Variance be tween coparce formedon. Genney. Where two coparceners bring a formedon: if ners bringing a they vary in their declaration he [the dissentient] shall be compelled to accord, or otherwise by covin between him. and the tenant, the other coparcener will be disinherited, &c. Moile [J. C. P.] He shall not be compelled to accord with his coparcener by our law [the common law], but he may have a subpoena out of Chancery to compel him to accord with his coparcener.-Year Book, 6 Ed. 4, 10. Mispleading in Subpoena by administrator against obligee in trust to compel him to sue obligor. In Chancery it was touched upon by the Chancellor [Robert Stillington, Bishop of Bath and Wells], that a man shall not be prejudiced by mispleading or by defect of form but only according to the truth of his matter: and we have to adjudicate secundum conscientiam et non secundum allegata: For if a man suggests by bill that one has done injury to him, and the defendant says nothing, if we have cognizance that he [the defendant] has not done injury to the plaintiff, he [the plaintiff] shall recover nothing. And there are two manners of powers and processes, videlicet, potentia ordinata, et absoluta. Ordinata is, where a certain order is observed, as in law positive but the law of nature non habet certum ordinem, but by whatever means the truth may be known, &c. et ideo dicitur processus absolutus, &c. In lege naturæ requiritur that the parties be present, &c.: or that they be absent by contumacy, to wit, when they are cited and make default, &c., et examinatio veritatis. Principium, fol. 12; Year Book, 9 Ed. 4, 14. See additions and corrections. Fairfax propounds a matter to the judges of the Common Bench, which was in manner thus: How one Ros[e] Browne deposited in the Chamber of London 200 marks: and how a certain John C., Chamberlain, took them, and thereupon made an enrolment in that Chamber; and these 200 marks after her death [were] to be delivered to her executors or administrators of her goods, to dispose of them for the good of her soul: and [Fairfax] propounds moreover how the Chamberlain delivered these 200 marks to one Thomas T. to keep, and deliver them back to the Chamber again, when he should be required: and this same T. made a security by a bond to the Chamberlain to bring in these 200 marks, when he should be required by the Chamberlain afterwards, or by any one of his successors, &c.: And then the before-mentioned Rose Browne died: after whose death one Peers Peckham married the daughter of one Ric. P. husband of the before mentioned Rose Browne: and after the death of the said Rose Browne the said Peers P. had the administration committed to him, by the letters of the Bishop of London, of the goods and chattels of the before-mentioned Rose Browne, and [was] made administrator, &c.: Wherefore the said P. Peckham sued in the Chancery a writ of subpoena against the Chamberlain before-mentioned [to compel him] to sue against the said T. C. [T. T.] upon the before-mentioned security, because he brought not in nor delivered the 200 marks before mentioned back to the Chamberlain of London in that time that he was required: and in truth the security by the bond was made to the use of the before-mentioned Rose Browne and that was the cause that Peers sued the subpoena as administrator.-Year Book, 4 Ed. 4, 37. Where F. is bound to the use of G. then G. may have Obligee and a subpœna against the obligee to compel him to put the feoffee in trust compellable to bond in suit. So where my feoffee in confidence is dis- sue. seised, I shall have subpoena to compel him to bring assize, &c.-Year Book, 2 Ed. 4, 2. passer. Said that if I enfeoff a man to my use, and a stranger, Feoffee to use well aware that he has nothing except to my use, makes must sue a tresa trespass on the land, I may compel my feoffee, by subpoena, to sue him, and recover damages to my use, &c. Release by feoffee to use to a trespasser. Feoffee in trust to plead as cestui que use wishes. Remedy only by subpoena, or action on the case, against feoffee in trust, who will not plead as feoffor wishes. But if my feoffee release the trespasser, &c. as against him, I shall have no subpoena [against the stranger], notwithstanding he knew that he who released was feoffee to my use, because that release is only a discharge, &c.: but I shall have my remedy against my feoffee.- Year Book, 11 Ed. 4, 8. Note. That it was held by the judges that a feoffee in trust is bound to plead all pleas, and maintain action for the land, &c., in such manner as cestui que use wishes to plead but this shall be at the costs of the cestui que use, &c. but quære, if he shall be obliged to use dilatories by the law of conscience, &c.-Year Book, 7 Ed. 4, 29. : In formedon against two who were feoffees in trust of the land, and the one feoffee was not willing now to plead such pleas as his feoffor wished to instruct him: and the Court rebuked him, and said that he did ill, and against conscience for it may be that the feoffor has a good matter to plead and by reason that he [the one feoffee] wished at the commencement to have confessed the action, the Court of discretion deferred his confession, so that he was not entered [upon] until on the morrow: on which day he made an attorney, and so the matter depended more than a week and now the one feoffee wished to vouch a stranger as the feoffor instructed him, and the other would not plead except in bar: and now it was moved if in this case the one tenant can plead in bar, and the other vouch.--Fitzherbert [J. C. P.] They cannot unless that both vouch, they shall not be received, but the other is put to his remedy by warrantia chartæ.— Brooke [J. C. P.] That is not so: for if one confesses or renders the action, still the other shall have his voucher; for it will be against reason, if the one will not vouch, that the other shall be prejudiced by this.-Fitzherbert. The ancient law is as I have said, and so you will find.—And then it was moved to the Court, what the remedy was for the feoffor who has the use, inasmuch as the feoffee would not vouch, where we would show to you sufficient cause to vouch.-Tota Curia. We cannot remedy that: for the use appears not to us, and we cannot hear it by your information but if he had brought formedon against the taker of the profits, then you might have had advantage of all manner of things: but the demandant is at his liberty against whom he will bring his action, and inasmuch as he has brought it against the feoffee, it appears not to us who has the use; and therefore you are without remedy, except against your feoffee by subpœna, or by action on your case.-Brudnell [C. J. C. P.] If the feoffee die without heir, or die his heir within age, or does felony, for which he is attaint, so that the land comes to the lord, he [the lord] shall have it to his own use, and what remedy for the cestui que use? Q[ui] d[icunt] none. Quod nota.-Year Book, 14 Hen. 8, 24. enfeoffing ano ther with notice, It was moved that if my feoffee in trust, &c. enfeoffed Feoffee in trust another, who knew well that the feoffor has nothing [in the land] except to my use, a subpoena will lie against both, i. e. as well against the feoffee as against the feoffor. -Year Book, 11 Ed. 4, 8. If I enfeoff a man to perform my last will and he en- Feoffee in confidence enfeoffing feoffs another [without notice], I cannot have a subpœna a stranger. against the second, because he is a stranger: but I shall have a subpoena against my feoffee and recover in damages for the value of the land: per Yelver[t]on and Wilby, Clerks of the Rolls: who say, that if my feoffee in confidence enfeoff another in confidence of the same land, that I shall have a subpoena against the second: otherwise it is if he enfeoffs bonâ fide, for then I am without remedy [against the purchaser], and so it was adjudged in the case of the Cardinal of Winchester.-35 Hen. 6; Fitzherbert's Abridgement, Subpoena, 19. Purchase with notice. Wife may, with husband's assent, make executors. Action by husband as execu tor of his wife. If I. enfeoffs A. to his [I.'s] use, and A. enfeoffs R. notwithstanding that he sells to him, &c. : if A. gives notice to R. of the intent of the first feoffment, he is compellable by writ of subpoena to perform the will, &c. [of I.] Year Book, 5 Ed. 4, 7. Richard W. executor of the testament of Alice his wife, [who was] executor of the testament of Hue Bushely, brought a writ of debt against one J. G. of Matisdon in the county of Gloucester: and demanded 207. upon a bond made by the said J. G. to H. B. the first testator, &c. Rolf. Sir, you see well how he brings his action as executor to his own wife, who by law cannot make an executor: wherefore [judgment]. Bab[ington] [C. J. C.P.] A feme coverte by licence of her husband may make an executor; and so if the husband assents to the testament of his wife, that is enough: and this proves well that he has so done by the bringing of the action as executor to his wife wherefore, &c. Rolf. Notwithstanding that the husband assents to that, I say that it is void: for if he says that he shall be said [to be] executor [of his wife], it will ensue from that he can administer the goods which were [belonged] to the deceased, and that the deceased may have goods at the time of her death: and that shall not be for a feme coverte has no goods: but all shall be said [to belong] to the husband: in which case the testament is void. As let us put by way of case, that a monk makes his executors by his testament: I say that it is void, for a monk cannot have any goods, nec per consequens make executors: no more can a feme coverte, &c. Babing[ton]. I say that there is a great diversity between a monk and a feme coverte: for a monk by his profession is a dead person in law in which case he cannot make executors when he is dead: but a feme coverte is not said [to be] a dead person, for during the coverture she may be advantaged: as if a bond is made to a feme coverte, I say that the bond is good and so that proves well that a : |