his Age proved But if he come to full age it is not for then he is not in the same condition as he was when he levied the Fine 17 Edw. 3.53 pl. 33. Greene 17 Assize pl. 17. no◠can it be so well tried And although the other ject a 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. for the Infant could not proceed to reverse the Fine during his Infancy by reason of the protection Feme Covert Feme Covert as Feme sole levies a Fine this shall bind all but the Husband Coke 7. part 8. Bedfords case 17 Edw. 3.52 78. 7 Hen. 4.23 because as to him she was covert and could not act without him though not in respect of others But if the Husband enters and dies Husband the Fine is void without more suit to all parties concerned Coke 7. part 8. Bedfords case 7 Hen. 4.2.23 for that shews his disagreement to his Wives act But if living the former Husband and she take a second Husband and they levy a Fine this is utterly void because the second Marriage is void 7 Hen. 4.24 B. Gascoign 9 Hen. 6.34 B. pl. 3. This was before the Statute of Jac. against having two wives or two husbands Note Note when a thing is amendable before the Writ of Error brought it is amendable as well after and this by a Superiour Court as well as an Inferiour Court Coke 8. part 162. A. Blackamores case for the Writ of Error doth not hinder such amendments Note Note that those things that are not amendable and yet vicious are Errors at this day for there is no other way to redress them When Judgment is given but not upon a verdict of 12. upon Issue joyned there are 7 Errors not amendable Coke 8. part 162. A. Blackamores case as upon a Judgment by default by Nihil dicit non sum informatus or upon a Demurrer c. Vid. some alterations by a late Statute temps Caroli Secundi concerning Errors Want of the Original Writ 1. Original No. Lib. Intra 246. D. Misprision of the form of the Original 2. Form false Latin in it or variance from the Register Material variance between the Original and the Count or Declaration 3. Count. as C.W. in the Writ and W. W. in the Count Coke 5. part 37. Bishops case Jeosail 4. Pleading fault of Colour insufficient pleading or some default of the person or of his Counsel 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. Want of warrant of Attorney 6. Warrant Error in pleas of the Crown and Appeals 7. Appeal 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 Br. 10. This is in favour of life and liberty and property What things are amendable after verdict 1. Material variance When Judgment is given upon a verdict of 12. men upon issue joyned there are 10. Misprisions not to be remedied or amended 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 for they are two several names and so may be two several persons Waste brought in Burrum Appleby and Flackbridge and the Count is of waste made in Burrum Appleby Flackbridge Park in Langton and it is variance because there is more in the Count than in the Writ Hill 12 Jac. Com. Ban. Countess of Cumberlands case and so it may not be for one and the same matter When the Original and 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 aided by the Statute and good after verdict Trin. 9 Jac. Ban. Regis Peore versus Boule Hill 36. Eliz. Ban. Regis Rot. 610. Griffin versus Elliot Ejectione firmae wants vi armis this is but a fault in form and shall not stay Judgment 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 Edw. 3.1 Q. 3. Misprision of the Visne When the Venue is mistaken The Issue was that within the Mannor of Wargrave and it was of the Mannor of Wafield demisable 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 it is otherways Mich. 11 Jac. Ban. Regis in the same case for then that Jury could not try the issue 1. Trin. 11 Jac. Ban. Regis Morton versus Orde resolved in a Writ of Error 1. Infancy during Nonage shall be tried by the Justices by inspection and other proof in Court Coke 9. part 30. 17 Edw. 2. Account 122. 46 Edw. 3.8 48 Edw. 3.11 14 Hen. 4. after Nonage by a Jury 2. If it be doubtful to the Justices the Infant and the Witnesses shall be examined in Court 25 Edw. 3.42 50 Edw. 3.5 3. If he be of full age in Actions reals it viz. the Issue shall be tried where the Land lies 21 Edw. 3.28 38 Edw. 3.17 44 Assize 10. 46 Edw. 3.7 13 Hen. 4.3 19 Hen. 6.51 for the Land is the principal matter 4. If it be an Action personal as Ejectione firmae it shall be tried where the Action is brought 21 Edw. 3.7 3 Hen. 6.40 34 Hen. 6.50 and so it was adjudged because it is transitory and not fixt to a place 4. Sheriffs Retorn When the Retorn is by the Sheriff where it ought to be by the Coroners or è converso for such is no retorn because made by a wrong Officer When the Sheriff puts not his name to the Retorn of the Jury 5. Jury as he ought to do for else it cannot be known to be his Retorn 6. Venire facias When there is no Retorn indorsed upon the Venire facias so if the name of the Sheriff be not put to the Writ of Inquiry of Dammages Mich. 9. Jac. in the Chequer Chamber Shackly versus Porter for these are things of substance When one gives the Verdict that was not returned in the Venire facias 7. Verdict though he be sworn When it appears to the Court by all the Record 8. Action that the Plaintiff had no cause of Action for the Court is to judge of the Record In Appeal 9. Crown or Pleas of
remainder Lib. Intr. 22. A. Sect. 2. for if there be just cause to account for part the Action is maintainable But if he confess part and traverse the other no Judgment shall be till the other be tried 41 Edw. 3. Account 34. for it may be he is to account for all notwithstanding his traverse which may be false The Judgment is Ideo consideratum quod praedictus W. recuperet versus praefat M so much as he is found in Arcarages dampna sua occasione implacitationis c. Coke 11. part 40. A. Metcalfs case The King is not held to bring a particular Account against any as Receiver but to declare generally quod ille ad computum domino Regi reddend tenetur and against Executors quod tenebantur tempore mortis suae Coke 11. part 90. Devoushers case for the King is not tied to punctualities of Law where no person is injured by his not observance of them The Writ against a Receiver In Comitatu Rex c. pr. A quod juste c. reddat B rationabilem computum suum de tempore quo fuit Receptor denariorum ipsius B In Com. Ban. c. Regist orig 135. ibidem B. vide diversa brevia de computo versus Receptorem Writat the Com. Law by the Stat. of Marleb cap. 29. But there is another form of a Writ founded upon the Statute of Marlebridge cap. 23. Nat. br 117. H. Regist orig 136. B. A good plea to the Writ that he was Baily and not Receiver for otherwise he shall be twice charged viz. as Baily and Receiver 3 Edw. 3.70 pl. 28. 18 Edw. 4.3 pl. 17. which the Law judges unreasonable and will prevent by making the Writ certain A good plea to the Writ that he was Guardian in Soccage 18 Edw. 4.3 pl. 17. and so not properly a Receiver as the Writ supposeth The Writ shall be always general and if the cause be special it shall be set forth in the Count Nat. br 118. Q. F. The Defendant pleads the Receipt by deed and demands judgment of the Writ without shewing it this is no plea to the Writ because the Receipt and not the Deed is the cause of Action and he hath confessed the Receipt and the Deed appears not to the Court 1 Hen. 6.8 28 Hen. 8. Dyer 20. pl. 121. But 9 Edw. 4.50 B. per Choke contra 2. Hen. 6.9 quaere No plea to the Writ if it do not agree with the Plaintiff concerning the manner of the Receipt 4 Hen. 6.12 pl. 4. The Process against a Receiver 1. before Appearance 2. after At the Common Law the Process was but a distress infinite Coke 3. part 12. A. Harberts case But per Sat. de Marlebridge cap 23. a Capias is given Coke 3. part 12. A. for more expedition for Liberty is more precious than ones Estate in the eye of the Law And by Westm 2. cap. 11. Process of Outlawry is given Coke 3. part 12. A. 17 Edw. 3. Process 203. 17 Edw. 3.59 pl. 55. Shard 26 Edw. 3.5 pl. 13. which is a more violent prosecution to bring the Defendant to do right A Scire facias shall issue against Tenant per Elegit to account 21 Edw. 3.2 pl 6. 5 Edw. 3.159 pl. 20. Regist Judicial 73. B. Old Nat. br 34. what profits he hath received out of the lands extended and how far his debt is satisfied And if he come not upon Summons returned Judgment shall be given against him 5 Edw. 3.159 pl. 20. 21 Edw. 3.1 Quod computet Conusor of a Statute shall have a Scire facias against a Conusee to Account Coke 4. part 67. B 47 Edw. 3.11 pl. 9. fol. 25. pl. 63. So the Assignee of a Conusor 25 Edw. 3.53 pl. 17. both for the former reason upon the Elegit But then he cannot surmize that it was appraised and found of base value 17 Edw. 3.36 pl. 6. For by the bringing of the Action he admits of a certain value to account upon and such a surmize is a matter dehors If a Receiver come in by a Capias or Exigend he shall be forthwith committed to the Fleet 29 Edw. 35. pl. 63. for his contempt in not coming in till compelled by force which is a disturbance of the publick Peace So if he come in by distress and the account be adjudged against him 29 Edw. 3.35 pl. 63. for then it doth appear he was a Fort feasor But if the account be adjudged against him and he be not present in Court a Capias ad computandum shall issue out 1 Edw. 3.2 pl. 10. 1 Hen. 7.1 pl. 1. Townsend Lib. Intr. 18. Sect. 1 2 3. to make it appear to the Court whether he was to account or no. If in Judgment given quod computet the Plaintiff dies the Executor shall have a Scire facias which being served if the Defendant appear not an Exigend shall issue forth against him 14 Hen. 4.1 But if the Defendant be taken per Capias ad computandum and dies in prison a Scire facias lies not against his Executors 10 Edw. 4.7.41 Assize So that a Scire facias lies for an Executor but not against an Executor for the Executor may not be so privy to the receipts and payments of the Testator as to know what to plead to the Account Bar by a Receiver 1. to an Action of Account 2. before Auditors The Defendant pleads he bought the goods of the Plaintiff Bought before he brought this Action for them a good bar 14 Hen. 4.19 pl. 21. for thereby he claims the property in them The Defendant pleads Accord that it was agreed that he should be bound to the Plaintiff for the principal and use the which he did this is a good bar to the Action 22 Hen. 6.55 pl. 32. for this drowns the former contract otherways he ought to plead this before Auditors Q. Whether it may be pleaded in bar of the Action or in discharge of the Account before Auditors It seems it is no plea before Auditors So if the Plaintiff grant that if the Defendant pay 20 l. he will withdraw his Action this is a good bar to the Action because of this Accord 7 Edw. 3.325 pl. 11. 18 Edw. 3.39 pl. 35. which hath taken away the ground of the Action No plea that he put it in a bag and that the Plaintiff agreed that he should keep it in lieu of a debt because the Receipt for Account-render is confessed 28 Hen. 6.7 pl. 9. and so it appears the Plaintiff hath cause of Action The Plea was that he did account of such a Sum such a day and year and place before A and B Auditors assigned by the Plaintiff a good Bar Lib. Intra 19. D. Sect. 3. 25 Edw. 3.39 pl. 1. 2 Edw. 3.45 pl. 13. For they are Judges and so shall not account twice for one sum The Plaintiff Counts of divers sums received between such and such a day and the Defendant pleads to parcel of the
the Pipe by negligence Regist 110. A. for one man must not be prejudiced by anothers negligence So if Oyl be carried Regist orig 112. A. Charitable deeds Against him that promises 10 l. for the curing a poor man Doct. Student 104. A. and pays it not For upon every promise if the party be charged with it an Action lies although the other have no benefit Doct. Student 104. A. but there must be a benefit to some body Against him who promises to make a Coach Coach and doth not Nat. br 94. A. But the Plaintiff ought to count that he did give money for the doing it other ways it is but Nudum pactum unde non oritur actio 3 Hen. 6.36 pl. 33. for there was not reason why he should do it Gathering Tithes A promises if B will assist him in the gathering of the Tithes of Cheese and Apples and other Tithes till such a time he should have 20 s. and B shews that he did assist him so long in the gathering the said Tithes and good for non constat that there are other Tithes if there be they ought to be shewed by the other party Mich. 7 Jac. Ban. Regis Baker Secker Against him that takes upon him to repair my Dove-house Dove-house and doth it ill Regist orig 110. B. whereby my house becomes of less profit A work ill done is accounted as not done Against him that promises to make a Cross Cross and doth not Regist 109. B. This Action it seems lies not at this day Q. Delivery of a deed A promises to deliver a deed upon request the request ought to be shewed precisely otherways if it be of a thing due before or upon a sale for in the former case the request is traversable but not in the latter Pasch 28 Eliz. Com. Ban. Discharge of a Prisoner Against him that promises to pay me as much as the other owed him if I will discharge him of the Prisoner 27 Hen. 8.24 Farrier Smith 1. Against a Smith that takes upon him to shoe my Horse and doth not 14 Hen. 6.18 2. Or to cure him 19 Hen. 6.49 Regist orig 119. B. but here must be a consideration precedent It is not sufficient to do all he can but he is bound to cure him But upon a general retainer without taking upon him the Cure it is not so for there the Law implies only that he would do his best endeavour to do it 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 improvide imposuit medicinas c. quod equui mortuus est 43 Edw. 3.33 pl. 38. 19 Hen. 6.49 for the Law punnisheth negligence 1. Against a Ferryman that takes upon him to carry one over the water Ferryman and doth it not and this without consideration because his fare is certain 22 Assize 41. and recoverable by Law for the Law makes the Contract 2. For surcharging his Boat by which my Beast is drowned 22 Assize 41. Action upon the Case 40. for this is a misseasance An Administratrix desires to be forborn till such a time and then she will pay the debt Forbearance this is a good assumpsie Coke 9. part 94. A. Banes case and the Plaintiff 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 chargeable if she have not quid pro quo Coke 9. part 92 93 94. Banes case fol. 90. B. Pinchons case The same Law is of a Strangers promise Forbearance Coke 9. part 94. A. for though the Stranger it may be hath no benefit yet the Plaintiff may be prejudiced 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 for if there were no debt there can be no cause of Action A counts that B was indebted to him in 20 l. but shews not how long and that the 10. of September 7 Jac. B. 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 otherways when the forbearance is for a time uncertain Trin. 9 Jac. Ban. Regis Dean Nuby Q. differentiam The Count was that the Intestate was indebted to him in a 100 l. and the Administrator in consideration of forbearance for 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 intended he 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 Broughton for the Court cannot judge of it because it is incertain 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 otherways when the Testator is indebted and promises for there the debt is the cause of the Action 2. Coke Chief Justice that he needs not shew that he did surcease his suit because it was but a reciprocal 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 Pasch 14 Jac. Ban. Regis Fullers case for that is the ground of the Action W indebted to B delivers goods to L to pay him L prays B to stay 2 or 3 days and he will pay him L pays it not B shall have an Action against L for it is a good consideration insomuch that L had goods to satisfie Mich. 7 Jac. Ban. Regis Brande Lister by his own confession implied in his assumpsit A pledges goods to B for money 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 till another day and he would pay it B may have an Action against C if he pay it not for if C pay the money then he may have a Detinue against B for the goods for by the payment C had a special property Trin. 13 Jac. Ban. Regis
Retorno habendo Null 1. The Defendant said that the place is ancient demesn c. if the issue be found for him the Plaintiff shall not have a return 21 Edw. 3.7 pl. 18. 2. 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. for there is difference betwixt Avowing and Justifying Avowing supposeth tenure but Justifying doth not If one make a Conusance as Bailiff he shall have a return No. Lib. Intra 591. A. sect 9. viz. for his Master 3. The Plaintiff in a Recaption dies the Lord shall have return if another Writ be purchased 11 Hen. 6.14 pl. 3. Q. If the Plaintiff be Nonsuited Returno habendo 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. Crooke and this although the other do make no Avowry 16 Hen. 6. return of Cattel 1. 2 Hen. 5.6 for the Nonsuit confesseth the Distress well taken and so the Avowry is needless But otherways he may abate the Writ by pleading 9 Hen. 6.4 pl. 10. 11 Hen. 6.5 B. Danby 35 Hen. 6.40 pl. 1. But if the Count abate or if he count not of the place of the taking yet he shall not have a return before an Avowry 35 Hen. 6.40 pl. 1. because that is but for want of good pleading and he may have just cause of complaint notwithstanding for ought that appears to the Court. The second Deliverance he shall not have it without Avowry per Newton 16 Hen. 6. return of Cattel 1. for it is grounded upon a Title shewn The Defendant cannot claim a property in Repleg to have a return because he ought to claim at the time of the Repleg sued 31 Hen. 6.12 pl. 1. and now it is too late The Plaint is removed and it abates for default of the Sirname there was a return awarded without an Avowry 27 Hen. 6.3 pl. 35. for here is no right party complained of Repleg against C and 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. because he justifies in the right of another who disclaims the distress The 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 Hen. 6.35 pl. 47. Prisott because the Cattel belonged to another One avows for rent at two days one whereof is not come the Plaintiff is Nonsuited there shall be a return in respect of the rent due for one day because he is not meerly an Actor per 4. Justices against three But Newton said he ought to have several Avowries Q. At the Common Law a return irreplevisable was but when it was found against the Plaintiff 1. Return irreplevisable 1. At Common Law 2. At the Statute Law by an issue tried 36 Hen. 6.8 pl. 24. Babbington for then the matter was fully tried If the Defendant doth not answer to the Avowry there the Cattel shall be irreplevisable Lib. Intra 571. A. sect 4. for he thereby confesseth the distress lawful 2. Return irreplevisable after Westm 2. cap. 2. is but upon a Nonsuit in second Deliverance 2 Hen. 4.23 pl. 9. Lib. Intra 571. A. sect 4 5. Upon a Nonsuit in Repleg it shall not be 24 Edw. 3.33 pl. 22. if it be not after verdict 14 Hen. 7.6 pl. 14. for he may have just cause of complaint though he be Nonsuit but by the verdict it appears he had not If the Plaintiff be Nonsuited in a Replevin and after in a second deliverance there shall be a return irreplevisable before Avowry but quaere if he shall have dammages before Avowry 10 Eliz. Dyer 280. pl. 14. It seems he shall for this double Nonsuit admits the taking lawful If the Plaintiff be Nonsuited when the Jury comes again and gives their verdict yet there shall not be a return irreplevisable 34 Hen. 6.5 pl. 14. 14 Hen. 7.6 pl. 14. for it may be he hath better evidence which he then failed of The Plaintiff in Repleg makes default at the Nisi prius they shall not be irreplevisable because it is out of the Law 3 Hen. 6.8 pl. 24. The Plaintiff in a Repleg is Nonsuited and a return awarded the King demises the pledges being warned come not quaere if the return shall be irreplevisable 1 Edw. 7. pl. 13. Or upon a Return awarded in second deliverance 2 Hen. 4.23 pl. 9. Q. Or upon a judgment against the Plaintiff upon a Demurrer 2 Hen. 4.23 pl. 9. 14. Hen. 7.6 pl. 14.2 3 Mariae Dyer 118. pl. 77. Q. Upon a Demurrer upon a plea to the Writ and judgment for the Defendant they shall not be irreplevisable 34 Hen. 6.37 B. br Repleg 6. for that is not upon the merits of the cause Or upon issue tried 2 Hen. 23. pl. 9. the Defendant in a Repleg pleads to the Writ and found by the Jury so there shall be a return irreplevisable the contrary upon a Demurrer upon a Writ or Concession 34 Hen. 6.37 B. br Repleg 6. for a verdict is of a higher account than a Demurrer or Concession If the Plaintiff upon a second Deliverance suffer the plea to be discontinued there it shall be irreplevisable 17 Hen. br second Deliverance for the Court will not be troubled with Suits to no purpose Dammages by Statutes Note that at this day dammages are given where the Plaintiff is Nonsuited or found against him or otherwise barred in Conusance Avowry or Justification for Rents Customes or Services per 7 Hen. 8. cap. 4. com 82. B. Crokers case 14 Mariae Dyer 141. pl. 46. 19 Hen. 8.11 pl. 7. And for dammage feasant per 21 Hen. 8. cap. 19.1 3 Mariae Dyer 118. pl. 77. 4 Mariae Dyer 141. pl. 46. But if it be for an Estray he shall not have dammages because the Statute extends not to it â—asch 34 Eliz. Ban. Regis Rot. 292. and being penal it shall not be expounded by equity But at the Common Law the Avowant shall not recover dammages 35 Hen. 6. pl. 12. for it was though enough for him to have return of the distress If one have a return irreplevisable upon a Non-suit in second deliverance it is doubted whether he shall have dammages before Avowry 11 Eliz. Dyer 280. pl. 14. It seems he shall because there needs no Avowry Quaere tamen for it appears not to the Court that he had cause to distrain TRESPASS Quid. Quotuplex 1. Court 2. Plaintiff 3. Defendant 4. Thing 5. Writ 6. Process 7. New Assignment 8. Barr. 9. Judgment 10. Execution Trespass is either by Common Law upon the doing of wrong to Inheritance Corporate Castle House Mill. Columbary Toft Garden Land Meadow Pasture Wood. Park Forrest
3. Judgment in another Court Error brought upon a Judgment given in Ban. Regis in Ireland Ireland there shall be a Scire facias in the Writ of Error against him that had the judgment for by Sharde this is the usage and in no other manner 34 Assize pl. 7. and it is dangerous to alter the ancient practice of proceedings in Law In Error upon a Bill sealed 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 Hen. 4.92 This is where Error is brought upon a Bill of exceptions But the Justices may deliver it in Court by their own hands 11 Hen. 4.52.92 and then there shall be no Scire facias for thereby they acknowledge their hands The Process in a writ of Error against the Judges to whom the Writ is directed is Alias Process Pluries and Attachment Nat. br 22. G. if they do not certifie the Record which is before them Errors â—ssigned 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 Edw. 4.13 3 Eliz. Dyer 195. pl. 38. 201. pl. 63. 17 Edw. 3.5 This is to give him notice that the Record is removed and of his proceeding thereupon And upon two Nihils a Non est inventus returned the Court shall come to examination of the errors 3 Eliz. 201. pl. 63. without the Defendants in the writ of Errors appearance But until Error assigned the party shall not have a Scire facias 24 Edw. 3.31 pl. 8. for it is to no purpose for his appearance is to hear the cause And if he assign that for Error which the Court takes clearly to be no error he shall not have a Scire facias 18 Hen. 6.17 for that would be to trouble the Court to no purpose but if it be colourable it is otherwise But in Error brought against the King there shall be no Scire facias because the King is intended to be always in Court Nat. br 21. H. either himself or his Counsel for the Judges are of his Counsel The Writ needs not mention the names of the Tertenants Against whom a Sci. fac in Error shall be sued because it is of common form used otherwise 8 Hen. 4.17 pl. 3. and the naming of them is not material If the Sheriff return that the Heir is not in his Bailywick Other County and the Tertenant shews that he is in another County there shall go a Scire facias into that other County 8 Hen. 4.18 pl. 3. Q. if he remove out of that into another if another Scire facias shall issue and so till he is found If a Recoverer make a Feoffment Tertenant and die without Heir it seems there that a Scire facias lies against the Tertenant only and a Writ of Error 8 Hen. 4.17 pl. 3. 9 Hen. 6.49 B. pl. 30. Q. whether not against the Lord by Escheat also because he comes in by virtue of the Judgment Former Judgment But the 9 Hen. 6.46 B. pl. 30. a Writ of Error lies against none but the party or them that are privy to the former Judgment Q. if not against privities in Law as well as in fact Gardein in right Gardein in right of the ward recovers in a Quare Impedit and dies the Defendant brought Error and a Scire facias against the Heir of the Recoverer 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. for there it seems the Executor is concerned for the wardship is a Chattel False Judgment Error upon false Judgment in Oxford viz. for Land the party being dead that hath the Judgment there shall go a Scire facias as well against the Heir of the Recoverer as against the Ter-tenant 8 Hen. 4.18 pl. 3. A Scire facias needs not be sued against the Tertenant before the Judgment be reversed 47 Edw. 3.7 for before that the Tertenants estate is not stirred 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 by the Scire facias it appears that he enters not as a Disseisor But if the Recoverer make a Feoffment to his own use and then the Judgment be reversed Feoffment there needs no Scire facias against the Feoffâ—e for this is aided per the Stat. of 1 Rich. 3. 26 Hen. 8.2 Scire facias in Felony Error upon an Outlawry in Felony the Plaintiff ought to have a Scire facias to all the Lords mediate or immediate 7 Hen. 7.5.53 4 Edw. 4.10 11 Hen. 4. because they are intitled by the Outlawry And also against the party at whose Suit and the Tertenants Lib. Intra 308 B. Sect. 3. And in a writ of Error Delay if the Plaintiff hasten not his Suit 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 or else he may proceed in Court to have the Judgment affirmed And in such case upon two Nichils returned the Defendant shall have execution but after this the Plaintiff shall have a Scire facias 9 Hen. 6.13 Q. for then it seems to be too late Diminution in Error 1. by whom 2. in what cases 3. at what time 1. The Plaintiff in Error may alledge Diminution Nat. br 25 A. that is alledge that a whole Record is not removed The Defendant may do it also 28 Hen. 6.11 15 Eliz. Dyer 321. pl. 21. for if the Record be not wholly removed the Court cannot judge of it nor can the parties tell how to assign Errors But this alledging of Diminution is now used mostly for delay Error in London 2. Error upon a Judgment in London the Recorder certifies the Record yet he is held to do according to the custome Quaere if Diminution shall be alledged 34 Hen. 6.42 it seems it should When all the Record is not removed Diminution may be alledged Nat. br 25. A. vide the Writ there Diminution may be alledged in 1. The Essoin 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. or any thing material in the body of the Record Diminution shall not be alledged upon a Bill sealed because the bill is not of Record 11 Hen. 4.52 Hull 65. but is given in to the Court by him that takes the exceptions 3. After in nullo est erratum pleaded in another Term the Plaintiff may not alledge Diminution Diminution 28 Hen. 6.11
Fol. 469 Diminution in Error 1. by whom 2. in what cases 3. at what time Fol. 472 The assignments of Errors 1. by whom 2. at what time 3. upon what Record 4. of what things Fol. 474 Barr in Error Fol. 491 Iudgement in Error 1. for the Plaintiff 2. for the Defendant 3. for both Fol. 493 Execution in Error Fol. 495 ACCOUNT Account is by Common Law By Act of Law Guardian in Soccage Next of Kin. A Stranger Baily of a Court or Hundred in Law in case of a Subject of a Mannor-house c. in deed in case of the King By his own act Receiver By other hands in law in case of a Subject By his own hands in deed in case of the King Statute Law Marlebridge cap. 17. Against a Guardian in Soccage Marlebridge cap. 23. Against a Baily vagarant Westm 2. cap. 23. For Executors 25 Edw. 3. cap. 5. For Executors of Executors 3 Edw. 3. cap. 11. For Administrators 23 Hen. 8. cap. 8. Collectors for repairing of Goals shall account to Justices of Peace 2 3 Maria cap. 8. Against Head-Constables or Church-wardens 43 Eliz. cap. 2. Overseers of the Poor shall Account to Justices of Peace 1 Jacobi cap. 9. Against Churchwardens and Constables for Forfeitures of Alehouse-keepers by them received Account against a Guardian in Soccage In what Court Account lieth against a Guardian in Soccage IT lies in the County Court or Common Bank Nat. br 117. b. It lies not before the Sheriff 43 Edw. 3. fol. 21. pl. 11. Thorpe For Brook Account 14. saith the Sheriff cannot assign Auditors and therefore it is in vain to bring the Action before him A good plea to say the Land is ancient demesn 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 Guardian in Soccage The Heir in ward shall maintain an Action against him after the age of 14 years or at his full age at his election Littleton S. 123. But Nat. br 118. b. he shall not have it till the age of 21 years Crook fol. 131. pl. 106. by reason of the words of the Statute 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 die before his full age his Executor shall maintain an Action of Account Crook 131. pl. 106. because it concerns a Chattel Yet note the Heir in Gavel-kind at 15 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. 5. pl. 13. For if he may do the greater he may do the less to fell is more than to take an Account The Executor of an Heir shall have an Account per West 2. cap. 23. Littleton 27. A. Crook 131. pl. 106. Executor of an Executor shall have an Account by 25 Edw. 3. cap. 23. Com. 290. Filius Haeres Domini defuncti non habebit breve de computo quia pertinet ad executionem administrationis bonorum defuncti Regist Orig. 135. b A Recusant shall not have an action for any thing that is seized into the hands of the King 3 Jac. cap. 5. for the King is accountablle to no body Against what person an Account lieth as Guardian in Soccage Account lieth against any that taketh the profits before the Ward be of the age of 14 years Littleton Nat. 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 occupy 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. and therefore the Account shall be made to the Guardian The reason is as it seems that the Writ doth not make mention of the blood Regist orig 136. b. neither the Count Lib. Intra Account lieth not against an Executor of a Guardian Littleton Nam non jacet versus Executores quia merè pertinet ad Curam Christianam cognoscere de computo reddendo versus Executores Regist orig 135. b. 28 Hen. 8. Dyer 23. pl. 145. But if Executors account an Action of Debt lieth for the Arrearages 2 Hen. 4.13 pl. 2. And if the Testator covenants to account to the Heir and doth not Covenant lieth against his Executor Regist origin 165. b. Nat. br 145. H. It lies against a Woman 19 H. 6. b. Newton It lies against the Husband and Wife 18 Ed. 3.55 pl. 76. For what things Account lieth It lies for Woods and Under-woods sold for Lands Tenements Meadow Pasture also for Rents and Services perquisites of a Court ad valentiam Lib. Intra 21. B C. Marlebridge cap. 17. Respondeant de exitibus per aequalem computationem salvis ipsius custodibus rationabilibus misis suis For Fines of Copyhold Land granted by one Trin. 1 Jac. Com. Banc. Shopland versus Rider Rot. 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 Ed. 2. Presentment 10. But by Daniel Justice Trin. 1. Jac. Com. Ban. Rot. 853. Shopland against Rider the Guardian shall present if the Heir be not of the age of discretion It lies 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 of the Land that the Guardian in Soccage 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. ostensum quare cum de Comm. Concilio Regni nostri provisum sit quod custodes terrarum tenementorum quae tenentur in Soccagio haeredibus terrarum tenementorum cum ad aetatem pervenerint reddant rationabilem computum suum de exitibus terris tenementis illis provenient de
time that he hath fully accounted and to the remainder that he was not his Receiver there he ought to shew of what he had accounted 30 Edw. 3.1 pl. 4. for otherwise his plea is too general incertain and captious which the Law will not permit That he accounted to the Plaintiff from three months to three months and so to the time of the action a good Bar 39 Edw. 3.5 pl. 22. A good bar that he did Account 1º April but then he ought to say without that that he wâ—â— his Receiver after 21 Edw. 4.66 pl. 47. 7 Hen. 4.14 pl. 17. 45 Edw. 3.14 pl. 13. 34. Hen. 6.44 Counts that he was Receiver for seven years iâ— is no bar that he accounted 1º Maii Anno 5º with out answering for the two other years becauâ—â— he is to answer for the whole time as well soâ— the increase as principal 7 Hen. 6 5. pl. 8. As to 20 s. received 1º Jun. fully accountâ— for and to the Receipt afterward or before thâ—â— he never was Receiver 27 Hen. 6.1 pl. 8. a gooâ—â— plea. A good bar quod 21. Januarii Anno c. 〈◊〉 D in the County of W he fully accounted wiâ—â— the Plaintiff Lib. Intra 20. B. Sect. 8 9 10 11. Before the Writ brought he did account with thâ— Plaintiff a good bar 4 Hen. 6.43 pl. 4. But he ought to account to the Plaintiff beforâ— he is imprisoned or else no bar because it is peâ—â— dente lite and it appears the Plaintiff had cause 〈◊〉 action else he not not been committed 22 Edw. â— 3. pl. 32. 7 Hen. 4.14.34 Hen. 6.44 pl. 4. For the Plaintiff cannot commit him to prison for Westm 2. cap. 11. gives this power only to the Auditors 45 Edw. 3.14 pl. 13. who are the Judges To an Account brought by Executors it is a good bar that the Defendant did account to the Testator and shew his Acquittances 1 Edw. 3.2 pl. 10. for then the Executors have no colour of action The Defendant pleads an award made by Arbitrators that he should re-deliver the goods this is nought but if he had been charged only with the safe custody of them then good 2 Hen. 5.2 pl. 6. For the Defendant is chargeable to Account for the provent of the goods as well as for the goods themselves Account upon a Receipt by other hands Arbitrement is a good bar 22 H. 6.39 pl. 10. For the submission to the Arbitrement creates a new Contract Execution against a Receiver 1. per Common Law 2. per Statute Law 1. By the Common Law it was but a Levari facias or Fieri facias Coke 3. part 12. A. Harberts case to levy the arrears upon his Lands or Goods and Chattels Q. And this only within the year for if the year was past then an Action of debt only lay upon the Judgment Unless the Process be continued 33 Hen. 6.49 pl. 33. For the Court will not grant out Executions upon sleeping Judgments for this may prove dangerous 2. Per Westm 2. cap. 45. a Scire facias is given after the year Coke 3. part 12. A. upon the Judgment against the Defendant to shew why he should not pay the Arrears due to the Plaintiff by the Judgment Per Marlebridge cap. 23. Westm 2. cap. 11. a Capias was given in Process and by consequence a Capias ad satisfaciendum in execution Coke 3. part 12. A. Lib. Intra 18. C. Sect. 1 2 3. which are both to lay hold on the person of the Defendant Per Westm 2. cap. 11. if the Accountant before Auditors be found in Arrearages he shall be committed by them to the next Goal in execution the same law is if he will not account before the Auditors 10 Edw. 3.387 pl. 28. when he is adjudged by the Court to do it But this shall be forthwith Coke 8. part 119. B. Bonhams case 27 Hen. 6.8 Com. 17. for the Statute being penal must be strictly pursued But if he account before the Plaintiff he cannot commit him to Prison for the Statute saith before Auditors 45 Edw. 3.14 pl. and no imprisonment lay before the Statute But an Accountant to the King shall be imprisoned and his goods and lands in execution per the Common Law Coke 3. part 12. B. 5 Eliz. Dyer 224. Com. 32. which is tender of the King as well in his Revenue as his Person Ex parte talis Per Westm 2. cap. 11. if Auditors be assigned by the party Plaintiff who will not allow reasonable charges to the Receiver or charge him with a thing he never received and then commit him to prison he shall have this Writ Nat. br 129. F. 4 Hen. 6.18 A. pl. 3. Regist orig 137. B. which is in the nature of an Audita querela But if Auditors be assigned by the Court which do not make allowance yet the Defendant shall not have this Writ but may complain to the Court and they shall order them Nat. br 129. E. 3 Edw. 3.56 pl. 30. to do justice for they are Ministers of the Court and to be answerable for their actions If one be sued in London and the Court assign Auditors who make not allowance c. the Defendant shall have this Writ Nat. br 129. F. But note Regist orig 137. contra Q. The Writ shall be returnable before the Treasurers and Barons in the Exchequer at a certain day and a Scire facias in the Writ to warn the Plaintiff in the Account and also the Defendant to be there Nat. br 129. G H. Regist orig 137. vid. Westm 2. cap. 11. Note that an account lieth in one Writ against a Baily and Receiver Nat. br 116. P. 21 Hen. 6.21 pl. 42. 9 Edw. 3.356 pl. 38 pl. 40. 14 Hen. 4.20 pl. 25. vide the Writ Nat. 117. C. Regist orig 135. For one and the same person may be Baily and also Receiver at one time to one and the same person Vide the Count Lib. Intra 17. B. Sect. 1. And for all the other parts they are in the same manner as is described before in Baily and Receiver Action upon the Case 1. Quid. 2. Quotuplex Action upon the Case is either by 1. Doing of wrong to another 1. Inheritance Real 2. Chattels Personal 3. Body 4. Name 5. Suits in Law 2. Not doing of a thing ought to be done by Law to the wrong of Inheritance Reaâ— Chattels Person Corps Suits in Law Assumpsit touching Inheritance Reaâ—â— Chartels Person Body Suits in Law 3. Misdoing 4. Negligence 5. Deceit in bargains With warranty Without warranty 6. Trover and Conversion in Deed. Law as to persons discoâ— continued Wasting Denial to re-deliver In what Court it lieth IN Ban. Regis In Com. Ban. It lieth not in the Marshalsey Coke 10. part 7â— A. 76. A. Marshalsey For that Court is limited 〈◊〉 hold plea but in particular cases But this learniâ—â— was now out of doors in respect that that Court was wholly taken away but now again revived For
poysons my water by reason where of my Fish dies Piscary Coke 9. part 59. A. Aldreds case and so is it for infecting the Air thereby vid. antea Procurement 1. For releasing to me with warranty and procuring another to sue me 34 Edw. 3.20 for this is fraudulent dealing 1. Against Tenant in a Precipe Protection which hath protection allowed to Westm for one year and within the year he stays at Gloucester 15 Edw. 4. Q. If I sue a Schoolmaster for erecting a School in the same Town the Action lies not School for it is no Nusance 11 Hen. 4.47 pl. 21. 22 Hen. 6.14 prisott and it is for the good of the weal publick which is to be preferred before any ones private profit Sâ—ander of my Title If A says that B hath right in my Land for years an Action lies Coke 1. part 177. Mildmayâ— case No. Lib. Intra 30. A. Sect. 27. but I ought to shew how I am prejudiced particularly else there appears no cause of Action 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 hindred 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 lies not for it may be he thought he had a right and so there cannot be said any malice 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. case 14. 1. For stopping a Ditch Land 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 the Land is thereby made worse else it will not lie For not scouring a Ditch by which my Land is overflown Regist orig 100. A. Non-feasance is punishable as well as a Misfeasance For breaking of a Seabank by which my land is surrounded Nat. br 86. F 89. B C. Regist orig 95. A. vid. antea It lies not for erecting of Coney-burroughs by which I lose the profits of my Land because the party had no property in them Coke 5. part 104. Boulstons case and I may take them upon my land and justifie it vid. antea 1. If one hath the trade of a Bakehouse by prescription for the whole Town Trade and another erects another and sells and Action lies Coke 8. part 125. case of London 19 Rich. 2. Action sur Case 52. The Law favours Ancient rights for it tends much to peace 2. For using the trade of a Dyer in R without License of the Archbishop of York Regist orig 105 106. Coke ibidem for the priviledge of the Bishop is thereby impaired 3. The King grants to A the sole faisance of play-cards yet A shall not have an Action upon the case against others that use the trade because the grant is void Coke 11. part 86. A. Monopolies for it is a Monopoly which is against the publick good and the liberty of the Subject Tenant at will makes voluntary waste Waste an Action of waste lies against him Littleton 15. A. 14. Hen. 8.12 Brown Coke 15 part B. Salops case 48 Edw. 3.25 Dyer 121. pl. 17. 11 Hen. 6.38 and not an Action on the Case For diverting of part of the stream by the owner of the Land by which the stream flows over Water-course 12 Hen. 4.47 21 Hen. 7.30 Dyer 248. pl. 80. Coke 4. part 86. Lutterels case the Count there 3 Eliz. Dyer 195. pl. 37. But for diverting majoris partis Assize lies 8 Eliz Dyer 248. pl. 80. but this is intended when the Mill cannot go for that is prejudicial to the Freehold For stopping a Pit that one hath for water although it is not a common watering-place Watering-places 21 Hen. 7.35 No. Lib. Intra 18. D. sect 15. for thereby I that digged it lost my labour and easement The Writ Ought to be certain as the Count except in the place and time 22 Hen. 7.91 which in this actioâ— are not traversable It ought to have the same certainty as the Count and to have the effect of all the Count except the year and day the quantity and certainty of the Land 38 Hen. 6.9 pl. 20. Prisott for the Land comes not in question Q. The Writ shall not be vi armis Nat. br 92. E. for it supposeth not the breach of the publick Peace but only a particular dammage When there are two causes of Actions 1. causâ— causans 2. causa causata the former may be alledged vi armis Coke 9. part 50. B. Salop case For that is but as an inducement to the cause of action upon which the Action is brought The Process 1. before appearance 2. after At Common Law a Capias lieth not 43 Edw. 3.11 Coke 10. part 72. A. Marshalsey for liberty was preferred before private wrongs which concerned the estate only But 10 Hen. 7. cap. 9. such process is given in an Action sur le Case in Ban. Regis Com. Ban. as for Trespass or debt Br. exigend 29. vid. the Statute The Judgment For not repairing of a Bridge per quod c. the judgment shall be to recover dammages to the party damnified and a Distress to the Sheriff to compel the Defendant to repair to prevent further dammage to any For what things it lies Chasing Sheep 1. For chasing Sheep into the water 2 Hen. 7.11 B. Q. if the Sheep be not hurt by it if it do not lie It seems not 2. For taking of Sheep delivered to me for a year to dung my Land Nat. 26. B D. Q. for I thereby am damnified 1. Against him that I give money to give to my Attorney and he gives it to my adversary 20 Hen. 7.9 for here is breach of trust by which I am damnified For goods lent and are wasted 2. If I lend my Plate or other goods to one and he wastes them or misuseth them or converts them to his own use 27 Hen. 8.25 28 Hen. 8. Dyer 22. pl. 137. 20 Hen. 7.4 2 Hen. 7.11 2 Edw. 4.5 18 Edw. 4.23 21 Edw. 4.19 Crook 2 Hen. 8.160 pl. 2. For here the Law creates a trust and Covenant which is broken 3. If against a Baily that cuts my Trees or kills my Cows 18 Edw. 4.23 Q. 4. If a Baily lend them to B. and he wastes them it lies against B. 12 Edw. 4.13 for the Bally might lend them 5. Against my Butler that breaks my Hanaper 18 Edw. 4.27 Now it is Felony by the Statute Q. 6. Upon bailment of a Bag in which was 20 l. and he breaks the Seal 21 Edw. 4.30 pl. 25. 7. So for an obligation 39 Hen. 6.46 for I may be damnified thereby 8. Against a Baily of Beasts which kills them Littleton 15. A. Dyer
his Service Coke 9 part 113. A. Mayers case 18 Edw. 4.27 pl. 24. 2 Hen. 4.12 pl. 49. 28 Hen. 6.14 and there was omitted this word per and yet good for the sense was good without it And if the Plaintiff have a Verdict and doth not count as aforesaid he shall never have judgment Crooke 21 Hen. 7.71 pl. 15. because it doth not appear he had cause to bring his Action But he need not count of the retainer 21 Hen. 6.31 pl. 18. 22 Hen. 6.30 B 43. B. 31 Hen. 6.12 pl. 2. for if he was not his Servant the Defendant may traverse it 4. For menacing my Servant per quod c. Regist orig 94. B. for the loss of the service is the main cause of the Action 5. For assault and battery of my Servant per quod c. Regist orig 102. A. Nat. br 91. vide the count Lib. Intra 613. B. sect 19 674. C. sect 1. 6. For assault and battery and imprisonment till the Plaintiff made fine per quod damnificatus c. 19 Hen. 6.35 pl. 37. 7. For battery mayheme and imprisonment per quod damnificatus c. Crooke 7. Hen. 8.180 pl. 4. 8. When his Dog bites my Servant per quod c. Regist 111. A. servitium amisi but then he must count that kept him knowing him to be accustomed to bite A good plea to the Writ that it was his Wife that was bitten 7 Rich. 2. traverse 206. for then his Count is false So that it was his Farmor 13 Rich. 2. traverse 210. So that it was his Prentice Q. for a Prentice is a Servant 2 Hen. 6.31 pl. 18. So that it was his Companion 37 Hen. 6.7 pl. 13. Against the Lessor that outs the Executors of the Term left to the Testator Term. Nat. br 92. G. Q. whether an ejectment doth not lie And the Writ is there by Summons not per pone per vadios c. Summons is the ancienter Process For doing of wrong to the damage of another touching his body Lying in wait For lying in wait to kill me or take me as his Villain so that I dare not go about my business 2 Edw. 4.5 17 Edw. 4.4 Regist orig 101 102. Crooke 13 Hen. 7.26 27. 2 Hen. 7.12 pl. 15. Coke 4. part 18. A. case 14. for the Law highly prizeth life and liberty Note Actio quod metus causa fuit datur ei qui probabili metu rem suam tradidit vendidit vel promisit versus cum qui metum intulit dicitur metus probabilis qui in virum constantem cadere possit non in hominem meticulosum Bracton lib. 3. cap. 4. fol. 103. B. It must be sure grounded on a reasonable cause of fear 1. For arresting me in the name of B Arrest without his consent 7 Hen. 6 43. pl. 19. for it may be he would not have arrested me though he had cause 2. For arresting me without cause 8 Edw. 4.13 But this ought to be by collusion to vex me 43 Edw. 3.20 for if there be probabilis causa it lies not for one may be deceived in the Law 3. For arresting me to appear in the Marshalsey where I was not sued 3 Hen. 6. estoppel 18. 10 Hen. 6.13 7 Hen. 6.30 for this is vexatious 4. For arresting me in London knowing I was priviledged in Bank 7 Hen. 6.45 for I am debarr'd of my priviledge and put to more trouble 5. Against a Sheriff for returning me nibil where I had lands by which I was taken per Capias Nat. br 93. b. 31 Edw. 3. Process 55. for his false return to my prejudice For arresting me and bringing me before a Justice where I was indicted and acquitted and this is good cause of Action although the time of the arrest is not shewed because of the vexation Trin. 7 Jac. Ban. Regis Olivers case which is the cause of the Action and the time is not material If one exhibit Articles to a Justice of Peace against B Articles to have him bound to his good Behaviour no Action lies for this because it is in course of Justice Coke 4. part 14. B. But quaere if the Articles be false For putting Irons and putting in the Stocks Goaler and giving little sustenance to one committed for Debt or Arrearages in Account Nat. br 83 H. for the Law warrants it not and the Law hates cruelty For procuring another to be indicted without cause Indictment Nat. br 114. D. 116. A. viz. probable cause For procuring B to be indicted for a common Barector and he is acquitted secundum Leges Angliae 1. good although that the Count was not that he was lawfully acquitted for it is so implied 2. he ought to have Counted quod inde acquietatus fuit or words that do amount to so much Mich. 7 Jac. Ban. Regis Rott 407. Bell versus Gamble for else there appears no cause of Action For threatning by word or writing to beat me Menace if I come out of my house 17 Edw. 3.4 vide Bracton lib. 3. cap. 4. fol. 1.13 B. for I am thereby hindered in my occasions and so damnified For threatning another of life and member 10 Edw. 4 6. the Writ and Count Lib. Intra 661. B. sect 1 2. for he thereby goes in fear and so the Peace is disturbed For putting poyson in my meat Poyâ—â—â— Regist orig 102. A. wittingly to the hazard of my life or health Against a Chirurgion that impairs the body by his Medicine 21 Hen. 6.55 11 Rich. 2. Action upon the case 37. For it is either a misfeasance of ignorance or of malice both which are punishable on those that undertake a trust and skill For doing a thing to the damage of another touching his Name which is Slander for it turns to his prejudice Dicitur quod scandalosum est generale verbum Slander and signifies that which one does to the overthrow of anothers credit and repute therefore it is conceived that if the words are spoken to the wrong of another an Action lies Kitchin 173. for the intended injury Fit autem injuria non solum cum quis pugno percussus fuit verberatus vulneratus vel fustibus cesus verum cum ei convitium dictum fuit vel de eo factum crimen famosum hujusmodi Bracton lib. 3. fol. 155. A. There are two kinds of defamations Spiritual and Temporal Nat. br 55. Note when words are not spoken adjectively if they touch one in his Profession or Trade they are actionable otherwise not Coke 4. part 19. case 15. Q. Adjective words are incertain and signifie nothing positively or directly affirmative Also if they imply or presume an illoyal act viz. against the publick Peace then an Action lies although they are spoken adjectively but if they imply an intention only then an Action lies not Coke 4. part 19. B. case 15. for the Law punisheth not Intentions except it be in cases of Treason It lies
that he doth smell of it 14 Eliz. Dyer 317. pl. 8. 6 Edw. 6. Dyer 72. pl. 6. for it implies that he was accessory to it There is a nest of Thieves at B and C is the maintainer of them and is a strong Thief Dyer 75. pl. 2. Q. if the first words alone are actionable Men cannot have their Cattel go up and down the Common but B and his Children will kill them with Barbers Dog no Action lies Dyer 118. pl. 79. for the words are not scandalous and they are general and incertain Thou art a Steal-gown and the first Gown that thou diddest wear thou stollest and then diddest walk up and down in thy stollen Gown and haddest no Gown until thou diddest steal one Action lies No. Lib. Intr. 22. D. sect 20. because there is a particular act of Theft set forth Thou art a Thief for thou stollest my Sons goods Action lies without averring that he had goods Pasch 38 Eliz. Com. Ban. Elin. Moore for it shall be intended he had goods without an averment My Master B hath robbed me of all my goods Action lies without averring that he was his Servant for this is Assets certain Mich. 15 Jac. Bun. Regis Brown Low for Master and Servant are relata posito uno ponitur alterum B burned my Barn innuendo a Barn of Corn Action lies not for it is not shewed a Barn with Corn nor that it was parcel of the Mansion-house and the innuendo cannot aid it Coke 4. part 20. case 16. No. Lib. Intra 24. D. sect 22. for a Barâ— may be without Corn and not be parcel of 〈◊〉 Mansion-house A hath stollen my Wood Action lies for wool cannot be intended Trees growing Pasch 38 Elit Com. Ban. Arbor dum crescit lignum dum cresceâ—nescit A doth or will prepare to Rob me Action lieâ— for this tends to the ruine of A Mich. 14 Jac. Reâ— Sydenham May. Q. tamen for the words aâ— very incertain A calls B Thief and justifies that he stole sheet B pleads the General pardon after the words spoken the Action lies for by the Pardon the woâ—â— Thief is taken away Mich. 13 Jac. Com. Bâ—â— Cuddingtons case and Wilkens Q. for it seeâ—â— hard Law there being good cause to justifie at the time of the words spoken Thou didst sert on me on the High-way and didst take away from me my Purse and I will be sworn to it Action lies Pasch 9 Jac. Ban. Regiâ— Stoner Holland for it implies Felony queâ— tamen 1. For calling one Leper or Leprous Knave Action lies Leper Intr. Taylor Baggs for thereb men will avoid his company homo est anims sociabile For Leprosus extra communionem positus petere non potest Bracton lib. 2. fol. 12. A. 1. For calling one Murtherer Action lies Murtherer 6 Eliz Dyer 236. pl. 26. Q. 2. Thou hast killed my Wife no Action lies because it appears to the Court that she is alive Coke 4. part 16. A. and so no damage can be by speaking of the words 3. Thou didst poyson thy Husband Action lies and yet it was objected 1. that she ought to shew that he was dead 2. that he died within the year 3. that it was voluntary Mich. 15 Jac. Ban. Regis Gardiners case Q 4. Thou didst poyson S and it shall cost me a 100 l. but I will hang thee for it Action lies No. Lib. Intr. 25. C. sect 23. The latter words enforce the former 5. A said that C gave counsel to B to kill me it lies not because a man is not punishable without an action done in pursuance of the Counsel given Coke 4. part 16. case 10. 1. For calling one perjured Perjured 2 Hen. 8.22 Kitchin 173. yet an Indictment lies for Perjury 2. But for saying that he had Forsworn himself it lies not for it might be against his will or not in a Court of Record Coke 4. part 15. A B. Unless he had said in such a Court of Record Coke 4. part 15. B. and then it implies he is perjured and the words amount to as much 3. A hath gotten a Mannor by Swearing and Forswearing Action lies not because the words are too general and fix no offence upon the party Coke 4. part 15. A B. No. Lib. Intr. 21. B. Sect. 18. 4. W is forsworn and perjured in Swearing at the Common Pleas bar upon the Deed which he then had in his hand this shall not be intended that he swore upon the Deed but upon the Book ergo the Action lies Hill 35 Eliz. Ban. Regis Rot. 56. Crowe for words must have a reasonable construction according to occasion of the speaking of them H is a perjured old Knave in the Court of T Action lies for perjury in a Court Baron is punishable per the Statute of 5 Eliz. for the right comes in debate there perjurium est jus alie num pervertere Pasch 40 Eliz. Com. Ban. Hatchman Southcotte But before the Statute quaere whether the words were Actionable or not A says to B thou hast an old Creeple whore to thy Mother for which words he sued him in the Spiritual Court and produced B for a Witness A takes exception to him because he was perjured at the Assizes of D in such a cause W for this brought his Action against A which justifies as aforesaid 1. this was a legal course viz. to take exception to a Witness ergo the Action lies not 2. the Ecclesiastical Court may punish perjury therefore it lies not here Trin. 15 Jac. Ban. Regis Westover versus Dabener Thou art perjured and I will prove it Action lies No. Lib. Intr. 26. A. Sect. 24. For saying that A was detected of perjury in the Star-chamber it lies not because an honest maâ— may be detected but not convicted Coke 4. part 16. case 8. Note the difference 1. For saying of an Innholder Plague that he had buried divers of the Plague that died in his house in his Garden Action lies Regist orig 173. B. for by the speaking such words he is in danger to lose his Guests But quaere if he ought to alledge that he is damnified thereby M is a Whore and hath the Pox Pox. and they have made such holes in her that you may turn your finger in them and K the Chirurgion hath given her a Diet drink to heal them take heed how you drink with her Action lies 1. for calling her Whore and this is the cause of the Pox 2. the cure is published to wit the Chirurgion and the Drink 3. the contagion take heed how you drink with her Ergo it shall be intended the French Pox and not the Small Pox Trin. 15 Jac. Ban. Regis Milner and his Wife against Reeve 1. A said of B Profession being a Barrester that he had no more Law than a Jack-an-Apes an Action lies because it is an unreasonable Creature not having any Law and it
pacem for this is in contempt of the Common Law Against him who gets a Protection of the King for one Protection and gives it to another of the same name 30 Hen. 6.18 viz. by him who is thus deceived in the trust reposed in the party Against a Tenant in a Praecipe that hath a Protection to come to Westm and stays at Gloucester 15 Edw. 4.19 Regist orig 119. B. 20 Hen. 6.10 for this is an abuse to the Law and prejudice to the party Against him that gets a protection where he was not in service of the King Lib. Intr. 49â— D. the Count 493. Sect. 2 3. and so abuse the King and the party Purchase of a Writ Against him that purchases a Writ whereby I am sued to pay a fine without my privity Regist 112. A. Quare Impedit 112. A B. 3. Against an officer in Ban. Regis which purchases a supersedeas for one that I have a Plaint against in London upon a false surmise that the Defendant is his Servant 21 Edw. 4.23 and so abuseth the Court to the prejudice of the Plaintiff But upon surmise that he hath an Action depending there it lies not because the Court cannot have notice ibidem Q. 4. Against an Officer in Chancery which purchaseth a Supersedeas for his Servant where he was not his Servant retained before the time 11 Hen. 6.8 for this is abusing his priviledge to anothers hurt 1. By a Goaler against Rescoussors of one in Execution Rescous Dyer 241. pl. 47. for he is liable to the debt thereby 2. A being arrested upon a Latitat at the suit of B and Rescoussed by C B shall have an Action against C and ought to shew that he intended to declare against A in debt for there are no other Process in this Court Pasch 7 Jac. Ban. Regis Kemps case viz. the Latitats upon which one may declare in what action he pleaseth Against him that acknowledged a Statute in my Name without my privity Statute 112. B. Regist orig for this may be very mischievous to the party Against him that sues me on purpose to vex me Vexation 8 Edw. 13.43 1 Edw. 3.20 for the Law hates vexatious Suits But for causeless Suits no Action 11 Eliz. Dyer 285. for pro falsa actionis prosecutione nulla sequatur poena 2 Rich. 3.9 pl. 22. so that there was probable cause 2. Against him that sues me for a thing arbitrated before that the day come to perform the award Regist 111. A. for this is unjust vexation For the not doing of a thing which ought to be done by the Law touching a thing hereditary to the damage of another A Copyholder by Custome that may nominate him which shall succeed him and names one Admission and prays to be admitted and offers reasonable fine to the Lord which resuseth the Copyholder shall not have an Action of the Case against the Lord because before admittance he had no right Pasch 13 Jac. Ban. Regis Forde and Hoskins A Beadle of a Hundred brought his Action oâ— the Case against many Brewers Beadle of a Hundred and prescribes to have three gallons of the best Beer of even Brewer for 7 d and good for it is not unreasonable 1. He need not shew what estate he hath 2. It is good against many because all in common are accessory 19 Rich. 2. Action upon the Case 51. Against him which ought to enclose against me Enclosure and doth not by which my grass is consumed 11 Rich. 2. Action on the case 36. be it by his own Cattel or a Strangers But if it be between two houses a Guria clâ—â—denda lies ibidem a Writ to enforce him to enclosâ— his own Yard A sold Land to B Feosment and he will not enseoff him Action lies 22 Hen. 6.44 Newton Q. for he may make him another Conveyance Against an Archdeacon which refuseth to â—â—duct Induction whâ—ch is as much as to give possession of a Living Institution 26 Hen. 8.3 Nat. br 47. because here the Archdeacon is in place of the Sheriff Mich. 12 Jae Ban. Regis Poole and Godfrey But in this cast by Doderidge and Coke it lies not against the Ordinary for not instituting a Clerk because this is meerly Spiritual in the case above specified and the Clerk may be unfit which they are to judge of A hath a nomination Presentation and B the presentation A names one B will not present yet an Action lies not by the Court Pascb 13 Jae Ban. Regis in the case of Forde and Hoskins for B hath a greater interest than A or equal Against one that ought to find a Priest To find a Priest and will not viz. to say Mass sing Dirges c. 21 Hen. 7.5.22 Hen. 6.46 Lib. Intra 2. D. sect 5. this was Law in the time of Popery but not now But if he shall be found by the Lord and his Tenants of his Mannor no such Action lies Coke 4. part A. Williams but it shall be in the Court Christian for the incertainty where the fault is that he is not found 1. Against a Lessor that refuses to repair his house Reparations Dyer 36. pl. 37. viz. where he promised to do it But quaere if he do not promise 2. Against him that ought to repair a Bridge by which I have a way to my Mannor 11 Hen. 4.82.45 Edw. 3.17 for I am hindred in my easement 3. But if a Highway be not repaired by which my Horse is mired I shall have an Action by Heiden 5 Edw. 4.3 Q. viz. for my particular miring 4. Against him which ought to repair a Mound or Bank by which my Land is drowned 29 Edw. 3.32 12. Hen. 4.7 Nat. br 93. G. 7 Hen. 4.31 pl. 13. 5. So of the Banks of a River Nat. br 93. G. 15 Edw. 4.18 45 Edw. 3.17 7 Hen. 4.8.31 11 Hen. 4.82 83. 33 Hen. 6.26 29 Edw. 3.32 pl. 49. for in all these cases I am damnified and am to be repaired by him that is the cause thereof But if they be broke by Tempest no Action lies 29 Edw. 3.32 pl. 49. for this could not be foreseen nor prevented and so there is no fault in any body 6. For not scouring Ditches 11 Rich. 2. an Action upon the Case lies 36. Nat. br 93. G. 7. For not repairing of a Gutter Lib. Intra 10. D. sect 1. whereby another is damnified For not repairing a house that is ready to fall upon my house Crooke 22 Hen. 7.98 pl. 4. per Fineux Brudnel for I am like to suffer damage and an Action may sometimes be brought to prevent a wrong Against him that is retained to purchase Lands and doth not Retain 11 Hen. 6.18 Q. for it may be it iâ— not to my prejudice yet here is breach 〈◊〉 trust But if he doth his endeavour it sufficeth so ultra posse non est esse But if he be a Counsel with
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. or els it cannot appear the deeds belong unto him He ought to count as heir if he claims as heir 7 Hen. 6.31 pl. 25. for every one ought to make his case as it is But if he counts upon Bailment to rebail to him and his heirs he need not to set forth the Title to the Land 19 Hen. 6.41 pl. 84. for there the Action is meerly founded upon the bailment and detainer If a Feoffee with warranty make a Feoffment with warranty his Heir shall have a Detinue and count specially Coke 1. part 2. A. Buckbursts case as his case is The heir counts that his Father was seised in fee and demands the deed of the estate tail and good for his Father may discontinue and take it again in Fee 38 Hen. 6.24 pl. 11. and therefore his count shall be presumed to be good Count per Feoffee Feoffee Lib. Intra 210. sect 6. Note Note if the Writ be of bona catalla the Count cannot be of Charters 22 Edw. 4.12 pl. 32. for bona catalla are not proper words generally to express Charters by because they belong to the real and not personal estate and Goods and Chattels are usually intended personal things 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. Pleading ought to be plain and certain The Plaintiff in a Detinue for Deeds for Land ought to make title to the Land in the Count 33 Hen. 6.26 pl. 12. Prisot for otherwise he ought to make request for the deeds and then an Action upon the Case lies if they be detained from him The Writ in Detinue 1. Of Chattels 2. Of Deeds 1. In Comitatu dicitur injuste detinet Regist orig 139. B. that is in the County Court Si quis rem mobilem vendicaverit ex quacunque causa oblatam vel commodatam debet in actione sua definire pretium sic proponere actionem suam quia ille à quo res petitur non tenetur precitè ad rem restituendam sed sub disjunctione vel ad rem vel ad pretium Bracton Lib. 3. fol. 102. B. Where you may recover dammages for the thing detained the value of it must be set forth that the Jury may judge of them If it be against an Executor it needs not name him Executor because he is only charged with the Detainer 29 Edw. 3.38 pl. 12. quaere tamen for the Detainer is not in his own right Rex In Comitatu 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 Chirographum 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 In Banco 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 vid. 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. because they were together and entire but if loose it is otherwise If one sue for Deeds in any Court without a Writ a Prohibition lies vide the Writ Regist orig 159. B. Nat br 139. C. for men must proceed as the Law directs and they are compellable so to do A bails Deeds to rebail to him and his Heirs there the Heir need not mention that he is Heir in the Writ 5 Edw 3.159 pl. 24. for the Action is grounded upon the bailment Yet quaere for here is a special bailment The Process in Detinue 1. Before appearance 2. After Detinue for Chattels By the Common Law it was but a distress infinite Nat. br 139. A. 14 Hen. 6.1 that is â—o distrain him by his goods and Chattels until he appear But per 25 Edw. 3. cap. 17. a Capias was given to arrest the body of the party to bring him in But lies not in a Detinue for deeds 5 Eliz. Dyer 223. pl. 24. viz. a Capias Q. rationem it may be because that may not be satisfactory to the party to have the person Detinue for deeds The Process at Common Law was a Summons Attachment and Distress Nat. br 139. A. 14. Hen. 6.1 viz. for deeds But if the Deeds are in a box a Capias lies 20 Edw. 4.3 pl. 12. 7 Hen. 4.2 pl. 8. 14. Hen. 6.1 pl. 1. 40 Edw. 3.25 pl. 28. Quaere rationem But then it ought to count of a Deed in certain 14 Hen. 6.1 pl. 12 and not generally The Garnishee may be summoned by word Garnishee â— Hen. 5.13 as well as by Writ The Garnishor may have a Soire facias to issue out against the Garnishee and if he make default judgment shall be given against him Lib. Ietra 217. B. sect 3. upon a nihil dicit The Garnishment in Detinue 1. Of Chattels 2. Of Deeds Garnishment is granted for saving the Condition Garnishment if it be not performed only upon this whether the Defendant did perform it 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 allowed for a good plea without shewing what the conditions were 3. Hen. 4.18 for that will appear upon the Interpleader of the parties And also the reason is said to be because the Conditions come not in debate between the Plaintiff and Defendant Garnishment was prayed of the Heir and Executor of B and accounted good because it did not appear whether the Deeds in the box were real or Chattels 14 Edw. 4.1 pl. 3. 21 Edw. 3.41 pl. 44. 48 Edw. 3.30 pl. 19. and so not certain whether the Heir or Executor was to be sued 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 Q. If the the Garnishee be returned dead then his Heir or Executor shall be Garnie and if it be for a Chattel and it is returned that he is dead intestate the Ordinary shall be Garnie 48 Edw. 3.3 pl.
is an escape in the old Sheriff but not in the new for the new is not charged with him but if the old Sheriff die the other ought to take notice of the prisoners but if the escape be in the vacancy viz. before the new Sheriff is elected and sworn debt lies not Coke 3. part 71 72. Westbyes case 10 Edw. 3.375 pl. 28. for before he was not chargeable for he was no offender in Law If one be in execution yet debt lies against the Sheriff 7 Eliz. Dyer 241. pl. 47. 16 Edw. 4.3 pl. 7. Q. de hoc The Plaintiff and chief Justice assent for â—oe time that the prisoner shall go at large and after he suffers an escape debt lies 10 Eliz. Dyeâ— 275. pl. 46. for this was not a finall discharge dâ— the prisoner Q. A capias upon a recognizance in Chancery the party taken escapes debt lies Coke 8. part 142. Druries case for this is in nature of an execution The Writ was that 6 were in execution and escaped and the doubt was whether they might count for one only and by the better opinion 〈◊〉 was good Crooke 26 Hen. 7.67 pl. 11. Q. If one be Marshal of the prison whether it be by right or wrong Marshal debt lies against him 39 Heâ— 6.33 A. for the Plaintiff is not to examine his Title Count that he was in execution in C and removed to the upper Bench prison and committed to the Marshal which suffers him to escape debt lies 38 Hen. 6.28 pl. 10. for it is all one as I he had been originally committed thither Deputy of a Marshal suffers an cescape â—eputy debt lies against him 11 Eliz. Dyer 278. pl. 5. viZ. the Marshal himself Q. if not against the Deputy Debt lies against a Mayor of the Staple upon recognizance taken before him Mayor de Staple 5 Hen. 6.11 Heâ— 6.49 B. 12 Hen. 6.2 pl. 9. if he suffer 〈◊〉 Prisoner to escape The count Lib. intra 171. D. sect 6. Dean and Chapter of Pauls having return 〈◊〉 Writs Lord de Franchize and making a Bayliff that suffers an escape Action lies not against the Dean and Chapter because cause they are not Bayliffs Pasch 14 Eliz. Com. Ban. but against the Bayliff for he is the Officer the Law takes notice of Q tamen For a Nomine poenae granted this is casual yet debt lies for it Nat. br 120. M. 2 Hen. 8.8 Dyer Grant penalty 24. pl. 149 for it is a duty ab origine if forfeited And this is but hac vice if there be no other words to shew the continuance of it 32 Hen. 6.10 A. Billinge And so upon any grant hac vice certain or uncertain Q. 2. Annuity or Rent-charge granted for years Annuity debt lies not during the term But the 5 Edw. 4. 42 B. debt lies and it seems this is Law if it lie not it seems it is because the Grantee may distrain and charge the Land But against a customer it lies if it be to be paid out of the customs of London after delivery of a Liberate Nat. br 121. F. for then it is a duty vested It lies for Executors or administrators of the Grantee per Stat. 32 Hen. 8. cap. 37. viz. of an Annuity or Rent-charge And after the term ended it lies for the Grantee Lib. Intra 151. C. sect 1. for then there is no other remedy for it 3. Annuity for life For Life debt lies not for this during life 19 Hen. 6. 42 A. 37 Hen. 6.35 A. But a Distress or a Writ of Annuity and the Land is chargeable But against a customer it lies Nat. br 121. F. â—ntea for his person is chargeable ratione officii Also if a Parson or Prebend c. hath such annuity and resigne or be dispossessed it lies for the arrerages Coke 4. part 48. B. Ognels case For by his resignation it is meerly a personal thing and the Land is not chargeable So his Executors shall have debt by the common Law Coke 4. part 49. A 22 Eliz. Dyer 37. pl. 62. Coke 10. part 61. B. For it is accounted part of the Testators personal estate But if it be a Rent-charge seck or service debt lies not for any so long as the Estate continues Coke 4. part 49. A. Ognels case For there the person is not chargeable Although it have continuance but to a special intent Coke 7. part 39. B. For the Law takes not notice of such intents but looks on it as upon a continuing Estate But after it be determined debt lies for the party or his Executor Coke 4. part 49. Ognels case Nat. br 121. E. Coke 4. part 49. Ognels case 27 Hen. 6.1 pl. 4. because the realty is resolved into the personality and so the person chargeable 4. Annuity in Tayl general or special debt lies not during the annuity Coke 4. part 48. B. for the former reason So of a Rent-seck service or charge vid. antea But if the estate be determined quaere at the common Law But by the 32 Hen. 8. cap. 37. the Executor or Administrator shall have debt for the Arrerages Annuity in fee during the annuity debt lies not Annuity or Rent in Fee Coke 4. part 48. B. 6 Hen. 4.7 pl. 33. Unless it be in a special case as when a Parson or Prebend resignes Coke 4. part 49. A. Nat. br 121. D. 19 Hen. 6.41 42. Nat. br 121. Hâ—ntea For there the estate is determined as to him that resignes So if a Parson dies his Executors shall have debt Nat. br 120. L. Coke 4. part 49. A. 37 Hen. 6.8 pl. 18. For there is no other remedy for to recover it And by the 32 Hen 8. cap. 37. the Executors or Administrators of every one shall have debt But after the Annuity determined every one shall have debt by the common Law Coke 4. part 49. A. 45 Edw. 3.45 execution 71. Judgment given In Court of Record Superior Parliament Ban. Regis Chancery Com. Ban. Exchequer Prescription Inferior by Custom Patent Common-Right Not of Record Court Baron For principal County For dammages and losses Ancient Demesn in any Mannor For Fine or Amerciament Out of Court Statute Marchant Staple According to 23 Hen. 8. Recognizance Account at common Law Arbitrement By Law or Ordinance Judgment given in debt for the principal If a man brings debt upon a recovery in com Ban. he ought to bring it in Middlesex where the Record is because it is the Original upon the which the Action is brought but a scire facias to execute a Judgment shall be where the original Action was brought because it ought to follow it Hil. 9 Jac. Ban. Regis Musgrave versus Wharton for the scire facias is in pursuance of it and to have execution upon it Upon Arrerages recovered in a scire facias upon a Judgment in Annuity brought against the predecessors debt lies upon it Nat. br 122. E. 22 Edw. 4.1 pl. 6.
be intended that he hath assets else he would have pleaded so and not a shifting plea. One dies intestate and Administration is committed to D by the Ordinary and the Defendant pleads that he comes as servant to D. to administer absque hoc that he did administer in any other manner this is no plea because he did not shew that it was the Ordinary of the place and Judgment de bonis Testatoris 31 Hen. 6.13 pl. 5. as he ought because it is traversable This is an unskilful and not a false plea therefore the Judgment shall not be de bonis propriis 17 Edw. 3.20 pl. 58. where one Executor pleaded non factum and found against him there the Judgment was against him of the goods of his own as well as of the goods of the Testator and against the other of the goods that he had at the day of the Writ vide 17 Edw. 3.20 pl. 1. stat 9 Edw. 3. cap. 3. statute 1.17 Edw. 3.46 pl. 3. because by the Deed the Testators Estate is chargeable and by the false plea his own In Plenè administravit pleaded the Judgment was for so much of the principal debt as they had and for the dammages de bonis Testatoris si c. if there were sufficient and if not then for dammages de bonis propriis and for the residue as much as they had Coke 8. part 134. Shipleys case 34 Hen. 6.32 B. Prisot com 440. B. Pepyes case vide 17 Edw. 3.66 pl. 83. 46 Edw. 3.9 pl. 6. Judgment special for the debt Upon such a plea of the Defendant the Plaintiff may pray execution forthwith because it is a confession of the debt but no execution shall issue until the Defendant hath goods of the Testators Coke 8. part Shipleys case vide 21 Hen. 6.40 But if it be found for the Plantiff no scire facias lies against them 4 Hen. 6.4 pl. 8. Q. Unless he prays Judgment upon the plea. But yet 33 Hen. 6.24 pl. 1. is That a scire facias lies yet Coke 8. part 53. A. Syms his 04 case that if it be for Land he shall not have a scire facias because there is no Record upon which it may be founded Q. Against an heir In debt if the heir confess the Action for as much as did descend then there shall be a special Judgment against him of so much as did descend Com. 440. A. Pepyes case 22 Eliz. Dyer 373. pl. 4. the Judgment Lib. intra 172. D. and he shall be charged for no more But if he plead any other plea and it be found against him the Judgment shall be general Com. 440. Pepyes case for the whole for his false plea. So if he confess the Action and shew as much as descends if it appear to the Court that the profits of the Land from the time of the descent until the time of the execution are sufficient for the debt the Judgment shall be general else not per Dyer 18 Eliz. Dyer 344. pl. 1. Execution in debt 1. For the Plaintiff 2. For the Defendant 3. Of what Lands 4. Of what Goods At the Common Law it was but a fieri facias Coke 3. part 12. or a levari facias Coke 3. part 12. A. and this is of Chattels and Profits of Lands and Rents com 441. A. Pepyes case And this only within the year for if the year were past the party was put to his action of debt upon the Indictment Coke 3. part 12. A. Herberts case unless the process be continued 33 Hen. 6.49 pl. 33. For if it be continued then is the cause still fresh before them otherwise the Court will take no notice of it But for a recovery against an heir then it was but a Liberate of the Land Com. 441. A. Pepyes case Lib. Intra 172. D. 173. A. 3 Edw. 3. Execution 107. For the heir is only bound in respect of the Lands descended to him But by Westm 2. cap. 45 a Scire facias was given after the year and per Westm 2. cap. 18. an Elegit was given Coke 3. part 12. A. If a man have an Elegit filed on Record and there be a Nichil returned he shall never have any other Execution 19 Hen. 6.4 5 Edw. 4.41 15 Hen. 7.15 Fairfax for it is the last and highest Execution and the Court cannot descend à majore ad minorem executionem But if it be not filed it is otherwise And by the Stat. of 25 Edw. 3. cap. 17. a Capias was given in debt and per consequence a Capias ad satisfaciendum in execution of a Judgment in debt Coke 3. part 12. A. Harberts case Foâ— it is reason an Execution may be of as high a nature as the mean process in the Action was and 〈◊〉 the same nature Mich. 41 42 Eliz. com Ban. if the Plaintifâ— die after Execution yet the Sheriff may levy 〈◊〉 and if there be no Executor or Administrator the Moneys shall remain in Court until Administration Q. whether the Ordinary may not haâ—â— it But if the Defendant die before Execution there the Sheriff cannot make Execution 〈◊〉 the words of the Writ are That it shall be levied of the Goods of the Defendant Thoroughguâ—â— case Q if it may not be against the Executor because the Testators Goods in their hands may be said to be the Defendants Goods Upon a non est inventus returned of the Principal upon a Capias upon a Judgment in com Ban. the party shall have Execution against the Baâ—â— because the debt being by Original is certain 〈◊〉 it is mentioned particularly in the Writ and there the Lands of the Bail which they had 〈◊〉 the day of the taking the recognizance shall be liable but quaere in ban Regis if more Lands aâ—â— liable than they had the day of the Judgment because the debt is uncertain Mich. 15. Jac. Ban Regis Baskervile Brocket special verdict The Defendant for Dammages and Costs shall have the same execution as the Plantiff should have had if he had recovered against the Defendant per 23 Hen. 8. cap. 15. Viz. Of the Lands which he had at the 〈◊〉 of the Judgment and not before Coke 8. paâ—â— 171. Fleetwoods case 42 Edw. 3.11 pl. 13. â— Edw. 193. pl. 14. But if the Judgment be the last day of the Term the Lands which he had the first day of the Term are liable because all the Term is but one day in Law 42 Assiz 17. as to the Judgment for a Judgment given the last day is a Judgment of the first day If two Joint-Tenants are for life and one of them and against whom the Judgment is given dies before execution this shall not be put in execution 13 Hen. 7.22 A. viz. against the other because he was not party Land in ancient demesne shall be put in execution Coke 5. part 105. A. Aldens case Hill 11. Jac. Com. Ban. Rot. 2541. Cox Barnesly upon a Judgment in debt given at
were brought by the Plaintiff and another and the Plantiff is non-suit 5 E. 157. pl. 10. For thereby he desists in his Claim No such Church No such Church in the same County is no Bar 8 Hen. 6.37 pl. 69. 9 Hen. 6.17 Q. But 45 Edw. 3.36 pl. 2. è contra Q. Pardon of the King for alienation is no Bar Pardon if the Church be void before the pardon 27 Edw. 3.38 For then the pardon works not upon the precedent right Plentary a good Bar Plentary though the Patron his no notice of the Avoidance for this is to stop the Collation of the Ordinary but not the Presentation of the Patron Pasch 39 Eliz. Com. Bâ—â— Seriven against the Bishop of Lincolne Plenarty of a Frank Chappel is no Bar for if he shall be put to his Quare impedit then it shall be presentative afterwards 22 Hen. 6.25 B. Which is mischievous to the Patron in making it subject to the visitation of the Ordinary The Church is said to be full against a common person by Institution 22 Hen. 6.27 A. 14 Hen. 8 2. Brudenel 12 Hen. 4.38 For by that the Clerk is approved and Induction is but as it were giving of possession And against the King by Induction 22 Hen. 6.27 B. which makes him a compleat Incumbent to all intents and purposes He that pleads plenarty ought to say that it is full of his own presentment and not of anothers for if the Defendant be disturbed he shall not be punished and if he hath title he ought to shew it 3 Hen. 6.20 Br. plenarty 6. 16 Edw. 4.11.8 Edw. 3. Statham He shall plead that he was in per 6 Months of his Presentment before the purchase of the Advowson by the Plantiff But if it be of a presentment of the predecessor of the Plaintiff yet it is good 8 Edw. 3. presentment 5. The 6 Months shall be accounted according to the Kalendar Coke 6. part 61 62. Catesbyes case and not after 28 days to the Month for that is the ancient account used in Law Who shall plead Plenarty and who not Incumbent pleads Plenarty of himself Incumbent ex praesentatione B. viz. the Plantiff Coke 6 part 48.2 Hen. 6.14 pl. 22. No. Lib. intra 265. A. absque hoc that it was void for the Incumbent is not able to plead it otherways per 25 Edw. 3. cap. 7. But 16 Edw. 4.11 pl. 6. Com. 501. A. Manwood è contra Ergo Q. Because he that pleads this ought to say that the Incumbent is in of his own presentation 2 Rich. 2. Incumbent 4. Belknap 46 Edw. 3.19 18 Edw. 3. Quare Impedit 48. and not of anothers But per 4 Edw. 4.13 The Incumbent pleads that the Plaintiff or his predecessor presented him Q. For it seems to be uncertain Parson imparsonee cannot plead plenarty because that he cannot say that he is in per six Months of his own presentment 38 Hen. 6.20 B. 33 Hen. 6.12 pl. 27. Com. 501. A. Manwood 39 Hen. 6.20.46 Assize pl. 4. A Stranger or he that claims nothing in the Patronage cannot plead Plenarty 7 Hen. 4.34 per Fitz James For it lies not in his mouth to say whether the Church be full or not Against whom Plenarty is no Plea Against the Lord that enters for Mortmain it is no Plea because the Lord hath liberty by the Law to enter at any time within the year 21 Edw. 3.27 pl. 25. 29 Edw. 3.10 pl. 31. Thorpe 47 Edw. 3.11 pl. 8. But after the year it is a good plea 25 Edw. 3.34 26 Edw. 3. Quare Impedit 163. For then he is in the condition of another Petron Quaere if it be good against the Lord by â—â—â—cheat â—â— Hen. 8.14 Brudenel It seems it is for he shall be in no better condition then than the Patron that died without Heir It is no plea against the King 35 Hen. 6.26 A. 1 Edw. 3.17 pl. 9. 8 Edw. 3.304 pl. 55. 43 Edw. 3.14 pl. 8. For it is not a Plea in chief to determine the right but only delatory and the King shall not be delayed But against the Queen Mother or Consort it seems to be good 18 Edw. 3.13 pl. 9. 44 Edw. 3. Br. Plenarty 4. For she is but a subject and shall be in no better condition in the eye of the Law A good Bar to say Presentation that the Plaintiff presented his Clerk and that he was inducted before the Writ purchased 12 Hen. 4.11 pl. 21. vide Crooke 12 Hen. 7.20 pl. 6. For then he could have no cause of Action A Recovery in another Quare Impedit Recovery no Bar against the King for he may make another Title Nat. br 35. P. than was made before and a better it may be A Recovery by by the Plaintiff against another in a Quare Impedit for the same Advowson no Bar for there might be two disturbers Recovery by a Stranger in another Quare Impedit no Bar Crooke 18 Hen. 7.49 pl. 4. For nothing concerns the present Plaintiff That the Plaintiff is a Recusant Convict Recusancy a good Bar for the Presentment is given to the University per 3 Jac. And therefore the Plaintiff can have no cause of Action Release of Actions Personals a good Bar Release 22 Hen. 6.25 vel 27. Littleton fol. 116. A. 30 Hen. 6. Bar. 59. For this is a mixt Action and so it is personal in part So of Actions real Litteton 116. A. 9 Hen. 6.57 Martin For being next it is also real as well as personal If a Presentment be alledged in the Ancestry of the Plaintiff it is a good Bar to plead a Release and Quit claim of the Ancestry pro fine 8 Edw. 2. Quare Impedit 166. For thereby the Plaintiffs cause of Action is extinct If there be more Plaintiffs in a Quare Impedit than one the Release of one is no Bar but for him only that released Coke 5. part 97. B. Nor. thumberlands case 30 Hen. 6. Bar. 59. Fortescue For their Titles may be distinct and several Judgment in a Quare Impedit 1. When he shall have Judgment 2. Of what things he shall have Judgment Upon default after apppearance Upon default the Plaintiff shall have Judgment and Dammages 2 Hen. 4.1 pl. 3. Nat. br 38. S. For this is as it were the confession of the Plaintiffs Title But upon default after a continuance Distress shall issue out only 6 Rich. 2. viz. before apparence make him to appear Upon Default at the grand Distress the Plaintiff shall have Judgment Lib. intra 507. A. sect 1 2 3. For that is the last process to bring in the Defendant and the Plaintiff can proceed no further upon mean process In a Quare Impedit against two and one makes default after appearance the Plaintiff shall have Judgment against him that makes default Nat. br 39. B. But not against the other for anothers default shall not prejudice him If in a Quare Impedit against
three one makes default after apparance and it is found against the Plaintiff for the others that appeared who make a title and it seems they shall have a Writ to the Bishop 31 Hen. 6.15 pl. 5. Q. One Defendant makes Title by himself and others make default the Judgment shall be to have a Writ to the Bishop for him that makes Title but this is not before the Plaintiff have counted Nat. br 38. J. 10 Hen. 6.4 pl. 13. For before that the cause of Action doth not appear Upon the Non-suit of the Plaintiff Non-suit the Defendant shall have a Writ to the Bishop but not before Title made Nat. br 38. K. 2 Hen. 5.6 pl. 28. 19 Edw. 4.9 pl. 10. 6 Edw. 3.23 Collusion 5. 14 Hen. 4.11 That it may appear he hath a colourable right at the least Unless the Non-suit be after a Bar pleaded 33 Hen. 6.1 pl. 2. fol. 55. pl. 48. against the Defendants Title Three sue a Quare Impedit and two are non-suited and one of the Plaintiffs was also one of the Defendants therefore he cannot make Title ideo quaere if they shall not have a Writ to the Bishop without Title made 11 Hen. 6.8 pl. 13. Q. A. sued divers Writs of Quare Impedit against B of the same Church and is non suited in all exceptone the Defendant shall not have a Writ to the Bishop until that be determined Nat. br 38. R. For it may be the Plaintiff may clear his Title by that The Defendant makes Title to himself and another the Plaintiff is non-suited the Defendant shall have a Writ to the Bishop only 13 Edw. 3. br Epise 25. For his Title is a Bar to the Plaintiff which is not opposed The Sheriff returns a tardè c. the Plaintiff makes default he shall be non-suited Q. but the Defendant shall not have a Writ to the Bishop because the Writ was not served 2 Hen. 5.3 pl. 14. Nat. br 38. O. 2 Hen. 5.6 nor the other Non-suited as it seems because the Writ was not duly executed If an Infant be non-suited the Defendant shall have a Writ to the Bishop 2 Mariae Dyer 104. pl. 13. to avoid a lapse and that the Church may speedily be provided for A. brought a Quare Impedit against B C and D and is non-suited B dies C and D shall not have execution alone 11 Edw. 3. br Episcopo 55. because the Action was joyntly brought against all If one of the Co-parceners who bring a Quare Impedit be non-suited yet the other may sue and the Defendant shall not have a Writ to the Bishop upon this Non-suit 38 Edw. 3.35 br Episc 12. because they have several Inheritances and the default of one shall not bind another The Plaintiff discontinued his Suit Discontinuance the Defendant shall have Judgment to have a Writ to the Bishop Coke 7. part 27. B. For his discontinuance concludes he had no cause of Action A. brought a Quare Impedit against B Composition and sued a Ne admittas and then they compounded to present by turn there shall be a special Writ out of the Chancery to the Bishop to admit the Clerk that ought first to be admitted For a special Cause may have a special Writ and varying from the usual form In a Quare Impedit the Defendant disclaims in the Advowson the Plaintiff shall have Judgment Disclaimer and a Writ to the Bishop 6 Edw. 3.7 Error 78. For by the Disclaimer he acknowledgeth he hath no Title Where a Writ abates for form or false Latine Abatement there shall not be Judgment for the Defendant to have a Writ to the Bishop Nat. br 38. H. 14 Hen. 4.11 13 Hen. 4.7 For the Title is not determined but only the Plaintiff is delayed The Defendant makes default the Incumbent abates the Writ by plea the Defendant shall not have a Writ to the Bishop because he made default Nat. br 38. H and so is not rectus in Curia If the Plaintiff being a Prebend be made a Bishop in Dublin this shall abate the Writ per Wilby 24 Edw. 3.26 pl. 21. Q. how it shall be taken notice of here If the Writ abates for Misnosmer or other non-sufficiency in it the Defendant shall not have a Writ to the Bishop Nat. br 38. M. 31 Hen. 6.15 For the right is not determined If a Quare Impedit is brought in Com. M. and the Count is of a Church in Com. O the Writ shall abate but the Defendant shall not have a Writ to the Bishop 21 Rich. 2.29 for the former reason It was found by verdict that the Metropolitan collated where the Ordinary ought to have done it Verdict when the year is passed the Plaintiff shall have a Writ to the Bishop Nat. br 38. P. Q. In a Quare Impedit between A and B if the Title appear for the King Judgment shall be given for him Nat. br 38. E. notwithstanding he is not party to the Suit that is by his Prerogative All the Judges are the Kings Counsel and ought to give Judgment for him where his Right appears although he sue not for it The Writ to the Bishop to whom it shall be directed If a man recover against another as well as the Bishop he ought to have a Writ to the Bishop of the Diocess Nat. br 38. C. For a Bishop is but a Minister to admit the party If the Writ be against the Bishop although he claim but as Ordinary yet the Plaintiff shall have a Writ to the Bishop 8 Hen. 4.22 Lib. intra 521. For he claims no right nor doth any thing by executing the Writ in prejudice of himself If a man recover against the Bishop he shall have a Writ to the Bishop or Metopolitan Nat. br 38. B. and Q. 18 Eliz. Dyer 353. pl. 30. 38 Edw. 3.12 B. at the election of the party as it seems If it be once to the Metropolitan he shall never have it to an inferior Bishop afterwards ibidem for it is not usual in Law to descend from a higher authority to a lower Or to the Vicar general if the Bishop be out of the Realm Nat. br 38. Q. For the Vicar general â—an Officer under the Archbishop Or to the Gardein of the Spiritualties of the â—â—ch-bishop 7 Hen. 4.36 for the same reason 〈◊〉 it seems If there be no Bishop of the Diocess then to â—â—e Metropolitan if no Metropolitan then to â—â—e Gardein of the Spiritualties but if before the accution the Archbishop be made quaere if the power of the Gardein be not determined 18 Eliz. Dyer 350. pl. 19. It seems it is If it be against the Arch-bishop of York the Writ shall be to the Metropolitan 15 Eliz. Dyer 328. pl. 7. viz. of all England viz. the Archbishop of Canterbury The King recovers a Prebendary or Sub-Deaâ—â—â—ry or other Dignity against the Bishop and â—â—â—es it by Letters Patents to A yet A shall â—uve a Writ to the Bishop to