doeth not 14 Hen. 6. 18. 2. Or to cure him 19. Hen. 6. 49. Regist orig 119. B. It is not sufficient to do all he can But upon a retainer without taking upon him the Cure 43 Edw. 3. 33. 45 Edw. 3. 17. 48 Edw. 3. 6. 27. Assize 56. And the writ shall not say contra pacem 43 Edw. 3. 33. 3. Quare tam negligenter et improvide imposuit medicinas c. quod equus mortuus 43 Edw. 3. 33. pl. 38. 19 Hen. 6. 49. 1. Against a Ferryman that takes upon him to carry one over the water and doeth it not and this without consideration because his fare is certain 22. Assize 41. 2. For surcharging his boat by which my beast is drowned 22. Assiz 41. action upon the case 40. An administratrix desires â—o be forborne till such a time and then she will pay the debt this is a good assumpsit Coke 9. part 94. A. Banes case the count there and needs not say in the count that she hath assets for it shall be intended but it ought to be given in evidence for she is not chargable if she have not quid pro quo Coke 9. part 92 93 94. Banes case et fol. 90. B. Pinchons case The same law is of a strangers promise Coke 9. part 94. A. But then he ought to shew that the plaintiff agreed to it Mich. 39. Eliz. Com. Ban. Milwards case Then the count ought to shew how the debt grew due Coke 10. part 77. A. Marshalsea Yet A. counts that B. was indebted to him in 20 l. but shews not how long and that the 10. of September 7. Jac. promises if the plaintiff would not arrest him but forbear till the 21. of September he would pay him and sets forth that he did forbear so long per curiam if the plaintiff counts of the forbearance for a certain time there it is good without shewing when the debt grew due but otherwayes when the forbearance is for a time uncertain Trin. 9. Jac. Ban. Regis Deane et Nuby This count was that the Intestate was indebted to him in a 100 l. and the admistrator in consideration of forbearance by a reasonable time assumes to pay and upon non assumpsit pleaded it was found for the plaintiff 1. Coke chief Justice said forasmuch as the intestate was indebted and the administrator promised c. and pleaded non assumpsit it shall be intend hâ— had notice of the debt therefore good to which there was no answer 2. forbearance by a reasonable time is a good consideration because the Court may judge of it but forbearance per paululum temporis is not good to which the court agreed Trin. 14 Eliz. Ban. Regis Lingill et Broughton The Count was that where A. was indebted to him in 32 l. for which he sued A. and that it was agreed between him and A. to stay the suit and if he payed it not before Mich. he should give security 1. he need not shew how the debt grew due because the forbearance is the cause of action but otherwayes when the Testator is indebted and promises for there the debt is the cause of the action 2. Cok. Chief Justice that he needs not shew that he did surcease his suit because it was but a reciprocall agreement but if A. in consideration that the plaintiff shall surcease his suit promises to pay it then he ought to shew that he did surcease Pasc 14. Jac. Ban. Regis Fullers case W. indebted to B. delivers goods to L. to pay him L. prayes B. to stay 2 or 3 dayes and he will pay him L. pays it not B. shall have an action against L. for it is a good consideration in so much that L. had goods to satisfie Mich. 7. Jac. Ban. Regis Brande et Lister A. pledges goods to B. and if A. pay not at such a day that B. shall have the goods after and afore the day c. C. requests B to forbear tell another day and he would pay it yet B. may have an action against C. for if C. pay the money then he may have a Detinew against B. for the goods for by the payment C. had a speciall propertie Trin. 13. Jac. Ban. Regis Capper et Dickingson Per Coke Chief Justice Against a Goaler that promises to the Shrieve to keep safe his prisoners and lets them escape Regist 110. A. et B. Against him that warrants for 10 l. that my boat shall come safe upon the Thames 34 Hen. 8. br action upon the case 107. A. Leases to B. rendering rent and paying all out rents and makes reparations the Lessor in consideration of this promises defendere et sustentare statum et possessionem of the Lessee quiete et pacifice absque interruptione 1. a good consideration 2. the said Clause amounts to so much as if he had said that the Lessee shall quietly enjoy his Terme Mich. 7. Jac. Ban. Regis Gamble et Terrell 1. Against him that promises in Marriage 10 l. if he Marry his daughter No. Lib. intra 2. B. sect 2. et 4. B. sect 1. Doct. et student 104. A. 16 Hen. 3. prohibition 22. 2. A. being to Marry B. C. living with A. saies to B. if she should Marry A. and his father do not make such a joynter to her he would give her a 100 l. B. marries A. the Joynture is not made A. and B. shall have an action against C. for peradventure the Marriage had not taken effect but in regard of the promise of C. Mich. 29. of Eliz. Ban. Regis 3. A. promises to B. C l. in consideration that B. marry his daughter this is a good consideration in so much that the advancement continues being even in franke marriage after the mariage is good Trin. 29 Eliz. Ban Regis Marche et Rayneforde 4. A. promises to B. that whereas his sonne was a suitor to his daughter if B. would give his assent A. would give to B. 50 l. this is a good consideration 1. because the daughter ought to have the consent of her parents 2. because the sonne of A. was to have advancement by the marriage Trin. 12. Jac. Com. Ban. Greicely et Louther 5. A. promises 50 l. if he marries B. in an action upon the case for the 50 l. he is not bound to shew that he did give notice of the marriage neither to make request Mich. 7. Jac. Ban. Regis Brently et Tod 6. A. having speech with El. Stukley about marriage promiseth to M. the daughter of the said Eliz. that if she marry him without disposing of her estate he will give to M. in marriage 40 l. and in an action brought upon this in so much that he did averr in his count that she had not disposed of her estate it was not good Mich. 15. Jac. Ban. Regis Kings case Against him that promises to obtain a Lease for me for 10 l. and gets it for himselfe 3 Hen. 7.
Church wardens and Constables for forfeirures of Ale-house-keepers by them received Accompt against a Guardian in Soccage In what Court Accompt lyeth against a Gardein in Soccage IT lyes in the County or Common Ban. Nat. br 117. b. It lyes not before the Shrieve 43 Edw. 3. fol. 21. pl. 11. Thorp For Brooke Accompt 14. saith the Shrieve cannot assigne Auditors A good plea to say the Land is ancient demean because the reality may come in question Coke 5 part fol. 105. A. Aldens case It lies not in the Marshalsey Coke 10. part 74. b. Marshalsey Who shall have a Writ against Gardein in Soccage The Heir in ward shall maintain an Action after the age of fourteen yeers or at his full Age at his election Littleton But Nat. br 118. b. he shall not have it till the age of 21 years Crooke fol. 131. pl. 106. by reason of the words of Marlebridge cap. 17. scil cum ad aetatem pervenerit 3 4 Mariae Dyer 137. pl. 25. New tenures 3. b. 18. Edw. 3. 55. pl. 76. 29. Edw. 3. fol. 5. pl. 13. Vide Regist origin 136. Lib. Intra 21. D. 8 R. 2. Gard. 166. 10 Rich. 2. Account 132. Doct. Stud. fol. 14. b. old Nat. br 91. A. If the heir in such case dye before his full age his Executor shall maintain an Action of Account Crook 131. Pl. 106. Yet note the heir in Gavel-kinde at fifteen years brought an account against a Guardian in Soccage and shews by the Custome he may alien at such age and for this cause he was awarded to account per Welby 29 Edw. 3. fol. â— pl. 13. The Executor of an Heir shall have an Account per Westm 2. cap. 23. Littleton 27. A. Crooke 131. Pl. 106. Executor of an Executor shall have an Account by 25 Edw. 3. cap. 23. Com. 290. Filius Heres Domini defuncti non habebit breve de computo quia pertinet ad executionem administrationis bonorum defuncti Regist Orig. 135. b. Recusant shall not have an action for any thing that is seized into the hands of the King 3. Jac. cap. 5. Against what person Account lyeth as Guardian in Soccage Account lyeth against any that taketh the profits before the Ward be of the age of fourteen years Littleton Na. Br. 118. D. 4 Hen. 7. 6. 10 Hen. 6. 7. 13 Edw. 3. Account 77. 29 Ed. 3. 5. Pl. 13. But if one occupie and after Guardian in Soccage recover in right of the Ward the party shall not render an account to the Heir for the Guardian ought to account for this 27 Edw. 3. 79. Gard. 22. The reason is as it seems that the Writ doth not make mention of the blood Regist origin 136. b. neither the Count. Lib. intra Account lyeth not against an Executor of a Guardian Littleton Nam non jacet versus executores quia merè pertinet ad Curam Christianam cognoscere de compto reddendo versus executores Regist origin 135. b. 28 Hen. 8. Dyer 23. Pl. 145. But if Executors account an Action of debt lyeth for the Arrearages 2. Hen. 4. 13. Pl. 2. And if the Testator covenants to account to the Heir and doeth not Covenant lyeth against his Executor Regist origin 165. b. Nat. br 145. H. It lyes against a Woman 19. Hen. 6. b. Newton It lyes against the Husband and Wife 18. Edw. 3. 55. Pl. 76. For what things Account lyeth It lyes for woods and underwoods sold for â—ands Tenements Meadow Pasture also for Rents and services perquisits of a Court ad valentiam Lib. Intra 21. B. C. Marlebridge cap. 17. Respendeant de exitibus per aequalem computationem salvis ipsius custodibus rationabilibus misis suis For Fines of Copy-hold Land granted by one Trin. 1. Jac. Com. Bane Shopland versus Rider Rott 853. For the issues and profits of the Lands Littleton For the Marriage of the Heir if he marry before the Age of fourteen years Littleton 27. A. If the marriage be not as great in value as the marriage of the Heir Littleton 27. A. No Account for the presentation of a Church therefore the Guardian cannot present thereunto Nat. br 33. T. 28 Edw. 3. 89. 29. Edw. 3. 5. 8. Edw. 2. Presentment 10. But by Daniel Justice Trin. 1 Jac. Com. Ban. Rott 853. Shopland against Rider the Guardian shall present if the Heir be not of the age of discretion It lyes for writings 32 Edw. 3. Account 60. The Account against a Guardian in Soccage The Heir counts that it was ordained by the Common Council the Guardian should account c. and shews the tenure specially and that the Defendant had the custody of the Lands c. from such a day for 12 years ensuing and hath not accounted for the issues and profits c. and that at such a day the heir was at full Age. Lib. Intra 21. b. Sect. 1. 2. 29 Ed. 3. 4. Pl. 13. No. Lib. Intra 47 E. Sect. 3. The Writ against a Guardian in Soccage Rex c. si A. fecerit c. tunc summon c. B. quod sit coram Justic nostris c. ostendens quare cum de Comm. Concilio regni nostri provisum sit quod custodes terrarum tâ—nementorum quae tenentur in Soccagio haeredes terrarum tenementorum cum ad aetatem pervenerint reddant rationabilem computum suum de exitibus terris tenementis illis provenient de tempore quo custodes illi habuerunt ratione minoris aetatis haeredis praedictae idem B. paefato A. rationabilem computum suum de exitibus proveniend de terris tenementis suis in N. quae tenentur in Soccagio quorum custodiam idem B. habuit dum praedictus A. infra aetatem fuit reddere contradicit ut dicitur Et ideo c. This writ is founded per Marlebridg cap. 17. Nat. br 118. A. Regist orig 1â—6 Note this Writ lyes against any one that occupies the land during the nonage of the ward whether it be the parents of the Heir or not Regist origin 136. b. for it makes no mention of the bloud but only of taking the profits The writ was Receptor denariorum A good plea to the writ because he was Guardian in Soccage for otherwise he would be twice charged 18. Edw. 4. 3. Pl. 17. The Proces against a Guardian in Soccage 1. before appearance 2. after appearance The Process at common Law was but a distresse infinite Coke 3. parte 12. A. Herberts Case But per Marlebridge cap. 23. A capias was given against a Baily and per Westm 2. cap. 11. exigend given against a Servant Bayly Chamberlain or any other Receiver Coke 3. parts 12. A. Harberts Case And in an account against a Guardian there shall be a Capias 29 Edw. 3. 5. Pl. 13. But no exigend because this was given against a Receiver only 17 Edw. 2. Process 203. 17 Edw. 3. 59. Pl. 55. Shard If he comes in by Capias or distresse he shall
Lib Intra 8. b. sect 7. Upon a false returne Lib. Intra 11. A. sect 1. Upon returning nichil where he had sufficient Lib. Intra 11. C. sect 2. For what things this action Lyes Against a Tennant by elegit that holds the lands after his money tendered him and Cuts the trees 21 Edw. 3. 16. So if tennant at will Cuts the trees Littleton 15. A. Coke 8. part 13. B. Salops case 48 Edw. 3. 25. If a Bayly cuts trees without cause 18 Edw. 4. 27. For disturbing of men to come to my chappell with offerings 19 Rich. 2. action upon the case 52. Against the owner of the land in which I have a way and he streightens it 33 Hen. 6. 26. For trenching of it Lib. intra 616. C. sect 1. For any manner of disturbance in my passage or part of my way so that I cannot pass so commodiously as I did before 14 Hen. 8. 31. 21 Hen. 7. 35. 22. Hen. 6. 15. 10 Hen. 7. 21. If the whole way be stopped by one that is not owner of the soil it Lyes 22 Hen. 5. 33 Hen. 6. 26. 10 Hen. 7. 21. So if tertennant and others stop it 34 Hen. 6. 4. tamen quaere For against tertennant that stops all the way an assize of Nusance doeth lye and not this Action 22 Hen. 6. 14. 3 Eliz. Dyer 250. pl. 88. 19 Hen. 6. 29. pl. 49. Paston 2 Hen. 4. 11. pl. 48. No. Lib. intra 12. 6. sect 10. But if I have it but for years Case lyes 33 Hen. 6. 26. Nat. br 176. et 184. L. eodem If A. stops my way and leases the land to B. it lyes against B. if he do not open it but if A. build a house and leases it to B. there B. cannot pull it down for my way for this is waste in B. Trin. 13. Jac. Regis Bolds case and Rutlandshiers case But the 11 Hen. 4. Action upon the case lyes for stopping of a way in grosse only and an assize of nusance for a way appendant 21 Edw. 3. 2. 6. 34 Hen. 6. 4. pl. 11. But for stoping of a way in my own land trespasse vi et armis lyes and not this Action 31 Edw. 3. Action upon the case 38. 13 Hen. 7. 26. But for stoping of a high way the defendant shall be punnished in the Leete and not by this Action unlesse the party had a speciall losse 27 Hen. 8. 26. 5 Edw. 4 2. b. 7 Hen. 4. 8. 33 Hen. 6. 26. Coke 5. part 73. A. Williams case 21 Hen. 7. 35. Coke 9. part 113. Mayrs case If A. sayes that B. hath right in my Land for years Action Lyes Coke 1. part 177. Mildmays case No. Lib. intra 30. A. sect 27. but I ought to shew how I am prejudiced A. brought an Action upon the case against B. because that he published that he had the lease of the land of A. and that he intended to sell it and was hindered B. said that he had an Indenture as in the Count is mentioned and traverseth that he forged it 1 when B. claims a right though he had none yet the Action Lyes not 2 the Count is good because it is that it was against the knowledge of B. that it was forged 3 sciens is not traversable Coke 4. part 18. A. cáse 14. For stopping a ditch by which my land is surrounded Nat. br 88. E. 89. M. 39 Hen. 6. 32. 11 Hen. 4. 82. 14 Hen. 8. 31. For not scouring a Ditch by which my land is over-flowen Regist orig 100. A. For breaking of a seabanke by which my land is surrounded Nat. br 86. F. 89. B. et C. Regist orig 95. A. It lyes not for erecting of Cony-burroughs by which I lose the profits of my land because the party had no property in them Coke 5. part 104. Boulstons case If one hath the trade of a Bakehouse by 1. For disturbing my Bayly to distrain for an amercement 18 Hen. 6. 9. pl. 20. 2. For disturbing me to distrain or to attach Nat. br 102. F. 3. For distraining more sutors to come to my Leete Nat. br 94. G. Coke 4. 94. B. Regist orig 103. B. 4. For distraining Parsons or Vicars in their spiritual possessions Nat. br 94. E. and the Writ is contra legem consuetudinem regni nostri contra formam articulorum contra pacem nostram ibidem 1. Against him that set up a Fair or Market against my Fair or Market 22 Hen 6. 14. 11 Hen. 4. 74. But 41 Edw. 3. 24. per Belknap Quod permittat lyes and not this Action 2. For disturbing Customers to come to the Market 11 Hen. 4. 47. 41 Edw. 3. 24. 29 Edw. 3. 18. 9 Hen. 6. 45. Nat. br 91. G. 2 Edw. 3. 32. pl. 9. 3. For disturbing me to hold a Fair or Market 16 Edw. 2. Action sur case 47. And the Writ that it held three dayes and the Count two dayes and two half dayes and good 4. For disturbing me to take Toll in a Fair or Market 9 Hen. 6. 45. 21. Hen. 7. 16. quaere 5. For selling in another place out of the Fair Regist Orig. 107. A. B. 1. When the Tenant burns the Deed to him delivered in remainder 9 Edw. 4. 53. 2. When a Deed is lost 34 Hen. 6. 4. 3. When the Seal is broken off 39 Hen. 6. 46. Lib. Intra 7. b. Sect. 1. 3. 4. For deeds sold with the Land and not delivered upon request Lib. Intra 5. A. Sect. 2. 5. For forging a statute Staple or Merchant Nat. br 96. B 17 Edw. 3. 49. Reg. orig 115. A. B. 6. For forging of a Release by which I lose my Ward 39 Edw. 3. 13. 1. For returning me summoned and Judgement given by default where I never was but this was after the death of the Summoners 8 Hen. 6. 1. 6 Edw. 4. 3. 8. 26 Assize 48. 2. For returning a Nichil where I had lands Nat. br 93. B. 31 Edw. 3. Processe 55. 1. For setting up a Ferry to the Nusance of my Ferry 22. Hen. 6. 14. 2. For threatning by which I lose the profits of my Ferry 22 Hen 6. 17. pl. 32. For disturbing my Foldage No. Lib. Intra 14. D. Sect. 12. For disturbing one to have certain walks in the Forrest of Selwood Coke 5. part 76. the Countesse of Pembrokes case For erecting a Warren or Dove-house Action lyes not although it be to the Nusance of another Coke 5. part 104. B. Boulstons case For executing Processe in my Liberty Nat. br 95. B. Regist orig 103. 104. 5 Edw. 3. 150. pl. 20. 1. For hindring my light by making a woodpyle Coke 9. part 57. B. Alreds case Le count there and 58. No. Lib. intra 19. B. sect 16. 7 Edw. 3. 261. pl. 15. 2. For infecting the Ayr of my parlour with an hogskin Coke ibidem 3. With a Dyehouse Coke
Pox and they have made such holes in her that you may turne your finger in them and K. the Srugeon hath given her a dyet drink to heal them take heed how you drink with her Action lyes 1 for calling her whore and this is the cause of the Pox 2. the cure is published to wit the surgeon and the drink 3. the contagion take heed how you drink with her ergo it shall be intended the french Pox Trin. 15. Jac. Ban. Regis Milner and his wife against Reeve 1. A. said of B. being a Barrester that he had as much law as a Jack an Apes action lyes because it is an unreasonable creature not having any law and it scandals him in his profession Mich. 36. et 37 Eliz. Ban. Regis Palmers case For saying of a counsellor he will deceave you he was of my counsell and reavealed my Cause No. Lib. Intra 22. B. sect 19. For calling a man Rogue it lyes not Kitchin 173. B. A. sayes of a Preacher thou hast made a seditious Sermon to day and moved the people to it Action lyes because he is scandalized in his profession Coke 4. part 19. case 15. An Action de scandalis magnatum was brought for saying you like of those that maintain sedition against the Queenes proceedings Coke 4. part 12. B. Cromwells case L. said E. did report that your wife sacrificed her child to the devill to make away my mother Action lyes because sorcery is felony per 11. Jac. Regis and there is an evill intention and an act joyned together Pash 15. Jac. Locke versus Locke It lyes for calling one Traytor 27 Hen. 8. 14. 30. Assize 29. Coke 10. part 130. B. Osburns case Thou didest speak treason action lyes 9. Jac. Brereford et Preston Walter said P. did say that Mr. Lewis did say there was no Prince in England action lyes and it cannot be intended but Prince Charles and because it toucheth the plaintiff in his Alleageance it shall be taken in the favourablest sence as is Fama fides occulus non patiuntur Ludum Hill 14. Jac. Ban. Regis Lewis et Walter For calling one Userer it lyes not because it meerly belongs to the spirituall Court 27 Hen. 8. 17. It lyes not for calling one whore Mich. 9. Jac. Ban. Regis Hudsons case Coke 4. part 18. A. but it doeth by the late action But in London by customes it did lye before but if it be removed to Westm no Procedendo shall be granted for such customes to maintain actions for brabling words is against the Law Coke 4. part 18. A. case 13. For saying of a Maid that she had a Bastard an action lyes 1 because it is punishable by our Law 2 if she be to be married it hinders her preferment Coke 4. part 16. case 11. Davies et Gardiner For doing of wronge to the dammage of another touching suits in Law For suing me in the Admiralty for matter above neque super altum mare neque ultra mare per 2 Hen. 4. cap. 11. 5. Mariae Dyer 159. pl. 37. But if one which is only Bayly in the admiralty and is arrested when the principall matter is not determinable there this Action lyes quaere for it was argued at the bar Mich. 11. Jac. Com. Ban. Rott 1127. Rowe versus Alporte Against him that disturbs an officer to make Attachment Against a Bayly of a Franchise that frandulently delivers to the owner his goods attached Naâ— br 93. F. 2 Edw. 3. 43. 1. Against an Attorney that makes default by which my land is lost Lib. Intra 2. A. sect 1. vide the count there 2. For sueing debt in my name without my assent 7. Hen. 6. 43. 45. 3. For Appearing without warrant and imparling where the party is misnamed because he looseth the Advntage of the plea 15 Hen. 7. 14. For taking an obligation in his own name where it ought to be taken in his Masters 20 Hen. 6. 25. 5. It lyes for not executing his office 20 Hen. 7. 9. A. Knigsmell 6. It lyes for Utlawing me in the name of B. that was dead at the time Coke 7. part 1. A. Bulwers case 7. It lyes for pleading Non sum informatus without warrant 20 Eliz. Dyer 361. pl. 13. 8. It lyes for appearing in default of the Tenant and confessing the Action without warant 9 Edw. 4. 13. 43 Edw. 3. 20. Regist orig 113. A. 9. Against him that will be my Attorny without my Assent 42 Edw. 3. 14. Against a Counsellor retained for a certain sum and he discovers his counsell and was of Counsell with the other party and good although he doth not shew for what summe he was retayned 11 Hen. 6. 2. 18. Action upon the case the 7. Lib. Intra 2. B. sect 2. Against a Counsellor that is an Ambodexter Lib. intra 2. B. sect 3. Aganist him that sues me for Tyths in court Christian although I shew him a Composition out of memory 8 Edw. 4. 13. 1. Against a Sheriff that suffers one to escape upon a Capias ad Computandum for he shall not have an action of debt because there is no duty certain 15 Edw. 4. 19. 16 Edw. 4. 2. 3. escape 37. 2. Against a Goaler that lets one escape that was committed upon the statute of Labourers 14 Hen. 6. 8. 3. Against a Goaler that suffers one to escape taken upon a Capias upon A statute Marchant Nat. br 93. A. 4. Against a Goaler that suffers one to escape upon execution Lib. Intra 8. C. sect 1. 5. Against a prisoner that breaks prison and escapes Nat br 95. C. 130. B. 6. Against an Officer that arrests one at my sute and suffers him to escape Regist 111. A. et B. Against a shrieve that quashes essoynes in Reply erronice without assent of the sutors 20. Assize 45. 1. A. having goods of B. in his house the Sheriff comes and takes the goods in execution and A. him disturbs 1 if the sheriff gives notice to A. and after he disturbs him the plaintiff shall have this action against him otherwise not 2 A may keep his house fast till notice 3 the count is not sufficient that A. praemissorum non ignarus c. but it ought to be alleadged precisely Coke 5. part 93. A. Semaines case 2. By hindering execution by Removing the Record by Attaint Regist orig 113. A. Against him that shews execution upon a statute as executor of the Conusee where he is not or where the Conusee is alive 2 Rich. 3. 8. 1. Against a Shrieve that returnes 4 to exactus where it should be 5 to exactus 9 Hen. 6. 60. 81. 2. For returning Cattle estrayed which are dead 32 Hen. 6. 27. 3. For making other returne then the Bayly made 36 Hen. 6. 1. 30. Assize 5. 4. For returning a man of the enquest where he shews him a Charter to the contrary 18 Hen. 8.
Assise 41. 20. Assize 2. 50. Assise 3. But quaere 50 Assise 3. if Tenant in Precipe aliens to B. which releases to the Feoffor for life and judgement if B. shall have Error per 9 Rich. 2. cap 3. Where the King is party to the judgement there shall be Error against him but not before Petition made to the King Pasch 12 Jac. Ban. Regis Davies case 23 Edw. 3. 12. pl. 14. 18 Hen. 6. 17. 22 Edw. 3. 3. pl. 25. 24 Edw. 35. pl. 43. The writ of Error The writ ought to make mention of him which was summoned and severed 9 Hen. 6. 38. 13. Covenant against A. as Assignee and Judgement given against him he brought Error the Writ needs not mention him as Assignee because this Addition was not of substance 19 Elizabethae Dyer 356 pl. 41. The Process in Error 1. upon Judgement in Ireland 2. upon a bill sealed 3. Judgement in another Court Error brought upon a Judgement given in Ban. Regis in Ireland there shall be a Scire facias in the writ of Error for by Sharde this is the usage and in no other manner 34 Assize pl. 7. Error upon a bill sealed there shall be a Scire facias against the Justices which sealed it ad cognoscend Sigilla c. per Westm 2 cap. 31. Lib. intra 293. C. sect 1. 11 Henry 4. 92. But the Justices may deliver it in Court by their own hands 11 Hen. 4. 52. 92. The Process in a writ of Error against the Judges to whom the Writ is directed is Alias Plures and Attachment Nat. br 22. G. When the Record is removed after Errors assigned the Plaintiff shall have a Scire facias against the Defendant ad audiend errores Nat. br 22 E. 10 Ed. 4. 13. 3 Eliz. Dyer 195. pl. 38. 201. pl. 63. 17 Edw. 3. 5. And upon two Nihils nec est inventus the Court shall come to examination of the errors 3 Eliz. 201. pl. 63. But untill error assigned the party shall not have a Scire facias 24 Edw. 3. 31. pl. 8. And if he assign that for error which the Court takes to be no error he shall not have a Scire facias 18 Hen. 6. 17. But in Error brought against the King there shall be no Scire facias because the King is alwayes in Court Nat. br 21. H. The Writ needs not mention the names of the Tertenants because it is of common form used 8 Hen. 4. 17. pl. 3. If the Shrieve return that the Heir is not in his Baly-wick and the Tertenant shews that he is in another County there shall go a Scire facias into another County 8 Hen. 4. 18. pl. 3. If a Recoveror makes a Feoffment and dyes without Heir it seems there that a Scire facias lyes against the Tertenant only and a Writ of Error 8 Hen. 4. 17. pl. 3. 9 Hen. 6. 49. B. pl. 30. Quaere But the 9 Hen. 6. 46. B. pl. 30. a Writ of Error lyes against none but the party or them that are privy to the former Judgement Gardein in right recovers in a Quare Impedit and dyes the other brought error and a Scire facias against the Heir of the Recoveror and against the Heir of him from whose right he took his title and against the Incumbent without naming the executor yet good because he recovers as Gardein in right but the contrary as Gardein in Deed 8 Hen. 6. 35. pl. 1. Error upon false Judgement in Oxford the party being dead there shall go a Scire facias as well against the Heir as against the Tertenant 8 Hen. 4. 18. pl. 3. A Scire facias needs not be sued against the Tertenant before the Judgement be reversed 47 Edw. 3. 7. But before that he enter he shall have a Scire facias against the tertenant for otherwise he shall be a Disseisor 4 Hen. 7. 10. 47 Edw. 3. 7. But if the Recoveror make a Feofment to his use and then the judgement be reversed there needs no Scire facias against the Feoffee for this is Ayded per 1 Rich. 3. 26 Hen. 8. 2. Error upon an Outlary in Fellony the Plaintiff ought to have a Scire facias to all the Lords mediate and immediate 7 Hen. 7. 5. 11 Hen. 4. 53. 4 Edw. 4. 10. And also against the party and the Tertenants Lib. intra 308. B. sect 3. And in a Writ of Error if the Plaintiff hasten not his suite the Defendant shall have a Scire facias against the Plaintiff to shew cause why he should not have Execution 24 Edw. 3. 24. 9 Hen. 6. 13. And such case two Nichils returned the Defendant shall have execution but after this the Plaintiff shall have a Scire facias 9 Hen. 6. 13. Diminution in Error 1. by whom 2. in what cases 3. at what time 1. The Plaintiff in Error may alleadge Diminution Nat. br 25. A. The Defendant may 28 Hen. 6. 11. 15 Eliz. Dyer 321 pl. 21. 2. Error upon a Judgement in London the Recorder certifies it yet he is held to do according to the custome Quaere if Diminution shall be alleadged 34 Hen. 6. 42. When all the Record is not removed Diminution may be alleadged Nat. br 25. A. vide the Writ there Diminution alleadged in 1. Essoine Lib. intra 290. C. sect 1. 1 Hen. 7. 2. 2. Continuance of the Jury Lib. intra 290. D. sect 2. 3. Words in title in Assize Lib. intra 290. D. sect 3. Diminution shall not be alleadged upon a bill sealed because the bill is not of Record 11 Hen. 4. 52. Hull 65. 3. After in nullo est erratum pleading in another Terme the Plaintiff may not alleadge Diminution 28 Hen. 6. 11. But the Defendant may 28 Hen. 6. 11. But per 7 Edw. 4. 25. Error 45. the Defendant may not But Coke 5. part 37. B. Bishops case after in nullo est erratum pleaded no Diminution shall be alleadged The Plaintiff to the Writ before that he assigne Errors or a Scire facias ad audiend errores and by this means the Defendant may not afterwards alleadge Diminution 16 Eliz. Dyer 330. pl. 18. vide 13 Hen. 4. Error 92. But note that the Defendant after that he had rejoyned alleadged Diminution No. Lib. intra 232. B. The Plaintiff may not alledg Diminution for any Error in Deed after a Scire facias awarded 22 Edw. 4. 45. The Assigment of Errors 1. by whom 2. at what time 3. upon what Record 4. of what things Assigment of errors is in place of a Declaration 9 Edw. 4. 32. If one brings a Writ of error and he and another assigne errors this is good as to him that brought error and void as to the other but if two brought error and one assigne errors this is not good to either Mich. 9 Jac. In the Chequer chamber Shakley versus Porter Conusor of a Fine shall not
3. Count of a Horse found No. Lib. intra 169. D. Sect. 2. Count upon a bargain for Corne to be delivered at a day to come that such a day year and place bargained for eight quarters of Corn ad valentiam to be delivered c. No. Lib. intra 169. B. Sect. 1. For two Obligations Lib. intra 220. A. Sect. 1. The Husband and Wife counts that they were possessed of a box sealed with Deeds concerning Lands c. and lost them and came to the hands of the Defendant such a year day and place per Trover c. Lib. intra 209. B. Sect. 3. Count of a box with Deeds Lib. intra 202. B. Sect. 7. Counts that his Brother whose Heir he is was seized of Land in Fee and of a box sealed with writings touching the Land and lost the box and it came to the hands of the woman dum sola fuit and dyes without issue and descends to him and takes a husband per quod c. Lib. intra 209. D. sect 4. Heir against executors Lib. intra 210. A. sect 5. The heir in a Detinue for a box with deeds ought to count that it was sealed for otherwise it belongs to the executors 36 Hen. 6. 27. pl. 26. 39 Edw. 3. 7. 8. 41 Edw. 3. 2. 11. Hen. 49. A. Paston And yet the sealing is not traviseable 41 Edw. 3. 2. The heir ought to count of the certainty of the Land and also how it was conveyed to him 3 Hen. 6. 19. pl. 31. 19 Hen. 11. pl. 29. He ought to count as heir if he claimes as heir 7 Hen. 6. 31. pl. 25. But if he count upon Baylement to rebayle to him and his heirs he need not to set forth the title to the land 19 Hen. 6. 41. pl. 84. If a Feoffee with waranty make a Feoffement with warranty or desseisee dye his heir shall have a Detinue and count specially Coke 1. part 2. A. Buckhursts case The heir counts that his father was seised in fee and demands the deed of the estate taile and good for his father may discontinue and take it again in fee 38 Hen. 6. 24. pl. 11. Count per Feoffee Lib. intra 210. sect 6. Note if the writ be of bona et catalla the count cannot be of Charters 22 Edw. 4. 12. pl. 32. And needs not say in the Count how the Defendant came to them 9 Hen. 5. 14. pl. 22. 4 Edw. 4. 9. pl. 11. Lib. intra 213. A. Sect. 2. If the Writ be of a box with deeds the Count shall be accordingly and not of a deed certain 41 Edw. 3. 2. pl. 5. 14 Hen. 6. 4. A. The Plaintiff in a Detinue for Deeds for Land ought to make title in the Count 33 Hen. 6. 26. pl. 12. Prisot for otherwise he ought to make request and then an Action upon the case lyes The Writ in Detinue 1. Of Chattels 2. Of Deeds 1. In Comitatu dicitur injuste detinet Regist orig 139. B. Si quis rem mobilem vendicaverit ex quacunque causa oblatam vel commodatam debet in actione sua definir e pretium sic proponere actinem suam quia ille a quo res petitur non tenetur precise ad rem restituendam sed sub disjunctione vel ad rem vel ad pretium Bracton Lib. 3. fol. 102. B. If it be against an Executor it need not name him Executor because he is only charged with the Detainer 29 Edw. 3. 38. pl. 12. Rex praecipimus tibi quod justicies L. quod juste c. reddat T. quandam chartam vel duas chartas vel quoddam scriptum obligatorium vel conventionale vel acquietantiae vel quiete clamantiae vel testamentarium vel quoddam Cyrographum quod quas vel quae ei injuste detinet ut dicit sicut rationabiliter monstrare poterit ne amplius c. Regist Orig. 159. B. Nat. br 138. B. Rex praecipe F. quod reddat W. quandam chartam c. quam ei injuste detinet ut dicit nisi fecerit c. Regist orig 159. B. Nat. br 138. B. The Writ for Deeds in a bag box or chest Regist 159. B. Lib. intra 209. C. Sect. 1. Note when a man demands writings in a bag box or chest he needs not make mention in the Writ or Count what writings they were Regist orig 160. A. If one sue for deeds in any Court without a Writ a prohibition lyes vide the Writ Regist orig 159. B. Nat. br 139. C. A. bayls Deeds to rebayl to him and his Heirs there the Heir need not mention though he is Heir in the Writ 5 Edw. 3. 159. pl. 24. The Process in Detinue 1. Before appearance 2. After By the Common Law it was but a distresse infinite Nat. br 139. A. 14 Hen. 6. 1. But per 25 Edw. 3. cap. 17. a Capias was given But lyes not in a Detinue for Deeds 5 Eliz. Dyer 223. pl. 24. The Processe at Common Law was a Summons Attachment and distresse Nat. br 139. A. 14 Hen. 6. 1. But if the deeds are in a box Capias lyes 20 Edw. 4. 3. pl. 12. 7 Hen. 4. 2. pl. 8. 14 Hen. 6. 1. pl. 1. 40 Edw. 3. 25. pl. 28. But then it ought to Count of a Deed in certain 14 Hen. 6. 1. pl. 1. The Garnishee may be summoned by word 1 Hen. 5. 13. The Garnishor may grant a scire facias to issue out against the Garnishee and if he make default judgement shall be given against him Lib. intra 217. B. Sect. 3. The Garnishment in Detinue 1. Of chattels 2. Of Deeds Garnishment is granted for saving the Condition if not performed only this whether the Defendant did or not and for no other cause 40 Edw. 3. 11. pl. 24. The Defendant in Detinue pleads that the Plaintiff and B. delivered this upon condition and prays Garnishment and had it without shewing what conditions were 3 Hen. 4. 18. And also the reason to be because the conditions came not in debate between the Plaintiff and Defendant Garnishment prayed of the Heir and Executor of B. good because it did not appear whether the Deeds in the box were reall or Chattels 14 Edw. 4. 1. pl. 3. 21 Edw. 3. 41. pl. 44. 48 Edw. 3. 30. pl. 19. Garnishment granted against an Executor because it was supposed that the Testator was one that delivered the deeds 14 Hen. 6. 11. pl. 42. The Defendant shall have Garnishment although the Garnishee was a stranger to the Delivery 14 Edw. 4. 2. If the Garnishee be returned dead then his Heir or Executor shall Garnie and if it be a Chattel and it is returned that he is dead intestate the Ordinarie shall Garnie 48 Edw. 3. 3. pl. 19. So of the Successor Lib. intra 217. C. Executor shall have Garnishment upon delivery to his Testator Lib. intra 216. D. Sect. 1. Enterpleader in Detinue 1. Of Chattels 2. Of Deeds
if land be conveyed toa Mayor and commonality which was held by homage and fealty which conveyes this over this is no plea because the Mayor and communality cannot do homage or fealty Coke 4 part 11. A. Bevills case 1. The Issue in tayle shall avoid seisin by the hands of the tenant in tayle Coke 9 part 34. A. Bucknalls case 34 Edw. 3. Avowry 131. But this is intended when the tenant makes a gift in Tayle remainder in fee for the tenant in tayle shal himself avoid the encroachment between by the donor because he ought to shew the commencement of the reservation Coke 8 part 65. A. Fosters case 10. part 108. Lofeilds case 2 Successor of a Bishop shall avoid seisin between by the hands of the predecessor Coke 9 part 34. A. 3 Veray tenant of the land if he have a deed and shew the contrary Coke 9 part 34. A. 10 Hen. 7 11. Nat. br 163 C. 22 Hen. 6 5. 4 Edw. 2 avowry 201 202. 4 Encroachment of seisin is not materiall where is no tenure Coke 9 part 34 B. Bucknalls case 5 Such seisin shall be avoided because it was by cohersion of distress Coke 9 part 34 B. Bucknells case 12 Edw. 4 7 pl. 18. 8 Hen. 6 18 pl. 1. 47 Edw. 3 4 pl. 8. 6 If rent be payable at one day in a year and the Lord encroach seisin upon two dayes of the year this being voluntary shall be avoided in avowry for this that they agree in the Annuall summ Coke 9 part 34 B. Bucknalls case vide 21. Edw. 4 64 pl. 36 et fol. 84 pl. 3â— In avowry the seisin is traversable and not the tenure Crooke 13 Hen. 7 31. B. When the Lord varies in Avowing of the verity of the quantity of the services by colour of seisin the tenure shall be traversed Coke 9. part 33. A. Bucknals case 10 Henry 7. 11. pl. 31. Com. 94. Mantels case Crook 13. Hen. 7. 31 B. But then the tenant ought to confess the tenure in part for he needs not traverse all the tenure but may disclaim or plead out of his fee Coke 9. part 35. A. Bucknals case 10 Hen. 6. 6 7. pl. 20. 37 Hen. 6. 25. pl. 13. 15 Rich. 2. Avowry 214. But note 11 Hen. 4. 10. pl. â—2 the Tenant said that the Avowant did give the Lordship to A. in tayl the remainder to B. in tayl A. dies without issue B. yet living there he needs not suffer a Disclaymer or plead out of his fee but there fol. 7. pl. 40. he had judgement of the Avowry and admitted When they agree in the quantity of the services and vary in the quantity of the Land there the Plaintiff may traverse alsque hoc that he held modo forma or that he held one only Coke 9. part 35. B. Bucknals case 20 Henry 6. 20 21. And so avow severally where it is a joynt Tenure or to the contrary Coke 9. part 35. B. Bucknals case 9 Henry 6. 26 pl. 24. 2 Ed. 3. 34 pl. 19. But if he vary in the quantity of the Land and of the services he may not confess the tenure according to the verity he traverseth modo forma or with one only Coke 9 part 35. A. B. Bucknals case 5 Henry 5. 4. 3. When one distrayns for fealty rent and sute and alleadges seisin in all and avows for rent the Tenant may confess that he held by fealty and rent and to the rent nothing arrear without that that they held by fealty rent and sute modo forma and good and if upon issue joyned it be found that he held by fealty and rent and not sute although that the Avowry be for rent yet in so much that the tenure alleadged by the Avowant was traversed and found against him Judgement shall be given against the Avowany for in vain shall he make this traverseable and yet that he should have the return when it is found against him Coke 9. part 35 36. Bucknals case Tender of Homage ought to be to the person of the Lord ubicunque fuerit infra regnum propter reverentiam Bracton Lib. 2. fol. 80. A. Judgement If the Plaintiff counts upon a Detayner and the Defendant appear and makes default the other shall have judgemen for dammages and costs and also for the value of the Cattel Nat. br 69. L. No. Lib. intra 610. C. sect 20. The Defendant said that the place is antient demean c. if the issue be found for him he shall not have a return 21 Edw. 3. 7. pl. 18. If one justifies for services and makes no Avowry he shall not have a return although it be found for him 15 Edw. 4. 29. 5 Edw. 4. 6. 34 Hen. 6. Avowry 47. If one make a Conusance as Bayliff he shall have a return No. lib. intra 591. A. sect 9. The Plaintiff in a Recaption dies the Lord shall have return if another writ be purchased 11 Hen. 6. 14. pl. 3. If the Plaintiff be non-suited the other shall have a return Lib. intra 570. D. sect 1. 2. 11 Eliz. Dyer 280. pl. 14. 35 Hen. 6. 47. pl. 12. 17 Hen. 8. Br. second Deliverance 15. 22 Hen. 7. 92. pl. 7. Crook and this although the other do make no Avowry 16 Henry 6. return of Cattel 1. 2 Hen. 5. 6. But other wayes he may abate the writ by Pl. 9 Hen. 6. 4. pl. 10. 11 Henry 6. 5. B. Danby 35 Hen. 6. 40. pl. 1. But if the Count abate or no Count of the place or of the taking yet he shall not have a retnrn before an avowry 35 Hen. 6. 40. pl. 1. The second Deliverance he shall not have it without Avowry per Newton 16 Henry 6. return of Cattel 1. The Defeudant cannot claym property in Repleg to have a return because he ought to claim at the time of the Repleg sued 31 Henry 6. 12. pl. 1. The Plaint is removed and it abates for default of the surname there was a return awarded without an Avowry 27 Hen. 6. 3. pl. 35. Repleg against C. D. C. pleads he took them not D. justifies in right of C. and found for him yet he shall not have a return 22 Hen. 6. 52. pl. 27. Defendant pleads property in another and found so there he shall have a return without an Avowry for the Plaintiff had deliverance without cause 39 Henry 6. 35. pl. 47. Prisott One avows for rent at two daies one is not come the Plaintiff is non-suited there shall be a return for one day because he is not merely an Actor per 4 Justices against 3. But Newton said he ought to have several Avowries At the Common-law return irreplevisable was but when it was found against the Plaintiff per une issue 36 Henry 6. 8. pl. 24. Babbington If the Defendant doth not answer to the Avowry there the Cattel shall be irreplevisable Lib. intra 571. A. sect 4. Return irreplevisable after Westm 2.
Original shall be removed 18 Edwrad the 3. d 24. And if it be of antient Demean the Origishall be removed 34 Assize 7. But Error upon a judgement in Ireland the Original shall not be removed 74 Assize 7. 37 Assize 15. Finchden Eror lyes not upon a Fine or Common recovery for false Latine rasure interlyning misentry of the warrant of Attorney proclamation mis-returned or not return of the Shrieve or default of form in words 23 Eliz. cap. 3. And by the 27 Eliz. cap. 9. this extends to Fines in Wales and Recoveries But before the Kings Silver be entred it is Error No. Lib. intra 231. A. sect 2. A Writ of Covenant returned before the Teste this shall be amended Coke 5. part 45. B. Gages case The Caption before the Teste of the Dedimus no error No. Lib. intra 255. C. sect 11. Pasc 1. Jacobi Regis Rot. 426. Countess of Bedford against Foster 1. Error assigned because the Writ of Covenant was of 8 Messuages and 2 Tofts the Fine certified is of 8 Messuages 2 Messuages but non allocatur because the Record hath relation to the Writ of Covenant 2. Error assigned because the indorsement was Executio istius brevis patet in quadam panella c. where it should be in quadam scedula sed non allocatur because in substance it is the same Mich. 30 Eliz. Ban. Regis Austein Steede versus Conaway Webbe a Fine was levyed of two Tenements and void because a precipe lyes not of it this case is entred Hill 30 Eliz. Rot. 165. Infancy good Error in a Fine Nat. br 21. D. 3 Hen. 6. 16. B. 2 Rich. 3. 1. 17 Edw. 3. 53. pl. 33. 27 Assise pl. 53. But if he come to full age it is not for then he is not in the same condition as he was when he levyed the Fine 17 Edw. 3. 53. pl. 33. Greene 17. Assize pl. 17. And although the other eject the protection yet if the Infant be inspected when he comes to full age he shall have the benefit of his nonage 22 Edw. 3. 6. pl. 24. 21 Assize pl. 10. Feme Covert as Feme sole levyes a Fine this shall bind all but the Husband Coke 7. part 8. Bedfords case 17 Edw. 3. 52. 78. 7 Hen. 4. 23. But if the Husband enters and dyes the Fine is void without more Coke 7. part 8. Bedfords case 7 Hen. 4. 2. 23. But if living the former Husband and she take a second and they levy a Fine this is utterly void because the second mariage is so 7 Hen. 4. 24. B. Gascoign 9 Hen. 6. 34. B. pl 3. Note when a thing is a mendible before the Writ of Error brought it is amendible as well after and this by a Superiour Court as well as an Inferiour Coke 8. part 162. A. Blackamores case Note that those things that are not amendible are Errors at this day When Judgement is given but not upon verdict of 12. upon Issue joyned there are seven Errors not amendible Coke 8. part 162. A. Blackamores case Fault of the Original No. Lib. intra 246. D. Misprison of the form of the Original false Latine or variance from the Register Material variance between the Original and the Count as C. W. in the Writ and W. W. in the Count Coke 5. part 37. Bishops case Jeofayl fault of Collour insufficient pleading or some default of the person or of his Counsell Error or misprision of the Judges in another Term Misericordia pro Capiatur è contra Coke 8. part 59. A. 41 Eliz. Dyer 315. pl. 99. Fault of warrant of Attorney Error in pleas of the Crown and Appeals or in proceedings upon them they are not amendable for they are excepted out of the Statute of Amendments and also Error in the Exigent to make one to be outlawed Coke 8. part 162. A. Blackamores case When judgement is given upon verdict of twelve upon issue joyned there are twelve misprisions not to be remedyed Coke 8. part 163. Blackamores case Material variance between the Original and the Count Coke 5. part 37 Bishops case The Original is Barbara and the Count is Barbaria this is erroneous Mich. 9. Jac. Ban. Regis Harrison Fettiplace Waste brought in Burrum Appleby and Flackebridge and the Account is of waste made in Burrum Appleby Flackbridge Park in Langton and it is variance because there is more in the Count then in the Writ Hill 12 Jac. Com. ban Countess of Cumberlands case When the Original of the Count differs in the substance Coke 5. part 45. Husband and Wife brought debt or an Action for rent due to them where it was due to the Wife before Coverture this is ayded by the Statute and good after Verdict Trin. 9 Jac. Ban. Regis Poore versus Boule Hill 36 Eliz. Ban. Regis Rot. 610. Griffin versus Elliot Ejectione firmae fault vi armis yet this is but a form and shall not stay judgement after Verdict and then it was also said that these words are not material for it may be without them 7 Hen. 6. 4. 17 Edward 3. 1. When the Venue is mistaken The issue was that within the Mannor of Wargrave and it was of the mannor of Wafield demiseable by Copy of Court Roll c. the Venue was of the Mannor of Wargrave and good because the issue was upon the Custome within the Mannor of Wargrave Coke 11. part 18. A. Nevils case but if one Mannor was in one County and another in another then otherwayes Mich. 11. Ia◠Ban. Regis in the same case 1. Trin. 11 Iac. Ban. Regis Morton versus Orde resolved in Error 1. Infancy during Non-age shall be tryed by the Justices Coke 9. part 30. 17 Edw. 2. Account 122. 46 Ed. 3. 8. 48 Edw. 3. 11. 14 Hen. 4. 2. If it be doubtfull to the Justices the Infant and the Witnesses shall be examined 25 Edw. 3. 42. 50 Edw. 3. 5. 3. If he be of full age in Actions reals it shall be tryed where the Land lyes 21 Edw. 3. 28. 38 Edw. 3. 17. 44 Assise 10. 46 Edward 3. 7. 13 Hen. 4. 3. 19 Hen. 6. 51. 4. If it be an Action personal as Ejectione firmae it shall be tryed where the Action is brought 21 Edw 3. 7. 3 Hen. 6. 40. 34 Hen. 6. 50. and so it was adjudged When the Return is by the Shrieve where it ought to be by the Commoners or e converso When the Shrieve puts not his name to the Return of the Jury When there is no return indorsed upon the Venire facias so if the name of the Shrieve be not put to the Writ of Inquiry Dammages Mich. 9 Jac. in the Chequer Chamber Shackly versus Porter When one gives the Verdict that was not returned in the Venire facias When it appears by all the Record that the Plaintiff had no cause of Action