1334.080 |
1334 |
Common Pleas |
Replevin |
Replegiare |
Pasch. |
8 |
Edw. 3 |
30 |
31a-32a |
Gaynesford, John de Sjt Gain (for D)
Pole, Richard de la Sjt (for P)
Shardelow, John de JCP Schard
Hillary, Roger Sjt (for P)
Shardelow, John de JCP Schard
Pole, Richard de la Sjt
Parvyng, Robert Sjt Parn (for D)
Hillary, Roger Sjt
Trewythosa, Simon de Sjt (for D)
Hillary, Roger Sjt
Parvyng, Robert Sjt Parn
Herle, William CJCP (misattributed, for P, perhaps Hillary, Roger Sjt)
Herle, William CJCP
Pole, Richard de la Sjt
Shardelow, John de JCP Schard
Pole, Richard de la Sjt
Parvyng, Robert Sjt Parn
Trewythosa, Simon de Sjt
Hillary, Roger Sjt
Parvyng, Robert Sjt Parn
Pole, RIchard de la Sjt
Trewythosa, Simon de Sjt
Hillary, Roger Sjt
Parvyng, Robert Sjt Parn
Herle, William CJCP |
Mountgomery |
Alice, widow of William of |
|
|
|
Henry III, King of England
Carlisle, John, Bishop of
Mountgomerie, William of, plaintiff's late husband
Turbeton, Raufe of, party to fine
Pecy, Maude, party to fine
Turbeton, Esteven, son of Ralph
Joan, daughter of Esteven, defendant's wife
Walter, heir of William
John, heir to plaintiff's dower |
F., manor of |
|
Alice q' fuit la feme Will' de Mountgomery se pleint q' Edm' Cheine a tort prist ses avers, &c. @ Gain. |
58 |
|
An Edmund Cheyne was Sheriff of Somersetshire and Dorsetshire from 27 Nov. 1368 to 28 Nov. 1370. Silverster Everdon was Bishop of Carlisle from Sept. 1246 to Feb. or Mar. 1254. John of Halton was Bishop of Carlisle from 14 Sep. 1292 to 1 Nov. 1324. |
Summary: In a writ of replevin, the defendant avowed the taking for the reason that the plaintiff's late husband had granted a rent charge by fine to those whose estate the defendant had. The plaintiff asserted that the defendant could not maintain the avowry without a specialty in hand. The defendant did not have the fine under the foot of the seal in hand and argued that he could make the avowry without a specialty, but after an adjournment, he produced the fine under the foot of the seal. The plaintiff then said that she had nothing in the tenements except in dower of the heritage of John, and she could not charge them in perpetuity without him, so she prayed aid of him, which was granted.
Alice, widow of William of Mountgomery, complained that Edmund Cheine had wrongfully taken her animals. The defendant avowed etc. for the reason that on a certain day, in the 37th year of King Henry at a certain place, before John, Bishop of Carlisle, and other itinerant justices in a certain county, a fine was levied on a writ of quo jure, between William of Mountgomerie, complainant, and Raufe of Turbeton and Maude Pecy, deforciants, by which fine Raufe and Maude released and quitclaimed all the common of pasture that they had in the lands of William in a certain place, and by the same fine William released and quitclaimed all the common of pasture that he had in the lands of Raufe and Maude in a certain place, and he further granted one mark of rent per year to Raufe and his heirs forever, to pay at two terms of the year, and he granted that if the rent was in arrears, Raufe and his heirs would be permitted to enter and distrain in all of the lands that William had at that time, and he said that William was then seised of the land of which the place where the taking was made was a part, and he said that (Raufe) was seised of the rent by the hand of William. The defendant said that after the death of Raufe, this rent descended to Esteven as to son, and after his death to Joan as to daughter, who married Edmund, who now avowed, and he said that after the death of William the manor of F. descended to Walter, and he said that there was issue between Edmund and Joan, so that Edmund had cause to hold the rent by the courtesy of England where the place etc., as in part of the tenements charged, and he did not say in the avowry to whom the right of the rent rested. The plaintiff prayed judgment of this avowry, because the defendant avowed for rent charage, and he had not said in making avowry that the place where the taking was made was in the seisin of the one who granted the charge at the time of the grant. Shardelow JCP said that the defendant said that the place was part of a manor, which was in the hand of William at the time of the grant. The plaintiff said that, although the manor was in the seisin of William, it could be that the place was then in the seisin of some of the tenants of the manor. Shardelow JCP said that, by the avowry, the court could not understand this, so that it it were true, the plaintiff could plead it.
The plaintiff said that the court saw clearly that the defendant had made this avowry for a rent charge, which avowry could not be maintained if the defendant did not have a specialty in hand which maintained this avowry, judgment if the plaintiff needed to answer to this avowry, since the defendant had nothing in hand that proved the charge. The defendant said that he showed that this charge began by a fine, which should not remain with him, for it was otherwise by fine than it was of another deed. The plaintiff said that she was a complete stranger to the fine that the defendant alleged, on the one hand and on the other, so that the defendant should have the fine in hand under the foot of the seal, because the plaintiff, who was a stranger to the fine, would not be received to say that there was no such fine. The defendant said that the plaintiff could say that he, the defendant, would have the fine on his day at his peril. The plaintiff said that she did not wish that the defendant would have it, but because the defendant did not have it, the plaintiff would take her advantages; on the other hand, she had seen in a writ of annuity, where he granted to whom the annuity was granted by fine, because he did not have the fine in hand, he was delayed. The defendant said that this was not similar, because in a writ of annuity this was at the suit of the one who alleged the fine, so that it would be right (reson) that the suit be delayed when he did not have in hand that which maintained his suit, but in this case here the plaintiff sued against the defendant to recover damages against him, so that the defendant was not equally charged in law, even if he did not have in hand that which attained to his proof in his defense, as he would be if he did not have that which attained to his action. The plaintiff said that, even though she complained that his animals had been wrongfully taken, the defendant by his avowry here was by way of action against the plaintiff to have return and to justify the taking, of which he did not show anything. Herle CJCP said that if such a charge were assigned to a woman in the name of dower, she would have avowry without specialty, because the specialty would remain with the one to whom the right belonged, also here. The plaintiff said that there, only the third part of the rent was assigned to the woman in dower, and she was seised etc., she would make avowry without specialty, query. Shardelow JCP said that the plaintiff demanded judgment and her damages for the wrongful taking, and asked whether by her intention she demanded judgment because Edmund would be ousted of the avowry forever, or how? The plaintiff said that she demanded judgment with such intention, that this avowry should be abated, because the defendant did not show anything to maintain his avowry, and at another time, if the defendant made avowry and showed sometihng to maintain his avowry, then the plaintiff would plead to him. The defendant said that he well knew that if rent were assigned to a woman in the name of dower, and she was seised of the rent, that she would hve the assize without showing a specialty. Then they were adjourned until the 15th of Trinity.
On that day, the defendant showed the fine under the foot of the seal. The plaintiff said that, when the defendant made avowry for the rent, he was asked whether he had anything of the charge, and at that time he did not show anything, so that the plaintiff had her challenge, by reason of which the defendant would not be received now to put forward the fine. The defendant said that the fine should not remain with him, so that etc. The plaintiff said that she had nothing in the tenements which she (soleit) charge in perpetuity, unless in dower of the heritage of John, without whom she could not be party to charge or discharge the tenements, and she prayed aid of him. The defendant said that the plaintiff had not rejoined to this yet, nor pleaded anything to which she herself could not be party well enough, so that she would not have aid. The plaintiff said that, by the fine that the defendant had put forward, he had pleaded such matter to which Alice could not be party, so that it was necessary that she have aid. The defendant said that Alice had not said anything yet to which she could not be party, as to say, she would not have aid. Herle CJCP said that the plaintiff said that it could be that the one who avowed or some of his ancestors had made a release of this rent, which release should naturally remain with the one to whom the reversion belonged, so that if she had aid, he would oust the defendant of this avowry, and afterwards the court granted the aid, for the reason said above. |
|