| 1482.118 |
1482 |
Nisi prius, Common Pleas |
Debt on a sealed bill |
|
| Mich. |
22 |
Edw. 4 |
[1] (not 49) |
21b-22a |
Vavasour, John Sjt Vavisour (for D)
Bryan, Thomas CJCP Brian
Starkey, Humfrey Sjt Sterkey
clerk of Chancery (mentioned)
Catesby, John JCP
clerks of Chancery (mentioned)
Starkey, Humfrey Sjt Sterkey
Catesby, John JCP
Sulyard, John Sjt
Catesby, John JCP
Sulyard, John Sjt (mentioned)
the Court
those of Chancery (mentioned)
clerk of Chancery (mentioned)
Starkey, Humfrey Sjt
Bryan, Thomas CJCP Brian
Vavasour, John Sjt
Catesby, John JCP
all the Court |
A. |
R. of the (del) |
|
|
|
Hatley or Hately, Master Jo., testator
at Stile, J.
K., W., payor |
Chancery |
|
Fitzherbert Obligacion 10, Amendement 4 (not in margin)
Brooke Amendement 78 (not in margin, not fol. 20), Obligation 63 (not in margin) (not Brooke Trespas 367 nor Travers 274, references to prior case) |
cross-referenced in 1366.002 = Hil. 40 Edw. 3, pl. 2, fol. 2a (where obligation in third person wil be good)
1412.025 = Mich. 14 Hen. 4, pl. 9, fol. 10b-11b, 14 Hen. 4, in a Quare impedit, 'nominare should have been 'presentare', writ abated
2 Edw 4, fol. 20
8 Edw. 4, fol. 5
14 Hen. 4, fol. 11
10 Hen. 7, fol. 23
37 Hen. 6, fol. 9, 10
11 Hen. 6, fol. 49
2 Edw. 4, fol. 23
14 Edw. 3, Lib. Ass. pl. 14
5 Edw. 3, fol. 239
21 Edw. 4, fol. 97
40 Edw. 3, fol. 1 |
statute = 14 Edw. 3 (1340), stat. 1, ch. 6 or 8 Hen. 6 (1429), ch. 12 (amendment) (where a writ is contrary to the obligation on the examination of the Chancery clerk, it will be amended, that is, if he (the clerk) had the copy of the obligation, and notwithstanding this he (clerk) did (insert: not) make (the writ) according to his copy, there the party will not be aggrieved, but it (the writ) will be amended) |
| Brief de Det fuit port envers Eliz. Hatley executor de Maistre Hatley, proces continue |
52 |
Process continued until at Nisi prius.
At Nisi prius, it (a verdict) was found for plaintiff.
Plaintiff prayed his judgment.
Defendant said that the Court ought not go to judgment because this action was brought against defendant as an executor, and the record in the roll was in the 'detinent' (detaining) and in the 'debet' (owing), so all the record was discontinued, and defendant demanded judgment.
Bryan CJCP told (the parties?) to see the original writ, because if the original writ were good (in the 'debet'), even though there were mistakes in the record, this was only clerical error and would be amended.
Plaintiff? said that this was the clerk's fault and would be amended.
Catesby JCP said that the writ could not be amended, because the writ was not of form.
The opinion of the Court was that plaintiff's writ would not be amended.
Plaintiff (?) said that plaintiff's writ was good enough if when it was made defendant executor's testator was not yet dead, so the writ should be amended.
Bryan CJCP said that plaintiff himself by his count had abated his own writ.
Defendant said that even if this cause were insufficient in itself, there was another cause why the Court ought not go to judgment, because plaintiff had counted against defendant by a sealed bill that recited a promise to pay, which was not an obligation.
Catesby JCP said that the bill was sufficient.
This was the opinion of all the Court. |
Bryan CJCP: Veies le original brief, car si cel soit bon, coment que soit misprise en le recorde, ceo n' est forsque misprision & le defaut del clerke, & serra amende
Sjt Starkey: Moy semble que coment que l' original briefe soit en le 'debet', &c. que nient obstant cest le clerk del Chancery poit amender cest, car il est done per statut, que cest que est en son defaut serra amende per luy
Catesby JCP: Si un des clerks de le Chancery fait mon briefe de Det, 'Praecipe quod reddat' x. li. & jeo counta sur un obligation de xx. li en cel case si jeo voile monstre coment que jeo prist mon counsell en la Chancery, & que il avoit le vieu l' obligation la per l' statute, pur ceo que il ne poit estre deme (= deemed) nul defaut en ascun person, sinon sur luy que vist l' obligation la le clerk doit amendre sur son examination, car le party ne serra greve per son negligence, mes lou le briefe faile form, la il est misprision nient amendable, car cel Court ne doit regarde a lour nestient; car est lour non cunning, & ils sont oblige pur scire le cours de lour place; per faux latin
Et puis l' opinione del Court fuit, que il ne serroit amend en le case al barre pur ceo n' est parcel de le course que ils de le Chancery sont tenus pur conue, & cel Court ne prendra regarde a lour misfesans, mes a ceo que est comprise deins le statute, & ceo est que lou briefe est contrariant al obligation sur le examination del Clerk del Chancery il serra amende, s. s' il avoit le copy de obligacion, & nient obstant ceo il fist accordant a son copy , & la le party ne serra greve, mes serra amende & en touts cases semble, &c.
Sjt Vavasour (for D): il est un auter cause come moy semble pur que ne doit al jugement aler, car il ad count envers luy per un bille enseale, le quel est en cest forme: (in English:) 'Memorandum that I master Jo. Hately', le quel fuit testator, &c. 'have received of W.K. &c. the which tweny pound I the said maister J.H. promise to pay to' R. del A. que est ore plaintiff 'In witnes whereof I set to my seal', & Sir moy semble que icy ne sont ascuns parolx de obligation, car un promise n' est matter de obligation, pur que moy semble que pur cel cause
Bryan CJCP: Quant a transgressioun, car jeo die que si vous dits riens forsque, (in English:) 'I shall pay to you xx. li. In witness thereof, &c. I set my seale', jeo die que est bon obligation & issint icy
Catesby JCP: Moy semble a mesme l' entent, car jeo ne scie meliour parol de obligacion, que promitto, car jeo croy que est auxi bon come 'concedo vobis', ove le cause 'In cujus rei testimon' &c.
& issint fuit l' opinion de tout le Court,
quod nota |
Sjt Starkey spoke for plaintiff's position; Sjt Vavasour (as counsel), Catesby JCP, Sjt Sulyard spoke for defendant's position
Sjt Vavasour (for D) said that a promise was not matter of obligation; Catesby JCP said that he did not know better words of obligation than 'I promise' (promise and contract)
Sjt Starkey (for P?): it seems to me that even if the original writ be in the 'debet', etc. and notwithstanding this the clerk of the Chancery can amend this, because it is provided by statute (14 Edw. 3 (1340), stat. 1, ch. 6 or 8 Hen. 6 (1429), ch. 12) that what is in his (the clerk's) default will be amended by him
Catesby JCP: if one of the clerks of the Chancery makes my writ of Debt, 'Praecipe quod reddat' 10 pounds and I count on an obligation of 20 pounds in this case if I want to show how I took my counsel in the Chancery and that he (the clerk) had seen (le vieu) the obligation there (in Chancery) by the statute, because it cannot be deemed (deme) any fault in any person except in (sur) him (the clerk) who saw (vist) the obligation, there the clerk ought to amend (the writ) on his examination, because the party (plaintiff) will not be aggrieved by his (the clerk's) neglect (negligence), but where the writ lacks (faile) form, there is unamendable misprision, because this Court ought not regard their ignorance (nestient) (?), as (if) in a writ of Debt the writ were 'praecipe quod solvat' (pay) J. at Stile, etc. where it ought to be 'Praecipe quod reddat' (render), there the writ lacks (fault) form, and by neglect (negligence) of this the Court ought not take regard, but the writ will abate, because it is their (the clerks') unskillfulness (lour non cunning), and they
(the clerks) are obliged to know the course of their Court (lour place), so it seems to me in this case, when it (Debt) is brought against an executor, an in the 'detinet' and 'debet', there it lacks form, so it seems to me that it is unamendable misprision (mistake, clerical error)
Sjt Starkey (for P?): it seems to me that it will be amended, as in this case if one brings a writ of Warranty of charters, which is by force of a real covenant, if the writ be 'unde pactum habent' (whereas they have a covenant), where it should be 'unde cartam habet' (whereas he has a charter), in this case, it seems to me that it will be amended
Catesby JCP: in the same case it will not be amended, because there it is to be abated for (lack of) form, and will not be amended, no more than where it is abated for false Latin; and also if a general writ of Trespass be brought and does not say 'whereas with force and arms' (Quare vi & armis), the writ is unavailing (ne vault, is no good), (and) it will not be amended, because it lacks (faut) form, and in this case it is unamendable misprision, so here
Sjt Sulyard: if a patron granted to me that I at the next vacancy of his church ought to name my clerk, and he (would) presents him to the ordinary, and then the church was vacant (voide), and I named a clerk to the patron, and he would (insert: not) present (my clerk) to the ordinary, in this case if the grantee (me) brought his Quare impedit, and the writ were 'Quare permittat nominate' where it should be 'presentare' the writ is unavailing and will abate, and you see this (in) 14 Hen. 4, in a Quare impedit, so (the same) in this case at the bar
but Catesby JCP said to the case that Sjt Sulyard had put that he (Catesby JCP) would not agree with him, but he (Catesby JCP) did not say the reason (cause)
and then the opinion of the Court was that it would not be amended in the case at bar, so it is not part of the course that those of the Chancery are held to know, and this Court does not take regard to their (Chancery clerks' wrongdoing (misfeasance)), but to what is comprised within the statute, and this is that where a writ is contrary to the obligation on the examination of the Chancery clerk, it will be amended, that is, if he (the clerk) had the copy of the obligation, and notwithstanding this he (clerk) did (insert: not) make (the writ) according to his copy, there the party will not be aggrieved, but it (the writ) will be amended, and in all similar cases, etc.
Sjt Starkey (for P?): it can be in this case that the clerk who made the original (writ) was not at (en) any fault (defaut), because it stands indifferent at the time of making of the original (writ) if the plaintif would have declared in his action of a debt due by teh defendant himself (executor) or by the testator; and if it was an indebtedness (un duitie) due by himself, then the writ was good enough in the 'debet', etc. and this word 'executor' void and it is an addition, so it seems to me that inasmuch as the writ was good enough at the commencement so it (the writ) will be amended
Bryan CJCP: you say truly (that) the writ ws good enough at the commencement at the plaintiff's will, but now the plaintiff himself by his count had abated his own writ, because by his count he has abated his own writ, because by his (plaintiff's) count it appears that it is for an indebtedness (un duitie) due to the testator, in which case the writ is not good in the 'debet', so etc.
Sjt Vavasour (for D): even if this cause was not suffficient in itself, there is another cause as it seems to me why (the Court) ought not go to judgment, because he (plaintiff) has counted against him (defendant) by a sealed bill, which is in this form: 'Memorandum that I master Jo. Hatley', who was testator, etc. 'have received of W.K. etc. the which twenty pound I the said master Jo. Hatley promise to pay to R. of the A. who is now plaintiff 'In witness whereof I set to (this) my seal', and Sir, it seems to me that here there are no words of obigation, because a promise is not matter of obligation, so it seems to me that for this cause (the Court ought not go to judgment)
Bryan CJCP: as to Trespass, because I say that if you said nothing except 'I shall pay to you 20 pounds In witness whereof etc. I set my seal', I say that it is a good obligation, so here
Catesby JCP: it seems to me the same, because I do not know better words of obligation than I promise (que promitto), because I believe that it is as good as 'I grant you' (concedo vobis), with the cause, 'in witness whereof', etc |
|
|
1482.118 = Mich. 22 Edw. 4, pl. [1], fol. 21b-22a
Fitzherbert Amendement 4, fol. 37r |
|
Executor
(Executrix)
Master
Process
Continuation
Nisi Prius
Finding
Verdict (trove)
Judgment
Action
Record
Roll
In The Roll
Detinet
In The Detinet
Debet
In The Debet
Cause
Discontinuance
Discontinuation
Demand
Sight (Veies)
Original Writ
Good Writ
Mistake (misprise)
Mistake In The Record
Misprision
Fault (defaut)
Clerk
Misprision Of Clerk
Clerical Error
Amendment
Seeming
Notwithstanding
Chancery
Clerk Of The Chancery
Statute
Praecipe Quod Reddat
Count
Obligation
Case
Showing
Counsel
Taking Counsel
Deeming (deme)
Person
Examination
Party
Grievance
Aggrieved
Neglect (negligence)
Negligence
Lacking (faile)
Form
Lacking Form
Unamendable
Regard
Ignorance (nestient)
Existence
Nonexistence (nestient) (?)
Solvat
Praecipe Quod Solvat
Taking Regard
Abatement
Cunning
Skill (cunning)
Unskillful (non cunning)
Knowledge (scire)
Course
Course Of The Court
Detinet & Debet
Detinet And Debet
Unamendable Misprision
Warranty
Charter
Warranty Of Charters
Writ Of Warranty Of Charters
Force
Covenant
Covenant Real
Real Covenant
Unde Pactum Habent
Pact
Une Cartam Habet
By Form
Falsehood
False Latin
Latin
General Writ
Trespass
General Writ Of Trespass
Writ Of Trespass
Quare Vi & Armis
Arms
Force And Arms
With Force And Arms
Vi Et Armis
Unavailing (ne vault)
Avail
Patron
Grant
Next (prochein)
Vacancy (avoidance)
Church
Name
Naming
Presentment
Ordinary
Grantee
Quare Impedit
Quare Permittat Nominare
Nomination
Presentare
Agreement
Cause
Opinion
Parcel
Those Of The Chancery
Binding (tenus)
Knowledge (conue)
Acknowledgement
Misfeasance
Wrongdoing
Comprising
Contents
Contradiction (contrariant)
Examination
Copy
Copy Of Obligation
Accordingly
Similarity
Stand (estoit)
Indifference
Impartiality
Ambivalence
Time
Making
Making Of Writ
Declaration
Testator
Indebtedness (duitie)
Due
Sufficiency (assets)
Good Enough
Word (parol)
Voidance
Void Word
Addition
Inasmuch As
Commencement
At Commencement
Truth (voier)
Will (volunte)
At Will
Own Writ
Count
Insufficiency
Sufficiency
Bill
Seal
Sealed Bill
Memorandum
Receipt
Promise
Payment
Promise To Pay
Witness
Witnessing
Setting
Setting Seal
Words Of Obligation
Matter
Matter Of Obligation
Good Obligation
Ignorance (ne scie)
Better Word
Belief (croy)
Concedo Vobis
Note |
|
