sjt Pygot (for D) was not in the Court the other day, showed his distinction that he (Bryan CJCP) took between 'rendering' and 'holding'
Sjt Pygot (for D): I put that in the same term 'reddend-' will be (included) rent service, and yet I grant your case of feoffment in fee, but if (at) this day I give land in (fee) tail 'rendering to me and to my heirs 10 shillings per year', this is rent service, and the same reason of a lease for a term of life, so this ground is not so general as has been understood (pris); and the (defendant) Prior of Bingham cannot extinguish them (rent service?) by his act not by these words, so it seems to me that the rent service remains (demurrust), and it is not contradictory that he will do fealty which is incident to this rent service, because if I confirm my tenant's estate to hold by the services of one penny for all services, where he held by 10 shillings beforehand, he will do fealty, so here, this rent is part of the old rent, so the Prior will hold by fealty and rent comprised in the fine etc.
Choke JCP: this rent which is now paid is the grant of the Prior of Bingham only, and as I said the other day the tenant cannot grant rent service to the lord, and wanted to say more,
but Bryan CJCP asked the Serjeants if they had anything else to say, so they (the Court) would be advised of this until tomorrow (a lendemain), or otherwise they would make a rule for nothing that was yet said, because the greater part (majority) of us are of one opinion |
|
|
1481.100 = Mich. 21 Edw. 4, pl. 32, fol. 60a-63a
Catesby JCP or Sjt said that it was ruled in the case of Langley
Fitzherbert Covenaunt 12, fol. 182v, also dated this Pasch. 21 Edw. 4, fol. 4
Fitzherbert Scire facias 52, fol. 191v-192r, a long entry, dated this Trin. 22 Edw. 4, and dated the fine 3 Hen. 3 |
|
Residuum
Scire Facias
Prior
Note
Fine
Note Of Fine
Form
Concord
Final Concord
Morrow (crastina)
Soul (animarum)
Year
King
Son
Coram
Deforceant
Rent
Appurtenances
Plea
Covenant
Plea Of Covenant
Recognisance
Cognisor
Successor
Church
Tenant
Tenement
Tenacy
Vill
Term
Mesne (mediette)
Services
Pro Omni Servitio Sectae Curiae Consuetudinae Exactione
Chief Lord
Capitalibus Dominis
Fee
Grant (concessit)
Warranty
Folk (gentes)
Perpetuity (imperpetuum)
Day
Appearance
Attorney
By Attorney
Sheriff
Arrears
Levying
Levying Finne
Chattel
Bailiwick
County
Octave
Showing
Annuity
Demurrer
Matter
Demand
Execution
Time
Chapter
Folio
Juxta
Nearness
Avowry
Replevin
Knight
Predecessor
So Much
Clause
Distraint
Clause Of Distraint
Adjudging
Good Fine
Case
Effect
Same Effect
Presence
Original
Original Writ
Thing (chose)
Existence
In Existence
In Esse
Annuity
Word (parolx)
Words Of The Fine
Deed (fait)
By Deed
Prescription
By Prescription
Rent
Difference (divers)
Dissimilarity
Naturally
Natural Fine
Nature
Acknowledgement
Right
All The Right
Acre
Annual Rent
Good Rent
Cause
Issuance
Reserve
Reserving
Render
Wrong (tort)
Detaining (detient)
Judgment
Void Judgment
Ineffectual
Trespass
Detinue
Finding
Verdict (trove)
Recovery
Debt
Damages
Party
Pursuant
Pursuance
At Least
Error
Cape
Grand Cape
Court Baron
Holding Plea
Forty Shillings
Forty Shilling Limit
Over Forty Shillings
Former Times (ancient)
Old Times
Ancient Times
Past
Advowson
Descent
Coparcener
Parcener
Parcenry
Indenture
Enrollment
Roll
Agreement
Presentment
Turn
By Turns
Reason
Thinking (conceit)
Writ Of Covenant
Notwithstanding
Accord
Accordingly
Rehearsal
Rent Service
By Indenture
Certainty
Fealty
Discharge
Payment
Matter In Fact 61
In Fact
Pleading
Reduction
Intent (entent)
Intent Of Fine
eeming
Contents
Containing
Cognisance Of Right
Rent Reserved
Grant And Render
Speaking (parlance)
Talk
Distinction (diversity)
Praecipe Quod Reddat
Commencement
By Fine
Never (nunquam)
Assize
Darrein Presentment
Parson
Patron
Ordinary
License (licence)
Patronage
In Fee
Good Accord
Contrary
Acceptance
Void Fine
Permission (suffre)
Sufferance
Admittance
Admission
Perhaps
God And Church
God
Ignorance
Ignorance Of Law
Study
Perfection
Perfection Of Law
Understanding (entendre)
Act
Nearness (pres)
Reason
By Reason
Covenant Of Annuity
Covenant Of Rent
Name
Purparty
Partition (purparty)
Rest (remainder)
Charge
Extension
Parson
Place (lieu)
Expounding
Exposition
Proof
Release
Exception
Denial
Change
Praedict-
Expression
Expressing
Clarity
Strength (auxi fort)
Sum
Chief Lord
Lord (Seignior)
Equality (egalty)
Equality Of Services
Writ Of Mesne
Bar
Obligation
Summons
Action
Laying (gist)
Mesnalty
Intermediate Estate
Extinguishment (extinct)
Extinction
Reasonableness
Possession
Good Case
Lately (ore tarde)
Concord
Warranty Of Charters
Charter
Writ Of Warranty Of Charters
Speaking (parle)
Estoppel
Manor
No Such Manor
Supposition
Deforcement
Exaction
Strong Word
Rising (surrexer-)
Arising
Peace
Making Peace
Implication
Implying
Common
Cartload (carects)
Wood
Taking Wood
Implicit
Exchange
Mesne Lord
Confirmation
Lesser Services
Homage
Fealty
Scutage (escuage)
Estate
Parcel
Old Rent
Lordship (Seigniory)
Thinking (entent)
Expressed Or Implied
Express Or Implicit
Contradiction
Purity (mere)
Pasture
Meadow
Vice Versa
Nec E Contra
Defeat
Reversal
Sufficiency (assetz) 62
Good Enough
Teneat Convencione
Deforceor
Cognisee
Cognisor
Common Of Pasture
Oxen
Sheep
Week
Putting In
Convenience
Conveniently
Convenient Grant
Form Of Fine
Money (money)
Question
No Question
Money (argent)
Turning (tornes)
Agreement
Speech (parlance)
Sight (veies)
Payable
Deed Indented
Penny (denari)
Interest
Interest In Tenancy
Denomination
Nomination
Presentment (denominacion)
Second Time
Award
Writ Of Error
Bringing
Arrest (amesne)
Capias
Condemnation
Rule
Third Person
In The Third Person
(Grammar)
Notion (conceit)
Motion (mova)
Deforcing
Querentem
Petentem
Tenentem
Personalty
In The Personalty
(Category)
Immaterial
Preclusion
Foreclosure
Conclusion
Reddendo
Tenendo
Inclusion
Including
Solvendo
Reservando
Remaining (demurra)
Feoffment
Good Rent Charge
Rent Charge
Incident
Rent Seck
Ground
Part
Preceding
Rationabilis Divisis
Reasonable Division
Pischary
Fishing Ground
Strange Case
Tamen
Marvel
Much
Wonder
Regard
Variance
Declaration
Belief (croy)
In Lieu Of
Reasoning
Gift
Fee Tail
Heir
Lease
Term Of Life
General
General Ground
Act
Consistency (n' est contrarient)
Serjeant
Advice
Morrow (lendemain)
Making A Rule
Majority (plus part)
Greater Part
Opinion
Departure
Immediacy (maint-)
Sedente Curiae
Dispute
Well Disputed
King's Bench |
|
