Whitgift against Sir Francis Barrington
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1657 |
| Date | 01 January 1657 |
| Court | Court of Common Pleas |
English Reports Citation: 124 E.R. 26
COURT OF COMMON PLEAS
whitgift against sir francis barrinoton. In replevin the defendant avowed aa baliff to Sir Francis Barrington, and tbat Whitgift the plantiff held certaine land of Sir Francis Barrington, by escuage et quendam reditum, and that the said Sir Francis was seised by the hands of Whitgift his very tenant, and for homage he avowed; and upon this the plantiff demurred; first, became he had avowed for homage, and had not shewed how nor in what manner the homage is due, whether in respect that the tenancy come to him by discent, of by purchase, and for that this general allegation is naught, for by Hendon WHICH, 32. TRTN. 20 JAC. C. P. 27 Serjeant all the presidents in such avowryea made mention of the title to the homage, as 4 E. 4, in avowry for homage, the tenure is shewed, and a discetit alleadged, or a purchase of the land, and in no book or in any president that he ever yet saw, did he see such a general allegation in avowry for homage, but he agreeth the book of the 44 E. Sf 42, if the avowry is upon tenant by the curtesie, this general allegation is good, but otherwise of a tenant in fee simple; and for that he alledged the second E, 3, avowry; in a replevin, the biahop avowed for homage due by the plantiff, and exception was taken, because it was not shewed in whose time the death of the ancestor was, whether in his own time, or the time of his predecessor, and ruled to be evill, for bis avowry being his title he ought to shew that in certaine, and so in our case. Hobert, This case doth not prove our case, for in our case prima facie it is certain to all intents and purposes, and I cannot see how an avowry may be better made; and Finch at the Barre vouched a president in the Book of Entries title Horse de Son Fee : secondly, where such an avowry as in our case is made, and then Hendon moved that the avowrie is not good, for he had shewed the tenure by homage, and by esouage, and rent do quo quidem redditu, he was seised &c. and this is also repugnant; for when he said that he was seised of the rent by the hands of the plautiff, this is a seisin of the homage as Bevils case is, and then by his own shewing, because the seisin of the rent is a seisin of the homage, he shall not have the homage of the plantiff. Thirdly, admitting this poitit against him, and that the seisin of the rent is not seisin of the homage, yet the pleading is not good, for...
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