to enroll a Deed Clerk and doth it not 34 Hen. 6.4 Serjeant Counsellor Against a Serjeant or Counsellor that promises to plead for me and doth it not 14 Hen. 6.18 if I retain him and give him his fee else not For not doing of a thing where a man is bound to do it in one manner and he doth it in another Plough my land Against him that promises to plough my land and doth it in unseasonable time 14 Hen. 6.18 3 Hen. 6.36 for the Law implies he must do it for my best advantage Against an Attorney that takes an obligation in his own name Attorney when it should have been in mine 20 Hen. 6.25 Q. if an Action of Deceit do not lie Against a Carpenter that undertakes to build a house in such a form Carpenter and builds it in another Nat. br 145. G. 2. Hen. 4.9 21 Hen. 7.41 20 Hen. 6.35 Q. if he build it in a better form and more for the benefit of the Owner and to his own loss Against him that hath a Crane and spoils my Merchandize Cranage Lib. Intr. 3. C. sect 1. this is misfeasance Against a Farrier that takes upon him to cure my Horse Farrier and applies unwholsom Medicines c. 19 Hen. 6.49 whereby my Horse is made worse For pricking my Horse 46 Edw. 3.2 3.10 Nat br 94. D. 18 Edw. 3 6. pl. 11. for it is the duty of an Artificer to do his office well and truly and this is implied in Law upon his undertaking to use his art For misusing a License License 21 Edw. 4.76 quaere what Against a Serjeant at Law that is retained to plead and mispleads Mispleader 14 Hen. 6.18 for this is misfeasance and to his Clients prejudice it may be but if it be not tunc quaere To misplead is to plead otherwise than he is instructed by his Client For negligent suffering of a thing to be done to the damage of another A borrowed a Horse of me which dies suddenly Borrowed an Action lies not 40 Edw. 3.6 for the borrower was in no fault But if the thing be used in other manner than it was lent to be used and dies an Action lies Doct. Stud. 29. for this is misusing of it and contrary to the agreement But if it be but in the same manner that it was lent and dies no Action lies Doct. Stud. 29. for it was lent to be used though not misused A borrowed a Horse and a House fell upon him there if the house fell upon him being feeble Action lies otherwise not Doct. Stud. 128. for he might have foreseen the danger and prevented it Burning a House Against him that keeps not well his fire by which my house is burned being adjoyning 2 Hen. 4.18 8 Edw. 4.19 pl. 30. Choke for we must so use our own that we hurt not another Although his own house be burned 33 Hen. 6.1 Lib. Intr. 8. A. sect 1. for his own harm is no recompence to his Neighbour 3. It lies although his Servant do it but not if a stranger do it of malice 33 Hen. 6.1 2 Hen. 4.18 Doct. Stud. 137. for the Master must be answerable for the actions of his Servants in civil matters though not in criminal 4. If a Servant bring fire in the street and buro a house his Master is not chargeable for when the Servant is out of his house he is not under his government 5. It lies not if it be burned suddenly and the cause not known 42 Assize 8.2 Hen. 4.18 for the Law delights in certainties and doth things upon just and sure grounds and not upon probabilities and surmises Barr. That it was not burnt in default of good custody of the fire of the Defendant Lib. Intra 8. A. sect 1. But by 28 Hen. 6.7 this is but a negative pregnant for he might have pleaded non culp which the other plea doth but imply That he guarded his fire well absque hoc that he guarded it negligently Lab. Intra 8. B. sect 2. for here is a direct affirmative and a traversing of Plaintiffs declaration Against a Baily of Cloth that suffers it to be consumed with Moths Baily 27 Hen. 8.25.13 Hen. 7.1.18 Edw. 3.23 viz. by negligent keeping which the Law implies he ought not to do Against a Baily of a horse that suffers him to perish 12 Edw. 4.13.26 Hen. 8 br Action upon the Case 103. Lib. Intr. 3. B. sect 1. Regist orig 107. A. for the former reason For losing a Release 34 Hen. 6.4 for the Releasee may be prejudiced thereby So of a box Lib. Intra 9. A. sect 1. Against him that suffers his Dog to bite my sheep Dog 28 Hen. 8. Dyer 25. pl. 102. fol. 29. pl. 195. 28 Hen. 6.7 pl. 7. Lib. Intr. 616. B. sect 1. Regist orig 110. B. But then the Master ought to know that he would bite them ibidem for then he might have prevented it and so is punishable for not doing it But sciens is not traversable but may be given in evidence Coke 44. part 188. for if he did not know it he may plead Not guilty and the Plaintiff must prove he knew it If the owner of the Dog brings him to the Master of the sheep to do justice upon him it lies not 7 Edw. 3. bar 290. viz. upon the first notice or knowledge of it otherwise not The Plaintiff declares that the Defendant was possessed of a Dog 8. Octobris 7 Jac. using to bite c. and that the Dog 12. October in the same year did bite his Lambs c. this is not good for he ought to have shewn that he continued his Dog at the time of the biting for it shall not be presumed that he continued it without shewing it Pasch 9 Jac. Ban. Regis Louder versus Sounds 21 Edw. 4.22 15 Eliz. Dyer 320. for the Law will not presume any one will do an unlawful act except it be proved 4. For suffering his Dog to bite my Servant Regist orig 111. A. per quod servitium amisit else not as it seems 5. For hurting of an Ox Regist orig 111. A. whereby he loseth his work or is hindred in his fatting 6. For hurting of a Horse after warning given Regist orig 106. A. for the Master ought to have kept him up 1. Against a Warden of the Fleet Escape that suffers one to escape that was taken upon a Capias ad computandum 15 Edw. 4.19 Lib. Intra 8. C. Sect. 1. for thereby the Plaintiff is put to more trouble and charge and is delayed in his Suit 2. Against a Sheriff that suffers one to escape that was taken upon a Statute Merchant Regâ—â— orig 98. B. Nat. br 93. A. the Writ there upon the same reason Against an Inn-keeper Innkeeper that suffers the goods of his guests to be stole Coke 4. part 32. Calyes case Nat. 94. B. Regist orig 104. A 105.
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
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
part 29. B. qua a Jew but if a convert it seems he may 8. Illiterate 12 Eliz. Dyer 293. pl. 3. Coke 5. part 58. A. Specotts case 40 Edw. 3.25 pl. 31. For he is unfit to teach and had more need to be taught 9. Perjured For he will make little conscience of Religion 10. Irreligious 5 Hen. 7.6 Q. how 11. Miscreant Coke 5. part 58. A. Specotts case viz. that believes not rightly the Articles of the Faith For how will he maintain and instruct others in it 12. Not able upon examination 39 Edw. 3.1 pl. 5. viz. of the Ordinary in the principles of Religion and other fit qualifications 13. Premunire 38 Edw. 3.3 pl. 9. In regard of the heinousness of the offence and punishment 14. Himself patron 31 Hen. 6.621 For he ought not to present himself 15. Saracen Coke 11. part 29. B. or Turk or Infidel not acknowledging God and Christ 16. Schismatick Coke 5. part 58. A. Specotts case For he will make disturbance in the Church 17. Simonist Lib. intra 532. A. Q. By what Law 18. Villain 14 Hen. 7.28 B. for he is not sui juris 19. Utlaw Coke 5. part 48. A. Specotts case For he is fit for no society and unfit to teach obedience to others that hath none himself These are good Causes of refusal viz. which are above specified Where one having a Parsonage in Wales Note and could not speak Welsh and therefore excepted unto as insufficient it was demurred to Trin. 27 Eliz. Albany versus Episcopum S. Asaf Q. Deley as not a sufficient cause These are not good causes of refusal That he hath another Benefice with Cure 14 Hen. 7.28 B. For he may be qualified to have two Benefices by the Stat. Hunter of Taverns and a player at unlawful Games Coke 5. part 57. Specotts case 9 Eliz. Dyer 254. For this makes him not unfit to watch though it make him scandalous for which he ought to be punished Criminosus 34 Hen. 6.39 A. For that is a word of a very large extent and uncertain These are good causes of refusal in the Presenter Attainted 15 Hen 5.17 B. Keble viz. of Felony or Treason Presenter which is Excommunicated per 40 days 115 Hen. 7.7 B. Keble and so stands excommunicated in contempt of the Church This Law is now altered by the taking away the Ecclesiastical jurisdiction in that point and now is again revived Infant not of the Age of 14 years Perkins 4. A. For he shall not be judged of sufficient discretion to present a fit person Q. tamen Joynt Tenant or Tenant in common not agreeing Nat. br 34. V. concerning their presenting for that is litigious The same Law is of one present alone 14 Eliz. Dyer 340. pl. 54. except it be by consent A Master of a Colledge presented by the Colledge 14 Hen. 8.23 For that is like as when the Patron presents himself Utlawed 15 Hen. 7.17 B. Keble For he can have no Title A Corporation ought to present in writing Presentation 14 Hen. 8.2 and not by parol for they cannot ill speak at once as they may by writing A Body natural may present by word 14 Hen. â— 22 The King may present by word 19. Edw. 3. Quare impedit 60. For he is but one person numerical though he hath a political capacity and speaks in the plural number It is no Bar to say that the other Writ was abeted Abatement if it were for form or false Latine Coke â— part 27. B. Portmans case For that is not the fault of the Plaintiff but of the Clark But that it was abated because the 1 Plaintiff was made Knight the Writ depending this is 〈◊〉 good Bar Coke 7. part 27. B. Portmans case For it was his own fault The Plaintiff counts of the presentment to the Advowson in Gross Appendant and a Grant of it to him the Defendant pleads it was appendant he cannot traverse that it was not in gross because by intendment they are several Advowsons Crooke 19 Hen. 7.51 pl. 1. For one and the same Advowsee cannot be in gross and also appendant An Arbitrement is a good Bar Arbitrement Lib. intra 498. C. s 1. A Confirmation or ratification by the King to the Incumbent is a good Bar against the King 7 Hen. 4.13.14 Hen. 4.25.837 Lib. intra 531. sect 22. by way of estopple Confirmation But this ought to be after Induction 11 Heâ— 4.9 For before he shall not be said to be a perfect Incumbent as to the King If the King be deceived he may repeal the Confirmation 31 Edw. 3. Quare impedit 161 This by his prerogative for the King ought 〈◊〉 be truly informed But then the repeal ought to be before Indâ—ction or Installation 25 Edw. 3.47 for after 〈◊〉 is too late If the King recover and confirm the Incumbent this is no Bar to the next avoidance because his Judgment cannot be executed Nat. br 34. F. 10. Edw. 3.389 pl. 32. 18 Edw. 3.57 pl. 87. But if he Lease the Advowsons afterwards â—uare who shall have them Where one brought a Quare impedit Discontinuance and discootinued his Action adjudged a good Bar although that the Writ was purchased afterwards within the 6 Months Coke 7. part 27. B. Portnans case For it shall be intended he hath no right A Fine levied by the Ancestor of the Plaintiff of the Advowson is a good Bar Fine Lib. intra 532. C. sect 3. Warranty and Assets descended to the heir Warranty is a good Bar against the Issue in Tail 43. Edw. 3.24 pl. 31. No Disturber That he did not disturb is a good bar Lib. â—â—tra 503. C. sect 2. 22 Edw. 3.17 pl. 71. For a good Issue may be taken upon it This may be pleaded to the grand Distress 22 Edw. 3.17 pl. 71. as well as if he had appeared upon the first summons But 21 Hen. 6.45 A. 2 Edw. 3.32 pl. 7. It is held that it is no Bar because no Title is made 14. Edw. 3. Judgment 158. and before Title made there needs no plea yet Q. For he may as it seems admit a Title But if it be a good plea before Issue yet after Issue joyned it is not because it is a delay and so a disturbance in it self in the eye of the Law 3 Edw. 3.50 pl. 6.4 Edw. 3.97 pl. 31.17 Edw. 3.71 But 18. Edw. 3.149 pl. 15. fol. 359. 〈◊〉 è contra after title made this is no plea 5 Hen. 4.20 Br. Quare impedit 62. Q. Against the King it is no Bar because the patty there ought to make a title 7 Hen. 4.32 pl. 18. Non-suit after appearance in another Quare impedit before for the same advowson Non-suit is a good Bar although the last be purchased within 6 Months Coke 7. part 27. B. Portmans case 21 Hen. 6.25.27 For that argues he had no right and that his Suit was only vexatious And so if the former Writ
brought against the Gardein of the Spiritualties upon refusal of the Bishop which is dead Vet. Nat. br 26. A. Nat. br 47. J. and well for he is now in the room of the Bishop But it was denied against the Archbishops Gardein of the Spiritualties vivente Archiepiscopo at videtur And yet quaere per 17 Edw. 3.27 pl. 9. if the Metropolitan of Common right be not Gardein of the Spiritualties It seems not since Hen. 8. come It was maintained against the Official of the Bishop Nat. br 47. N. who used as it seems to admit Clerks presented In what Cases this lies When a man recovers his presentation and the Bishop will not admit his Clerk the party shall have this Writ Vet. Nat. br 25. B. Nat. br 47. C. And this is although the Bishop return cause why he will not admit the Clerk 9 Eliz. Dyer 260. pl. 21. Coke 6. part 52. A. Boswels case for he must take notice of the Judgments given at the Law in such cases But if the Record be removed by a Writ of Error it lies not till Judgment be affirmed Nat. br 47. E. for till then it doth not appear the Judgment was duly given and this Writ doth suppose right Judgment given The Bishop refuses and afterward admits him yet the party it seems shall have this Writ Nat. br 47. L. Q. for it seems to little purpose except it be to recover dammages for not admitting at first The Writ 1. It ought to rehearse the Recovery in the Quare Impedit Nat. br 47. C. because that is the ground of the Writ 2. It ought to be brought in the County where the refusal was because he shall recover nothing but dammages Vet. Nat. 25. B. Nat. 47. F. Coke 7. part 3. A. Bulwers case 38 Hen. 6 14 15.39 Edw. 3.2 pl. 5. 29 Hen. 8. Dyer 40. pl. 69. and the dammages can be best enquired and known there The Count. The writ was against the Bishop and counted though the Vicar general refused and yet good 〈◊〉 Edw. 3. Quare non admisit 4. Vet. Nat. br 26. 〈◊〉 rid antea why so The King counted not upon what original or â—â—t Title he recovered and yet good 20 Edw. 3. â—â—e non admisit 10. for he is not bound to be 〈◊〉 punctual in pleading as a Common person for â—â—â—â—ceth if it be good in the substance The Barr. That he admitted him and made Letters to 〈◊〉 Archdeacon to induct him a good barr 38 〈◊〉 6.14 Nat. br 47. H. for this doth disaffirm 〈◊〉 Writ That the Bishop collated by Lapse is a good 〈◊〉 Nat. br 47. M. for by that the Plaintiffs Tiâ—â—s destroyed hac vice Or that it was litigious by the presentment of â—anger 9 Edw. 3. Quare non admisit 12. 34 〈◊〉 6. Quare Impedit 89. 34 Hen. 6.41 pl. 10. 〈◊〉 also the Ordinary could not know who was to 〈◊〉 admitted But if A and B contend by reason of which 〈◊〉 Bishop collates by Lapse and after the King â—overs in a Quare Impedit this is no barr in a â—ure non admisit brought by the King 23 Edw. 〈◊〉 12. Quare non admisit 11. for the Kings Title â—â—dgne to the collating Excommunication cannot be pleaded in the Plaintiff because the Writ supposeth a contempâ— in the Ordinary in that the Plaintiff hath presented his Clerk in the Writ named after Judgment given for him which supposeth him not Excommunicated but a good plea that the Incumbeâ—â— did not make request after Judgment 21 Hen. 7.71 pl. 14. Crooke for without request the Ordinary is not bound to take notice No such Record is a good plea Coke 8. part Dreuries case viz. as he pretends he hath Judgment upon A good barr that the Church was full before the Recovery of one not named in the Recovery Nat. 47. K. and so the Ordinary had no cause to admit his Clerk The Bishop returned that the Advowson is seised into the hands of the King by reason of Wardship and is so full of the Kings presentment this is good 9 Eliz. Dyer 260. pl. 21. tameâ— Coke 6. part 52. A. Boswels case è contra Q. The Judgment The Judgment is but to have dammages Nat. br 47. G. Quare Incumbravit In what Court it shall be brought It is a Writ Original and therefore it ought to issue out of the Chancery Nat. br 48. G. as all Originals do for the Chancery is Officina brevium But it shall be brought in Com. Ban. because it a Common plea Vet. Nat. br 26. B. viz. made â—â—rnable there And although the Record be removed out of 〈◊〉 Common pleas Nat. br 48. F. because it is an â—â—â—ginal Writ per Shard 17 Edw. 3.55 A. But the King may bring this in Ban. Regis alâ—â—â—gh the Record be in Com. Ban. But a Comâ—â—â— person shall not Nat. br 48. F. 17 Edw. 3.50 〈◊〉 â—1 for the King may sue in what Court he â—â—â—seth though a Subject in some cases is conâ—â—ed What person shall have it The Plaintiff or Defendant in a Quare Impedit 〈◊〉 Darrein Presentment that recovers for by the â—ecovery it appears they have Title Against whom it lies It lies against the Bishop Vet. Nat. br A. In what Cases this lies not It lies not in right of Advowson Nat. br 48. Q. 〈◊〉 that concerns not the presentation It lies not unless a Ne Admittas be first directed 〈◊〉 the Bishop a Quare Impedit depending Vet. â—â—t br 26. B. Nat. br 48. H. for by that he is to â—ake notice of the Suit which otherwise he is not â—â—und to Yet it was maintained although no other Writ â—as first attained Vet. Nat. br 27. A. Q. It lies not unless the party hath recovered before by Judgment of the Court Nat. br 48. 〈◊〉 17 Edw. 3. 50. pl. 21. and so cleared his Title The Incumbring by his Collation ought to bâ— alledged to be within six Months Nat. br 48. 〈◊〉 for after the six Months there can be no incumbrance in respect of the Lapse And if he admit the Clerk of the other person after the six Months which was presenteâ— before the Action the Writ lies Nat. br 48. L. Quaere The Writ is Original and issueth out of the Chancery only Nat. br 48. G. 17 Edw. 3.74 B. vide the Writ Nat. br 48. O. Regist orig 32 A. It ought to be brought in the County where the Church is because the Clerk of the Bishop shall by this be removed and the Clerk of the other admitted Coke 7. part 3. A. Bulwers case Nat. br 48. D. 38 Hen. 6.14 pl. 32 and the wrong is done in the County where the Church is and that County may have best conusance of the cause It ought to make mention of the Recovery Nat. br 48. K. Regist orig 32. B. But 18 Edw. 3.17 by Wilby he ought not to mention it Quaere The Writ needs not mention before whaâ— Justices the Recovery was and yet good for the Recovery is the
96 For not doing of a thing that ought to be done by the Law to the dammage of another touching suits in Law Fol. 97 Assumpsit FOr the not doing of a thing which ought to be done by the agreement of the party to the dammage of another touching things hereditary Fol. 98 Assumpsit quid Quotuplex Fol. ib. General Bar Fol. 99 For not doing of a thing which ought to be done by the agreement of the parties touching Chattels Fol. 102 The Judgment Fol. 114 The Writ Fol. ibid. For not doing a thing which is to be done by agreement touching the body Fol. 115 The Writ Fol. ibid. For not doing a thing which is to be done by agreement of the parties touching suits in Law Fol. 116 For not doing a thing where a man is bound to do it in one manner and he doth it in another Fol. ibid. For negligent suffering a thing to be done to the dammage of another Fol. 117 Bar Fol. 118 For deceit in bargains and agreements with warrant Fol. 122 For deceit in bargains and agreements without warranty Fol. 124 Trover and Conversion QUid Quotuplex Fol. 125 Of what things it lies Fol. 126 Covenant IN what Court Covenant lies 1. personal 2. real Fol. 131 Who shall have a Covenant 1. personal 2. real Fol. 132 Against whom Covenant lies 1. personal 2. real Fol. 137 The Count in Covenant 1. personal 2. real Fol. 145 Writ in Covenant 1. personal 2. real Fol. 147 The Process in Covenant 1. before appearance 2. after Fol. 148 Bar in Covenant 1. personal 2. real Fol. 149 Judgment in Covenant 1. personal 2. real Fol. 150 Detinue 1. QUid Fol. 154 2. Quotuplex ib. In what Court detinue lies 1. of Chattels 2. of Deeds for Landâ— Fol. 155 Who shall have a Detinue 1. of Chattels 2. of Deeds Fol. ibid. Against whom Detinue lies 1. of Chattels 2. of Deeds Fol. 163 For what things Detinue lies 1. of Chattels 2. of Deeds Fol. 167 Count in Detinue 1. of Chattels 2. of Deeds Fol. 169 The Writ in Detinue 1. of Chattels 2. of Deeds Fol. 173 The Process in Detinue 1. before appearance 2. after Fol. 174 The Garnishment in Detinue 1. of Chattels 2. of Deeds Fol. 175 Enterpleader in Detinue 1. Of Chattels 2. Of Deeds Fol. 176 Bar in Detinue 1. Of Chattels 2. Of Deeds Fol. 178 Execution in Detinue 1. Of the Defendant 2. against The Judgment in Detinue 1. Of Chattels 2. Of Deeds Fol. 182. the Garnishee 3. of what Lands 4. of what Goods Fol. 184 Debt DEbt in what Court it lies Fol. 191 Who shall have Debt Fol. 193 Against whom Debt lies Fol. 203 For what things Debt lies Fol. 216 Judgment in Debt Fol. 227 The Writ in Debt 1. in the County 2. in Com. Ban. Fol. 234 The Process in Debt 1. before appearance 2. after Fol. 239 The Bar in Debt Fol. 240 The Judgment in Debt Fol. 265 Execution in Debt Fol. 269 Ejectment IN what Court it lies Fol. 272 Who shall have an Ejectione firmae Fol. 273 Against whom Ejectment lies Fol. 276 Of what things an Ejectment lies Fol. 278. The Count generally Fol. 281 The Writ Fol. 283 The Process 1. before appearance 2. after Fol. ibid. The Bar. Fol. 284 The Judgment Fol. 285 Quare Impedit QVid Fol. 286 In what Court it lies Fol. 287 Who shall have a Quare Impedit Fol. 288 Against whom a Quare Impedit lies Fol. 311 Quare Impedit of what disturbance it lies Fol. 312 Quare Impedit of what things it lies Fol. 313 The Count in Quare Impedit Fol. 315 The process in Quare Impedit 1. before appearance 2. after Fol. 317 Barr in a Quare Impedit 1. by the Ordinary 2 by others Fol. 319 Good causes of refusal in a Quare Impedit Fol. 322 These are not Fol. ib. These are likewise good causes of refusal Fol. 323 Who shall plead plenarty and who not Fol. 327 Against whom plenarty was is no plea Fol. 328 Judgement in a Quare Impedit 1. when be shall have Judgement 2. of what things he shall have Judgement Fol. 330 The Writ to the Bishop to whom it shall be directed Fol. 334 Process in the writ to the Bishop Fol. 336 Of what things a man shall have Judgement Fol. ib. A Writ to the Bishop and single dammages Fol. 338 A Writ to the Bishop and double dammages Fol. 340 Single dammages and no Writ to the Bishop Fol. ib. Double dammages and no writ to the Bishop Fol. 341 Two writs to the Bishop Fol. ib. In what Court and what Judges have power to award a writ to the Bishop Fol. 342 Ne Admittas WHat person shall have it Fol. 342 In what cases it lies Fol. ib. Within what time this ought to be brought Fol. 343 The Writ Fol. 344 The Process Fol. ib. Quare non Admisit OVt of what court this issues Fol. ib. What person shall have it Fol. 345 Against whom it lies Fol. ib. In what case it lies Fol. 346 The Writ Fol. ib. The Count. Fol. 347 The Bar. Fol. ib. The Judgement Fol. 348 Quare Incumbravit IN what Court it shall be brought Fol. 348 What person shall have it Fol. 349 Against whom it lies Fol. ib. In what cases this lies not Fol. ib. The writ Fol. 350 The Count. Fol. 351 The Process Fol. ib. The bar Fol. 352 The judgement Fol. ib. Replevin IN what Court it lies Fol. 353 Who shall have a Replevin Fol. 354 Against whom a Replevin lies Fol. 356 Of what things a Replevin lies Fol. 357 The writ Fol. 359 The process 1. of a man replevied 2. of chattels Fol. 361 Second Deliverance Fol. 362 In what case a man may distrain Fol. 364 Of what things a man may distrain Fol. 369 What person shall distrain Fol. 373 At what time a man may distrain Fol. 374 In what place a man may distrain Fol. 375 What distress shall be sold Fol. 378 What shall not be said to be a distress excessive Fol. ib. 1. The Bar 2. Justification 3. Conusance 4. Avowry Fol. 379 Who shall avow Fol. 381 For what things a man may avow Fol. 384 Seifin in avowry in whom it may be alledged Fol. 386 By what hands Seisin shall be alledged Fol. 386 In what time Seisin ought to be alledged Fol. 388 When it is not requisite to alledge Seisin ib. What Seisin shall be good ib. Bar to an Advowry Fol. 390 Judgment 397 Trespass IN What Court Trespass lies Fol. 405 Who shall have Trespass Fol. 407 Against whom Trespass lies Fol. 422 For what matter Trespass lies viz. for the doing of wrong to the dammage of another 1. Touching Inheritance 2. Touching Chattels 3. Touching the body Fol. 432 Error IN what Court Error shall be redressed Fol. 453 Who shall have a Writ of Error Fol. 461 The Writ of Error Fol. 468 The Process in Error 1. upon a judgement in Ireland 2. upon a Bill sealed 3. judgement in another Court
3.7 pl. 11. Account of a House and Goods it is no Plea to say he bought the goods of the Plaintiff but must say without that that he was his Baily for Account-render 49 Edw. 3.7 pl. 11. Payment by command of the Plaintiff Payment a good bar in discharge Coke 11. part 38. B. Metcalfs case 1 Edw. 5. 42 Edw. 3.6 pl. 21. But this is before Auditors and not in bar of the Action The Defendant said Servant that he was Servant to the Plaintiff and he did chase the Cattel out of the field without that that he was Baily in any other manner for if the Cattel are hurt he shall have an action of the Case 7 Hen. 4.14 pl. 18. He was his Surveyor without that that he was his Baily 4 Edw. 3. Account 34. The Defendant said Statute-Merchant that the Plaintiff granted by Deed and shews that when he came to C. he was to acknowledge a Statute Merchant that the Account should not be and shews likewise that he did it this is nothing without saying he delivered it to the Plaintiff 20 Edw. 3. Account 79. Q. Account for the delivering of Tyn Vendee c. the Defendant said that he delivered this and took an obligation in the name of the Plaintiff this is no bar 28 Hen. 8. Dyer 29. pl. 193. for he had no authority to take the Bond. Baily of Woods to sell it is no Plea to say he had not sold them because this comes in debate before Auditors 14 Edw. 3. Account 131. The plt after judgment for him quod Comput dies his Executors shall have a Scire facias the which being served if he appear not an Exigend shall issue out against him 14 Hen. 4.1 The Judgment against a Baily 1. of Account 2. to Recover the things The Judgment is Quod Computet ideo in miscricordia quia prius inde non Computavit Coke 11. part 38. A. Metcalfs case Lib. Intra 19. b. sect 1. 20. D. sect 1. Quod computet for parcel and Bar for the remnant Lib. Intra 22. A. sect 12. The Judgment is Ideo consideratum est quod praedictus W. recuperet versus praefat M. as much as he shall be found in Arrearages dampna occasione implacitationis c. Coke 11. part 40. A. Metcalfs case Scire facias against Tenant per Elegit to Account and not appearing upon garnishment the Judgment was that the Plaintiff shall recover his Lands without any more process upon the cause of the Account c. 5 Edw. 3.159 pl. 20. Execution against a Baily 1. per Common Law 2. per Statute Law By the Common Law he shall have but a Levari facias or Fieri facias Coke 3. part 12. A. Harberts case And this within the year only for if the year pass he was put to his Action of debt if the process were not continued 33 Hen. 6.49 pl. 33. Per Westm 2. cap. 45. a Scire facias is given after the year And per Westm 2. cap. 18. Elegit is given Coke 3. part 12. A. And per Marlebridge cap. 23. and Westm 2. cap. 11. Capias is given in process And per consequence a Capias ad satisfaciendum after Judgment Coke 3. part A. 12. And by the Statute of Westm 2. cap. 11. if an Accountant be found in arrearages before Auditors he shall be Committed by the Auditors to the next Goal in execution But then the Auditors ought to Commit him to prison forthwith Coke 8. part 119. b. Bonhams case 27 Hen. 6.8 Com. 1.7 But if he Account before the plt he cannot Commit him to prison 45 Edw. 3.14 because he shall not be Judge in his own cause Ex parte Talis by a Baily Per Westm 2. cap. 11. if Auditors be assigned by the party which will not allow to the Accountant reasonable allowances or charge him with a thing he never received and Commit him to prison he shall have a Writ ex parte talis Nat. br 129. F. 4. Hen. 6.18 A. pl. 3. Regist orig 137. b. But if Auditors be assigned by the Court and they do not allow reasonable allowances he shall not have this Writ but shall shew it to the Court and they shall make allowances Nat. br 129. F. 3 Edw. 3.56 pl. 30. If it be sued in London and Auditors be assigned by the Court which will not allow c. there this Writ lieth Nat. br 129. F. But note in Regist orig 137. b. is against it go Q. But if the Plaintiff assign Auditors there then such Writ lieth Nat. br 129. I. Regist orig 137. b. The Writ shall be returnable before the Treasurer and Barons of the Chequer at a day certain and a Scire facias in the Writ to warn the Plaintiff and Defendant to be there Nat. br 129. Regist orig 137. Account against a Receiver 1. in Law 2. in Deed. The Court where it is to be brought IN the County Court Regist orig 135. A. In London Regist orig 135. A. In the 5 Ports Regist orig 135. A. Before Justice of Peace per 2. Marlebridge cap. 8. Before Auditors per Westm 2. cap. 11. In the Com. Ban. Regist 135. Nat. br 117. E. Who shall have an Account against a Receiver Husband and Wise shall have an Account upon a Receipt dum sola fuit 22 Hen. 6.39 pl. 10. Executor shall have an Account but this is per Westm 2. cap. 23. Nat. br 117. C. 3 Ed. 3.66.7 Edw. 3.209.5 Edw. 3.141 pl. 7.11 Hen. 4.479 But one Executor shall not have an Account against his Companion 11 Hen. 4.79 pl. 20. for there is no privity betwixt them and they have interest in the goods of Testator in his right and not their own If one have Judgment against a Receiver and dies his Executors shall have a Scire facias 14 H. 4.1 If two Merchants occupy in Common and one die his Executors shall have an Account against the other Nat. br 117. D. for the two Merchants had several Interests An Executor of an Executor shall not have an Account but only by the Statute of 25 Edw. 3. cap. 5. Com. 190.17 Edw. 3.270 pl. 5. Filius haeres non habebit breve de Computo versus Receptorem quia pertinet ad executionem Administrationis bonorum defuncti Regist orig 135. B. and therefore it belongs to the Excecutor Guardians of a Church against their Predecessors 8 Edw. 4.6 P. 5. shall have an account in right of the Parish And per 2. Marlebridge cap. 8. they shall have an Account against a Baily or head Constable of an Hundred c. for amerciaments or not repairing High-ways Guardians and Parishioners shall have an Account against Constables and Churchwardens for Forfeitures of Alehouse-keepers in the same manner as for other things by the Common Law 1 Jac. cap. 9. Two Joynt-tenants of goods one of them delivers the goods to the other to render Account one shall have an Account against the other 43 Edw. 3.21.12
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
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
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
the other partyr Action lies 11 Hen. 6.18 pl. 10. Babinton 55 pl. 26. for then he is retained against me to my prejudice Against a Lord in Ancient demesn which 〈◊〉 not hold his Court To hold Court 11 Edw. 2. Action upon the â—â—j 46. lies for the Tenants may be prejudiced thereby Toll 1. Against a Millar that refuseth to grind Toâ— free for one that is Toll-free 43 Edw. 4.24 Crâ—â—â— 130. pl. 100 l. per Keble for this is appareâ— wrong to take my goods where I am exempâ—eâ— by the Law from being charged 2. Against him that bought or sold in 〈◊〉 Market or Fair without paying Toll 7 Hen. 4 4â— pl. 11. for this is my loss and to the ill exampleâ— others 3. But if one pass over my passage or poâ— where I have Toll and doth not pay it quâ—â— what remedy 21 Hen. 7.16 pl. 25. It seems 〈◊〉 Action on the Case doth lie if it be demanded For not doing of a thing which ought to be done by the Law to the damage of another concerning Chattels A borrowed a Horse of B Borrowed which died suddenly without his default Action lies not 40 Edw. 3.36 for this is the act of God and not the faulâ— of the borrower It lies not against an Attorney that will not do his office unless he be retained Attorney 20 Hen. 7.9 for he is but in the nature of a Servant and is not bound to be retained Against a Baily that hath money to bail my Attorney Bailment and doth it not 20 Hen. 6.9 B. Against my Servant because he pays not money for bailing and saving harmless 20 Hen. 6.9 for I may be damnified thereby S being a Dutchman Cocket his Parents being subjects to the King brought an Action against a Customer for not putting a Cocket upon his Merchandize and avers that he tender'd the Customes Coke Ch. Just said that insomuch that the Dutchmen here assembling are not of our Nation nor free of any company of Merchants that the Action lies not Pasch 14. Jac. Stephens his case Farrier Smith 1. Against a Smith that refuseth to shooe my Horse 14 Hen. 6.18 Crooke 18 Hen. 7.50 pl. 4. for this is for the publick good as well as private 2. But then he ought to have all necessaries and his wages tendered 2 Hen. 6.55 Q. for the wages are not due till the work is done 3. Against a Farrier that applies medicine and cures not my Horse But if no default be in him it lies not 19 Hen. 6.49 43 Edw. 3.33 48 Edw. 3.6 for he doth his best according to his skill Against an Innkeeper that will not lodge me Innkeeper 39 Hen. 6.18 Crooke 18 Hen. 7.50 pl. 4.14 Hen. 7.22 B. Higham for it is against the good of the weal publick Pledge 1. Against him that will not deliver my Pledge upon tender of the money borrowed Nat. br 86. C. Regist 91. B. Lib. Intra 8. B. Sect. 1. for the Pledge is judged to be more worth than the Money Servant 2. Against a Servant that will not do his service 2 Hen. 7.11 B. Q. for the Master is damnified thereby For his Wages is certain by the Statute and he hath his Action to recover it 3 Hen. 6.36 B. So note it must be a Covenant-Servant hired according to the Statute 3. Against one that will not serve not having Land Regist orig 101. A. B. for such are bound by the Law to serve 4. Against one that will not serve in Summer Regist orig 101. B. In time of Haryest it seems more especially For the not doing of a thing which ought to be done by the Law to the damage of another touching his Body Against an Innkeeper that refuseth to lodge me Innkeeper 39 Hen. 6.18 A good bar that his house was full Bar. and had no room 5 Mariae Dyer 158. pl. 32. for he is not bound to provide lodging out of his own house Against a Chirurgion that takes upon him a Chiturgion Cure and neglects it 48 Edw. 3.6 whereby the Cure is become impossible or is retarded Against a Victualler that refuseth to sell to me Victualler 39 Hen. 6.18 for his profession is for the publick and he ought to make no distinction of persons For not doing of a thing which ought to be done by the Law to the damage of another touching Suits in Law 1. It lies against an Attorney that is retained Attorney and makes default Lib. Intra 2. A. sect 1 Regist orig 113. A. if his Client be prejudiced by it Clerk of Assize Against a Clerk of Assize that takes a Fee and enters not the Jury 34 Hen. 6.4 for thereby the Cause is delayed by his nonfeasance Feoffee to use Against a Feoffee to use which doth not plead according to the directions of the Feoffor 14. Hen. 8.24 B. pl. 2. Q. for the pleading is for his advantage or disadvantage To hold Court Against a Lord of a Mannor that will not hold his Court 11 Edw. 2. Action upon the Case 46. for the Tenants of the Mannor are thereby prejudiced and the Lord is as well bound to hold his Courts duly as the Tenants are to do their services 1. Against a Sheriff that will not execute Process Sheriff 14 Hen. 7.23 the party being shewed to him 8 Edw. 4.14.17 for Justice is thereby delayed 2. For the Plaintiff against a Sheriff that will not return his Writ 2 Hen. 6.5 8 Edw. 4.14.7 for he is thereby hindred in his Suit 3. Against a Sheriff that will not return an Outlawry 42 Assize 12. for though it properly concerns the King yet the party may receive prejudice by not returning it 4. For delivering a distress upon a second deliverance and not returning the Writ 2 Edw. 3.43 for thereby the further proceedings of the Avowant are hindred Assumpsit For the not doing of a thing which ought to be done by the agreement of the party to the damage of another touching things hereditary Assumpsit Quid. Quotuplex ASsumpsit is either by word or deed Poll. If it be by Covenant it lies and needs not any consideration to be averred 2 Hen. 7.11 21 Hen. 6.55 for a Covenant supposeth a consideration because it is a solemn act If it be by word then it ought to be upon a consideration otherways it is but Nudum pactum unde non oritur actio for the other hath no wrong though the promise be not performed A Consideration is a cause or occasion meritorious Consideration Quid. Quotuplex requiring mutual recompence in deed or in Law in Deed expressed in words in Law not expressed but created by Law 16 Eliz. Dyer 336. B. pl. 34. The Consideration is either expressed in words or implied by Law in every Contract there is an Assumpsit or promise implied by Law Coke 4. part 94. Slades case If it be expressed it ought to
Law for they have a joynt trust and interest The Process in Covenant 1. Before appearance 2. After Covenant Personal 1. By the Common Law the Process before appearance was but a distress infinite 22 Hen. 6.13 Br. exigend 29. 48 Edw. 3.29 pl. 15. and no Capias 2. After appearance the parties appear and day is given over salvis partibus c. the Defendant makes default at the day a distress was awarded against him Lib. Intra 134. B. Sect. 1. and not a Capias Quia non fit breve de Attachiamento Covenant Real quia oporteat quod partes compareant personaliter in Curia Regist orig 165. A. and here was day given over salvis partibus which was no personal appearance The Bar in Covenant 1. Personal 2. Real 1. When a certain duty accrues by the Covenant at the time of the making of it Accord an Accord with satisfaction is no plea Coke 6. part 44. A. Blakes case for such an Accord cannot discharge the duty But a release may be pleaded in bar But where no certain duty accrues until the subsequent act or wrong there Accord with satisfaction is a good plea Coke 6. part 44. A. Blakes case for he may make satisfaction for the wrong by the agreement of the Covenantee Covenant to a Parson for the enjoying his Benefice and the Parson deserts the Cure is void if he deny it after such desertion 14 Eliz. cap. 11. Rastall Leases 244. D. 23 Eliz. Dyer 372. pl. 11. This is after the Parson is absent forty days in the year and not otherwise for that is a desertion in Law whereby he may be deprived A covenants to gather the Rents in D Disturbance and he pleads that he was interrupted by the Plaintiff and so could not do it this is a good bar Crooke 13. Hen. 7.34 pl. 2. for the Plaintiff shall not take advantage of his own wrong Lessee covenants to surrender before the term ends and a Stranger that hath right enters upon the Lessee this is a discharge because the Lessee is disabled by an act in Law Hill 41 Eliz. Com. Ban. Andrews versus Nedham 45 Edw. 3.48 Performance generally a good plea Performance 6 Hen. 4.8 pl. 34. In a Covenant upon a demise by Indenture and an eviction by a Stranger by a higher Title it is no Bar to traverse the possession of the Plaintiff without particular causes shewing how the other had title because it is by Indenture Trin. 3 Jac. Ban. Regis Stile versus Hearing which is a general estoppel without shewing of special matter to avoid it A covenants to make a good estate in Copy-hold land to B before Easter during the life of Cox it is no plea to say that it was surrendred to the Lord by his procurement to the use of C if he shews not that he was admitted for nothing vests in him to whose use it is till admittance Mich. 15 Jac. Ban. Regis Stiles versus Smith and so the Lord was not disabled to perform the Covenant Release is no Bar before the Covenant is broken Release viz. generally Coke 4. part 71. Hors case 5 Eliz. Dyer 217. pl. 2. Coke 1. part 99. A. Shelley◠case If it be not by express words Coke 5. part 71. A. 35 Hen. 8. Dyer 57. pl. 24. Bramly for so the Covenant may be released Judgment in Covenant 1. Personal 2. Real Judgment against an Executor for a Covenant broken after the death of the Testator is of the Testators goods 15 Eliz. Dyer 324. pl. 34. for he is in the Testators stead and trusted with his estate If a Lessee recovers being outed by the Lessor he shall recover his term viz. the remainder unexpired Nat. br 145. M. 47 Edw. 3.24 pl. 61. 20 Edw. 3. Judgment 177. and also Dammages Nat. br 145. M. Execution in Covenant 1. Personal 2. Real 1. Per Common Law 2. Per Statute Law By the Common Law it is but a Levari facias Personal Lib. Intra 133. D. sect 2. fieri facias Lib. Intra 138. A. sect 1. extending but to goods and Chattels But no other Execution Coke 3. part 12. A. Harberts case And this only within the year for if the year be past it was an Action of debt upon the Judgment Coke 3.12 A. Unless the Process were continued 33 Hen. 6.49 pl. 33. for the continuance of it made it as if no time were passed but continued a present Judgment By the Stat. by Westm 2. cap. 45. a Scire facias was given after the year Coke 3. part 12. A. to revive the Judgment and so the party is not now forced to bring an Action of debt upon it And per Westm 2. cap. 18. Elegit is given Coke 3. part 12. A. which extends to lands as well as goods By the Stat. of 23 Hen. 8. cap. 14. Capias ad exigend fuit given in Process and by consequence a Cap. ad satisfaciond in execution against the person By the Common Law it was but a Writ de fine facto 2. Real or to pay a fine as it seems which was but a Writ of Covenant in its nature 43 Edw. 3.12 B. Belknap Glanvil lib. 8. cap. 4. vide the Writ there But entry was congeable to execute it 8 Edw. 3.277 24 Edw. 3.40 pl. 49. Coke 7. part 32. and to hold till satisfaction made as it seems If Land be tailed to one by fine Fine he shall have a Formedon in Remainder 6 Edw. 3.185 pl. 9. Herle to execute the Fine But when the King levies a find he ought to make Letters Patents to the Conusee to enter Coke 7. part 32. for the King passeth nothing but by Record A Fine levied of an Advowson this may be executed by a Quare Impedit 24 Edw. 3.69 pl. 78. But if an usurpation be no Scire facias lies 33 Edw. 3. Quare Impedit 193. Knivet against the Usurper Fine levied of Services there shall be a per que servitio 29 Edw. 3.46 pl. 9. to execute the Fine If a Fine be levied of Rent there may be 〈◊〉 Writ of Covenant 22 Edw. 4.2 pl. 6. to execute the Fine Tenant grants to do his services there shall be but a Distress 10 Edw. 3.371 pl. 3. for that is the proper remedy to recover them and there needed no Covenant Tamen quaere Fine levied of a Reversion there shall be a quid juris clamat to execute this And if the Tenant alien yet the Writ shall be against him and his Assignee shall be bound by his Attornment 8 Hen. 6.17 B. 18 Hen. 6.3 B. pl. 2. by the Judgment given against the Assignor and himself Conusor of a Fine dies there shall be no quid juris clamat against him that claims but if the Conusee only die quaere if his Heir shall have the Writ 34 Hen. 6.7 B. Moyle against the party that hath the particular estate Fine levied before memory there shall be no Execution 1 Edw. 4.6 pl. 13.
cap 5. Gâ—kâ—â— part Grâ—gories case for those Courts are fine to interpret Statutes and not inferiour Courss Who shall have Debt If a Baily account for his Master Accountant and surplusage be found due to his Master he shall have debt for it Nat. br 121. I. the Count Lib. Intra 150. D. sect 1. quaere if it be not meant where the Baily accounts with his Master But a Receiver shall not Nat. br 121. I. 38 Hen. 6.5 pl. 14. Mich. 12 Jac. Ban. Regis Countess of Suffolke Floyde for the Law takes not so much notice of a Receiver as of a Baily Administrator shall not have debt until Administrator 31 Edw. 3. cap. 11. Nat. br 120. D. Coke 9. part 39. A. Hensloes case for the Common Law takes no notice of an Administrator 1. An Administrator ought to count that he which committed the Administration was the Ordinary of the place where the intestate died 31 Hen. 6.23 pl. 5. Com. 277. A. per Dyer If it be a particular Jurisdiction he must say cui administratio pertinuit 2. he ought to name the place where the Administration was to him committed 35 Hen. 6.31 pl. 39. Danby Moyle because it is traversable 3. He needs not name the Ordinary by his Christian name 7 Hen 4.10 pl. 18. for the place where makes it certain enough who it is But in a Writ de Colligend he shall be named Q. de ceo brief An Administrator shall have debt upon 1 Edw. 2. cap. 14. for money given to Chantery If the Ordinary release a debt to a Debtor of the Intestate and afterwards grants Administration to A yet A shall have debt against the Debtor for the Release is void in Law 18 Hen. 6.23 Coke 9. part 39. A. vide Crooke 127. pl. 90. for the Debt is not the Ordinaries Attorney shall have Debt for his Fees Attorney and Fees of Counsel and costs of Suits Nat. br 121. L. 21 Hen. 6.4 Quaere of Counsells Fees if not expended by his Clients direction If J. deliver money to bail over Bailor or to a Merchant to trade with for me or to be given is Alms or upon a condition to rebail if he break the trust J. shall have debt against him 28 Hen. 8. Dyer 22. pl. 135. 11 Hen. 6.39 pl. 3. 42 Edw. 3 9. pl. 7. Crooke 21 Hen. 7.69 pl. 2. per Froâ—icke for if the trust be not performed the money belongs to the Bailor A is bound to the Husband and Wife Husband the Husband alone shall have the Action 3 Hen. 6.37 pl. 35. 12 Rich. 2. bre 637. in his own name only if he will Or in both their names 39 Edw. 3.5 pl. 19. 43 Edw. 3.10 pl. 31. 3 Hen. 6.37 pl. 35. 12 Rich 2. bre 639. 16 Edw. 4.8 for the Husband may interest his Wife in the debt Husband and wife Husband and Wife assign Auditors to receive 〈◊〉 debt due to the Wife dum sola fuit and brought debt for the Arrearages in both their names and good because the wife was the cause of the Action 16 Edw. 4 8. pl. 4. because the debt was due to her dum sola Husband and wife lease for years Lands of the wife rendering Rent the Husband dies and the second Husband brought debt and good 28 Edw. 3.90 pl. 4. for the Law creates a privity in him A Woman leases at will rendering rent and takes a husband the Rent is behind they joyn in debt and good Coke 5. part 10. Hensteads case for the marriage shall not determine her will so as to extinguish the debt A Woman shall not have an Action against her husband although she is Executrix 8 Edw. 3. 330. pl. 48. for she cannot sue her self and the husband and wife are but one person in Law A is bound to the husband and wife and they are divorced causa prae-contractus and they brought debt in both their names No. Lib. Intra 121. sect 5. for the divorce makes the marriage void ab initio and so the obligation is void and therefore the Action not well brought as it seems B had a Rectory in right of his wife for years and they both joyned in debt upon the Statute of 2 Edw. 6. for not setting forth of Tithes Hill 39 Eliz. Ban. Regis Rot. 699. and good for the Action is grounded by reason of the wife Lease for years rendering Rent by the husband and wife husband may have debt in his own name 7 Edw. 4 5. pl. 16. for the Rent belongs to him The same Law is if the Reversion be assigned to the husband and wife although that the husband count as Assignee Trin. 12 Jac. Ban. Regis Wyats case Quaere whether in both cases the Action may not be brought in both their names Husband and wife sold the Land of the wife the husband alone shall have debt 48 Edw. 3.18 pl. 4. for the money belongs only to him Husband and wife recover dammages the husband alone shall have debt for them 16 Hen. 6. bre 939. for the husband shall have them A woman Tenant in dower of Rent takes a husband and dies the husband shall have debt for the Arrearages during the Coverture Nat br 121. C. 14 Hen. 6.26 A. 10 Hen. 6.11 22. Hen. 6.25 26 Edw. 3.64 for the Rent was due to him And by 32 Hen. 8. Ca. 37. the husband shall have debt for the Arrearages before the Coverture Coke 5. part 51. A. Ognels case else the Rent would be lost Annuity to the wife that takes a husband Arrearages incurr the wife dies the husband shall have debt because it is more than a thing in Action Hill 29. Eliz. Com. Ban. St. Legers for it is a duty incurred But if it be but for a thing in action before the Coverture as an Obligation the husband shall not have it Nat. br 121. C. 39. Hen. 6.26 pl. 38. because of the incertainty whether it were due to the wife or not But during the Coverture the husband may release it 17 Edw. 3.66 pl. 78. Hill for that passeth nothing but by way of extinguishment of his right if he have any Husband makes his wife Executrix which takes a husband and makes him Executor and dies the husband brought debt for the debt to the former husband and good 4 Hen. 6.31 for now it is become due to him as Executor of an Executor Clerk of the Peace It lies in the name of the Clerk of the Peace for the Hundred against the Village where default is made in Hue and Cry by the Statute of 27 Eliz. cap. 13. and reason because thereby the Hundred becomes liable to pay the money robbed Colledge in Oxon. A Colledge shall have debt for Commons of any Student Pasch 9 Jac. Ban. Regis Colledge of St. Johns in Oxford versus Brickeden Q. if the Student be of the Foundation Colledge of Physicians Colledge of Physicians for practising without License shall have debt upon the
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.
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
20 l. for the which execution was awarded absq hoc that the plaint and the execution was for the same 20 l. yet the Visne shall be in both Parishes because the issue is as well of the execution as of the plaint 5 Edw. 4.110 A vouches B who vouches C and after issue tried the former Vouchee viz. B. dies this shall not be pleaded in arrest of judgment against A but it is error if judgment be given 21 Hen. 7.80 pl. 1. Crooke but if A die it shall abate the Writ in facto ibidem because he is Defendant and so no judgment can be given In detinue against A he prays garnishment against B which comes and pleads and they are at issue A dies the Writ abates ibidem Bar in Error No bar to say that the former Writ depending Feofment the Plaintiff did infeoff another for he remains Tenant notwithstanding the Feoffment 21 Edw. 3.53 20 Assize 2. 12 Assize 41. Coke 1. part 111. Albanyes case because the Feoffment was made pendente lite In nullo est erratum In nullo est erratum a good Bar 28 Hen. 6.10 9 Edw. 4.32 15 Eliz. Dyer 321. pl. 21. For it destroys the very supposal of the Writ But note upon Error in Deed this is no plea. 7 Edw. 4.16 9 Edw. 4.32 3 Edw. 6. Dyer 65.2 Mariae Dyer 104. pl. 10. Lib. intra 288. D. sect 1.289 D. sect 1. No. Lib. intra 233. B. because that doth not appear upon the Record Release of Errors is a good Bar Release 20 Edw. 3. Error 2. Littleton 116 B. Coke 8. part 152. Althams case 6 Hen. 4.8 pl. 36. 5 Edw. 4.96 B. For the release of Errors makes the judgment good were it never so vicious But a release of Actions reals and personals it is no Bar in error of an Outlawry Coke S. part 152. Littleton 116. B. For the Outlawry concerns the Commonwealth which interest cannot be released by a private person If the Defendant be outlawed in Redisseisin a release of all demands is no Bar because the Original and the Judgment are the process upon the Outlawry 11 Hen. 4.6 The Release of the Vouchee shall bar the Tenant 17 Edw. 2. Error 90. for the Tenant recovers in value against him Release of Errors by Tenant in Tail is no bar to the issue although it be tried against the Tenant in Tail 3 Eliz. Dyer 188. pl. 9. For the issue in Tail is not bound by the judgment for the issues derives paramount the tenant in Tail viz. performam doni But if he in reversion in Tail disseises Tenant in Dower and suffers an erroneous Recovery and Tenant in Dower releases with warranty and dies this is a good Bar Coke 3. part 60 61. Lincolne Colledge case because the recovery cut off the entail A Release of one bars another when two are to recover a personal thing in respect of their joint-interest but when they are to dischage themselves it is otherwise Coke 6. part 25. Ruddocks case As where an Action is brought against two jointly to one thing it seems if one confess the Action this shall not bind the other If an Action be brought against two jointy and a judgment is thereupon had against them and one of them releaseth errors this shall not hinder the other to bring a Writ of Error because he is to be charged by the judgment The King brought Error Scisune it is no plea that his Ministers have seized the Land unless the King agree to it 39 Assize pl. 18. For the King shall not be bound by the Act of his Officers without his consent Yet Q. if it be done by an Officer of Record The Judgment in Error 1. For the Plaintiff 2. For the Defendant 3. For both In Error two things are to be done 1. To reverse the judgment 2. That the party be restored to all that he lost by reason of the judgment 9 Hen. 6.47 B. Martin Coke 5. part 39. B. Tayes case Q. Whether he shall be satisfied for all his dammages It seems he shall The judgment was that the Plaintiff should not be restored to the Land Assise with the mean profits 11 Hen. 4 93. pl. 49. Q. For a several Action lies for the mean profits And 8 Hen. 6.2 A. Rolfe that he shall recover the Land and the Issues of the Land that is the profits Information upon Intrusion The judgment was Quod judicium reversetur adunlletur quod Defendens de intrasione intrusione transgressione contemptu convincatur à possessione amoveatur capiatur c. quodque recordum mittatur in Scaccarium pro executione habenda c. Coke 1. part 40. A. Altonwoods case The Action and judgment were in the Exchequer In a Quare Impedit that former judgment should be void Quare impedit and the Plaintiff restored to all that he lost 18 19 Eliz. Dyer 353. pl. 30. Gardein recovers in a Quare Impedit in right of the Ward the Defendant at full age of the Ward brought error and a Scire facias against the Ward the Ward entitles himself by his ancient right and found for him 1. The judgment shall be reversed against the Gardein and yet the Defendant shall not be restored because he is barred by the plea of the Ward 9 Hen. 6.47 B. Newton The judgment was that the judgment shall be reversed Redisseisin and that the Plaintiff be restored to the Land and to the issues taken in the mean time 9 Hen. 4.6 pl. 19. that is to the mean profits of the Land taken pendente lite The judgment was upon an Utlawry in felony Utlawry that the Utlawry should be reversed and he restored at the common Law to all that he had lost by this cause 11 Hen. 4.53 pl. 32. 7 Hen. 4.40 B. And that he should be restored at the Common Law to that he had lost 3 Eliz. Dyer 196. pl. 39. viz. by reason of the Owtlawry Error by Executors of the Testators being utlawed was that the Utlawry be reversed and that they shall be restored to the goods of their Testator seized by reason of it 11 Hen. 4.65 pl. 22. It shall be Quod judicium redditum staret in omni robore per Coke Chief Justice Pasc 12. Jac. Ban. Regis Sir John Heydons case and yet 21 Edw. 4.44 A. was quod judicium redditum remanebit stabile in perpetuum nor the form is let judgment be affirmed Et ulterius concessum est quod praedictus A recuperet versus praefat This is the Judgment for dâ—mnâ—ges B. 10. l. eidem A. per Curiam Domini Regis hic adjudicat juxta formam Statuti inde nuper edit c. promisis costagiis dampnis suis quae sustinuit occasione dilatationis executionis praedict praetextu prosecutionis dicti brevis Domini Regis de errore c. Lib. intra 244. B. sect 8. 292. B By the Statute of 3 Hen 7. cap. 10. if error be sued before execution and afterwards be discontinued by default of the party that brings it or he be nonsuited or judgment affirmed the other shall recover his costs and dammages by the discretion of the Judges An Infant and another levie a Fine this may be reversed to the Infant by a Writ of Error but it shall be good against the other Coke 1. part 76. B. Bredons case No. Lib. intra 255. C. sect 11. For the Fine shall stand good as far as by Law it may But if the Husband and Wife levy a Fine of the Land of the Wife and they reverse it for Error they shall be restored forthwith because the Husband is joyned with his Wife but for conformity Coke 2. part 77. B. Cromwels case For the Estate passeth only from the Wife Though Execution be reversed the judgment is yet good Coke 5. part 32. Pettifers case and a new Execution may be taken out A Fine reversed for fault in the Proclamations only remains a good Fine at the common Law for the other is but a Discontinuance 4 Eliz. Dyer pl. 54. and is nothing to vitiate the Fine Execution in Error Lib. intra 307. C. sect 1. FINIS
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
the Crown or in any proceedings upon them Antea Statutes penal Or to the Writ Bill or Action Informations upon popular or penal Statutes 10. Law Judgment Error in Law by misprision of the Judges in the judgment entred in another term Coke 5. part 57. B. Specots case but in the same term it may because all that term the judgment is in the breast of the Judges Action upon the Case in Cur. Wallingford the judgment was quod defend capiatur this is Error being but an Action upon the case Trin. 9 Jac. Ban. Regis Northcot versus Heywood for the Judge ought to be defendens in misericordia for it is capiatur only where the Action is vi armis in respect of the fine to the King Concessum est pro Consideratum est Concessum est where it should be Consideratum est this is Error although there are 21. Presidents in my Lord Cokes Reports to the contrary for by Man Secondary the Books are false printed Mich. 8. Jac. Ban. Regis Rot. 641. and by Williams if it be videbitur Curiae this is erroneous for the Court is not to vary from their forms in such high matters as Judgment are If it be Capiatur against the Defendant in an Ejectione firmae Mich. 8 Jac. Ban. Regis Rot. 232. Dolby versus Holbrook it is error for it should be ideo in misericordia JurisdictioÌ„ of Court It is ordained per 27 Eliz. cap. 8. that if Error be brought in the Chequer upon a judgment in Ban. Regis they shall not assign it in the Jurisdiction of the Court or in form of the Writ Return Plaint Bill Declaration Pleading Process Verdict or Proceedings but only insist upon the matter in Law And also there is a Proviso that it shall be in Debt Detinue Account Covenant Ejectione firmae Traverse Action upon the Case and not in other Actions of a higher nature In process The party cannot shew Error in Process in delay of the Defendant unless he shew that it is for his disadvantage and that he is injured thereby 7 Edw. 3.25 Coke 8. part 59. A. Beechers case Nothing that is done contrary to the Office of a Judge shall be assigned for Error Judge Nat. br 21. B. 7 Hen. 7.4 for their Authority shall not be questioned this way Granting of Aid where it should not be is not Error so of Receipt 7 Edw. 4.12 21 Edw. 4.65 B. 5 Hen. 7.8 8 Hen. 7.9 11. 14 Hen. 6.5 pl. 25. but if it be denied where it ought to be granted it is Error for none is prejudiced by the former but by the latter the Defendant is prejudiced So of Garnishment 14 Edw. 4.1 pl. 3. So of making of an Attorney Nat. br 22. D. 21 Edw. 4.77 But denial of Aid or Receipt Visne where it ought to be is Error Edw. 4.65 B. 5 Hen. 7.8 8 Hen. 7.9 vid. antea When the Visne is mistaken Visne it is error for there is no right trial In Replevin Replevin the Defendant prescribes to have all the Pasture of such a place in W. except Common for the Inhabitants of D. and the Prescription being traversed the Jury was of the Visne of W. only and this was ruled good in Error brought because the words of exception to the Inhabitants of D. was void therefore this was not put in issue Trin. 11 Jac. Ban. Regis Wicker versus Stockeman and so nothing in Dale was put in issue In waste In Waste brought the Issue was for certain Oaks cut for repairing of the Castle of Burrum the Visne was of the Village of Burrum where it should have been of the Castle of Burrum this is Erâ—or Hill 12 Jac. Com. Ban. the Countess of Cumberlands case for a Castle and a Village are two different places Trover Conversion Trover and Conversion brought in Coventry upon not guilty pleaded the Visne was De Vicineto Civitatis Coventriae and this shewed in arrest of judgment sed non allocatur and error upon in brought and it seems that by Williams and Yelverton Justices that it is error for it should be of Coventry for Vicinetum is of the Neighborhood of Coventry and excludes the City and the Sheriff of the Country ought to make it out 7 Hen. 6.36 B. 4 Edw. 4.39 7 Hen. 4.12.80 Inquest 36. Quare tamen for the Court did advise about bringing of a new Action and did not determine the Question Pasch 9. Jac. Ban. Regis Procter versus Clifton Trespass for lopping of Wood in Hurslay Trespass the Defendant pleads that the place is parcel of the Mannor of Mamden in the Parish of Hurslay and the Custom is that the Copy-holder may cut c. and found for the Plaintiff and the Visne was of Hurslay and it was moved that it was not good for the Parish is not certain because it may comprehend more Villages but it was good per Curiam because Hurslay shall be taken to be a Village and Parish and shall not be intended that there are more Villages in one Parish except it be shewed 5 Edw. 3.20 Mich. 9. Jac. Ban. Regis Brocke versus Spencer Condition to pay money Hill 9. Jac. Ban. Regis Savil Cavendish Condition to pay money in the Church porch of the Parish of H. and pleads performance the Visne was of H. and yet good for as it seems the Village and Parish shall be intended all one and the Parish shall not be intended to comprehend more Villages Debt upon an Obligation to perform Covenants Obligation and declares of the breaking of the Condition because a stranger recovered the Land at Westminster upon a good title where the Land lies in Com. Berks the Defendant said that it was by Covin without this that it was upon a good Title the Plaintiff said that it was upon a good Title the Visne shall be of the County of Berks where the Issue is joined upon the good Title and where the Land lies but contrary if the issue be joined upon the Covin for that is alledged at Westminster but it was said if it were a personal Action it shall be where the Recovery is alledged Mich. 9. Jac. Ban. Regis Hansaker versus Kirby Ejectione firmae of Land in S T the Defendant pleads a Feoffment of the Land by Deed at S. the Plaintiff said non feoffavit Ejectment c. the Visne was of S. and T. and good for the alledging of the Feoffment at S is idle for it cannot be but upon the Land which is alledged to be in S. and T. Mich. 9. Jac. Ban. Regis and so the Venue is rightly laid there Debt for 20 l. the Defendant pleads that at another time the Plaintiff sued him in London Debt in such a Parish for the same debt and shews the Record certain c. and that he had execution in another Parish c. the Plaintiff said that it was in debt for another