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A.D. 1340." take from his tenants ;" wherefore judgment whether he can charge us contrary to the deed of the ancestor of his cognisor by saying that the land is holden of him.— And afterwards Thorpe waived the point, and said that he held of the cognisor by fealty [and ten marks] by the year for all services, by the same deed; and he said that, by force of the deed, the cognisor was bound to warrant and acquit him and his successors for those services, and he who now sues has not wherewithal to warrant or acquit, and we do not understand that we ought to attorn to him.—Pole. We will aver that he held of our cognisor by the services which we have shown; ready &c.—Thorpe. You shall not be admitted to that in opposition to the deed any more than in an avowry. On the other hand, our allegation that we hold by less services is only a protestation, for the quantity cannot make an issue in this plea, for the tenancy which is the cause of attornment is admitted, and no reason remains why we should not attorn except this which we allege, that you are not sufficient, which you do not deny ; judgment —Pole. If I accept your attornment in this manner I shall lose the rest of the services, for the fine will be simple.—Hillary. Your plea in both respects shall be entered, so that this shall be saved to you at another time.— Thorpe, An issue cannot be taken on the quantity, for, if the inquest should pass for us, still we should have to attorn.—Basset. The plaintiff appears by attorney who cannot receive homage. — Pole. He causes the defendant to come to acknowledge by what services &c.; and while we are in debate about the services he will never attorn; and he refuses the averment; judgment.
Waste. (28.) § Waste of apple trees and pear trees cut, and willows rooted up, in a garden, and oaks and ash-trees in a wood, and houses pulled down in two manors.—Thorpe. ment sil nous purra charger contre lc fet launcestrc son A.D. 1340. conisour a dir qe la terre est tenu de lui.—Et puis Thorpe le weyva, et dit qil tient del conisour par feaute par an pur touz serviz par mesme lo fet; et dit qe par force del fet pur ceux services son conisour fust tenu a garrantir et acquiter lui et ses successours, et celui qore suyte nad pas de quei garrantir nacquiter, et nentendoms pas qa lui devoms attourner.— Pole. Nous voloms averer qil tient dc nostre conisour par les services qe nous avoms mostre; prest.—Thorpe. A ceo ne serrez resceu contre le fet plus qen avowerie. Dautre part, ceo qe nous dioms qe nous tenoms par meyndre service, ceo nest fors protestacion, qar la (tuantite en ceo plee no poet faire issue, qar la tenance (test cause dattournement est conu, et rien deinoert qe nous ne duissoms attourner, forsqc ceo qe nous allegeoms qe vous nestes pas sufficeant, quele chose vous ne dedites pas; jugement.—Pole. Si jeo acceptc vostre attournement par la manere jeo perdra le remenant des services, qar la fine serra simple.—Hilt.. Vostre plee serra entre dune part et dautre part, issi qe ceo serra sauf a vous autrefoitz.—Thorpe. Issu ne sc poet prendre sur la quantite, qar, si enquest passast pur nous, uncore attourneroms.—Bass. Le plentif est par attourne qe ne poet resceiver homage.—Pole. II fait venir de conustre par quex services &c.; et quant nous sumes a debat de services jammes nattournera; et il refuse laverement; jugement.
(28.)1 § Waste de pomers et perere.s copes, et sauces Waste, enraces, en gardyn, et keynes et freynes en bois, et mesons abatus en ij. manoirs. — Thorpe. Quant a
1 From T. alone as far as the point at which the larger type ends, but corrected by the record Placita de Banco, Easter, 14 Ed- j ward III., R°. 161, according to I
which the action was brought by
A.d. 1340. As to the gardens, no waste ;—(so he accepted the rooting up of willows as waste, although the cuttingof them isnot); —as to a mill, at the time of the lease it was going, and so it is still; and as to another, there was no mill grinding, but a house which is not deteriorated ; as to ten oaks, they were taken for the reparation of the hall of the manor to which the wood is appendant; and, as to the rest, he who brings the writ had, before the lease, sold 4,000, and before the lease they were delivered, and the others wore to be cut and delivered; wherefore by his deed, which is here, reciting these matters, he prayed us to deliver them, and granted that for so doing we should not be impeached of waste ; judgment whether in opposition to his deed &c. As to the ash-trees, no waste; ready &c.
Note that Waste was assigned in six roods of clay and 200 oaks &c. and 200 willows rooted up.—And note that the clay was dug and sold, and the rooting up of the willows was called waste, for they can never grow again.—And note that, as to the oaks, the tenant admitted the cutting for the purpose of repairing houses &c. And this answer was held good.—A case in Easter Term in the twelfth year on a similar writ agrees.1 See however the Derby Eyre where Herle did not allow cutting for the purpose of repairing houses, &c.
Scire (29.) § Note that in Scire facias aid is granted,
although neither voucher nor other delays are permitted in it.
Avowry. ^o.) § Robert de Bousser avowed for the reason that one Gilbert de Fullyngmelle held &c. of one John Fitz-Andrew of Halstead, by homage &c. and by the
1 This may refer to the case Books 11-12 Edward III., pp. printed in the Volume of Year- 486-489.
gardyns nul wast, issi qil accepta enracer de sauces A.D. 1340. waste coment qe le coper ne soit pas; quant a un molyn a temps de lees il fust alaunt, et si est il uncore; et quant a un [autre, il ny avoit nul molyn molaunt &c., mes une mesoun qe nest pas enperri; quant a x. keynes pris en mendement de la sale du manoir1 a qi le boys est apendant; et quant al remenant, celui qe porte le bref avant le lees avoit vendu iiij. millers, avant le lees furent liverez, et les autres furent a coper et liverer; par quei par son fet qe cy est reherceant ceste chose nous pria de les liverer et granta qe par tant nous ne serroms pas enpeche de wast; jugement si contre son fet &c. Qaunt a freynes, nul wast; prest &c.
Nota* qe Waste fut assigne en vj. rodes de arezille et cc. Waste, keynes &c., et cc. de sauz aracez.—Et nota qe lc arezille fut fowe et vendu, et lenracer de sauces fut dit waste, qar il no put james recrestre. Et nota qe, quant a les keynes, il conust lo couper en amendement de mesons &c. Et le respons fut bon.—De Concorde3 Paschm enj. tali brevi &c.* Vide Derby on Herle nallowa pas couper en amendement des maisons, &s.
(29.)5 § Nota qen Scire facias eide est grante, coment qe voucher ne autres delayes y gisent.
(30.)0 § Robert de Bousser7 avowa par la resoun Avowri qun Gilbert de Fullyngmelle8 tient &c. dun Johan fitz Andrewe de Halstede 9 par homage &c., et par les
, Scire facias.
1 The words of the record are "ad emendationemdomorum Castri "de Eynesford."
2 This report of the case is from L. and 25184.
* 25184, cons.
4 The report ends here in L. 6 From T. alone.
6 From T. alone as far as the point at which the larger type ends, but corrected by the record Placita de Banco, Easter, 14 Edward III., R« 101. d., by which it
appears that the action was brought
7 T., R. Bursser, instead of Ro-
8T., G., instead of Gilbert de Fullyngmelle.
• T., B., instead of Johan fitz Andrewe de Halstede.
A.D. 1340. services of 24s. 2d. and 1 lb. of pepper, which John granted to one Richard Fitz-Andrew, his son, for term of his life, the 24s., to hold of him by the service of Id., and reserved the residue of the rent in his own hand; and afterwards John granted the homage and the services of 2d. and of the pound of pepper and the reversion of the residue of the rent to John Bousser the father of Robert who now avows; by reason of which grant G. attorned, and Richard also in respect of the penny; and he showed afterwards how the rent came to another &c.; and he said that Richard, the tenant for term of life, aliened that rent with other tenements &c. in fee simple, to his disheritance, wherefore he entered on the rent and was seised by the hand of the plaintiff, tenant of the tenements; and because the homage and the rent were ten years in arrear he avowed for the homage and the rent of the first of the ten years.1—Rokell. Richard Fitz-Andrew had a fee simple in the rent; ready &c.—And the other side said the contrary.
Avowry Sir R. Bousser made an avowry on the plaintiff for that one
for rent be- Richard who held 24«. of rent for term of his life (the reversion tenant for DemS to the avowant), which rent was issuing out of the samo term of tenements whereof the place in which the taking was alleged to life held have been made was parcel, and aliened the said 24s. of rent to a rent'and stranger in fee to the avowant's disinheritance, wherefore the aliened, avowant took the said rent of the tenant and was seised, &c.— whereupon W. Thorpe. He whom yon suppose to have aliened the rent had the rever- a fee . ready &c.—And the other side said the contrary.3 sioner
rent, as i deficiencies in the French
belOTp" °^ t^ie rePor' have, in the translation, been made good from the Latiu of the record.
5 There is an abridgment of this case in Harl, 741.