| 1367.032 |
1367 |
Common Pleas |
Account |
Residuum del case de Tanworth
Accompt
|
| Trin. |
41 |
Edw. 3 |
2 |
13a-13b |
Belknap, Robert Sjt (for D)
Thorp, Robert de CJCP Thorpe
Belknap, Robert Sjt
Thorp, Robert de CJCP
Meres, Roger de (alias Kirkton) Sjt Kirton (for D)
Thorp, Robert de CJCP
Cavendish, John de Sjt Candish
Thorp, Robert de CJCP
Meres, Roger de (alias Kirkton) Sjt Kirton
Fyncheden, William de JCP Finchden |
Tanworth (Tamworth) |
Sir Nicholas |
|
|
Fitzherbert Accompt 32
Brooke Accompt 10
Statham Accompte 2 & 4 |
prior proceeding 1367.008 = Hil. (not Mich.) 41 Edw. 3, pl. 8, fols. 3a-4a
prior proceeding 1367.024 = Pasch. 41 Edw. 3, pl. 4, fols. 9b-10a |
the statute = 5 Edw. 3 (1331), ch. 12 (charter of pardon of outlawry) |
| Belknap, Vient al barre, & dit que Sir Nicholas Tanworth suist un briefe d'Accompt vers John, & un Thomas, |
37 |
| Counsel came to the bar and said that Sir Nicholas Tanworth had sued a writ of Account against John and one Thomas, who were adjudged to account, by reason of which he had a Capias ad computandum against them; process was sued until John came by the Exigent, and Thomas was outlawed, and Sir N. elected to have the account from him (John) alone, and because the process was terminated against Thomas by the outlawry, he had the account from John alone, and now T. had sued a charter of pardon and had sued a Scire facias by the statute; therefore he prayed to be discharged and to go quit. Thorp CJCP asked if it would be right (reason) that by his nonappearance (non venue) he would be discharged. The defendant said yes, because inasmuch as the plaintiff had his purpose against another, it seemed right (reason) that he would be discharged, because if the plaintiff had his account from J. he had all his purpose of his action, and therefore it was not right (reason) that the defendant would be compelled to account anew. Thorp CJCP said that when John came by the Exigent, because Thomas was outlawed, and process terminated against him, and Sir N. prayed the account against John, and the Court said that he must account, or otherwise remain in prison, by reason of which he had entered into the account and had accounted and demurred in judgment whether he was chargeable or not, and as to a portion he was adjudged debtor, and the rest was still pending in judgment, therefore the charge of him was the charge of the defendant (Thomas), and by his account the defendant was charged, because they had been adjudged to account in common. The defendant said that the plaintiff himself had elected to have account solely from John, and thereby he discharged T., so that it was not right (reason) that he be attainted without answer. Thorp CJCP said that if the law were such, every man would be ousted from his recovery, because if the writ had been brought against two or three, all would be outlawed except one who had nothing, against whom he would never have execution, and this would not be right (reason). The defendant said that if John had made satisfaction to the plaintiff, he would go quit, because he would not be charged with this account, and even if he had badly charged himself, the defendant would not be charged by his act, because if he had come with John, he could have had another plea in discharge of the account, but since he had his judgment against John, thereby the defendant was absolved. Thorp CJCP said that this was the best reason that could be made on the other side, because if two were awarded to account, and one pleaded in discharge of the account, and the other pleaded a plea that charged him, the one and the other would be charged by that. A serjeant said that in a writ of Trespass brought against two, if one was outlawed, and the other pleaded and was found guilty, he would not be charged by his plea when he had purchased a charter of pardon and a Scire facias, but he would plead in discharge of himself; as well here, because it seemed to the serjeant that the one was not chargeable by the plea of the other. Fyncheden JCP said that in a writ of Trespass each would have a separate (several) answer, but here they were awarded to account in common, and for that reason they would be charged in common, and the process of the plaintiff was not terminated against the defendant until satisfaction was made to him, and if John could have discharged himself on the account against the plaintiff by his plea, the defendant would be discharged, and for the same reason that he would be discharged by his plea, for the same reason he would be charged by his plea, since he was charged by judgment. (Latin begins) And afterwards they agreed (concordaverunt) (Latin ends). |
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