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Nicholas and Isabel appear by John Wyther, their attorney, and do not admit that John Fairfax gave the said manors to Richard son of William and the heirs male of his body, as the plaintiff alleges. They say that Richard Malbyssh was formerly seised of the said manors in his demesne as of fee, and, long after the supposed gift by John Fairfax, by his writing containing a clause of warranty, he gave those manors to Thomas Colvile, knight, Thomas Fitz Henry, John Conyers, and Richard Sproxton, clerk, their heirs and assigns, who afterwards gave those manors to the said Richard Malbyssh and the said Isabel, then his wife, and the heirs of their bodies, with remainder to the right heirs of the said Richard; Richard and Isabel thus became seised in fee tail, and they had issue William, the aforesaid heir; Richard Malbyssh afterwards died, and Isabel married Nicholas Saxton; the said William son of Richard Malbyssh had sufficient land in fee simple by inheritance from his father [to perform the above-mentioned warranty].

Richard Fairfax, in reply, said that the grant to Thomas Colvile and the other feoffees was done by fraud and collusion, with the intent to deprive him of the said wardship, and denied that William son of Richard had any fee simple by descent from his father. This in turn was denied by the defendants, and a day was given in Michaelmas Term, to hear judgment.

In that term an Order was made for the Sheriff to inquire by the oath of good and lawful men, what the said manors were worth per annum, what time had elapsed since the death of Richard Malbyssh, whether the heir was married or not, and if so, then by whom, and how old he was at the time of the marriage, and what the value of the marriage was, and if the heir is of full age or not, and what damage the plaintiff has sustained by reason of the detention of the wardship.

In Hilary Term, 1407, Fairfax appeared by his attorney. The Sheriff sent the Inquisition taken before himself at York, on the Thursday before the Circumcision, in the 8th year [December 30, 1406]; the jury say on their oath that the manor of Scalton is worth yearly beyond reprises 20 marks [£13 6s. 8d.], the manor of Acaster Malbys is worth yearly beyond reprises £40, and the manor of Coupmanthorp is worth yearly beyond reprises 10 marks [6 135. 4d.]; that Richard Malbyssh died on the Feast of All Saints, in the 3rd year [1401], and that four years and 2 months had elapsed up to the taking of the Inquisition; that William, son and heir of the said Richard, was married soon after the death of his father, namely on the Monday after the Feast of St. Hilary in the 3rd year [1402], to

1 Should be five.

Sibil, daughter of Alexander Nevylle, chivaler, by Isabel, widow of the said Richard, in her pure widowhood; that William, son and heir of the said Richard, was aged 9 years at the time of the marriage, that he is not yet of full age, but was aged 13' years at the time of taking the Inquisition; that the marriage was worth 200 marks [133 6s. 8d.] without fraud or guile; and they assessed the damages for the detention of the wardship of the land and heir at 400 marks [£266 135. 4d.].

Thereupon Nicholas and Isabella by their attorney caused themselves to be separately essoigned as being in the King's service, Isabella as laundress [quia lotrix]. Fairfax challenged the essoign, on the ground that their attorney, John Wyther, was present in Court, and also that the words unde judicium had been omitted, which rendered the essoign insufficient; he therefore asked that the essoign be quashed, and that the default of the defendants in not coming should be recorded. The question was adjourned for argument until the octave of the Purification following.

On that day the defendants did not come, and Wyther, their attorney, failed to warrant the essoign. The Sheriff was ordered to distrain Nicholas and Isabella to appear in 15 days of Easter, to hear judgment.

On that day the matter was again adjourned sine die, because Nicholas was on the King's service in Picardy, in the suite of the King's brother, John, Earl of Somerset, Captain of the King's town of Cales, and had the King's protection for one year from the 7th of April in the 8th year [1407]. These letters of protection the King afterwards, for certain causes, revoked by other letters patent; and the Sheriff was ordered to resummon Nicholas and Isabel for 15 days from St. John the Baptist.

On that day came Fairfax and also Nicholas and Isabel by their attorney, and judgment was given by the Court that Fairfax should recover the custody of the manors aforesaid, and his damages for the value of the said manors from the time of the death of the said Richard Malbyssh and for the value of the marriage of the heir and for the unjust detention, assessed by the aforesaid Jury, viz. 1,050 marks [£700]; and Nicholas and Isabel are in mercy."

1407. Michaelmas Term.

The Sheriff of Yorkshire had been ordered to levy 200 marks [133 6s. 8d.] of the goods and chattels of Nicholas Saxton and Isabel his wife, and to have the money here this Term to pay to Richard Fairfax for the value of the marriage of William son and

1 Should be 14.

2 De Banco 582, Trin., 7 Hen. IV., m. 316.

heir of Richard Malbyssh, who held his land of Fairfax by military service; and also 450 marks [£300], to be paid to Fairfax for the value of the manors of Scalton, Acastre Malbys and Coupmanthorp from the time of the death of the said Richard Malbyssh; and also 400 marks [266 13s. 4d.], to be paid to Fairfax as damages for unjustly deforcing him of the wardship of the said land and heir, as found by an inquest lately made by the Sheriff. Richard Fairfax now appeared by Thomas de Lynton, his attorney. The Sheriff returned that he had levied £53 11s. 8d., which was paid to Fairfax, and that there were no other lands or chattels belonging to Nicholas and Isabel in his bailiwick of which any further moneys could be raised at present. Fairfax admitted the receipt of the £53 11s. 8d., and the Sheriff was ordered to levy £606 8s. 4d.,' the balance of the 1,050 marks, and to have the money here in Hilary Term. The Sheriff made no return in Hilary or Easter Term.2

The result of this litigation was to establish Richard Fairfax's claim that his uncle, Richard Malbis, held the disputed manors in fee tail male and not in fee simple; that the manors were held of Fairfax by military service, and that he was consequently entitled to possession during the minority of the heir; and that Fairfax was entitled to the reversion of the property in case of the failure of the male heirs of Richard Malbis.

years old in He evidently

William Malbis, Richard's son and heir, was nine 1402, and he would therefore come of age about 1414. took possession and retained it to his death, which apparently took place shortly before the next lawsuit. His widow, Sibil, had apparently refused to give up possession to Richard Fairfax, who thereupon started proceedings to compel her to do so.

Pleas of Assizes taken at York, before Robert Tirwhit and John Preston, the Justices, etc., on Tuesday next before the Nativity B.V.M., 5 Henry VI. [1426].

The Assize comes to recognise if Sibil who was the wife of William Malbyssh, knight, Alexander Nevyll, esq., and William Norton, have unjustly and without judgment disseised Richard Fayrfax, esq., of the manors of Acastre Malbyssh and Coupmanthorp.

Sibil comes by Robert Rasyn, her attorney; Nevyll and Norton do not come, but one Ralph Forster answers for them as their bailiff, and denies any injury or disseisin.

Sibil, by her attorney, answers as tenant of the said manors, and denies that Nevyll and Norton have any interest in the same. She 2 De Banco 587, Mich., 9 Hen. IV., m. 339.

1 Should be £646 8s. 4d.

says that long before Richard had anything in the said manors, one William Malbyssh, knight, her late husband, was seised thereof as of fee, and thereof enfeoffed John Langdon and William Hebson, to hold to them and their heirs for ever, and that afterwards Langdon and Hebson enfeoffed the said William Malbyssh and Sibil of the said manors, to hold to them and the heirs of their bodies, with remainder to the right heirs of the said William Malbyssh. Afterwards the said William Malbyssh died, leaving the said Sibil him surviving, and she was seised of the said manors until the said Richard Fayrfax (by colour of a feoffment made by the said William Malbyssh to him long before the feoffment to Langdon and Hebson, and by which no interest in the said manors passed to him), entered into the manors over the possession of the said Sibil; and over his possession one John atte Gappe entered into the same; and over his possession the said Sibil entered into the same. And thereupon she craves judgment whether under these circumstances Richard ought to maintain his assize against her or not.

Fayrfax denies that William Malbyssh and Sibil had anything in the said manors by feoffment of the said Langdon and Hebson. He says that long before the said William Malbyssh had anything in the said manors, one John Fayrfax was seised thereof in his demesne as of fee, and gave them to one Richard Fayrfax son of William Fayrfax, to have and to hold those manors to Richard and the heirs male of his body, with the name and arms of Malbyssh [Habenda et tenenda maneria illa . . . . . . eidem Ricardo et heredibus masculis de corpore suo. cum nomine et armis de Malbyssh]; with remainder to Thomas Rouclyff and the heirs male of his body; with remainder to the said John Fayrfax and his heirs. The said Richard son of William had issue the said William Malbyssh, and died; and the said William Malbyssh, as son and heir of the said Richard, entered upon the said manors. And the said Thomas [Rouclyff] afterwards died without heir male of his body. And the said William son of Richard afterwards died seised of the said manors, without heir male of his body. And after his decease, the said Richard Fayrfax, the now plaintiff, as kinsman and heir of the aforesaid John Fayrfax, namely, son of Thomas son of William brother of the said John Fayrfax, entered upon the said manors, and was seised thereof, until the said Sibil, Nevyll and Norton unjustly disseised him. And he craves judgment.

Sibil repeats that Langdon and Hebson were seised of the said manors by virtue of the gift and feoffment of William Malbyssh, her late husband; and as to this puts herself upon the assize. And Richard Fayrfax, the plaintiff, does the like.

The recognitors [jury] say upon their oath that Langdon and Hebson were not so seised, as Sibil claims; but they say that the plaintiff was seised until the defendants unjustly disseised him; and they assess the plaintiff's damages at £40, and his costs at 20 marks. It is therefore adjudged that Richard Fayrfax do recover his seisin of the said manors, and £53 6s. 8d. for his damages and costs. Fayrfax remitted the damages.1

This was the close of the lengthy litigation, and Richard Fairfax and his descendants remained in undisputed possession.

We are now in a position to correct Skaife's pedigree (which otherwise seems accurate) as follows::

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One important question still remains unanswered: How comes it that John Fairfax, the Rector, was in a position to make the settlement he did?

Mr. Skaife attempts to answer this question thus: quoting rather vaguely from "the late Canon Dixon's extracts from the Analecta Fairfaxiana," he says that in 1369, John Fairfax, Rector of Gilling, being entrusted by Sir Walter Malbis, conveyed Scalton, Acaster and Copmanthorpe to his nephew, Richard Fairfax, with remainder to Thomas Roucliff, and remainder to his own right heirs. He also quotes a statement by Dodsworth, that " Walterus de Malebisse vixit post patrem suum (Willelmum) et fecit Ricardum Fairfax hæredum de Scalton, mutato nomine in Ricardum Malebisse."

I am not aware what, if any, evidence there is in support of these statements, but I must confess that they do not strike me as particularly probable, and for this reason. If John Fairfax, the Rector, had been merely a trustee or feoffee for Walter Malbis when he made the settlement, we should expect to find that the ultimate remainder was to the right heirs of Malbis, the actual owner, and not to the right heirs of Fairfax, the hypothetical trustee. But it is quite clear that the ultimate remainder was to the heirs of Fairfax, and it seems to me to follow from this, as an absolutely necessary conclusion, that Fairfax was himself the unfettered owner, and not 1 Assize Roll 1530, m. 6d.

2 Herald and Genealogist, vii. 275.

3 Dodsworth MS. iii. 123.

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