A.D. 1340. Entry sur disseisin. Entry sur disseisin. Debt. Upon a writ of (39.) § Upon a writ of Entry sur disseisin "into "which the tenant had not entry but by one W., who "thereof tortiously, &c., disseised the father of the plaintiff &c.," W. Thorpe said :-As to a moiety, your father released to this same W. whose estate we have; and, as to the rest, your father enfeoffed him and bound himself by this deed, &c., to warrant to him and his heirs and assigns; judgment whether against us who are assigns you can demand anything.-R. Thorpe denied the release, and said :-As to the deed of feoffment it is a traverse of our writ; wherefore we will aver our writ, to wit that W. disseised our father as our writ supposes. -W. Thorpe. We conclude upon the warranty which is a matter relating to the right, and this writ is in its nature a writ of right, wherefore it is more reasonable that you should answer as to your ancestor's deed than that you should aver possession, relying entirely on posssesion as is the case of a plaintiff in an assise of Novel Disseisin.-Notwithstanding this, the averment was received, &c. § Note that, upon a writ of Entry sur disseisin, where the disseisin was effected on the ancestor of the demandant, the feoffment of the same ancestor made to the tenant with warranty was pleaded in bar.-And nevertheless it was taken only as a traverse of the writ, and upon this they went to the inquest. (40.) A man brought a writ of Debt as his father's heir, and produced an obligation made to his father and disseisine. (39.) § En un bref dentre sour disseisine en quel A.D. 1340. le tenant nad entre si noun par un W. qe de ceo a Entre sour tort, &c., disseisi le pere le pleintif, &c., W. Thorpe, Quant a la moytte, vostre pere relessea a mesme cestui W. qi estat nous avoms; et, quant al remenant, vostre pere luy enfeffa et obligea par ceo fait &c., de garrantir a luy et a 3 ses 2 heirez et a ses assignez; jugement si devers nous qe sumes assignez rien poiez demander.-R. Thorpe dedit le reles, et quant al fait de feffement il est a travers de nostre bref, par quei nous le voloms averer, saver qe W. disseisi nostre pere com nostre bref suppose.-W. Thorpe. Nous concludoms sour la garrantie qe est chose en la dreit, et cesty bref est un bref de dreit en sa nature, par quei il est plus de resoun qe vous respoignez a fait vostre auncestre qe daverer la possession, quele chose est tut en la possession cum est le fait le pleintif en un assise de novele disseisine.-Hoc non obstante, laverrement fut resceu, &c. 5 4 § Nota qen un bref dentre dune disseisine fait al auncestre Entre sur le demandant, le feffement mesme launcestre fait al tenant ov disseisine. garrantie fust plede en barre.-Et tamen fust pris fors a travers del bref, et sur ceo ils alerent al enquest. (40.) § Un homme porta bref de dette com heir son Dette. pere, et mist avant obligacion fait a 1 From L. and 25184 as far as the point at which the larger type ends. 2 L., a son; 25184, as, instead of a ses. 3 L., son. 4 L., le. 5 This report of the case is from T. alone. 6 From L. and 25184 as far as the point at which the larger type son pere et ces ends, but corrected by the record En un bref de dette brought by respect of an obliga to a man and his heirs, acquittance of an ex ecutor was produced in bar, as appears below. And the acquit A.D. 1340. his father's heirs.-R. Thorpe. One Roger Careles, your Debt father's executor, came to us and showed us the same the heir, in deed, and we paid him the aforesaid debt, and by reason of the receipt he made us this acquittance; and we tion made demand judgment whether you can demand anything.— Pole. To this deed of acquittance we are altogether a stranger, and so can neither admit nor deny it; wherefore no law shall put us to answer to it; and, since you have admitted the debt, and that by your own deed, judgment, &c.-SCHARDELOWE. If you abide judgment with him, although you be a stranger to the deed of acquittance, it shall be held as not denied by you in point of judgment; wherefore I advise you to consider, for this action is given naturally to executors, and not and, if it be to the heir, unless it be for default of executors; wherefound the deed of the fore it seems that an executor can release this action.executor, R. Thorpe (ad idem). If your father had delivered to me shall take the same deed of obligation closed in a box, to keep and nothing by his writ, to redeliver, and his executors had brought a writ of Detinue against me, &c., and you also had brought a like writ, we should not then have been put to answer to you, because the action belongs to the others, and so does this action, and he to whom it belongs has extinand if they guished it; judgment, &c.-Pole. Whereas you say that Roger Careles, our father's executor, received the debt, tance was denied, the heir for this kind of action is always given to executors, release, their re 4 avez un homme fut mys avant en barre, ut patet in ferius, heirez.1-R.2 Thorpe. Un Roger Careles, executour A.D. 1340. vostre pere, vint a nous et nos mostra mesme le fait, porte par le heir, de et nous luy payames lavantdite dette, par resoun de un obligaquele receite il nous ad fait cele acquitance; et de- cion fet a mandoms jugement si vous puissez rien demander.- et a ses Pole. A ceo fait nous sumes tut estrange, issint 5 nel heirs, acquitance pooms conustre ne dedire; par quei nule ley ne nous dexecutour mettra a respoundre a ceo; et, del hure qe vous conu la duytte, et ceo par vostre fait, jugement &c.SCHARD. Si vous demurez en jugement ovesqe luy, coment qe vous soiez estrange al fait, il serra tenu a le 6 quel fut dedit, nyent dedicte de vous en poynt de jugement; par quei et [si] jeo loo qe vous avisez, qar cest accion est done nature- trove soit lement a lez executours et ne mye al heir sil ne fut lexecutour en defaute dexecutours; par quei il semble qe execu- leir ne prendra tour puts cest accion relesser.-R. Thorpe (ad idem).10 rienz par Si vostre pere moy uste baille mesme lescript clos son bref, en un forcer, a garder et a rebailler, et ses executours manere eussent porte bref devers moy de detenue,11 &c., et auxi daccion est Vous eussez porte atiel bref, la nussoms nous pas diz a les este mys a respoundre a vous, pur ceo qe laccion exe atient as altres, et auxi fait cest accion, et celui a sils [r]equi ele atient lad esteynt; jugement &c.-Pole. La ou vous ditez qe Roger Careles 14 executour nostre pere esterra 12 13 le feat qar tiel done tut tours, et lessont cel reles 1 The words in the record are "heredibus et executoribus suis." 2 L., W. 3 L., W. C.; 25184, W. Carles, instead of Roger Careles. 4 In this, as in other reports of the same term, the form feat is usually substituted in 25184, for the form fait, which occurs in L. 5 L., si. 6 Hence to the end of the marginal abstract the writing is in a somewhat later hand. 7 L., ceo est accion naturelement si est done, instead of cest accion 8 L., executours pount, instead of 9 L. and 25184, W. 10 The words ad idem are not in 25184. 11 25184, devers moy bref de dette, instead of bref devers moy de detenue. 12 The word vous is not in L. 13 pas is not in L. 14 L., W. Carlez; 25184. W. Carles, instead of Roger Careles. stand against as appears in this plea. A.D. 1340. and therefore executed an acquittance to you, he never lease shall received anything for that deed of acquittance; ready, &c.-R. Thorpe. Now we demand judgment; since you every one, do not deny that your father's executor made us that acquittance, even if he did not receive anything, that is nothing to the purpose nor to the substance of our plea; judgment how we ought to depart.--Pole did not dare to abide judgment, and said:-Not his deed.-R. Thorpe. You have pleaded in avoidance of the deed, and so by the form of your plea acknowledged the deed; wherefore you shall not now be admitted to deny the deed. And, besides, you are not a party to the deed, nor heir of a party, but altogether a stranger; wherefore it does not lie in your mouth to deny the deed; judgment, &c.-Stouford. In that case you will oust us from an action by means of a false deed without our having any answer to it; and that would be contrary to reason. And in an action for rent charge a stranger to the deed may very well say :"the party did not charge by this deed; ready, &c.;" and he shall have the averment; so also here.-And afterwards R. Thorpe said: It is his deed; ready, &c.— And the issue was received, &c. Debt. § The heir of Thomas Wagham, of Ludlow, brought a writ of Debt, on an obligation made to his father, against three persons1 by different Præcipes, each one being by the obligation, which was shown, charged with the whole sum to him and his heirs.-R. Thorpe. We tell you that one B., one of the executors of the said Thomas, after the death of Thomas, came to one A., who is named in the first Præcipe, and showed that obligation and demanded the debt, and A. made satisfaction to the executor; and see here his acquittance; judgment &c. whether you can have an action. And he gave the same answer for all the others. - Pole. You see clearly how we are a stranger to the acquittance, and we can not have an answer to this; but, whereas he says that he paid the money, ready &c. that he did not.-Thorpe. Then you do not deny that the executor released &c.-Pole. Since you choose that 1 As to the names of the persons, see note (6) p. 95. |