Whelpsdales case 11 Hen. 7.15 for non est factum is a plea to destroy the deed and to make it absolutely void and not ad libitum When an obligation is once good and after and before the plea becomes void non est factum may be pleaded Coke 5. part 119. A B. Whelpsdales case for the Plea was true at the time of the pleading of it which sufficeth to make the Plea good When 3 are bound separatim and the Seal of one is broken the other cannot plead non est factum because they are several Obligations Coke 5. part A. Mathewsons case otherwise it is where they are joyntly bound But it is not so when 3 are bound without any more Coke 11. part 28. B. Pigots case 3 Hen. 7.5 Coke 5. part 23. A. for there they shall be intended to be joyntly bound But if two be bound in debt against one only it cannot be pleaded Coke 5. part 119. A. Whelpsdales case for it is the debt of both of them A Recovery in an inferiour Court of Record with Execution a good barr Recovery Coke 6. part 45. B. Higgins case but not if it be not in a Court of Record or if there be no Execution But without Execution not Coke 6. part 45. A. for that is all one as if there were no Recovery had and so there is no satisfaction A Recovery is a good barr so long as it is in force viz. if it be in one of the Courts at Westminster Coke 3. part 44 B. Higgins case Release a good barr Release A Release destroys the duty and consequently the remedy to recover it Two bound to B who makes the wife of one of them his Executrix and devises his goods to her this is a good release of the debt for the debt is part of his goods for if the obligee make the wife of the Obligor his Executrix this is a Release in Law to the husband because the Obligation is suspended pro tempore by the act of the party himself Trin. 12 Jao Com. Ban. Fryer versus Gildridg for the wife cannot sue the husband to recover the debt A Release of all advantages in account a good barr in debt upon an account 9 Edw. 4.49 Coke 8. part 152. A. Althams case for Arrearages are advantages arising upon the account A is bound to B to the use of C the release of C is a good barr 36 Hen. 8. br Obligation 27. because the Obligation was for the benefit of C and so upon the matter he was bound to C. The Defendant said that the agreement was for the obtaining a Benefice Simony this is nought 1. Because the Statute makes the contract void because Simoniacal 2. It cannot be averred out of it being a matter dehors and not appearing Mich. 40 41 Eliz. Com. Ban. Gregorie versus Olden The Defendant pleads that the Obligee accepted of a Statute for the Obligation after the day of payment Statute this is no barr because the Obligation is in force notwithstanding the acceptance for ought appears to the contrary Coke 6. part 44. B. Higgins case The condition of a Counter-bond was to save the Surety harmless it is no plea that the former Bond was usurious Statute-Law because the Counter-bond was not for payment of money but to save harmless Mich. 40 41 Eliz. Com. Ban. Dowman versus Button and so it matters not to him upon what consideration the former Bond was entred into The Judgment in Debt Against an Executor The Judgment Lib. intra 173. B. sect 1. Arrerages of account the Executor pleads no such account or nothing in arrear or outlary in the Plaintiff and it is found against him the Judgment shall be de bonis Testatoris 34 Hen. 6.22 A. Danby and not de bonis propriis for here is no devastavit Q. A Covenant broken after the death of the Testator the Judgment shall be de bonis Testatoris 15 Eliz. Dyer 324. pl. 34. For the Covenant concerns him only as Executor Nothing in Arrear in Debt for rent due in vita Testatoris or no such Lease the Judgment shall be de bonis Testatoris 34 Hen. 6.22 A. Danby For such pleas an Executor may plead An Acquittance or a Release pleaded and found against him if it be pleaded made to the Executor the Judgment shall be general 11 Hen. 6.8 A. Danby 34 Hen. 6.24 A. Prisot Quod recuperet de bonis propriis Non Assumpsit of the Testator to pay the debt the Judgment is of costs and dammages of suit de bonis propriis if the Testator had not sufficient No. Lib. intra 1. B. sect 1. for putting the Plaintiff to a needless suit which it is likely the Testator would not have done The Executor found in a Chest a Grant of the next avoidance of an advowson made to the Testator and presentation thereupon in a Recovely in a quare impedit against him the Judgment shall be of his proper Goods 34 Hen. 6.22 B. Prisot For he shall not prejudice the Testators Estate by his own wrong Co-executor pleads and found against him the Judgment shall be de bonis Testatoris 9 Hen. 6.44 11 Hen. 6.7 34 Hen. 6.32 A. as well as where both are sued for one Executor may answer if he please Confession of the Action by the Executor where he ought not to have done it the Judgment shall be general against him viz. de bonis propriis because he ought to have pleaded that he had not more than 20 s. and against the other Executor it shall be de bonis Testatoris 14 Hen. 4.12 pl. 1. Hull for he is in no fault and shall not therefore be punished for his companions ill pleading And by 33 Hen. 6.2 it shall be of the goods of the Testator if the Executor hath none for the dammages of the goods of the Executor that confesses the action because the Plaintiff may otherwise lose his dammages But 4 Eliz. Dyer 210. pl. 23. it shall be but de bonis Testatoris in both cases 28 Hen. 6.3 pl. 13. 40 Edw. 3.2.7 pl. 3. Q. Ergo. So in a rationabili parte bonorum upon confession of one Executor 28 Hen. 6.4 pl. 20. 33 Hen. 6.24 pl. 1. Ne unques Executor found against him shal be general 11 Hen. 4.5 11 Hen. 6.8 A. Danby de bonis propriis for his false plea for his falshood shall not prejudice the Testators Estate if he can make satisfaction But the Judgment shall be de bonis Testatoris 〈◊〉 c. and if not de bonis propriis 9 Hen. 7.15 pl. 1. 2 Edw. 4.4 33 Hen. 6.23 11 Hen. 6.10 B. Q. One pleads ne unques Executor the other plenè administravit all but 40 s. and found against the former and Judgment given that there should be recovered against both as much as there was in their hands and the residue against the other 11 Hen. 6.37 B. Paston 46 Edw. 3.9 B. for his false plea and it shall
be intended that he hath assets else he would have pleaded so and not a shifting plea. One dies intestate and Administration is committed to D by the Ordinary and the Defendant pleads that he comes as servant to D. to administer absque hoc that he did administer in any other manner this is no plea because he did not shew that it was the Ordinary of the place and Judgment de bonis Testatoris 31 Hen. 6.13 pl. 5. as he ought because it is traversable This is an unskilful and not a false plea therefore the Judgment shall not be de bonis propriis 17 Edw. 3.20 pl. 58. where one Executor pleaded non factum and found against him there the Judgment was against him of the goods of his own as well as of the goods of the Testator and against the other of the goods that he had at the day of the Writ vide 17 Edw. 3.20 pl. 1. stat 9 Edw. 3. cap. 3. statute 1.17 Edw. 3.46 pl. 3. because by the Deed the Testators Estate is chargeable and by the false plea his own In Plenè administravit pleaded the Judgment was for so much of the principal debt as they had and for the dammages de bonis Testatoris si c. if there were sufficient and if not then for dammages de bonis propriis and for the residue as much as they had Coke 8. part 134. Shipleys case 34 Hen. 6.32 B. Prisot com 440. B. Pepyes case vide 17 Edw. 3.66 pl. 83. 46 Edw. 3.9 pl. 6. Judgment special for the debt Upon such a plea of the Defendant the Plaintiff may pray execution forthwith because it is a confession of the debt but no execution shall issue until the Defendant hath goods of the Testators Coke 8. part Shipleys case vide 21 Hen. 6.40 But if it be found for the Plantiff no scire facias lies against them 4 Hen. 6.4 pl. 8. Q. Unless he prays Judgment upon the plea. But yet 33 Hen. 6.24 pl. 1. is That a scire facias lies yet Coke 8. part 53. A. Syms his 04 case that if it be for Land he shall not have a scire facias because there is no Record upon which it may be founded Q. Against an heir In debt if the heir confess the Action for as much as did descend then there shall be a special Judgment against him of so much as did descend Com. 440. A. Pepyes case 22 Eliz. Dyer 373. pl. 4. the Judgment Lib. intra 172. D. and he shall be charged for no more But if he plead any other plea and it be found against him the Judgment shall be general Com. 440. Pepyes case for the whole for his false plea. So if he confess the Action and shew as much as descends if it appear to the Court that the profits of the Land from the time of the descent until the time of the execution are sufficient for the debt the Judgment shall be general else not per Dyer 18 Eliz. Dyer 344. pl. 1. Execution in debt 1. For the Plaintiff 2. For the Defendant 3. Of what Lands 4. Of what Goods At the Common Law it was but a fieri facias Coke 3. part 12. or a levari facias Coke 3. part 12. A. and this is of Chattels and Profits of Lands and Rents com 441. A. Pepyes case And this only within the year for if the year were past the party was put to his action of debt upon the Indictment Coke 3. part 12. A. Herberts case unless the process be continued 33 Hen. 6.49 pl. 33. For if it be continued then is the cause still fresh before them otherwise the Court will take no notice of it But for a recovery against an heir then it was but a Liberate of the Land Com. 441. A. Pepyes case Lib. Intra 172. D. 173. A. 3 Edw. 3. Execution 107. For the heir is only bound in respect of the Lands descended to him But by Westm 2. cap. 45 a Scire facias was given after the year and per Westm 2. cap. 18. an Elegit was given Coke 3. part 12. A. If a man have an Elegit filed on Record and there be a Nichil returned he shall never have any other Execution 19 Hen. 6.4 5 Edw. 4.41 15 Hen. 7.15 Fairfax for it is the last and highest Execution and the Court cannot descend à majore ad minorem executionem But if it be not filed it is otherwise And by the Stat. of 25 Edw. 3. cap. 17. a Capias was given in debt and per consequence a Capias ad satisfaciendum in execution of a Judgment in debt Coke 3. part 12. A. Harberts case Foâ— it is reason an Execution may be of as high a nature as the mean process in the Action was and 〈◊〉 the same nature Mich. 41 42 Eliz. com Ban. if the Plaintifâ— die after Execution yet the Sheriff may levy 〈◊〉 and if there be no Executor or Administrator the Moneys shall remain in Court until Administration Q. whether the Ordinary may not haâ—â— it But if the Defendant die before Execution there the Sheriff cannot make Execution 〈◊〉 the words of the Writ are That it shall be levied of the Goods of the Defendant Thoroughguâ—â— case Q if it may not be against the Executor because the Testators Goods in their hands may be said to be the Defendants Goods Upon a non est inventus returned of the Principal upon a Capias upon a Judgment in com Ban. the party shall have Execution against the Baâ—â— because the debt being by Original is certain 〈◊〉 it is mentioned particularly in the Writ and there the Lands of the Bail which they had 〈◊〉 the day of the taking the recognizance shall be liable but quaere in ban Regis if more Lands aâ—â— liable than they had the day of the Judgment because the debt is uncertain Mich. 15. Jac. Ban Regis Baskervile Brocket special verdict The Defendant for Dammages and Costs shall have the same execution as the Plantiff should have had if he had recovered against the Defendant per 23 Hen. 8. cap. 15. Viz. Of the Lands which he had at the 〈◊〉 of the Judgment and not before Coke 8. paâ—â— 171. Fleetwoods case 42 Edw. 3.11 pl. 13. â— Edw. 193. pl. 14. But if the Judgment be the last day of the Term the Lands which he had the first day of the Term are liable because all the Term is but one day in Law 42 Assiz 17. as to the Judgment for a Judgment given the last day is a Judgment of the first day If two Joint-Tenants are for life and one of them and against whom the Judgment is given dies before execution this shall not be put in execution 13 Hen. 7.22 A. viz. against the other because he was not party Land in ancient demesne shall be put in execution Coke 5. part 105. A. Aldens case Hill 11. Jac. Com. Ban. Rot. 2541. Cox Barnesly upon a Judgment in debt given at
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
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
Market 11 Hen. 4.47 41 Edw. 3.24 29 Edw. 3.18 9 Hen. 6.45 Nat. br 91. G. 2 Edw. 3.32 pl. 9. For it is as well a private injury to them as it is a prejudice to the Commonwealth 3. For disturbing me to hold a Fair or Market 16 Edw. 2. Action sur case 47. for it hinders my profit And the Writ was that it held three days and the Count two days and two half days and good for it is all one in substance 4. For disturbing me to take Toll in a Fair or Market 9 Hen. 6.45 21 Hen. 7.16 quaere for it seems Trespass lies 5. For selling in another place out of the Fair Regist orig 107. A B. for thereby the Fair and the profit is lessened 1. When the Tenant for life or years burns the Deed to him delivered of remainder Deeds 9 Edw. 4.53 viz. by the remainder in Ann. 2. When a Deed is lost 34 Hen. 6.4 viz. by negligence for the Law punisheth negligence whereby another is damnified 3. When the Seal is broken off 39 Hen. 6.46 Lib. Intra 7. B. Sect. 1 3. either wilfully or negligently 4. For Deeds sold with the Land and not delivered upon request Lib. Intra 5. A. Sect. 2. for the agreement is not performed which the Law creat s. 5. For forging a Statute Staple or Merchant Nat. br 96. B. 17 Edw. 3.49 Regist orig 115. A B. to recompence the party wronged though the party may also be indicted for it 6. For forging of a Release by which I lose my Ward 39 Edw. 3.13 False Return 1. For returning me summoned and thereby Judgment is given by default against me where I never was summoned but this was after the death of the Summoners 8 Hen. 6.1 6 Edw. 4.3.8 26 Assize 48. 2. For returning a Nichil where I had lands Nat. br 93. b. 31 Edw. 3. Process 55. for I am thereby disparaged 1. For setting up a new Ferry to the Nusance of my Ferry Ferry 22 Hen. 6.14 and so my damage 2. For threatning me or Passengers by which I lose the profits of my Ferry 22 Hen. 6.17 pl. 32. For disturbing my Foldage Foldage No. Lib. Intr. 14. D. Sect. 12. for by the Foldage my land is made better For disturbing one to have certain walks in the Forrest of Selwood Forrest Coke 5. part 76. the Countess of Pembrokes case for his profit is thereby hindred For erecting a Warren or Dove-house this Action lies not although it be to the Nusance of another Warren Coke 5. part 104. B. Boulstons case for they are casual and uncertain profits For executing Process in my Liberty Liberty Nat. br 95. B. Regist orig 103 104. 5 Edw. 3.150 pl. 20. for my priviledge is thereby abridged 1. For hindring my light by making a Wood pile Coke 9 part 57. B. Alreds case le Count there House and 58. No. Lib. Intra 19. B. sect 16. 7 Edw. 3.261 pl. 15. Q. if I make it upon my own ground and for my own private use 2. For infecting the Air of my Parlour with an Hogs-skin Coke ibidem for thereby my health is endangered which is more to be valued than wealth 3. With a Dyehouse Coke ibid. for they use many offensive Drugs Michaelis 9 Jac. Ban. Regis Ward versus Cheshire The Plaintiff counts that he is seized in fee of a Kitchin in parochia sancti Dunstani in London and prescribes to have Windows into the Backside of the Defendant and for his stopping up of maximam partem c. port To action and upon Not guilty pleaded it was found pro quer and moved in arrest of Judgment 1. He did not shew that the Kitchin was ancient but it was resolved that it was implyed in the Prescription but by Williams this was not material but Crook è contra by the custome of the City it may be stopped if not ancient Q. 2. For that the quantity was not shewed but resolved it need not be Coke 4. part 49. Com. 249. 3. Neither shews he the Parish in which the Backside is sed non allocatur because the stopping of the light is the material point and it was shewed where that was and the Plaintiff had judgment Nota que C. Ley a cest jour Hill 9. Jac. Ban. Regis Hughes Keme A had an ancient house in London B builds a new one which stops the light of A per Curiam 1. That a man cannot by the custome of London erect a new house where there was not one before to stop the Lights of the ancient house 2. Upon an ancient Foundation a man may erect a new house and stop the ancient Lights of his Neighbour for by the same reason that his Neighbour erected his house more high may the other at any time erect his but he cannot enlarge his in breadth or length to stop the Lights of his Neighbour vide 22 H. 6.15 Q. For removing a Plaint out of my Mannor without cause Mannor 27 Hen. 6.4 for thereby the profits of my Court are lessened For taking an estray within my Mannor or Liberty 13 Edw. 3. breve 674. 31 Edw. 3. breve 333. but ibidem it lies not before seisure of the stray for before the Lord was not intituled unto it For removing a Meerstone though one of them be Tenant in Common Meer-stone 1 Hen. 5.1 Lib. Intra 9. C. sect 1. for thereby part of the Land may be endangered to be lost and Suits may thereby arise touching the extent of the Lands 1. For disturbing my Customers to come to my Mill Mill. 11 Hen. 4.47 41 Edw. 3.24 29 Edw. 3.18 9 Hen. 6.45 for thereby my Toll is lessened 2. For erecting a new Mill Lib. Intra 9. B. Sect. 2 D. sect 1. Q. if it be not to the hindrance of an ancient Mill. 1. For disturbing to take seisure of an Office Office 6 Edw. 3.9 for till seisure he cannot receive the profits thereof 2. For disturbing the Steward to hold Court Lib. Intra 5. B. Sect. 1. Q. whether it may be brought by the Lord and the Steward also It seems it may for both may be damnified 3. For disturbing to take the profits which belong to the office 9 Rich. 2. Action sur case 5. for there is apparent dammage 4. Against an Escheator that returns contrary to that which was found by office 9 Hen. 6.60 for by the false return the party concerned may be damnified 5. If he make a return where no office was found 21 Edw. 4.23 27. for he is not a Judge but Officer 9 Hen. 6.60 viz. to return the Enquest found by the Jury and not to judge of himself how the Lands were held 6. For procuring a false Office to be found by which my Land is seised 47 Edw. 3.15 Kitcbin 175. A. for my Inheritance is thereby made worse by reason of the tenure This is now otherwise For erecting of a Dyhouse which
Capper Dickinson per Coke Chief Justice Against a Goaler that promises to the Sheriff to keep safe his Prisoners and lets them escape Goaler Regist 110. A B. for the Sheriff is answerable for the safe custody of the Prisoners within his County Against him that warrants for 10 l. that my Boat shall come safe upon the Thames Warranty 34 Hen. 8. br Action upon the Case 107. and it doth not for there ought to be quid pro que A Leases to B rendering Rent Lessor and paying all out-Rents and making reparations the Lessor in consideration of this promises defendere sustentare statum possessionem of the Lessee quiete pacifice absque interruptione 1. here is a good consideration 2. the said Clause amounts to so much as if he had said that the Lessee shall quietly enjoy his Term Mich. 7 Jac. B. R. Gamble Terrell Marriage money 1. Against him that promises in Marriage 10 l. if he marry his daughter No. Lib. Intr. 2. B. sect 2 4. B. sect 1. Doct. Stud. 104. A. 16 Hen. 3. Prohibition 22. for the Marriage is a good consideration 2. A being to marry B C living with A. says to B if she should marry A and his Father do not make such a Joynter to her he would give her a 100 l. B marries A the Joynture is not made A and B shall have an Action against C for peradventure the marriage had not taken effect but in regard of the promise of C Mich. 29 of Eliz. Ban. Regis 3. A promises to B 100 l. in consideration that B marrie his Daughter this is a good consideration insomuch that the advancement continues being even as in Frank-marriage after the marriage is good Trin. 29 Eliz. Ban. Regis Marche Rayneforde 4. A promises to B that whereas his Son was a Suiter to his Daughter if B would give his assent A would give to B 50 l. This is a good consideration 1. because the Daughter ought to have the consent of her Parents 2. because the Son of A was to have advancement by the marriage Trin. 12 Jac. Com. Ban. Greicely Louther Q. whether a man shall be intended to be advanced by marriage except it be shewn 5. A promises 50 l. to C if he marries B. In an Action upon the case for the 50 l. he is not bound to shew that he did give notice of the marriage neither to make request Mich. 7 Jac. Ban. Regis Brently Tod for A might as well take notice of the marriage as B and the bringing of the Action is a request in Law 6. A having speech with El. Stukely about marriage with her promiseth to M. the Daughter of the said Eliz. that if she marry him without disposing of her estate he will give to M in marriage 40 l. and in an Action brought upon this insomuch that she did not averr in his count that she had not disposed of her estate it was not good Mich. 15 Jac. Ban. Regis Kings case for that was the sole consideration Obtains a Lease Against him that promises to obtain a Lease for me for 10 l. and gets it for himself 3 Hen. 7.14 Quaere whether an Action of Deceit doth not lie A in consideration of divers sums received of divers persons to the use of the Plaintiff amounting to 24 l. assumes to pay this Payment and adjudged a good count though he doth not shew of whom he received the sums because this is not traversable for it is a consideration executed Trin. 14 Eliz. Ban. Regis Beckingham Lambert for the Account is confessed by the promise to pay Counts that upon an in simul computasset the Defendant was indebted to him in 20 l. and promised to pay it c. Crook Justice said it was a good consideration and Doderidge said that in every Action of debt an Action of the case is implied and when it appears how the debt grew due then it is a good Assumpsit Trin. 14 Jac. Ban. Regis Cullimore and Eynison Against him that takes upon him to plant Thorns and doth not do it Planting Lib. Intr. 13. C. sect 1. for the planting may be for my benefit Save harmless 1. My Servant being in prison I request his enlargement and promise to save A harmless an Action lies if I do it not but without request not 10 Eliz. Dyer 272. pl. 31. 2. If one become Bail for the Servant and after the Master promise to save him harmless an Action lies not for here is no consideration continuing Quaere if he continue his Servant 3. A being Bail for B in Ban. Regis B promise to save him harmless yet A shall not have aâ— Action against B although he pay the money iâ— no Capias be awarded against the Principal 〈◊〉 Scire facias against the Bail Trin. 7 Jac. Ban. Regis Bolles Jones error upon Judgment in Com. Buâ— for here is no due proceedings in Law against either 4. A being indebted to B prays C to be bound to B for the debt and he will be bound to C C is bound to B c. A refuseth to be bound to C C shall have an Action against A for it is a gooâ— consideration insomuch that C is liable to the dâ—â— Mich. 9 Jac. Ban. Regis Knyvet Pledall and it 〈◊〉 reason A should secure him 5. A promises to B to discharge him and sâ—â— him harmless from all bonds in which he wâ—â—â— bound for the Son of A at the request of the sâ—â—â— Son B. brought his Action and shews that he 〈◊〉 fidei jussor was bound 1. It is a good consideration 2. He ought to shew precisely that his Sâ—â—â— requested him to be bound for although fidei juâ—â—â— imply a request yet it is not sufficient Pasch 9 Jac. Ban. Regis Somerston Bâ—rnby postea Mich. 〈◊〉 Jac. it is shewed that it was alledged and for thâ— judgment was given for the Plaintiff Lib. Intr. 〈◊〉 C. Sect. 1. 6. An Infant borrows money Infant B is bound 〈◊〉 pay it at full age the Infant promises to save his harmless Action lies upon it for although thâ— Infant was not liable in Law yet in Conscience 〈◊〉 was and this sufficeth to maintain an Action upoâ— the Case which is an equitable Action for the consideration is good Trin. 29 Eliz. Ban. Regis adjudged A Widow promiseth for following her Suits to pay 200 l. this is not good Sollicitor for it is maintenance per 2. Justices but Dyer against them because it did not appear that they were Suits in Law 19. Eliz Dyer 356. and they may be Suits in equity or at the Court. A promises 10 l. to B Sufferance if he suffer C to enjoy the Landâ— there although C enjoy it not yet if A agree and do not interrupt C the Action lies Pasch 15 Jac. Ban. Regis Taylor Wilks for he hath performed the
consideration on his part A being a Copyholder makes B his Executor and intends to surrender to the intent that B should satisfie a debt to D the Son of A promises A that if he do not surrender but suffer the Land to descend he will satisfie the debt A dies B shall have an Action against the Son for it is a good consideration Hill 9 Jac. Ban. Regis Gray versus Gray yet continuing Tabling Lodging A promises to pay to B for his reasonable board for such a time as he shall be with him B shews that he was with him ten months and that 5 s. the month is reasonable amounting in all to 50 s. this is good Pasch 30 Eliz. Ban. Begis Floyd Irish A being sick in an Inne B promises to pay as much as shall be due for all necessaries that the Inn-keeper shall provide for A yet in the Action the Inn-keeper shall say generally in the Writ and Count that he did provide necessaries from such a day until c. in all to the value of 20 l. forasmuch as the promise was general the Writ and Count is good though it be not particular 2. It is inconvenient and dangerous to shew all things that he did provide c. the same Law is for Physician per Doderidge Justice Pasch 13 Jac. Ban. Regis Crips Baynton for he may not remember all particulars and so may mistake 1. For money upon the sale of any personal things Vendor 33 Hen. 8 br Action upon the Case 105 110. 2 Rich. 3.14 Com. 102. upon an indebitatus assumpsit for the Law creates a promise For in every Contract there is an assumpsit implied Coke 4. part 94. Slades case the Count needs not shew but saepius requifitus Pasch 28 Elis. Com. Ban. Q. 2. In an Action for money upon the sale of a thing he needs not count that he was possest ut de bonis propriis Trin. 7 Jac. Ban. Regis Fitz Williâ—â— Blackman viz. before the sale for the Law implies they were his else he would not have sold them 3. Against a Purveyor or Servant that bought goods for his Master and promises payment Dyer 230. pl. 56. 12 Hen. 8.12 Q. if it lies not also against the Master 4. Against him that promises to a Baker to pay so much as he shall deliver in Bread to B 29 Hen. 8.25 for it may be intended he gave B the Bread 5. Upon a promise to pay for Cloth bought iâ— B doth not 12 Hen. 8.12 for there he becomes iâ— the nature of a Surety for the payment for it 6. A brought an action and shews that he sold a Horse to B at such a day year and place to be payed at a day to come and the Defendant ad tunc ibidem ratione praemissorum assumes to pay if c. B did not this is nought for the Contract and the giving of day to B ne fuit ad instantiam of the Defendant but the Contract was compleat before Pasch 28 Jac. Ban. Regis Farmer Field without any relation to the Defendant and his promises ex post facto and grounded upon no consideration 7. A promises to pay to B such sums of money as B shall disburse of his own money for Cloth to the use of A the Defendant this is a good consideration for by the buying of the Cloth the property was in A forthwith Trin. 9 Jac. Ban. Regis Moore Moore for it was bought for him 8. A sold to B two ways of Barley for as much as he sold to others the Plaintiff in the Action ought to count 1. For what price he sold to others 2. he ought to give notice of this to B. So if A promise to B 20 l. if he marry C yet B ought to give notice of the marriage but a Tayler may have an Action for as much as he shall deserve and is not bound to give notice what he shall deserve because it is not incertain Hill 13 Jac. Ban. Regis Hall Heminge Q. for he must demand a certain sum and this is notice 1. Against a Seller of Corn to be delivered at a certain day and doth not Vendee 21 Hen. 6.55 20 Hen. 7.9.28 Hen 8. Dyer 22. pl. 138. fol. 113. pl. 55. Coke 4. part Slades case 94. B. Quaere it no damage appear 2. For delivering good and merchantable Corn and doth not 6 Edw. 2.6 Dyer 75. pl. 23. Lib. Intra 4. B. sect 2. but special dammage must be alledged The Judgment For not delivering of grain yearly quaere if the Plaintiff shall recover dammage as well pro tempore futuro quam pro praeterito 3 Mariae Dyer 113. pl. 56. Administratrix promises to pay a debt c. and the Action is brought against Baron and Feme then the judgment against him shall be general praedictus P. M. uxor ejus in misericordis Coke 9. part 93. Banies case No. Lib. Intra 2. C. Sect. 3. But upon plea that the Testator did not assume costs and dammages shall be de bonis propriis if the Testator had not sufficiâ—nt No. Lib. Intra 1. B. sect 1. for the false plea. The Writ Upon assumpsit by the Husband and Wife made to the Wife dum sola fuit the Writ shall say ad dampnum ipsorum for the Husband shall have the dammages ideoque fuit ad dampnum ipsorum Hill 9 Jac. Ban. Regis Wolverton and his Wise against Day For not doing a thing which ought to be done by Agreement touching the body 1. Against a Barber that takes upon him to raze the Beard Barber and doth it with an unwholsom Razor Lib. Intra 2. C. sect 1. for the body is endangered to be hurt thereby Physician or Chirurgeon 2. Against a Physician or Chirurgeon for not curing a malady or not applying a medicine 14 Hen. 6.18 43 Edw. 3.33 21 Hen. 6.55 48 Edw. 3.6 pl. 11. Regist orig 105. B. 112. A. 3. For advising his patient to apply a certain medicine to cure him and it did not 19 Hen. 6.49 quaere For commanding his Servant to apply a medicine and he doth it not 11 Edw. 4.6 Q. 4. For applying a medicine that impairs the Mayheme 11 Rich. Action upon the Case 37.11 Hen. 6.18 pl. 10. 21 Hen. 6.55 B. But note in all these cases he ought to take upon him the Cure absolutely 19 Hen. 6.49 48 Edw. 3.6 else the Action lies not The Writ The Writ ought to shew the place where he took upon him the Cure 48 Edw. 3.36 for it is issuable If A promise to cure me in London and apply unwholsom medicines in Middlesex the Action shall be in Middlesex because there was the wrong 11 Rich. 2. Action upon the Case 37 and where the wrong is there must the trial be For not doing of a thing which ought to be done by agreement of the parties touching Suits in Law Assumpsit Against a Clerk that promises
that he was robbed Robbery Coke 4. part 84. Southcots case 〈◊〉 Hen. 7.11 B. Townsend but they must take their remedy against the Thieves and they are by Law answerable to the owners of the goods So if goods are delivered to keep Coke 4. part 83. B. for such an acceptance implies a warranty to keep them safe and to redeliver them But it is a good plea if they are taken to keep as my own Coke 4. part 83. for there is no such warranty implied Vid. antea Recovery in Trespass a good barr in Detinue Recovery 20 Hen. 7.58 B. Crooke for there shall not be a double recovery for one thing The bailment is not traversable where he may wage his Law Travers 8 Edw. 4.3 pl. 7. for there his Oath that he detains not is sufficient for if he detains not there could be no bailment No barr that the Horse was sold in a Market overt unless it were tolled Vendee according to the Statute 1 2 Phil. Mariae cap. 7. for no property is altered by such a sale Vid. antea Detinue for Deeds as Heir Bastardy Bastardy is a good plea 35 Hen. 6.9 pl. 12. for if a Bastard he is no Heir A bailed to B to rebail and dies Feostment having two Sons which makes partition he which had the Land comprehended in the deed delivered enfeoffs B this is a good barr 17 Edw. 3.12 pl. 45. for by the purchase the deed belongs to B. Warranty and Assets is no barr against the issue in Tail in Detinue Warrant 9 Hen. 6.15 pl. 5. 4 Hen. 7.10 pl. 4. for he comes in by the Donor Rebailment in another County a good barr Rebailment because he cannot wage his Law 22 Hen. 6.15 pl. 27. because the bailment was in one County and the Action is brought in another County Release per the Plaintiff a good barr Release Lib. Intra 290. B. Sect. 1. for by the Release the property was altered The Defendant pleads bailment of deeds by the Plaintiff Retainer upon condition that if his wife the Plaintess survive the Plaintiff that the Defendant should retain it and that his wise is alive a good barr but then he ought to shew what Lands they concern 18 Edw. 4.18 that it may be known unto whom the deed belongs Infancy is no plea Infancy because he may avoid an obligation in debt 14 Hen. 6.11 pl. 41. by pleading deins age A good bar that the Garnishee brought a Detinue against the Defendant Recovery and prays Garnishment against the Plaintiff which makes default and he had judgment 34 Hen. 6.47 pl. 13. 21 Hen. 6.35 pl. 2. per Newton Garnishee pleads release between the time of this Action brought Release and the delivery quaere 20 Hen. 6.28 pl. 23. 49 Edw. 3.13 But 39 Edw. 3.13 adjudged that it is a good barr and so it seems the Law to be The Judgment in Detinue 1. Of Chattels 2. Of Deeds Against the Defendant 1. Quod praedictus W. recuperet versus praefat J. praedicta octo quarteria frumenti vel valorem eorundem No. Lib. Intra 169. C. Sect. 1. Lib. Intra 218. B. Sect. 4. dampua sua c. and upon the return of the Writ if it appears that W. did not deliver the Corn then the judgment shall be for the value with dammages and costs So see the difference where the Plaintiff himself delivers the thing and where another The Plaintiff shall have judgment to recover the thing named Plaintiff 17 Edw. 3.45 1 Rich. 3.1 2. or the value of it and dammages for detaining of it as appears above The judgment was that he should recover his Chattels and his dammages 21 Hen 6.36 A. Bracton Lib. 3. fol. 102. B. non tenetur precise ad rem restituend sed sub disjunct vel ad rem vel ad pretium either the thing or the value of it indammages Against the Defendant The judgment was that he should recover the deeds if they are found and also dâ—mmages for the detainer and if not found then all in dammages 7 Hen. 6.31 pl. 25. 22 Hen. 6.41 pl. 17. as well for the deeds as for the detainer of them And this shall be although it be proved that the Defendant burnt the deed 17 Edw. 3.45 pl. 1. for that shall not excuse Ideo confideratum est quod praedictus A. recuperet versus praefat B. pyxidem praedictam cum chartis c. Lib. Intra 218. A. Sect. 1. the box with the writings The Heir in Detinue had judgment to recover one box with as much as was in it contained that belongs to him 5 Edw. 3.159 B. intended to be of writings Against the Defendant and the Garnishee The judgment was that he should recover the deeds against the Defendant haberet liberationem versus the Garnishee 21 Hen. 6.36 A. Lib. Intra 219. D. sect 17. 9 Hen. 6.38 pl. 13.7 Hen. 6.45 pl. 27. This is a double judgment viz. of the right and of the possession But if Judgment be given upon default of the Garnishee before appearance no dammages shall be given 20 Hen. 6.4 pl. 27. for this is not the Defendants fault If the Plaintiff and Defendant make default the Garnishee shall have Judgment and the Plaintiff and Defendant in misericordia 40 Edw. 3.39 pl. 15. for his unjust vexation Execution in Detinue 1. Of Defendant 2. Against the Garnishee 3. Of what Lands 4. Of what Goods Execution against the Defendant by distress for the thing detained and recovered Chattels Nat. Lib. Intrâ— 169. C. sect 1. 20 Edw. 4.3 pl. 12. No. Lib. Intrâ— 170. D. 17. A. 6 Rich. â— Execution But if the thing be not delivered to the Plaintiff then he shall have execution for the dammages by Capias Lib. Intra 216. B. sect 6. 20 Edw. 4.3 pl. 12. against the person of the Defendant For a Capias was given in the main Process per 25 Edw. 3. cap. 17. and by consequence a Capiâ—â— ad satisfaciend in execution by the equity of that Statute At the Common Law execution was for dammages by fieri facias and also for the goods Lib. Intra 216. B. sect 8. to be levied upon the goods of the Defendant For dammages by fieri facias and for the thing by distress of the Goods and Chattels 6 Rich. 2. Execution 45. The Plaintiff and Defendant make default Garnishee had Judgment and distress against the Defendant 40 Edw. 3.39 pl. 15. Vid. antea Distress issued forth in execution Lib. Intra 215. C. sect 1. 20 Edw. 4.3 pl. 12. 22 Hen. 6.41 pl. 17. But Capias lies not 5 Eliz. Dyer 223. pl. 24. 21 Hen. 6.42 vid. antea If the deeds concern Lands 8 Hen. 6.29 pl. 24. 14 Hen. 6.1 pl. 1. But for the dammages if they will not deliver them a Capias lies 22 Hen. 6.41 pl. 17. 20 Edw. 43. pl. 12. If deeds are in a box
assets for it shall be intended unless the contrary be shewed 18 Eliz. Dyer 344. pl. 2. 11 Hen. 6.2 pl. 6. and if he have not he may plead riens per descent For nothing by descent in Fee-simple is a good bar by him Lib. Intra 172. B. Sect. 1. the day of the purchase of the Writ But debt lies not against an heir upon a Statute-Merchant Staple or Recognizance because he is not bound Coke 3. part 15. A. Harberts case but the Lands are bound and may be extended Goaler suffers an escape his heir shall not be charged 15 Eliz. Dyer 322. pl. 25. for this is a personal wrong and only dammages recoverable Grandfather Father and Son or Father and his two Sons or Grandfathers two Sons who have two Sons the heir mediate shall be sued in debt as well as if they were immediate heirs 22 Dyer 368. pl. 14.7 Eliz. Dyer 239. pl. 39. that is in case the heir immediate die for the heir mediate is bound by the word Heir A Right shall not be Assets for it is a disputable thing and no certainty of it to be reduced into possession What shall be Assets to the Heir Disselsee obliges him and his heirs and dies this is not Assets for it is but a Right descended Pasch 6. Jac. Com. Ban. Molineux versus Molineux for his Ancestor died out of possession Right without an estate in Possession Reversion or Remainder is not Assets until it be reduced into possession Coke 6. part 58. Bredimans cases and then it shall release to the time of the death of the Ancestor Land in ancient demesn shall be Assets 7 Hen. 4.14 pl. 11. Q. to whom and where pleadable Copyhold Land is not Assets to the heir Coke 4. part 22. A. for it doth not descend but depends upon the Lords admittance If an heir alien bona fide before the Action brought it shall not be Assets Coke 5. part 60. A. Gooches case 27 Edw. 3.78 pl. 16.10 Hen. 7.8 pl. 17. 19 Hen. 6.46 pl. 95. 42 Edw. 3.10 pl. 12. 48 Edw. 32. pl. 22. Vid. antea for he is not tied from sâ—lling the Land If Land descend to the heir although he enter not yet it is Assets 42 Edw. 3.10 pl. 12. for he might have entered and may do when he will the Grandfather makes a Fâ—offment in Fee to the use of the heir of his body and dies per 26 Hen. 8. the Father enters and obliges him and his heirs and dies quaere 182 Mariae Dyer 111. pl. 46. whether the Grandchild be bound A Reversion expectant upon an estate Tail is not Assets because it lies in the will of Tenant in tail to dock and barr it at his pleasure Coke 6. part 58. B. Bredimans case 42. A. Mildmays case Q. if it be Assets when it happens Franktenement descendible express is not Assets Coke 10. part 98. A. Seymors case for it is an incertain estate Rent-seck descendible is not Assets until seisin of it Coke 6. part B. Bredimans case for before seisin he hath no estate in it If the heir had Assets in debt brought against him and afterwards Assets come to his hands the first judgment is no barr of the Action 19 Hen. 6.37 A. Markham because there was no satisfaction made which may now be by matter ex post facto The profits taken by the heir at the time of the descent are sufficient and if this be shewed to the Court and the heir cannot deny it there shall be a general judgment against him per Dyer 18 Eliz Dyer 344. pl. 1. to pay the debt and dammages quod querens recuperet The heir confesses the action and says that he had nothing but a Reversion descended to him there the Plaintiff shall have judgment to recover upon the said Reversion and the Debt to be levied when it comes in possession and the Plaintiff shall have a special Writ of extent 23 Eliz. Dyer 373. pl. 14. mentioning the special matter If the Father recover and Error be brought against the Son and a recovery against him he shall not render dammages unless he hath Assets of Land in Fee-simple from his Father If one be robbed Hundred he shall have debt against the Hundred per 27 Eliz. cap. 13. antea Debt lies against a Lessee at will for rent during the Term Lessee Coke 5. part 10. antea Quaere if he hold over So against a Lessee for years Nat. br 120. H. And this during the term Coke 4. part Or after the term ended by effluction of time Coke 3. part 23. B. for rent due during the term By limitation ended By condition in Law or in deed Common Law Nat. br 120. H. Statute Law 19 Hen. 6.42 A. waste Nat. br 120. H. re-entry Coke 3. part 23. B. Walkers case 30 Edw. 3.7.17 Edw. 3.48 fol. 73. pl. 107. It lies not against Tenant for life so long as his estate continues Life Coke 4. part 49. A. 11 Hen. 6.14 pl. 4. viz. for rent for the Land is charged But yet by the Statute 32 Hen. 8. cap. 37. the Executors of a Lessor for life shall have debt during the estate for life Coke 4. part which seems but reasonable Debt lies not against the Master upon the buying of the Servant Master unless it comes to his use or by his assent Doct. Stud. 137. A. for otherwise it might be mischievous to the Master Debt lies against an Ordinary Ordinary when a man dies intestate Nat. br 120. D. Coke 5. part 83. A. Snellings case 9. part 39. B. 11 Hen. 7.12 9 Edw. 4.33 Danby 18 Hen. 6.23 com 277.8 Eliz. Dyer 247. if the goods come into the hands of the Ordinary The Ordinary administers and then grants Administration yet debt lies against the Ordinary but it was said that such Administration ought to be alledged in the Diocess of the Ordinary 12 Rich. 2. Administrator 21. else it might be prejudicial to the Creditors But note no Debt lies against the Ordinary after that he hath committed Administration to another 8 Eliz. Dyer 247. pl. 73. viz. where he never administers Debt was brought against the Father for the Sons Commons in a Colledge in Oxon although the Father had delivered it to the Tutor of the Son Pasch 9. Jac. Ban. Regis St. Johns in Oxford against Brickâ—nden for the Father and not the Tutor is hable yet quaere for this is not usually practised Debt lies against him that becomes pledge without deed Pledge Nat. br 122. K. 18 Edw. 3.13 pl. 7. Finchden if the principle pay it not A borrowed of B 20 l. to pay it at Michaelmas at which day D prays B to take him for his Debtor and he gives him day over and D obliges him to pay it by one Tally ensealed Debt lies not against D because A was not by this discharged 44 Edw. 3.21 pl. 23. and so he may recover one Debt twice if D should be chargeable A
three one makes default after apparance and it is found against the Plaintiff for the others that appeared who make a title and it seems they shall have a Writ to the Bishop 31 Hen. 6.15 pl. 5. Q. One Defendant makes Title by himself and others make default the Judgment shall be to have a Writ to the Bishop for him that makes Title but this is not before the Plaintiff have counted Nat. br 38. J. 10 Hen. 6.4 pl. 13. For before that the cause of Action doth not appear Upon the Non-suit of the Plaintiff Non-suit the Defendant shall have a Writ to the Bishop but not before Title made Nat. br 38. K. 2 Hen. 5.6 pl. 28. 19 Edw. 4.9 pl. 10. 6 Edw. 3.23 Collusion 5. 14 Hen. 4.11 That it may appear he hath a colourable right at the least Unless the Non-suit be after a Bar pleaded 33 Hen. 6.1 pl. 2. fol. 55. pl. 48. against the Defendants Title Three sue a Quare Impedit and two are non-suited and one of the Plaintiffs was also one of the Defendants therefore he cannot make Title ideo quaere if they shall not have a Writ to the Bishop without Title made 11 Hen. 6.8 pl. 13. Q. A. sued divers Writs of Quare Impedit against B of the same Church and is non suited in all exceptone the Defendant shall not have a Writ to the Bishop until that be determined Nat. br 38. R. For it may be the Plaintiff may clear his Title by that The Defendant makes Title to himself and another the Plaintiff is non-suited the Defendant shall have a Writ to the Bishop only 13 Edw. 3. br Epise 25. For his Title is a Bar to the Plaintiff which is not opposed The Sheriff returns a tardè c. the Plaintiff makes default he shall be non-suited Q. but the Defendant shall not have a Writ to the Bishop because the Writ was not served 2 Hen. 5.3 pl. 14. Nat. br 38. O. 2 Hen. 5.6 nor the other Non-suited as it seems because the Writ was not duly executed If an Infant be non-suited the Defendant shall have a Writ to the Bishop 2 Mariae Dyer 104. pl. 13. to avoid a lapse and that the Church may speedily be provided for A. brought a Quare Impedit against B C and D and is non-suited B dies C and D shall not have execution alone 11 Edw. 3. br Episcopo 55. because the Action was joyntly brought against all If one of the Co-parceners who bring a Quare Impedit be non-suited yet the other may sue and the Defendant shall not have a Writ to the Bishop upon this Non-suit 38 Edw. 3.35 br Episc 12. because they have several Inheritances and the default of one shall not bind another The Plaintiff discontinued his Suit Discontinuance the Defendant shall have Judgment to have a Writ to the Bishop Coke 7. part 27. B. For his discontinuance concludes he had no cause of Action A. brought a Quare Impedit against B Composition and sued a Ne admittas and then they compounded to present by turn there shall be a special Writ out of the Chancery to the Bishop to admit the Clerk that ought first to be admitted For a special Cause may have a special Writ and varying from the usual form In a Quare Impedit the Defendant disclaims in the Advowson the Plaintiff shall have Judgment Disclaimer and a Writ to the Bishop 6 Edw. 3.7 Error 78. For by the Disclaimer he acknowledgeth he hath no Title Where a Writ abates for form or false Latine Abatement there shall not be Judgment for the Defendant to have a Writ to the Bishop Nat. br 38. H. 14 Hen. 4.11 13 Hen. 4.7 For the Title is not determined but only the Plaintiff is delayed The Defendant makes default the Incumbent abates the Writ by plea the Defendant shall not have a Writ to the Bishop because he made default Nat. br 38. H and so is not rectus in Curia If the Plaintiff being a Prebend be made a Bishop in Dublin this shall abate the Writ per Wilby 24 Edw. 3.26 pl. 21. Q. how it shall be taken notice of here If the Writ abates for Misnosmer or other non-sufficiency in it the Defendant shall not have a Writ to the Bishop Nat. br 38. M. 31 Hen. 6.15 For the right is not determined If a Quare Impedit is brought in Com. M. and the Count is of a Church in Com. O the Writ shall abate but the Defendant shall not have a Writ to the Bishop 21 Rich. 2.29 for the former reason It was found by verdict that the Metropolitan collated where the Ordinary ought to have done it Verdict when the year is passed the Plaintiff shall have a Writ to the Bishop Nat. br 38. P. Q. In a Quare Impedit between A and B if the Title appear for the King Judgment shall be given for him Nat. br 38. E. notwithstanding he is not party to the Suit that is by his Prerogative All the Judges are the Kings Counsel and ought to give Judgment for him where his Right appears although he sue not for it The Writ to the Bishop to whom it shall be directed If a man recover against another as well as the Bishop he ought to have a Writ to the Bishop of the Diocess Nat. br 38. C. For a Bishop is but a Minister to admit the party If the Writ be against the Bishop although he claim but as Ordinary yet the Plaintiff shall have a Writ to the Bishop 8 Hen. 4.22 Lib. intra 521. For he claims no right nor doth any thing by executing the Writ in prejudice of himself If a man recover against the Bishop he shall have a Writ to the Bishop or Metopolitan Nat. br 38. B. and Q. 18 Eliz. Dyer 353. pl. 30. 38 Edw. 3.12 B. at the election of the party as it seems If it be once to the Metropolitan he shall never have it to an inferior Bishop afterwards ibidem for it is not usual in Law to descend from a higher authority to a lower Or to the Vicar general if the Bishop be out of the Realm Nat. br 38. Q. For the Vicar general â—an Officer under the Archbishop Or to the Gardein of the Spiritualties of the â—â—ch-bishop 7 Hen. 4.36 for the same reason 〈◊〉 it seems If there be no Bishop of the Diocess then to â—â—e Metropolitan if no Metropolitan then to â—â—e Gardein of the Spiritualties but if before the accution the Archbishop be made quaere if the power of the Gardein be not determined 18 Eliz. Dyer 350. pl. 19. It seems it is If it be against the Arch-bishop of York the Writ shall be to the Metropolitan 15 Eliz. Dyer 328. pl. 7. viz. of all England viz. the Archbishop of Canterbury The King recovers a Prebendary or Sub-Deaâ—â—â—ry or other Dignity against the Bishop and â—â—â—es it by Letters Patents to A yet A shall â—uve a Writ to the Bishop to
second judgment Error lies in Ban. Regis or in Com. Ban. Nat. br 21. G. 14 Edw. 3. Error 6. 8 Eliz. Dyer 250. pl. 86. Judgment in London Custom viz. before the Mayor shall be redressed in Com. Ban. or Ban. Regis Nat. br 20. E. 23. A. B. But a judgment before the Sheriffs of London London shall be redressed before the Mayor and Aldermen in their Hustings Nat. br 22. H. which is the highest Court And judgment before the Mayor and Sheriff shall be redressed by Commission directed to certain persons at St. Martins the Great Nat. br 23. E. 18 Edw. 3.8 But by 34 Hen. 6.42 pl. 14. the Mayor and Aldermen have forty days to advise of their judgment and then the Recorder certifies it forthwith if they do not reverse it Note Note this manner of proceeding is given by the Stat. of 28 Edw. 3. cap. 10. scil that the error shall be redressed within the City and if they do not redress it then there shall be a commission and if error be found they shall forfeit to the party his treble dammages and to the King 1000 Marks c. but by the 1 Hen. 4. cap. 5. their Fine is at the discretion of the Commissioners Judgment given in the Cinque-ports Cinque-ports shall not be redressed in com ban or ban regis but only by the Warden of the 5 Ports at the Court at Shepewaye si falsum fuerit revocabitur Major Jurati qui dederunt Judicium fecerint fines Major deponetur ab officio 23 Eliz. Dyer 376. pl. 23. The Writ to the Cinque-ports shall be directed Custodi quinque portuum vide 30 Hen. 6.6 Pole But 30 Hen. 6.6 the Barons of the five Ports are Judges there Upon a Custom in Village or Town to hold in all manner of Pleas Village and a judgment thereupon given error lies in ban regis 21 Edw. 3.40 37 Assize pl. 5. Nat. br 20. D. 2 Hen. 7.19 pl. 4. 18 Edw. 4.12 Mich. 10 Jac. ban regis Godson versus Duffeild Or in com ban Nat. br 20. D. Common right Marshalsey Judgment in the Marshalsey shall only be redressed in ban regis per 5 Edw. 3. cap. 2. 10 Edw. 3. cap. 3. Lib. intra 297. coram ipso rege Judgment in Court of Pypowders shall be redressed in ban regis Pypowder or com ban Nat. br 20. D. Who shall have a Writ of Error He that confesses the Action shall not have a Writ of error against his own confession Parties Nat. br 21. K. 34 Hen. 6.41 For he hath lost all that advantage by his confession Conusor of a Statute shall have a Writ of error if execution be not well sued out against him Conusor 18 Edw. 3.25 for to overthrow the execution And although he were outlawed if he be pardoned for then he is enabled again to sue 29 Assize 47. Nat. br 22. B. A Corporation shall have a Writ of Error jointly for a judgment given against them Corporation but no single person of them 21 Edw. 4.58 Townesend For they are all but one body and cannot sever nor be severed in pleading or in being impleaded He that disclaims shall not have it Disclaim Nat. br 22. C. Coke 8. part 6. B 62. A. viz. the thing sued for whereupon judgment is given But if one plead Non-Tenure and it be found against him Non-Tenure yet he shall have it 6 Edw. 3.188 pl. 17. Nat. br 22. C. For that is but a plea to the Action A brought a Praecipe against B who infeoffs C judgment is given for A yet B shall have error 21 Edw. 3.53 12 Assize 41.20 of Assize 2. 50 Assize 3. Coke 1. part 111. Albanies case because the judgment is against him and not the Feoffee Judgment was given against the Defendant in debt and after because he paid it not nor rendred his Body c. judgment was given upon a Scire facias against the Bail and they all join in a Writ of error and therefore held not good because one of them is not party to the judgment given against the other Mich. 9. Jac. Regis Wildgoose against Duport but they are distinct and several judgments given against them severally and ought to have several Writs of error Trespass against two where one was within age and appears by Attorney and judgment Quod capiantur they join in a Writ of error because the judgment is entire Hil. 9. Jac. Ban. Regis Orme Bird and good though the judgment was well given against one of them Surviving joint-tenant shall have error of all the judgment given against both Survivor for he is only now concerned 19 Edw. 3. Error 1.19 Assize pl. 8. Two outlawed upon a Capias in Redisseisin with force one shall have error sole Outlawed 8 Hen. 4.3 For the Outlawry is as two Outlawries viz. against each one of them particularly Judgment against two in conspiracy Conspiracy one dies the other shall have a Writ of error 24 Edw. 3.76 pl. 99. else it would be mischievous to him if the judgment be erroneous if he may not reverse it Mich. 30 31 Eliz. ban regis Pigot being an Infant and another levies a fine Infant Pigot sole brought error and good for this is error in fact therefore it shall be brought by him it most concerns which here is the Infant If one makes a Retraxit viz. upon the Roll Retraxit that he will not proceed yet he shall have error Coke 8. part 62. A. Beechers case For the Retraxit was but till the judgment The King shall have error Reversion 15 Edw. 3. Error 72. and that is but reasonable He in reversion disseises two joint-Tenants for Life and suffers an erroneous recovery the wife releases with warranty and dies this warranty is a bar to the Writ of error because by his own Act he had disabled himself to take benefit of the forfeiture Coke 3. part 61. A. Lincoln-Colledg case Q. De cest case A recovers a Moyety of a Mannor against B which infeoffs C B Heir and C makes partition B dies his Heir shall have a Writ of error and by Newton if A had issue a Son and a Daughter by one Venter and another Daughter by another Venter and dies the Son enters and dies the youngest Daughter is found Heir in a Nuper obiit they make partition the eldest Daughter shall have a Writ of Error 19 Hen. 6.25 A. For the judgment binds her interest till it be reversed Prayer in Aid shall have a Writ of error Nat. br 21. C. Coke 3. part 3. B. 4 Assize Pray in Ayd pl. 7. For the praying in Aid is but to satisfie his Title which he had before Patron after Aid Patron Prayer shall have error 12 Hen 8.8 Pollard For the Judgment concerns his Title notwithstanding the Aid-Prayer Garnishee shall have a Writ of error 21 Hen.
29. Nov. 1677. I do allow the Reprinting the SVRVEY OF THE LAW as it is now Corrected and Inlarged Fra North. THE COMMON LAW EPITOMIZ'D WITH Directions how to Prosecute and Defend Personal Actions Very useful for all Lawyers Justices of Peace and Gentlemen To which is annexed The nature of a Writ of ERROR and the general proceedings thereupon WITH A plain TABLE for the easie finding out of every particular By William Glisson and Anthony Gulston Esquires Baristers at Law The Second Edition revised explained and much enlarged by W. S. of the Inner-Temple Esquire Good communicated doubles it self Vivere nemo Nunc sine Lite solet nec sine Lege potest LONDON Printed by the Assigns of Rich. and Edw. Atkins Esq for Hen. Brome and Tho. Basset and are to be sold at the Gun in St. Pauls Church-yard and at the George in Fleetstreet MDCLXXIX The Epistle Dedicatory TO THE Professors Practisers OF THE COMMON LAW OF ENGLAND Candid Reader THis Tract in French was bequeathed to me by an alliance William Glisson Esquire deceased which I have translated into our own Language for the Common benefit of all I am not singular in it for daily experience manifests the contrary neither is it a Novelty for Law-books to appear in this dress Antiquity may be pleaded Sr. Germin Perkins Stanford Crompton Lambert Sir Henry Finch Dalton and divers others have in former days troden this path My desires are that it may not be perused by those who read only to fault what they cannot mend but by those whose judicious Pen will correct the errors as Cognizances of humane frailty I wish it successful to all be he Pleader or Practiser and that the Common Law of England may shine forth in these Cloudy and Eclipsed days is the Prayer of him who is Stâ—ple Iune January 20th 1658. A Well-wisher to the Laws HEN. APPLEGARTH To the READER Ingenuous Reader THese ensuing Lines were not fixed to this Treatise to commend its worth unto thee for if I can judge rightly it needs them not as I doubt not but thou wilt confess upon the perusal of it And this made me some years past take some pains in correcting many Errataes of the Press and explaining many obscurities I met with and in shewing the reason of the Law in many places without any other aim than my own private satisfaction But since that understanding an intent of Re-printing of the Copy I thought it not amiss to impart what I had done to the Undertakers thereof not only for their benefit but for the Readers clearer information and easier understanding of the greater variety of the matters therein contained and in the former Edition very briefly and in many places obscurely set forth If my pains herein may prove profitable to any I shall think it well bestowed however I shall rest satisfied with this perswasion That neither the Printers nor Readers can be prejudiced by these my well intended endeavours William Style THE CONTENTS OF THE BOOK 1. Accompt 2. Case Assumpsit 3. Trover 4. Covenant 5. Detinue 6. Debt 7. Ejectment 8. Quare Impedit ne admittas quare non admisit quare incumbravit 9. Replevin 10. Trespass 11. Error VVherein is plainly set down and demonstrated 1. What their several natures are 2. How many fold they are 3. In what Court they most properly lye 4. Who may best bring them 5. Against whom they lye 6. For what causes they lye 7. What be good Pleas and Barrs to the several Actions 8. What Judgements and Executions may be given in them The TABLE Account ACcount Fol. 1 Account against a Guardian in Soccage Fol. 1 In what Court Account lieth against a Guardian in Soccage Fol. 1 Who shall have a Writ against Guardian in Soccage Fol. 2 Against what person Account lieth as Guardian in Soccage Fol. 3 For what things Account lieth Fol. 4 The Account against a Guardian Soccage Fol. 5 The Process against a Guardian Soccage 1. before appearance 2. after appearance Fol. 6 Bar by a Guardian in Soccage 1. to the Action of Account 2. before Auditors Fol. 7 The Judgment against a Guardian in Soccage 1. of Account 2. to recover the thing Fol. ib. Execution against a Guardian in Soccage 1. per Common Law 2. per Statute Law Fol. 8 Ex parte talis Fol. ib. Account against a Baily 1. of a Court or Hundred 2. of a Mannor-house c. Fol. 9 In what Court it lies against a Baily Fol. ib. Who shall have an Account against a Baily 1. of a Court 2. of a Mannor Fol. ibid. Against whom an Account lieth as Baily 1. of a Court or Hundred 2. of a Mannor c. Fol. 12 For what things Account lieth against a Baily 1. of a Court 2. of a Mannor Fol. 14 The Account against a Baily 1. Of a Court or Hundred 2. of a Mannor c. Fol. 15 The Writs against a Baily 1. of a Court or Hundred 2. of a Mannor c. Fol. 16 The Process against a Baily 1. before appearance 2. after appearance Fol. 18 Bar to a Baily 1. to an Action of an Account 2. before Auditors Fol. 19 Judgment against a Baily 1. of Account 2. to recover the thing Fol. 21 Execution against a Baily 1. per Common Law 2. per Statute Law Fol. ibid. Ex parte talis by a Baily Fol. 22 Account against a Receiver 1. In Law 2. in Deed Fol. 23 Against whom Account lies as Receiver Fol. 26 For what things Account lieth against a Receiver Fol. 29 The Account against a Receiver 1. by others hands 2. by his own hands Fol. ibid. The Judgment against a Receiver 1. of Account 2. of a Receiver Fol. 37 The Writ against a Receiver Fol. 38 The Process against a Receiver 1. before appearance 2. after Fol. 39 Bar by a Receiver 1. to an Action of Account 2. before Auditors Fol. 41 Execution against a Receiver 1. per Common Law 2. per Statute Law Fol. 43 Action upon the Case QUid Quotuplex In what Câ—urt it lieth Fol. 46 For doing of wrong to the dammage of another touching things hereditary Fol. 47 Against whom this lieth Fol. 49 For what things this Action lies Fol. 51 The Writ Fol. 62 The Process 1. before appearance 2. after Fol. ib. The Judgment Fol. 63 For what things it lies For. ib. For doing of wrong to the dammage of another touching his body Fol. 69 For doing a thing to the dammage of another touching his name which is slander Fol. 72 For the doing wrong to the dammage of another touching suits in Law Fol. 83 For not doing that which ought to be done by the Law touching a thing hereditary to the dammage of another Fol. 91 For not doing of things which ought to be done by the Law to the dammage of another concerning Chattels Fol. 95 For the not doing of a thing which ought to be done by the Law to the dammage of another touching his body Fol.
Fol. 469 Diminution in Error 1. by whom 2. in what cases 3. at what time Fol. 472 The assignments of Errors 1. by whom 2. at what time 3. upon what Record 4. of what things Fol. 474 Barr in Error Fol. 491 Iudgement in Error 1. for the Plaintiff 2. for the Defendant 3. for both Fol. 493 Execution in Error Fol. 495 ACCOUNT Account is by Common Law By Act of Law Guardian in Soccage Next of Kin. A Stranger Baily of a Court or Hundred in Law in case of a Subject of a Mannor-house c. in deed in case of the King By his own act Receiver By other hands in law in case of a Subject By his own hands in deed in case of the King Statute Law Marlebridge cap. 17. Against a Guardian in Soccage Marlebridge cap. 23. Against a Baily vagarant Westm 2. cap. 23. For Executors 25 Edw. 3. cap. 5. For Executors of Executors 3 Edw. 3. cap. 11. For Administrators 23 Hen. 8. cap. 8. Collectors for repairing of Goals shall account to Justices of Peace 2 3 Maria cap. 8. Against Head-Constables or Church-wardens 43 Eliz. cap. 2. Overseers of the Poor shall Account to Justices of Peace 1 Jacobi cap. 9. Against Churchwardens and Constables for Forfeitures of Alehouse-keepers by them received Account against a Guardian in Soccage In what Court Account lieth against a Guardian in Soccage IT lies in the County Court or Common Bank Nat. br 117. b. It lies not before the Sheriff 43 Edw. 3. fol. 21. pl. 11. Thorpe For Brook Account 14. saith the Sheriff cannot assign Auditors and therefore it is in vain to bring the Action before him A good plea to say the Land is ancient demesn because the reality may come in question Coke 5. part fol. 105. A. Aldens case It lies not in the Marshalsey Coke 10. part 74. b. Marshalsey Who shall have a Writ against Guardian in Soccage The Heir in ward shall maintain an Action against him after the age of 14 years or at his full age at his election Littleton S. 123. But Nat. br 118. b. he shall not have it till the age of 21 years Crook fol. 131. pl. 106. by reason of the words of the Statute of Marlebridge cap. 17. scil cum ad aetatem pervenerit 3 4 Mariae Dyer 137. pl. 25. New tenures 3. b. 18 Edw. 3.55 pl. 76. 29 Edw. 3. fol. 5. pl. 13. Vide Regist origin 136. Lib. Intra 21. D. 8 R. 2. Gard. 166. 10 Rich. 2. Account 132. Doct. Stud. fol. 14. b. Old Nat. br 91. A. If the Heir in such case die before his full age his Executor shall maintain an Action of Account Crook 131. pl. 106. because it concerns a Chattel Yet note the Heir in Gavel-kind at 15 years brought an Account against a Guardian in Soccage and shews by the Custome he may alien at such age and for this cause he was awarded to Account per Welby 29 Edw. 3. fol. 5. pl. 13. For if he may do the greater he may do the less to fell is more than to take an Account The Executor of an Heir shall have an Account per West 2. cap. 23. Littleton 27. A. Crook 131. pl. 106. Executor of an Executor shall have an Account by 25 Edw. 3. cap. 23. Com. 290. Filius Haeres Domini defuncti non habebit breve de computo quia pertinet ad executionem administrationis bonorum defuncti Regist Orig. 135. b A Recusant shall not have an action for any thing that is seized into the hands of the King 3 Jac. cap. 5. for the King is accountablle to no body Against what person an Account lieth as Guardian in Soccage Account lieth against any that taketh the profits before the Ward be of the age of 14 years Littleton Nat. br 118. D. 4. Hen. 7.6 10 Hen. 6.7 13 Edw. 3. Account 77. 29 Ed. 3.5 pl. 13. But if one occupy and after Guardian in Soccage recover in right of the Ward the party shall not render an Account to the Heir for the Guardian ought to account for this 27 Edw. 3.79 Gard. 22. and therefore the Account shall be made to the Guardian The reason is as it seems that the Writ doth not make mention of the blood Regist orig 136. b. neither the Count Lib. Intra Account lieth not against an Executor of a Guardian Littleton Nam non jacet versus Executores quia merè pertinet ad Curam Christianam cognoscere de computo reddendo versus Executores Regist orig 135. b. 28 Hen. 8. Dyer 23. pl. 145. But if Executors account an Action of Debt lieth for the Arrearages 2 Hen. 4.13 pl. 2. And if the Testator covenants to account to the Heir and doth not Covenant lieth against his Executor Regist origin 165. b. Nat. br 145. H. It lies against a Woman 19 H. 6. b. Newton It lies against the Husband and Wife 18 Ed. 3.55 pl. 76. For what things Account lieth It lies for Woods and Under-woods sold for Lands Tenements Meadow Pasture also for Rents and Services perquisites of a Court ad valentiam Lib. Intra 21. B C. Marlebridge cap. 17. Respondeant de exitibus per aequalem computationem salvis ipsius custodibus rationabilibus misis suis For Fines of Copyhold Land granted by one Trin. 1 Jac. Com. Banc. Shopland versus Rider Rot. 853. For the issues and profits of the Lands Littleton For the Marriage of the Heir if he marry before the Age of fourteen years Littleton 27. a. If the Marriage be not as great in value as the marriage of the Heir Littleton 27. A. No Account for the presentation of a Church therefore the Guardian cannot present thereunto Nat. br 33. T. 28 Edw. 3.89 29 Edw. 3.5 8 Ed. 2. Presentment 10. But by Daniel Justice Trin. 1. Jac. Com. Ban. Rot. 853. Shopland against Rider the Guardian shall present if the Heir be not of the age of discretion It lies for Writings 32 Edw. 3. Account 60. The Account against a Guardian in Soccage The Heir counts that it was ordained by the Common Council of the Land that the Guardian in Soccage should Account c. and shews the tenure specially and that the Defendant had the custody of the Lands c. from such a day for 12 years ensuing and hath not accounted for the issues and profits c. and that at such a day the Heir was at full age Lib. Intra 21. b. Sect. 1 2.29 Ed. 3.4 pl. 13. No. Lib. Intra 47 E. Sect. 3. The Writ against a Guardian in Soccage Rex c. si A. fecerit c. tunc summon c. B. quod sit coram Justic nostris c. ostensum quare cum de Comm. Concilio Regni nostri provisum sit quod custodes terrarum tenementorum quae tenentur in Soccagio haeredibus terrarum tenementorum cum ad aetatem pervenerint reddant rationabilem computum suum de exitibus terris tenementis illis provenient de
tempore quo custodes illi habuerunt ratione minoris aetatis haeredis praedictae idem B. praefato A. rationabilem computum suum de exitibus provenient de terris tenementis suis in N. quae tenentur in Soccagio quorum custodiam idem B. habuit dum praedictus A. infra aetatem fuit reddere contradicit ut dicitur Et ideo c. This Writ is founded per le Stat. de Marlebr cap. 17. Nat. br 118. A. Regist orig 136. Note this Writ lies against any one that occupies the Land during the nonage of the Ward whether it be the parents of the Heir or not Regist origin 136. b. for it makes no mention of the blood but only of taking the profits The Writ was Receptor denariorum A good plea to the Writ because he was Guardian in Soccage for otherwise he would be twice charged 18 Edw. 4.3 pl. 17. viz. as a Receiver of his rents or profits of the Lands and also as a Guardian in Soccage by the Statute The Process against a Guardian in Soccage 1. Before appearance 2. After appearance The Process at Common Law before appearance was but a Distress infinite Coke 3. part 12. A. Herberts Case But per Marlebridge cap. 23. a Capias was given against a Baily and per Westm 2. cap. 11. exigend given against a Servant Baily Chamberlain or any other Receiver Coke 3. part 12. A. Herberts Case And in Account against a Guardian there shall be a Capias 29 Edw. 3.5 pl. 13. But no exigend because this was given against a Receiver only 17 Edw. 2. Process 203. 17 Edw. 3.59 pl. 55. Shard 2. After appearance If he comes in by Capias or distress he shall be committed to the Fleet 29 Edw. 3.35 pl. 63. If the Account be adjudged to lie c. and he be not present in Court a Capias ad computandum shall issue forth 1 Edw. 3.2 pl. 10. 1 Hen. 7.1 pl. per Townshend Lib. Intra 18. c. Sect. 1 2 3. In Judgment quod computet the Plaintiff dies his Executors shall have a Scire facias upon the Judgment and if the Defendant come not in upon the garnishment or warning an exigend shall issue forth 14 Hen. 4.1 The Barr by a Guardian in Soccage 1. To the Action of Account 2. Before Auditors in discharge That he had the Custody till such a day from such a day and accounted till the full age of the Plaintiff without that that he was Guardian before or after Lib. Intr. 21. cap. Sect. 2. It is a good Barr in discharge of the Account that he expended so much for necessaries for the Plaintiff ultraque c. Littleton No Barr to say he was not next of Kin for the occupation is the substance and not the Kindred Littleton 29 Edw. 3.5 pl. 13. 22 Edw. 3.11 pl. 8. 4 Hen. 7.6 b. 10 H. 6.7 pl. 21. 13 Edw. 3. Account 77. That he was never Guardian in Soccage a good Barr Lib. Intra 21. b. Sect. 1. The Judgment against a Guardian in Soccage 1. Of Account 2. To recover the thing 1. To Account The Judgment is quod computet ideo in misericord i quia prius non computavit Coke 11. par 38. A. Metcalfs Case Lib. Intr. 19. D. Sect. 1. The Judgment is Ideo consideratum est quod praedictus W. recuperet versus praefatum M. to recover as much as he is found in Arrearages dampna occasione implacitationis Coke 11 part 40. A. Execution against Guardian in Soccage 1. per Common Law 2. per Statute Law By the Common Law it was but a Levari facias or Fieri facias Coke 3. part 12. A. Herberts Case And this only within the year for if the year passed 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. Scire facias is given after the year Per Westm cap. 2.18 Elegit is given Coke 3. part 12. a. Per Marlebridge cap. 23. Westm 2. cap. 11. Capias was given in Process and by consequence Capias ad satisfaciendum Coke 3. part 12. a. Per Westm 2. cap. 11. If an Accountant before Auditors be found in Arrearages he shall be by them committed to the next Goal in execution but then they ought to commit him forthwith Coke 8. part 119 b. Bonhams Case 27 Hen. 6.8 Com. 17. But if an Account be before the Plaintiff he ought not to commit him to prison because the Statute saith before Auditors 45 Edw. 3.14 pl. 13. Ex parte talis Westm 2. cap. 11. If Auditors are assigned by the party which will not allow to the Guardian his reasonable allowances and they charge him with the thing he never received and him commit to prison he shall have an Ex parte talis Nat. br 129. F. 4. Hen. 6.18 A. pl. 3. Regist orig 137. b. The Writ is returnable before the Treasurer and Barons of the Exchequer at a certain day and a Scire facias is in the Writ to warn the Plaintiff and also the Defendant to be there Nat. br 129. G H. Regist orig 137. Account against a Baily 1. of a Court or Hundred 2. of a Mannor-house c. In what Court it lies against a Baily IN the County Court Regist origin 135. A. Nat. br 117. b. In London before the Sheriffs Regist orig 135. A B. In the five Ports Rigist origin 135. A. In Communi Banco Nat. br 117. b. Regist orig 135. B. But Ancient demesn is a good plea to the jurisdiction Coke 5. part 105. A. Aldens Case because the Account is of the issues and profits of the Mannor 8 H. 6.34 pl 36. 2 Ed. 4.3 pl. 3. And the reality by presumption may come in debate Hobart Chief Justice Hill 11 Jac. Com. Ban. Rot. 254. Cox Barnesley Who shall have an Account against a Baily 1. of a Court 2. of a Mannor If A. make B. his Baily of his Court or of a Hundred he shall have an Account against him Nat. br 118. E. Vnder-Baily A. having a Bailywick makes B. his Under-Baily he shall have Account against B. 3 Edw. 3.54 pl. 24. A. makes B. his Baily Depâ—ty which makes G. his Deputy A. shall have Account against B. but not against C. because C. receives this to the use of B. Nat. br 119. B. 14 Edw. 3. 100. pl. 8. An Infant purchases Lands he shall have an Account if any take the profits Nat. br 117. B. For the profits that the Guardian in Soccage takes after the Heirs age of 14 years the Heir shall have an Account during his nonage against him as his Baily but for the profits taken before such age he shall have Account as Guardian in Soccage but not before his full age Nat. br 118. B. because he cannot be Guardian after the age of 14 years Account for the Major and Aldermen of London Major and Aldermen of London grant the Wardship of an
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
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
to escape Regist 111. A B. for I am thereby retarded in my suit Against a Sheriff that quashes essoyns in Reply erronice without assent of the Suitors 20 Assize 45. Essoyn 1. A having goods of B in his house Execution the Sheriff comes and takes the goods in execution and A him disturbs 1. if the Sheriff gives notice to A and after he disturbs him the Plaintiff shall have this Action against him otherwise not 2. A may keep his house fast till notice 3. the Count is not sufficient that A. praemissorum non ignarus c. but it ought to be alledged precisely that he had notice Coke 5. part 93. A. Semaines case for the other is but by way of argument 2. By hindering Execution by removing the Record by attaint Regist orig 113. A. viz. where there is no cause Against him that sues out Execution upon a Statute as Executor of the Conusee where he is not or where the Conusee is alive 2 Rich. 3.8 for this is deceitful False Return no Return 1. Against a Sheriff that returns quarto exactus where it should be quinto exactus 9 Hen. 6.60.81 for by this false return the Plaintiff is hindred in his proceedings 2. For returning Cattel estrayed which are dead 32 Hen. 6.27 which is a false return and may prejudice the party 3. For making other return than the Baily made 36 Hen. 6.1 30 Assize 5. viz. the Baily of a Liberty 4. For returning a man of the enquest where he shews him a Charter to be priviledged to the contrary 18 Hen. 8.5 for thereby he is wrongfully molested and put to charge 5. Against a Comissary that returs a Jure patronatus otherways than it is found 22 Hen. 6.30 to the hindring the due course of the Law 6. Upon a devastavit returned falsly Lib. Intr. 11. A. sect 11 Hen. 6.37 B. viz. where there was none whereby the Executor is chargeable de bonis propriis 7. For returning a man summoned where he was not 26 Assize 48. 1 Hen. 6. pl. 4. or where he was not summoned by a reasonable time 39 Edw. 3.7 for that is all one in Law as if he were not summoned at all 8. The same Law upon Garnishment 2 Edw. 3. cap. 14. Regist orig 112. B. 9. For returning non est inventus where the party was sufficient and ought to be summoned 31 Edw. 3. Process 55. Nat. br 39. B. for such return is to his discredit and the Law is tender of mens Reputations 10. For returning a cepi Corpus and had not the body at the day the Plaintiff shall not have an Action upon the case but shall sue him upon an account 7 Hen. 4.31 Process 120. Q. for it seems it lies 11. For delivering a Distress and returns not the Writ 21 Edw. 3.43 viz. of Replevin whereby the proceedings are hindred Against a Deputy of a Sheriff 20 Hen. 6. deceit 11. for the Law takes notice of such an Officer 12. For returning a Nihil where the party had sufficient Lib. Intr. 11. C. sect 2. Nat. br 39 B. for this is to his disgrace 13. Against an escheator that certifies an office otherways than it is found or that certifies one where there is none found 21 Edw. 23. 9 Hen. 6.60 Regist orig 115. B. for though it may be traversed yet this puts the party to charges and trouble to do it 14. By the new Sheriff against the old Sheriff for returning one sufficient which is not by which the Plaintiff viz. the new Sheriff is charged in issues 19 Hen. 6.38 B. Paston 15. Against a Sheriff that makes a precept to one that is not Baily of a Franchize 38 Assize 13. as if he were Baily of a Franchize 16. If the Sheriff returns not a cepi Corpus sed languidus when the Defendant was in good health he viz. the Defendant shall have an Action of false Imprisonment 11 Hen. 6.42 pl. 39. 2 2 Hen. 6.5 A. And the other viz. the Plaintiff an Action upon the case 21 Hen. 6.5 A. for it is false return 17. In a false Judgment if the Sheriff returns that there is no such things c. if it be false Action lies 10 Edw. 3.389 pl. 35. pro falsitavit 18. For the Sheriff shall not be amerced 44 Edw. 3.3 pl. 11. for it is no contempt to the Court and they will take it for a good execution of the Process till the contrary Appeal 19. If the Sheriff make a false return upon an enquest the party hath no remedy Coke 5. part 32. B. Pettisors case Q. for me seems an Action on the Case lies 20. For not returning a Writ delivered by Bill by the old Sheriff Westm 2. cap. 39. 42 Assize 12. But note 8 Edw. 3.3.298 pl. 26. Herle 21. It lies against a Sheriff for a false Return Doct. Stud. 134. B. 19 Hen. 6.29.5.72 22. For returning summoned where he was dead Action lies 8 Edw. 3.330 pl. 1. for the Plaintiff is thereby deceived 23. Against a Summoner that returns a man summoned where he was not by which he was excommunicated Mich. 12 Jac. Ban. Regis Pole and Godfrey the Count and pleadings in the Reports for the Common Law takes notice of Excommunications For suing one upon a forged Obligation Forgery Goke 4. part 18. B. Q. Against a Custos brevium for embezeling a Writ to him delivered Imbezeling 7 Hen. 4.6 For inciting another to imbezel a Writ 19 Hen. 6.29 if the Writ be thereupon imbezeled for the Law favours not encouragers to do wrong If my Attorney or Deputy of the Sheriff imbezel a Record Deceit lies 10 Hen. 6.30 in respect of Trust deceived which the Law creates betwixt the parties For suing me before the Steward or Marshal Marshal where I am not of the Houshold 3 Hen. 6. Estoppel 18. 10 Hen. 6.13 for every one ought to be sued in the Courts at the Common Law and which are proper to try the Action 1. Against a Baily of a Franchize that discontinues his plea Nat. br 93. F. the Writ there Plea where it ought not to be 2. Against a Baily of a Franchize that sues after the plaint removed Nat. br 93. E. 14 Edw. 3. Action upon the Case 39. for then he hath no power to hold plea. 3. Against a Guardian which pleads a false plea or vouches one that is not sufficient 9 Edw. 4. Action upon the Case 118. by the ward for it is to his prejudice Against him that procures one to say Procurement he is A.B. the Plaintiff in the fuit and confesses the Action c. Regist orig 113. B. for this is deceit Against him in Court Christian that proceeds after Prohibition delivered Prohibition Nat. br 92. E. the Writ shall say contra pacem because it is in disturbance of the Common Law Against him that throws the Prohibition in the dirt Nat. br 92. E. Regist orig 92. the Writ shall say contra
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.
then a Capias ad satisfaciendum lies in execution against the person 7 Hen. 4.2 pl. 8. 14 Hen. 6.1 pl. 1. 40 Edw 3.25 pl. 28. But for dammages at the Common Law it was but a fieri facias Lib. Intra 216. B. sect 7. upon the goods and Chattels Or a levari facias Coke 3. part 12. A. upon Lands and goods And this only within the year for after the year the party had but an Action of Debt Coke 3. part 12. A. vid. antea Unless the Suit be continued 33 Hen. 6.49 pl. 33. But by Westm 2. cap. 450. a Scire faciaâ— is given after the year to revive the judgment and by Westm 2. cap. 18. an Elegit is given antea upon the Lands And by the twenty fifth of Edw. 3. cap. 17. Capias is given in Process for deeds in a Box and by consequence a Capias ad satisfaciend in execution Lib. Intra 216. A. Sect. 3.40 Edw. 3.25 pl. 28. antea If dammages shall be recovered against a Garnishee Deeds the execution shall be of the goods and Lands of the Garnishee 7 Hen. 6.45 pl. 27. 9 Hen. 6.38 pl. 13. 19 Hen. 6.4 But not of his body because he was not party to the Writ 7 Hen. 6.45 pl. 27. 9 Hen. 6.38 pl. 13. upon which the Action was brought but comes in by Garnishment But the Book of Entries 216. B. sect 6. Capias ad satisfaciendum was a warded against a Garnished for dammages recovered against him Quaere if as well for the detainer as for the thing detained DEBT Debt is by Common Law Upon Judgment 1. General in Court 1. Of Record 1. Superiour 1. Parliament 2. Ban. Regis 3. Chancery 4. Com. Ban. 5. Exchequer 2. Inferiour 1. Prescription 1. Pypowders in a Village 1. Pypowders 2. Tourn of the Sheriff 3. Leet 2. Patent 3. Parliament 4. Common Right 2. Not of Record 1. County Court 2. Court Baron 1. Ancient Demesn 2. Hundred 3. In any Mannor 1. Of Record 2. Special 1. In Court 2. Out of Court 1. Statute Merchant Staple 2. Recognizance according to 23 Hen. 8. 3. Account Common Law 4. Arbitrement 5. Ordinance or by-Law 2. Not of Record Upon matter in the County Upon a deed 1. Indented 1. Inrolled 2. Not Inrolled 2. Poll 1. Obligation 1. Simple 2. Conditional Finite as for 1. Years 2. For life 3. Anothers life 4. Estate Tail Infinite 1. Absolute 2. Conditional 3. Limited 1. general 2. special 2. Grant 1. Casual hac vice 2. Certain to have continuance for a time Without a Deed 1. Lent 2. Bailment to Bail over Pledge Rebail 3. Contract real 4. Upon Tail 5. Matter in Law Relief Aid Toll Fees Sallary for 1. Counsellor 2. Attorney 3. Servant for one day as Labourer 4. Retainer as for one or more years Robbing Escuage Rationabili parte bonorum 2. Personal 1. Chattels Rent upon a Lease for life during the Lease Lease at Will Lease for years 2. A real thing After the Lease ended 1. Effluxion 2. Limitation 3. Condition Incident Collateral 2. Personal 1. Rent reserved 2. Agistment 3. Partition 4. Tabling and Physick 5. Vendition 6. Marriage money 7. Chirurgery 8. Taylor for general Contract A Garment special Contract Statute Law Westm 2. cap. 11. Upon an escape of an Accountant in Execution 1 Rich. 2. cap. 12. Upon an escape of a Debt or in Execution 33 Hen. 6. cap. 1. Against a Goaler which suffers a Servant to escape which was committed by the Chief Justice 23 Hen. 6. cap. 15. Against a Sheriff for noâ— returning a Knight of the Parliament 2 Edw. 6. cap. 13. For a Parson against him that will not set forth his Tithes 7 Edw. 6. cap. 6. Against a Receiver that takes more than he ought By the party grieved forfeits 6 s. 8 d. for every peny to the party grieved 1 Edw. 6. cap. 14. Debt against a Seller of Lands given to the King by the said Stâ—ture 1 Mariae cap. 9. Goaler which refuses or suffers a person committed by the Colledge of Physicians to escape 13 Eliz. cap. 4. Upon a fraudulent Conveyance to defeat Creditors 3 Jac. cap. 7. If an Attorney suffers another to practise in his name in Court he forfeits 20 l. and the other that follows the Suit in his Name 20 l. 4 Jac. cap. 3. The Defendant shall have the same remedy for his Costs as the Plaintiff should have had if he had recovered 1 Jac. cap. 21. Debt against a Broker for double the value of the thing if he refuse to disclose the truth 1 Jâ—c cap. 15. Creditor of a Bankrupt shall have an Action of Debt to him assigned 5 Eliz. cap. 13. The Owners of the soil against the Surveyors of Highways which dig in a mans Ground and not fill it up again within one Month the forfeiture is 3 l. 6 s. 8 d. The Lord of the Lâ—et for erecting a Cottage To a person certain or Inmate shall have an Action of Debt per 31 Eliz. cap. 7. 14 Hon. 8. Physicians in London for practising without License 17 Edw. 4. cap. 2. A Steward of Pypowders forfeits 5 l. if they hold plea Action popular unless the Plaintiff or his Attorney swear that the thing was within the Jurisdiction and in the Fair 1 Rich. 3. cap. 6. Debt in what Court it lies IN the County Court â—â—oâ—â— Nat. br 119. G. Regist orig 139. A. In a Village City and Burrough Liberty Nat br 119. K. In Pypowders viz. a Court held in a Fair. But by the 17 Edw. 4. cap. 2. the Plaintiff or his Attorney ought to swear that it was in the Fair and within the Jurisdiction 1 Rich. 3. cap. 6. and if he refuse the Defendant shall go quit by the Statute for it appears not that the Court had Jurisdiction to hold plea. It lies in the Marshalsey if both are of the houshold of the King otherwise not but the Plaintiff needs not shew this in his Count and the proceeding there is by bill Coke 10. part 61. Case of Marshalsey for if it be not so the Defendant may demur to the jurisdiction of the Court. In Chancery for a person priviledged deâ—â— lies viz. in that Court for the Chancery to some purposes is a Court of Law as well as of equity In the Exchequer by quo minus Coke 8 part 6â— A. Trollops case but then the Plaintiff 〈◊〉 make himself an Accountant to the King So if one usurp upon a Franchise of the King where the Plaintiff had Fee Farm the Fee Farâ—eâ— shall sue by a Quo minus 32 Hen. 6.24 pl. 7. 〈◊〉 the Exchequer for he is an Accountant to 〈◊〉 King An Executor shall have a Quo minus when 〈◊〉 is a debtor to the King by his own act 8 Hen. 4.10 pl. 19. as Executor In Com. Ban. Nat. br 119. G. Debt lies not for a popular Action Note or upon penal Law but in one of the four Courts of Record at Westm per Statut. 18 Eliz.
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.
17 Hen. 7.40 pl. 12. It seems not for there may be more due and therefore it ought to be put in issue In debt upon a sale that he owes nothing by the Law a good bar although the Defendant bought it of the servant of the Plaintiff for the contract of the Servant is the contract of the Master 30 Edw. 3.19 pl. 27. If the Servant had authority to buy and sell or that the thing bought came to the Masters use Unless the Contract be by deed 39 Hen. 6.35 pl. 46. Which must be avoided by Deed and not by the Oath of the party Debt against the Husband and Wife upon a contract of the wife dum sola fuit the Husband wages his Law as now he may for now it is his debt but if at the day of the doing of his Law the Wife be not there the Husband shall be condemned 33 Hen. 6.43 pl. 23. For the debt originally was hers and therefore she must join That he recovered in an Action upon the Case upon an Assumpsit a good bar Coke 4. part 94. B. Slades case in debt upon a Contract for it was in his election to bring his Action upon the Case The breaking of the Prison by Enemies or a Tempest Escape a good bar 33 Hen. 6.1 pl. 3. in debt against a Gaoler upon an escape for he could not prevent it nor can have satisfaction But not by Rebels 33 Hen. 6.1 pl. 3. For Rebels may be compelled to make the Gaoler satisfaction The Sheriff pleads that his predecessor suffered him at large and that he did take him again c. a good bâ—r 2 Edw. 6.67 pl. 17. in debt brought against him for an escape in his predecessors time Enfancy no plea because the Statute is general Doct. Stud. 147. B. In debt for necessaries vid. antea Debt against a Bayliff because the Sheriff had not made out his Warrant for apprehending one in execution and yet returns that he was taken and was not quaere whether the Bayliff shall say no such Warant against the return of the Sheriff 5 Edw. 4.1 It seems not but must have his remedy against the Sheriff Non permisit ire ad largum a good bar 10 Hen. 4.10 38 Hen. 6.29 3 Mariae Dyer 121. pl. 18. in debt brought upon an escape for this is a direct tender of an issue that there was no escape A Return by a Bayliff of a Liberty that the Precept was not come to him at the time and that afterwards he was not in the Liberty 18 Edw. 3.35 is a good bar in debt against him Taken again before the Action brought a good bar if that he agree not to the escape and make fresh suit Coke 3. part 52. Rigwayes case 34 Edw. 1. debt 162. Otherwise not for then he is particeps criminis That he owes nothing is no Plea because this Action is brought not upon a contract but upon a special clause of the Statute 2 Rich. 2. Issue 160. Which cannot be discharged by a plea parol but he must answer to the Statute Account upon a recovery of dammages and the party committed in execution Nul tiel record a good bar 30 Hen. 6.6 For the Action is grounded upon the Record and if there be no such Record there can be no Action Judgment in Court Debt upon a Judgment in Pypowders a good bar that he was taken in execution 7 Hen. 6.18 upon the Judgment given in the Court of Pypowders Upon a recovery in a Court Baron if an Action of debt be brought the Defendant shall say that he owes nothing by the Law 49 Edw. 3.3 A. Hanmer 13 Hen. 7.3 B. Conesby For such recoveries are of an inferior nature Debt for dammages Debt for Dammages recovered in Assize of the Plaintiff after Verdict and before Judgment pleaded quaere 2 Mariae Dyer 107. pl. 24. Levied by the Sheriff a good bar 11 Hen. 4.58 pl. 8. For that is satisfaction in Law as to the party Elegit pleaded in Bar good 13 Eliz. Dyer 299. pl. 34. For by the Elegit he hath elected his Execution Upon a recovery of Dammages in ancient demesne debt is brought against the Defendant he shall not say that he owes nothing but shall plead Non tiel Recovery quare 34 Hen. 6.49 A. pl. 15. Littleton For it seems he may as well here as upon debt brought upon a recovery in a Court Baron vide antea For an Amerciament in a Leet that he owes nothing For fine or amerciment by the Law no plea. 12 Rich. 2. Law 33. For a Court-Leet is the Kings Court and not a base Court For an Amerciament in a Court-Baron that he owes nothing by the Law a good plea 12 Rich. 2. Stathan debt 35. No. Lib. intra 119. A. sect 1. vid. antea In Debt upon a Statute Merchant with a defeasance the Defendant said that he was a Lay-man and not Learned and that the condition should have been but to bind him to pay 40 l. and it was made 60 l. This is a good plea for the Action is brought as upon an Obligation with a condition but otherwise if execution be sued upon it as a Statute Hil. 9. Jac. Banc. Regis Fox versus Brooke For then such plea comes too late for the Statute is extended as a Judgment Arbitrement is no Bar in debt for arrerages of account before Auditors Arbitrement because the sum being due by matter of Record ought to be answered by matter of as high a nature 3 Hen. 4.5 pl. 23. 6. Hen. 4.6 pl. 28. 8 Hen. 5.3 pl. 13. Hâ—ll 3 Hen. 6.55 A. quaere 4 Hen. 6.17 pl. 3. 10 Hen. 7.4 A. which an Arbitrement is not Debt upon an in simul computaverunt that he was not accountable by the Countrey no bar for where the Defendant may wage his Law the Contract is not traversable Crooke 13 Hen. 7.39 pl. 4. For the Action supposeth that he assented to the accompt so that that is not to be put in issue Nullum fecerunt arbitrium a good Bar because this lies in notice of the Countrey Crooke 13 Hen. 7.39 pl. 4. In action of debt upon a Bond to perform an award But if he plead such a plea he cannot rejoyn afterwards and say that the Arbitrators gave no notice but must plead it in Bar and not by way of Rejoynder Crooke 7 Hen. 8.155 pl. 8. For such a Rejoynder confesses an Award and the Bar denies it so that the Bar and the Rejoynder cannot stand together The Arbitrators gave no notice no Bar unless the submission be so viz. that the Arbitrators should give notice for else the parties are to take notice at their peril The Defendant said that before the Arbitrement made he discharged the Arbitrators this is a good Bar 21 Hen. 6.30 28 Hen. 6.6 Coke 8. part 82. B. Vniors case and needs not to aver that the Arbitrators had notice for they must be discharged without notice Debt upon an Obligation
tamen For it may be more certain It lies not of a piece of ground called Michels piece Trin. 38 Eliz. Ban. Regis Rot. 450. Palmer Humphreys for that is incertain both in the quantity and quality and other Lands may be called of the same name and so that makes no certainty in it It lies not of a virge of Land 38 Eliz. Rot. 453. Mell versus Moor for that may be incertain and may differ in respect of the place The Count Generally If it be of a Lease made by a Bishop Bishop it ought to count upon the Deed No. Lib. Intr. 186. D. Sect. 2. and set it forth because it is not an ordinary Lease whereof the Law takes notice But if it be of a Lease made by the husband and wife Husband and wife he needs not count that it was by Indenture Lib. Intra 252. C. Sect. 8. Coke 2. part 61. B. Wiscots case but it sufficeth to say that they lett and the Law will supply the rest If it be of a Lease made by a Person tunc adâ—uc seized of the Reversion Person it is good without averring of the life of the person 13 14 Eliz. Dyer 304. pl. 52. for the Lease is good whether he be alive or not If the Account be of a Lease made by three where two have nothing in it it is not good although they all joyned in the Lease for they could not all lett but contrary if he count by him only that hath right per Williams Crooke Mich. 10 Jac. Ban. Regis Longs case for he did only in truth lett though the others joyned A Lease to commence at Michaelmas next after the death of A Lease the Count ought to shew that A is dead 1 Mariae Dyer 97. pl. 46. fol. 89. 19 Eliz. Dyer 357. pl. 46. for else the Plaintiff shews no title but shews matter against himself The Plaintiff Counts that A demised to him per Indenture dated 27 Martii Demise 11 Jac. primum delibat 10. decimo Aprilis eodem anno for 21 years from Michaelmas next before and the Ejectment 12 Aprilis this is good though the year be mistaken or he may Count that by Indenture dated 27 Martii primum delibat 10 Aprilis Mich. 11 Jac. Ban. Regis Michels case which is more plain and certain The Count upon the Imparlance Roll was upon a Lease made 10. of December 10 Jac. and upon the Plea-roll it was upon a Lease made 30 Januarii 10 Jac. babendum from the 20. of Decomber before this is not good Hill 14 Jac. Milward Wats Ban. Regis for it cannot be the same Lease upon which he counted so there is no certainty in the pleading to which the Defendant may answer The Count was that J. S. was seized and so seised leased to the Plaintiff 9 Eliz. Dyer 258. pl. 16. Com. 416. A. Bracebridges case Com. 187. A. Adams case Com. 223. B. Barkleys case Com. 530. B. Howel Crosts case here is a good colour of a Title to his Lessor and to his own Lease But 14 Eliz. Dyer 340. pl. 57. he doth not count of the seisin Coke 11. part 3. B. Coke 3. part 16. A. Borastons case Coke 3. part 45. Browns case Coke 4. part 96. A. Lamberts case Com. 459. B. Studs case Com. 504. B. Snowes case but only declares upon a Lease made unto him by the Lessâ—r and it seems good enough The Writ In Wales it may be by plaint without an original Writ for this action is out of the Statute 26 Hen. 8. cap. 6. Hill 36 Eliz. Ban. Regis 610. Griffin â—â—â—sus Eliot Wilkins and is there still as it was 〈◊〉 the Common Law It is Vi armis 1 Hen. 5.3 Coke 9. part 78. 1. Petoes case 21 Edw. 4. pl. 1. Choke which alâ—â—ys supposeth breach of the publick Peace But Hill 36 Eliz. Ban. Regis Rott 610. Griffin â—â—â—sus Eliot Wilkins in Error that it may be without Vi armis 7 Hen. 6.4 17 Edw. 3.1 It â—â—â—ms it was so held because the Defendant might â—â—â—er by colour of title to the Land Fuit ad terminum qui nondum praeteriit 2 Marie Dyer 116. pl. 71. but there 's not the certainty of the time for that is not material Et est pone per vad salvos pleg 21 Edw. 4.10 〈◊〉 1. 31. pl. 25. Brian that is the taking of bail It may be bonis catallis Com. 228. B. Lib. Intra 252. B. Sect. 7 8. Although Regist orig 227. B. says to the contrary Quaere ergo But it may be without it Com. 229. A. 199. A. Adams case The Process 1. before 2. after appearance The Process is Attach and Distress and Process of Outlawry Nat. br 220. H. 35 Hen. 6.6 per Wangford Moyl Com. 228. B. Coke 9. part 78 A. Peytoes case Attachment against the person Distress against the goods Outlawry against person and goods and lands The last Process in Law is the strictest and most severe The Barr. Accord with satisfaction a good barr Accord Coke 〈◊〉 part 78. A. Petoyes case because it is but in the nature of a Trespass for here is no land in question but only a possession Duress a good barr Duress Lib. Intra 253. B. sect 10. viz. that the Plaintiff gained the Lease by distess for the Law hates fraud and force and will protect no person in them Non ejecit a good barr Ejecit si bona catalla are not in the Writ 7 Edw. 6.89 pl. 111. 19 Hen. 6.56 for that is a barr only as to the Land for a man cannot be properly said to be ejected out of goods Quaere But if such words be in quaere whether it be good It is a good barr Entry that the Lessor had it but in right of his wife and he entered after the death of the Lessor in right of his wife Lib. Intra 252. D. sect 8. That he surrendred before the Action brought Surrender quod non ejecit a good barr 21 Edw. 4.10 pl. 1.30 pl. 25. Q. if there should not be a traverler it seems it needs not The Judgment The judgment shall be quod recuperet against â—â—e Defendant terminum suum praedictum venturum 〈◊〉 in c. ac dampua sua occasione c. quod â—â—â—end capiatur this supposeth a Vi armis 〈◊〉 â—liz Dyer 258. pl. 16. 7 Edw. 6. Dyer 89. pl. 109. 〈◊〉 420. A. Bracebridges case 5â—5 Snowes case 〈◊〉 Intra 253. A. sect 8.256 C. sect 13.259 C. 〈◊〉 15. No. Lib. Intr. 188. A. pl. 7. â—03 A. Sect. 8. 〈◊〉 D. Sect. 11.216 B. Sect. 13. Com. 526. A. â—â—â—nthams case But note this is when the term is not ended Note 〈◊〉 9. part 80. A. Peytoes case 4. part 104. Lamâ—â—s case Nat. br 220. H. 7 Edw. 4.6 13 Hen 7. 〈◊〉 B. Wood for if the term be ended then there 〈◊〉 to term to come to
in the Donor or Donee Lessor or Lessee it is not double because the Presentment of the Lessor or Donor is only traversable Presentation in him by which he claims and not of the Lessee or Donee Coke 5. part 99. A. Northumberlands case For the Lessee ought regularly to alleadge it in the Lessor Coke 5. part 98. A. Yet if he alleadge Presentation by himself it is good 8 Hen. 25.4 But in the Judgment of the Law this is the Presentation of the Lessor Coke 5. part 89. and so taken notice of what ever he alleadge A Purchaser may alleadge it in him whose Estate he hath because he derives from him 13 Hen. 8.12 pl. 2. 2 Edw. 3. pl. 29.1 6 Edw. 3.204 pl. 7. Nat. br 33. H. He that brings a Quare Impedit ought to shew specially how the Church becomes void 5 Edw. 4.72 B. for the Iucumbent may be removed out of possession by Spoliation Disseisin or be outed otherways yet then the Church is full in the eye of the Law The Process in a Quare Impedit 1. Before appearance 2. After Vide Lib. Intra 52. B. Sect. 1 2 3 4 5 6 7 8. At the Common Law it was but a Distress infinite 11 Hen. 6.3 Martin But per le Stat. Marlebridge cap. 12. if he appears not at the Grand Distress a Writ shall issue to the Bishop 24 Edw. 3.37 5 Edw. 4.115 7 Eliz. Dyer 241. pl. 48. 7 Eliz. Dyer 241. pl. 1. Nat. br 38. N. The same Law in a Scire facias by the King upon a Judgment in a Quare Impedit 14 Edw. 3. Qu. Imped 5. So if the Sheriff returns a Nihil upon the Grand distress 12 Hen. 4.4 Hankeford 21 Hen 6.56 pl. 13. 11 Hen. 6.3 pl. 8. because the Process is determined vide 27 Hen. 6.5 pl. 32. for the Sheriff hath done as much as he can in the executing of it And this is for the mischief of the Lapse 24 Edw. 3.37 viz. in all the foregoing cases wherein there is no Laches in the Patron nor any delay caused by him But if a Nihil be returned upon the Summons Attachment and Distress quaere 11 Hen. 6.3 if a Writ to the Bishop 4. shall issue yet the better opinion there is that a Writ shall issue to the Bishop And this seems to be so upon the same ground viz. for the mischief of a Lapse And if a Quare Impedit be against two and one appears at the Grand distress the other makes default a Writ shall issue to the Bishop pro querente against him that made default Nâ—t br 39. B. 14 Hen. 7.19 but not against the other because he appears according to Law Quare Impedit against the Bishop and B 〈◊〉 makes default at the Grand distress the Bishop pleads that he claims nothing but as Ordinary the Plaintiff shall have a Writ to the Bishop against B after the Count made against the Defendants upon the Bishops appearing at the Grand distress 10 Hen. 6.4 Writ to the Bishop 3. In a Quare Impedit the Defendant appears and after appearance makes default the Plantiff shall have a Writ to the Bishop 2 Hen. 4.1 pl. 3. Nat. br 38. S. because it shall be intended he will not longer defend himself At the Grand distress the Defendant pleads to issue and after makes default a Writ shall issue to the Bishop without more ado for the Grand distress was issuable 16 Edw. 3. Writ to the Bishop 17.12 Edw. 2. Quare Impedit 168. Upon a default at the Grand distress the Plaintiff shall have Judgment Lib. Intra 507. A. Sect. 1 2 3. Judgment as upon a Nihil dicit The Plaintiff is Non-suited the Defendant shall have a Writ to the Bishop without making Title as it seems but the surest way is to make Title 33 Hen. 6.1 pl. 2. for that puts all without question for the future T brought an Assize of Darrein Presentment against P and the Assize was taken by his viz. P's default and when the Assize was sworn T withdrawed himself P shall have a Writ to the Bishop although he was not in Court 9 Edw. 3. Darrein Presentment 17. for some Judgment must be and it cannot be for T. And although P â—â—de default yet the enquest might have found for him upon something of their own knowledge Barr in a Quare Impedit 1. By the Ordinary 2. By others Plea by the Ordinary the Church Litigious The Church was Litigious and he Collated after the six months 34 Hen. 6.41 pl. 10. 5 Hen. 7.19 34 Hen. 6.38 2 Hen. 6.44 18 Edw. 3. It shall be accounted Litigious where there are two Presentations and two Commissions and one Commission is found for one What shall be accounted Litigious and another for another 22 H. 6.44 A. Newton Paston for no man here can judge whose the right is for they are as it were in aequali jure But if the Title of one be found and another present and request is made to admit the Clerk for which it was found it is not Litigious 22 Hen. 6.28 Br. of Quare Impedit 80. for there is a Title found for one and none for the other If two Joyntenants or Tenants in common present severally it is not Litigious Doct. Stud. 116. A. for their right is one and the same If two present severally and neither the one nor the other pray a Commission to enquire the right the Church is Litigious Lib. Intra 511 512. 35 Hen. 6.18 pl. 27.8 Edw. 3.289 pl. 49. because the right of neither is put in issue Claiming nothing but as Ordinary Judgment si c. without special disturbance this is good 5 Hen. 7.19 22 Hen. 6.15 33 Hen. 6. â—â— 32 viz. a good plea in barr for the Ordinary But the Plaintiff upon this may pray Judgment and have it with Cessat Executio until c. Crook 17 Hen. 7.43 pl. 9. the right determined Pleas in disability of the person presented are as followeth Refusing the Clerk for default in the presentee which is 1. An Alien 7 Rich. 2. and this although he be made Denizen after ibidem viz. after he presented for he was not idoneous at the time of the refusal 2. Bastard Coke 5. part 58. A. 11 Hen. 4.8 A. 11 Hen. 7.12 11 Hen. 4.37 but if he be admitted it is good 29 Edw. 3.44 pl. 3. Q. whether and by what Law it is a good plea because he is nullius filius 3. Blind Coke 11. part 29. B. For he cannot see to study nor can watch over his Flock Q. tamen For blind men have received Orders 4. Heretick Coke 11. part 29. B. For he is not fit to instruct or guide his flock 5. Homicide 38 Edw. 3.2 For he is not fit to be a Minister of the Gospel of peace 6. Infant Coke 5. part 58. A. 6. Edw. 3.184 pl. 6. Herle For he is not fit to guide himself or his own estate much less others souls 7. Jew Coke 11.
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
be admitted to the â—ings right And if he die before induction â—â—d the King grants this to B he shall have a Writ out of the Chancery and a Writ to the Biâ—hop Nat. br 38. D. It seems the Writ shall be pecial The King recovers a Prebendary and hath 〈◊〉 Writ to two Bishops because the Prebendary â—as in one Diocess and the Church to which â—â—e Prebendary belongs is in another Diocess 14 Edw. 3.37 pl. 56. and so it concerns both â—he Bishops If a man recover a Chappel donative he shall have a Writ to the Sheriff Nat. br 48.8 For it is in the nature of a Lay Fee and lies not wishin the jurisdiction of the Ordinary Process in a Writ to the Bishop The Process is alias plures Attachment or a Writ de quare non admisit Nat. br 47. C. Of what things a man shall have Judgment 1. A Writ to the Bishop and no dammages Coke 6. part 51. A. Boswels Case At the Common Law were no dammages in a Quare Impedit But by the Statute dammages are given as the Statute following mentions Statute Westm 2. cap. 5. is Si tempus semestre transier it per impedimentum alicujus ita quod Episcopus ad Ecclesiam conferat verus Patron 〈◊〉 ea vice praesentationem amittat adjudicentur daâ—â—pna ad valorem medietatis Ecclesiae pro duobâ—â— annis si non transierit sed disrationetur praesentatio infra tempus praedictum tunc adjudicentur daâ—â—pna ad valorem medietatis Ecclesiae per unum aâ—num The King is not within this Statute to have dammages for at the Common Law the King was not in danger to lose his presentation per plenarty Coke 6. part 51. A. Boswels case 3 Heâ— 6. Dammges 17. 34 Hen. 6.51 14 Edw. 3. Quare Impedit 54. 33 Edw. 3. Br. 916. vide 7 Edw. 6. Dyer 236. pl. 28. And the Statute was made only for that intent If it is found for the Plaintiff and that the Church is full the Plaintiff may have a Writ to the Bishop but then he shall recover no dammages 24 Edw. 3.35 pl. 42 75. pl. 97. for he could not be damnified by reason of the pleâ—â—rty It is found that the Ordinary presented before â—is time the Plaintiff releases dammages and had 〈◊〉 Writ to the Bishop 11 Hen. 4.79 pl. 22. for the Ordinary had no right to present The Ordinary claims nothing but as Ordinary the Plaintiff had Judgment against him as Ordiâ—â—ty and the Disturber and his Clerk dies the Plaintiff shall have execution but it seems no dammages Crooke 17 Hen. 7.43 pl. 9. Quaere â—â—â—en for it seems not reasonable that he should be without remedy The Defendant comes the first day and confesseth the Action there shall be a Writ to the Bishop but no dammages 4 Edw. 2. Dammages 9. 5 Edw. 3.133 pl. 13. 5 Edw. 3.139 pl. 44. in regard of the smalness of them for de minimis 〈◊〉 curat Lex In a Quare Impedit against the Incumbent the King revokes his presentation the Plaintiff shall have no dammages against the Incumbent 44 Edw. 3.35 B. because he came in upon the Kings presentation and is now ousted by him The Plaintiff shall not have dammages against the Incumbent if he pleads not or is not proved 〈◊〉 Disturber 45 Edw. 3. Dammages 39. but shall recover only the presentation 5 Edw. 3.13 but by his pleading he is a Disturber and dammages are recoverable for the disturbance A Writ to the Bishop Single â—â—mmages and single dammages 17 Edw. 3.5 pl. 12. 24 Edw. 3.37 pl. 54.26 Edw. 3.75 pl. 25. A sues B and C and it is found that B only had right B shall have dammages against A and C 45 Edw. 3.14 pl. 12. br Episcopo for they are both Disturbers as to B. In a Quare Impedit against the Ordinary and B the Ordinary confesses the Action and it is found against B and that the Church is full of the presentment of B the Plaintiff shall have a Writ to the Bishop and single dammages or double dammages and no Writ to the Bishop at his election 39 Edw. 3.15 but shall not have both 5 Edw. 3.150 pl. 10. for this would be double satisfaction for one tort The Defendant confesses the Action the Plaintiff shews that the six Months are past and had a Writ to the Bishop and dammages 21 Edw. 3.55 pl. 8. 20 Edw. 3. Collusion 34. 6 Edw. 6. Dyer 76. pl. 35. by the Statute The Plaintiff and the Ordinary are at issue upon the ability of the Incumbent the Ordinary admits him the Plaintiff shall have a Writ to the Bishop and single dammages for the admittance proves him able 40 Edw. 3.25 pl. 21. and consequently the Ordinary a Disturber and to pay dammages A Writ to the Bishop to admit the parties Clerk and a Writ to the Sheriff to enquire of dammages 19 Edw. 3. Quare Impedit 156. 24 Edw. 3.37 Lib. Intr. 507. C. Sect. 6 7 8. sustained by the disturbance It was found that the Metropolitan collated before his time the Plaintiff shall have a Writ to the Bishop but then he shall have but single dammages 11 Hen. 4.80 Nat. br 38. P. vid. le Stat. The Bishop grants proximam praesentationem to B and dies the Church voids the Successor collates B brings his Quare Impedit within six Months two years pass the Plaintiff had judgment and upon his prayer had a Writ to remove the Incumbent and single dammages and a Writ to the Bishop or Metropolitan at his election 2 3 Mariae Eliz. Dyer 194. pl. 33. to admit his Clerk Quare Impedit against the Ordinary who Collates and pleads to the Plaintiff that the six months are passed the Plaintiff recovers the presentation and single dammages for where the Ordinary claims as Ordinary where he cannot maintain the right he cannot collate as Ordinary for the time past 5 Edw. 3.150 pl. 19. Coke 5. part 58. B. 30 Edw. 3.15 pl. 4. The same Law is upon a recovery against another man if the Plaintiff will at his peril have a Writ to the Bishop 6 Edw. 6. Dyer 77. pl. 35. 11 Hen. 4.79 pl. 22. Quare Impedit against the Bishop of L. the Metropolitan and against G his Clerk they all three make default at the Grand distress and a Writ of enquiry of the points in the Writ and dammages was awarded and thereupon found that the Church was void two years and that the Metropolitan collated G and Judgment was that the Plaintiff shall have a Writ to the Bishop and single dammages but because the Church void so long and the Defendants in misericordia 7 Eliz. Dyer 241. pl. 48. A Writ to the Bishop and double dammages Quare Impedit against the Ordinary and B the six Months pass the Plaintiff shall have double dammages although the Ordinary did not collate because he had jus conferendi and also a Writ to the Bishop 43 Edw. 3.10 pl. 33. The Plaintiff recovers
double dammages because the six Months were passed and also a Writ to the Bishop and his Clerk instituted because the Bishop did not collate but this was not done by the party 8 Edw. 3.280 pl. 9. Q. A man shall recover double dammages although he recover all before the six Months pass 13 Edw. 4.3 Littleton by the Stat. of W. 2. Single dammages and no Writ to the Bishop Before the return of the Writ to enquire of dammages the six Months pass the Bishop collates yet but single dammages 24 Edw. 3.35 pl. 13. 27 Edw. 3. Dammages 106. But the reason it seems is because of the former Judgment that he shall have a Writ to the Bishop and this being of Record shall stop him from double dammages for he is to have his Clerk thereby admitted 22 Hen. 6.28 Dammages but no Writ to the Bishop Quare Impedit against a Parson imparsonee and found for the Defendant he shall have dammages but no Writ to the Bishop Nat. br 38. L. 26 Hen. 6. bre Episcopo 6. for such Writ would be to no purpose Double dammages and no Writ to the Bishop Quare Impedit against the Ordinary and B the Ordinary confesseth the Action and it is found against B and that the Church is full of the presentment of B the Plaintiff shall have double dammages but no Writ to the Bishop or shall have single dammages and a Writ to the Bishop at his election 39 Edw. 3.15 but not both for the double dammages are in recompence of his presentation The Ordinary intitles himself by Lapse the Patron and Incumbent confess the Action the Plaintiff shall have double dammages against the Patron and Incumbent 34 Hen. 6.41 34 Hen. 6.39 because the Church is full Quare Impedit against the Patron and Incumbent they traverse the Title the six Months pass the Plaintiff if he recovers shall have double dammages against both 46 Edw. 3.15 pl. 5. Vid. the Stat. Two Writs to the Bishop The Defendant in a Quare Impedit brought a Darrein presentment against the Plaintiff the Plaintiff is nonsuited in the Quare Impedit the Defendant recovers in the Darrein presentment the Defendant shall have Judgment to have two Writs to the Bishop but shall not have dammages twice Nat. br 39. D. viz. upon the Plaintiffs nonsuit one and upon his own recovery another for that would be double amends In what Court and what Judges have power to award a Writ to the Bishop Justices of Nisi prius have power per Westm 2. cap. 30 40. 14 Edw. 3. cap. 16. 9 Eliz. Dyer 260. pl. 21. 6 Edw. 6.76 pl. 34. The Lords it seems of Mannors Judges in Wales have not power 36 Hen. 6. B. Fortesâ—ue 35 Hen. 6.30 pl. 35. 3 Edw. 3.63 pl. 35. 8. Edw. 3.319 pl. 15. 24 Edw. 3.33 pl. 26. Regist orig 31. A. for the Bishops are not tied to take notice of their Writs Lord in ancient Demesn hath no power to award a Writ to the Bishop 7 Hen. 6.35 for this is an inferiour Court circumscribed within its own Jurisdiction The Five Ports cannot award a Writ to the Bishop 21 Hen. 7.88 pl. 7. Crooke for these are particular Franchises within themselves Ne Admittas What Persin shall have it The Plaintiff in a Quare Impedit or Darrein Presentment shall have it Nat. br 35 F. So the Defendant shall have it Nat. br 37. H. In what Cases it lies When a Quare Impedit or Darrein Presentment is depending and the Plaintiff or Defendant supposeth that the Bishop will admit the Clerk of the other then a Ne admittas lies Nat. br 37. F. Regist orig 31. A. 21. Hen. 44. Newton Vet. Nat. br 24. B. to hinder the Bishop from admitting any Clerk till the right be determined If one of the Writs be not depending then it Its not Nat. br 37. H. viz. a Quare Impedit or Darrein Presentment for this Writ supposeth a Title in question which must be by one of those Writs For if the right of Advowson is depending it lies not because the Presentation is not to be recovered in it Nat. brâ—â— 48. Q. and so the admittance of a Clerk is not in question But note Note that this lies before any Certificate made that a Quare Impedit or Darrein Presentnent is depending Nat. br 37. H. for depending of the Writs rests not upon the Certificate Yet the party grieved by the Ne admittas shall have a Writ to the Chief Justice to certifie if any Writ be depending and if he certifie none then a Supersedeas shall be awarded Nat. br 37. H. to supersede the Ne admittas Note Note that this Writ does not hinder the Ordinary but that he may present by Lapse unless he be party Nat. br 48. L. Vet. Nat. br 24 25. â—iz party to the Suit for else it concerns him not Within what time this ought to be brought Within six Months and not after by reason of Lapse Locum habet infra tempus semestre non pâ—stea quia Diocesanus illam conferat per Lapsum temporis ad sex menses quia Diocesanus ilâ—ud spectaliter â—t induâ—tum Regist orig 37. F. Yet for the King it always keeps place Regist orig 31. A. Nat. br 37. F G. vide Br. for nullum tempus occurrit Regi the King is not tied to circumstances of time or place c. The Writ The Writ shall be alone although the Bishop be party as where not Tamen olim fuit ne conferatis alicui Ecclesiam de N. quae vacat Regist orig 31. A B. Nat. 38. A. The Process Is Prohibition Attachment and Distress Nat. br 24 25. Quare non admisit Out of what Court this issueth It issueth out of the Com. Bau. because it issueth out of the Rolls of the Court Regist orig 32. A. Vet. Nat. br 25. B. 12 Edw. 3. Quare non admisit 6. For this is a Judicial Writ Vet. Nat. br 25. B. Regist orig 32. A. 12 Edw. 3. Quare non admisit 6. per Nat. br 47. C. grounded upon a Record of Court This may issue out of the Chancery in the Vacation also for in the Vacation it cannot issue out of the Common Pleas. If the King recover in Com. Ban. in Quare Impedit he may have this Writ in Ban. Regis Nat. br 47. D. for this Writ is but to have the effect of his Suit and he may seek for his right in any of his Courts What Person shall have it Every one that recovers if the Bishop will not admit his Clerk shall have it Nat. br 47. C. Vet. Nat. br 25. B. or else his Suit would be but fruitless if it were not compulsory Against whom it lies It shall be brought against the Bishop although the Vicar general made the refusal Vet. Nat. br 26. A. Nat. br 47. J. 13 Edw. 36. Quare non admisit 4. for the Law takes notice of him only as a more publick person concerned It was
substance and the Court is not material quaere tamen 18 Edw. 3.17 pl. 19. 17 Edw. 3.74 pl. 109. the Writ 1. It needs not mention where the Court was when the Recovery â—ad because it is an Original Writ and the Court is fixt 2. Nor that the Bishop Incumbred it within the six Months for it shall be intended so 3. It is good although it bore date within the six Months for it shall be maintained after the Recovery and the party shall have it 4. It lies in Câ—n. Baâ— although that the Record be removed because it is an Original Writ vid. antea The Count. The Count ought to mention the Recovery Nat. br 48. K. because it is the ground of the Action It needs not to recite all the Record of the Recovery although that it was recovered by Darrein Presentment but the substance of it 17 Edw. 3.55 pl. 34. The Count mentions that the Bishop did Incumber the Writ depending the Church yet good 17 Edw. 3.74 pl. 109. If one Writ be abated the Plaintiff in another Writ may vary from the former Count Nat. br 48. M. for he now begins de novo and is as if he had not counted before The Process It is Summons Attachment and Distress Vet. Nat. br 26. B. The Barr. The Church was Litigious and that he did Collate by Lapse 34 Hen. 6.38 Quare Impedit 89. a good barr antea No such Record a good barr Vet. Nat. br 26. B. antea Error brought and the Record removed in Ban. Regis no barr Vet. Nat. br 26. B. Q. Did not Incumber after the prohibition of the Court to him delivered is a good barr Nat. br 48. M. for before he was not bound to take notice of the Suit The Judgment It is to have his Presentment and his Dammages Nat. br 48. H. 38. Hen. 6.14 Coke 7. part 3. A. Bulwers case 21 Edw. 3.3 pl. 7. If the Plaintiff be Nonsuited yet it is not to him peremptory Nat. br 48. M. but he may commence a new Action for he may be Nonfuit and yet have a good Title Replevin In what Court it lies IN the County Court by plaint per le Stat. dé Marlebridge cap. 21. And this may be before the day of the Court 9 Edw. 4.48 21 Edw. 4.66 pl. 46. For the conveniency of the people But by the Common Law the Sheriff cannot make a Replevin without a Writ 8 Eliz. Dyer 256. pl. 67. viz. out of the Chancery In the 5 Ports Regist Orig. 79. A. Nat. br 67. A. By special priviledge In a Court-Baron by plaint but this ought to be entred Sedente Curia 21 Edw. 4.66 pl. 46. In Ban. Regis or Com. Ban. An ancient Demean is a good plea to out the Court of jurisdiction because the reality may come in debate upon the Replevin which ought to be tried there Coke 5. part 105. Aldens case tide 2 Edw. 3.32 pl. 10. 17 Edw. 3.52 pl. 28. fol. 75. 40 Edw. 3.4 pl. 9. 29 Edw. 3.9 pl. 29. 4 Edw. 3.123 pl. 34. It lies not in the Marshalsey Coke 10. part 74. Marshalsey For that is a limited Court and holds not plea of all Actions Who shall have a Replevin Administrator Administrator shall have a Replevin de bonis Testatoris vid. the Count. Lib. Intra 560. B. sect 2. for the benefit of the Intestates Estate Husband and Wife Husband and Wise join in a Replevin for a Distress taken upon the Land of the Wife 2 Edw. 2. Replevin 42. Digest brevium 53. sect 2. For they are both concerned the Husband in right of his Wife and the Wife in her own right But for goods of the Wife sole taken which takes a Husband the Husband alone shall bring the Action Nat. br 69. K. 33. Edw. 3. Repleg 43. For by the Marriage the Goods and right to them are his If Goods be bayled to A Baylee he shall have a Replevin of them against a stranger 21 Hen. 7.14 For he hath a property in them against all the world but against the Bailor An Executor shall have it for Goods taken in the Testators time Executor 17 Edw. 3. Executors 106. 24 Edw. 3. Avowry 257. 21 Hen. 6.1 B. Markham For the right and title to the Goods is come unto him by the Executorship Executors shall have it for the Goods in their hands that were the Testators Regist Orig. 81. B. 5 Edw. 3.133 pl. 14. 18 Edw. 2. Repleg 24. 18 Edw. 3. Severance 28. For now the interest is theirs in trust And when he brings it of his own possession he shall have it before the Probat of the Testament Com. 281. A. in regard of the property which is in him thereby Joint-Tenant or Tenant in Common may join in a Replevin Joint-Tenant or Tenane in Common 11 Hen. 6.31 in respect of their joint interest But if two others join the Writ shall abate 11 Hen. 6.31 3 Hen. 4.16 21 Edw. 4.23 For one Writ cannot try distinct interests but there must be several Writs But in a Homine Repleg strangers may join Nat. 66. F. 8 Edw. 4.16 pl. 19. Propter favorem libertatis and yet 8 Hen. 4.2 is that they shall not join Q. Ergo. It seems needless for two to join because the Writ may be as well prosecuted by one Parson shall have a Replevin of a Mortuary after Seisure Parson but not before Com. 281. A. Foxes case 10 Hen. 4.1 For before he had no property in it but a bare right For he had not property before Seisure 16 Hen. 7.5 pl. 3. Brian The Seisure gains a property in it 1. He that hath not the property in a thing Proprietor shall not have a Replevin for it 6 Hen. 4.2 pl. 17. 7 Hen. 4.18 11 Hen. 4.17 pl. 39. 2 Hen. 6.14 pl. 10. 20 Hen. 6.18 A. 35 Hen. 6.22 A. 39 Hen. 6.35 pl. 47. 4 Edw. 2.1 pl. 2. 9 Edw. 3.340 pl. 19. Lib. intra 568. C. sect 5. For a Replevin supposeth a property in the thing repleâ—led by one 2. He that hath Cattel by way of Agistment shall have a Replevin because he hath a special property against all strangers as it is upon a Bailment 3 Edw. 3.71 pl. 36.42 Edw. 3.18 pl. 32. 21 Edw. 4.54 pl. 24. 3. So he that hath them to manure his Land 42 Edw. 3.18 11 Hen. 4.29 21 Hen. 7.14 21 Edw. 4.54 pl. 24. 2 Edw. 3.34 pl. 19. For he hath a property in them to that purpose 4. So if one have Goods bayled to him 21 Hen. 7.14 viz. to keep or to bail over as it seems Q. The Lord of a Villain shall have it for Cattel of a Villain taken Lord. for the bringing of the Action is a sufficient claim of the Cattel and there needs no seisure 42 Edw. 3.18 33 Edw. 1.3 Repleg 43. 30 Edw. 3. Repleg 36. 19 Edw. 3. Repleg 32. 9 Hen. 6.26 Babington Nat. br 69. F. But he shall not have dammages for the taking but
is to take the person of the man that detained him or hath elongated him If upon the Capias in Withernam a Non est inâ—entus of the person be returned then a Capias in Withernam shall issue against his Goods Nat br 68. C. to make the Owner appear Repleg alias and pluries Nat. br 68. E F G. And an Attachment to the Coroners against the Sheriff Regist orig 81. A. for not making his return Upon a return that the Bayliff of a Franchise makes not an Answer or will not make deliverance there shall be a Non omittas propter aliquam libertatem but it seems that the Sheriff ought to do it without a Writ Nat. br 68. F. in favour of Liberty Q. tamen If the Sheriff return Fugavit in another County That the Bayliff of the Liberty returns elongata Or that he cannot have the view Or that the Cattel elongata sunt out of the County Or that the Bayliff of the Liberty returns that they are impounded within the Rectory of S. In all these Cases Withernam shall be awarded Nat. br 68. G. 69. A. because the Sheriff cannot execute the Writ of Replevin And upon this three Capias's and an Exigend shall issue 5 Edw. 4.18 A. by Danby The Writ of Withernam ought to rehearse the Return of the Sheriff Nat. Br. 69. B. For upon that it is grounded Vid. The Writ Regist Orig. 82. A. No. Lib. intra 611. B. sect 21. If the Replevin be in the County-Court per plaint and the Bayliff return elongata the Sheriff ought to enquire by Inquest whether it is so or not and then Withernam shall be awarded by him if it be true and if he refuse to grant the Withernam the party shall have a Writ against him and an Alias pluries and an Attachment Nat. br 69. C. directed to the Coroner Second Deliverance At the Common Law a man may be non-suited in a Repleg and have a new Replevin infinite 34. Hen. 6.37 Danby 10 Hen. 7.29 pl. 23. 19 Hen. 8.12 pl. 7. Q. For by this means the other party is delayed And if the Writ abate per Plea or Confession there shall be another Replevin 34 Hen. 6.37 and not a second Deliverance for this abatement was not by wilful fault of the party But by Westm 2. cap 2. if one be non-suited in Replevin he shall have but a Second Deliverance â—ut of the Rolls of the former Judgment and â—ot a new Replevin 19 Edw. 2. Repleg 25. 4 Hen. 4.23 30 Hen. 8. Dyer 41. pl. 4.21 Edw. 4. â— pl. 16.32 Edw. 3. Return of Cattel 18. But if Judgment be given against the Plaintiff 〈◊〉 a Repleg upon a Demurrer or Verdict no Seâ—ord Deliverance 2 Hen. 4.23 pl. 9. But then be party is barr'd by judgment of the Court. And Second Deliverance shall not be but in the â—â—me Court Com. 206. B. where the Replevin â—as brought and can best take notice of the Cause Yet if he be non-suited in the County-Court and it be removed in Ban. then it shall issue out of the Ban. 13 Edw. 3. Repleg 37. For there the Cause is now depending And if he be non-suited in the Second Deliâ—rance he shall not have another Writ 4 Hen. 6.8 Return of Cattel 6. viz. of Second Delirerance for this is final Second Deliverance is a Writ judicial issuing out of the former Record per 2 Westm cap. 2. depending Vide the Writ Lib. Intra 572. B. sect 2 3 4. Vide the Count Lib. intra 572. B. 5.6 No. Lib. intra 589. A. sect 8. And if a man be non-suited in a Repleg after the Declaration the Second Deliverance ought to agree with the Replevin in day place and number of Cattel c. 3 Hen. 6.9 pl. 10. 21 Hen. 7.28 vid. 12 Hen. 7.4 49 Edw. 3.29 Persay For it is to continue the same Sa it But 16 Edw. 3. Ayd 131. Thorpe 17 Edw. 3. Repleg 22. 26 Hen. 6. pl. 7. It may vary from the place Q. tamen And per 26 Hen. 8. pl. 27. Fitz Herbert it may vary from the number and day so there be a certain description of them Q. tamen Repleg of a Heifer the second deliverance was of a Cow and good 26 Hen. 8.6 pl. 27. For a Cow and a Heifer non variant specie for they differ only in age and appellation Upon a Non-suit in Repleg return awarded and upon Withernam awarded and other Cattel taken yet the second deliverance shall be of the former Cattel for so the Writ imports 36 Hen. 1. Dyer 59. pl. 14. 2 Edw. 3.17 Avowry 171. 22 Hen. 7.92 pl. 7 Crooke there shall not be a second deliverance because the Plaintiff had estrayed the former Husband had aid of a Wife in a Replevin and makes default the Wife cannot joyn in the second deliverance 18 Edw. 2. Repleg 23. For she is not the principal actor in the Replevin but the Husband Distress In what case a man may distrain For Fine or Amerciament in a Court Leet A man may distrain for a Fine or Amerciament in a Court-Leet Coke 11. part 45. A. Godfreys case for a Fine and all Amerciaments in a Court-Leet Distress is incident 5 Edw. 3.139 pl. 43. 10 Edw. 3.303 pl. 10. by the Common Law For a Fine imposed in a Leet Coke 8. part 41. A. Griesleyes case For breaking of a By-Law in the Leet of the Lord he may distrain for the Amerciament Coke 6. part 25. A. Distress is incident to an Amerciament in a Court-Leet 9 Hen. 7.2 pl. 22. 8 Hen. 4.15 pl. 16. Gasciogne 12. Hen. 7.15 B. 4 Edw. 3.95 pl. 24. 29 Edw. 3.28 pl. 30. Doct. Stud. 24. A. 5 Edw. 3.159 pl. 21. Tax by Parliament Collector of a Tax granted by Parliament may distrain him that will not pay when the Parishioners have assessed it 22 Edw. 3.10 pl. 52. and justifie by the Act that granted it Amerciament in a Court Baron A man shall be amerced for not doing of suit in a Court-Baron 9 Hen. 7.22 Wood Read Coke 4. part 95. A. Slades case 21 Hen. 6.39 pl. 8. and not distrained And for such Amerciament he shall distrain 9 Hen. 7.22 per two Justices by special prescription No. Lib. intra 570. C. Q. For Amerciament in a Court-Baron a man may not distrain 16 Hen. 7.14 pl. 9. 21 Hen. 6.39 pl. 8. The Lord may prescribe to distrain for an Amerciament in a Court-Baron 15 Eliz. Dyer 322. Coke 11. part 45. A. and such prescription is good Yet Doct. Stud. 74. è contra Q. Crooke If an Amerciament was at the Court-Leet he may distrain otherways not Crooke 20 Hen. 7.66 pl. 8. Q. What remedy is then for it for it seems debt lies for it Amerciament in a Tourne Special prescription in the Sheriffs Tourne to Amerce and for this there was a special prescription for a Distress 33 Hen. 8.30 pl. 2. Tax by the Inhabitants A Tax was made by the Inhabitants of a
by Afferrors otherwise not viz. the Lord. For a Corrody granted with a distress if not paid Corrody he may avow for a distress for it 27 Edw. 3.81 pl. 13. Dammage feasant For dammage feasant Lib. Intra 554. D. Sect. 3.556 A. Sect. 7.559 A. Sect. 1 2. No. Lib. Intra 575. B. Sect. 6.577 C. Coke 8. part 89. B. Franceâ— case Antea If the Cattel be chased out of the Land before he distrain he cannot avow the distress Coke 9. part 22. Avowry 16 Edw. 4.10 2 Edw. 3.2 Avowry 182. for they must be taken in the ground or Land A man pleads it is his Franktenant and avows for dammage feasant and it was sound that it was his Franktenant and his wifes the Judgment shall be against him for both were seized and so the plea false Trin. 38 Eliz. Com. Ban. Walker versus Bonner The Plaintiff shews that A was seized and the Land descended to him and that he was seized in Fee and avows for dammage feasant and good Trin. 9 Jac. Newton versus Arsley for here is a good Title derived For a Moiety of the value of the Land Forfeiture upon 4 Hen. 7. forfeited For maintenance of Husbandry Lib. Intra 575. D. Sect. 1. For a Herriot custome No. Lib. 613. B. Sect. 22. Herriot But he ought to shew the certainty of the Land holden for to say that he held two Tenements is not sufficient but if he claims it of the Lessee for life he ought to shew which Lease he holds by 21 Hen. 7.79 pl. 27. Crooke For Relief Lib. Intra 555. C. Sect. 4. Relief But the Avowry shall not be for the double rent but only the quantity of the single rent 16 Hen. 7.4 pl. 2. 1. For a Rent-charge Rent No. Lib. Intra 585. A. Sect. 7 8 9. by deed 2. For a Rent-charge by prescription Lib. Intra 557. B. Sect. 1 2. C. 3. For Rent-service but if be avow for two rents where one Rent-day is not come the Avowry shall abate for that only which is not come Coke 8. part 45 B. Godfreys case but for the other it is good because due 1. For Fealty Lib. Intra 555. C. Sect. 4. Services 2. For Homage Lib. Intra 555. C. Sect. 4. Coke 4. part 6. A B. Bevils case For Rent-service Lib. Intra 554. C. Sect. 2.556 Sect. 8. But if it be to render one thing or other as a Rose or a pair of Spurs and shew for what he avows he shall avow accordingly For Bracton lib. 2. fol. 35. B. in hoc casu tenens â—abeâ— electionem unum solvendo liberatur ab â—lâ—ero For Rent-service when the Cattel are chased out Lib. Intr. 557. A. Sect. 10. antea Seisin in Avowry in whom it may be alledged It may be alledged in the Ancestor of the Avowant Ancesâ—or 34 Hen. 6.21 3 Edw. 2. Avowry 187. 20 Hen. 6 7. com 140. A. 16 Hen. 7.4 pl. 10. 2 Edw. 3.27 pl. 4. because he derives his Title â—rom him In the Father of the Feoffor Feoffor Lib. Intra 556. B. sect 8. and so the Feoffor had a good Title by presumption In the Predecessor good Predecessor 6 Edw. 3.277 Com. 96. A. under whom he claims By what hands Seisin of the Rent or Services shall be alledged By the Ancestor of the Plaintiff Ancestor 34 Edw. 3. Avowry 258. 34 Hen. 6.8 who was possâ—ssed of the Land By a Disscisor Disscisor good Coke 2. part 67. A. Tookers case Coke 6. part 57. B. Bredimans case for he was owner protempore Unless it be by Covin Coke 6. part 58. A. Bredimans case betwixt him and he that distrains for the Law protects not â—raud By the hands of an Infant Infant good 34 Edw. 3. Disclaimer 30. Coke 9. part 33. B. Bucknals caâ—e Quaere Feoffor of the Tenant In the Feoffor of the Tenant Com. 95. A. Manâ—eâ—s case for the Tenant derives under hiâ— By the hands of one Joyntenant only it is good Joynt-tenant Coke 2. part 67. A. Tookers case Prescription to have rent of a Village Resiantâ— Seisin by the Resiants is good because all the Village is chargeable 4 Hen. 6.29 30. Coke 6. part 59. Bredimans case By Tenant for years not good Tenant because he hath not an estate out of which seisin may be gained Coke 6. part 57. A. Bredimans case in respect of the feebleness of it By the hands of the Tenant for life good when the remainder is over to another Coke 6. part 58. A. Bredimans case for he hath a Freehold By the hands of the Tenant by the Courtesie not good to charge the Heir with a Herriot-service because none may have his estate 21 Hen. 7.84 pl. 8. Crooke nor derive a Title from him for his estate determines with his life A Tenant to a Lord makes a Feoffment and after notice to the Lord gives seisin to the Lord this is good because he remains Tenant to the Lord until notice be given Coke 6. part 58. A. Bredimans case for the Lord cannot take notice of the Feoffment By the hands of the Tenant and needs not say Tenant of the land 34 Hen. 6.8 for it shall be so intended By the hands of the Tenant peravail good Coke 6. part 58. A. Bredimans case or Under-tenant The Sheriff claims a rent by prescription and seisin 42 Edw. 3 4. Within what time seisin ought to be alledged The Advowant is not bound to alledge seisin within 40 years but may alledge it generally and then the other may plead that he was not seised within 40 years Coke 8. part 65. A. Fosters case 9. part 36. A. Bucknalls case 14 Eliz. Dyer 315. pl. 10. and that will destroy the seisin if it be so When it is not requisite to alledge Seisin In an Avowry for an amerciament it is not requisite to alledge it Avowry 11 Hen. 4.89 13 Hen. 4.9 In an Avowry for a Rent-charge 44 Edw. 3. Avowry 75. Coke 8. part 56. A. Fosters case it is necessary for if he were never seised the rent was not executed In an Avowry for rent upon a seoffment by deed Seisin is not necessary to be alledged because the deed is the Title and the commencement of it appears by it 2 Edw. 2. Avowry 185. Coke 8. part 65. A. Fosters case So for Rent or Service upon a gift in Tail or other particular estate Coke 8. part 65. A. Fosters case created by deed What Seisin shall be good Seisin of the superiour Service is seisin of all inferiours Superiour because they are incident to it Coke 4. part 8. Bevils case and included as it were in it For Example seisin of Esâ—uage is seisin of Homage Coke 4. part 8. Seisin of Homage is seisin of Fealty Coke 4. part 8. Seisin of Homage is seisin of the Superiour or inferiour Inferiour For Example seisin of Homage is seisin of Escuage the superiour 13 Edw.
of all Coke 9. part 34. A. Bucknals case 21 Edw. 3.52 13 Edw. 3. Avowry 103.19 Edw. 2. Avowry 224.16 Edw. 4.11 pl. 11. for Escuage includes all the rest Tenure by Homage Fealty or Escuage or Suit of Court and other services and seisin is alledged of all he may traverse the seisin of Homage and Escuage 2 Edw. 3.21 pl. 4. because they include the rest Not seised within 40 years Not seised within 40 years is a good barr 32 Hen. 8. cap. 2. Coke 9. part 36. Bucknals case 14 Eliz. Dyer 315. pl. 101. for it is not likely if he had any right there would have been no seisin in so long time But he that pleads this ought first to confess a tenure to the intent that the Lord may have a Writ of Customes and Services 15 Rich. 2. Avowry 214. Coke 9. part 34. B. Bucknals case It seems the pleading so doth impliedly confess a tenure or at least doth not deny it But this is no plea in an Avowry for rent upon a grant or reservation by deed because the deed makes the Title Coke 8. part 65. A. Fosters case and not the seisin Or upon a gift in Tail because the commencement of the Estate is within the time of memory Coke 8. part 64. A. Fosters case 4. part 11. A. Bevills case Or if it be for casual services as homage fealty or to go to war because perchance it may not happen within 40 years Coke 4. part 10.11 Bevills case and so there could be no seisin of it So if the Lord release to the Tenant so long as A hath heirs of his body because A may have heirs a long time after Coke 4. part 11. A. Bevilis case So if Land be conveyed to a Major and Commonality which was held by homage and fealty which conveys this over this is no plea because the Major and Commonalty cannot do homage or fealty Coke 4. part 11. A. Bevills case for that must be done by one single person and not by a body politick consisting of multitudes Note 1. The Issue in tail shall avoid seisin by the hands of the Tenant in tail Seisin avoided in Avowry Coke 9. part 34. A. Bucknalls case 34 Edw. 3. Avowry 131. for he comes in by the Donor But this is intended when the Tenant of the Lord makes a gift in Tail the remainder in Fee for the Tenant in tail shall himself avoid the encroachment and seisin made between by the Donor because he ought to shew the commencement of the reservation Coke 8. part 65. A. Fosters case 10. part 108. Lofields case 2. Successor of a Bishop shall avoid seisin beâ—â—en by the hands of the predecessor Coke 9. 〈◊〉 34. A. for the predecessors act shall not bind â—im 3. Veray Tenant of the land if he have deed â—od shew the contrary Coke 9. part 34. A. 10 Hen. â— 11 Nat. br 163. C. 22 Hen. 6.5 4 Edw. 2. â—â—vry 201 202. shall avoid seisin 4. Encroachment of seisin is not material there is no tenure Coke 9. part 34. B. Bucknalls â—se for the tenure is the ground of the seisin 5. Such seisin shall be avoided because it was 〈◊〉 coercion of distress Coke 9. part 34. B. Buckâ—nllâ— case 12 Edw. 4.7 pl. 18. 8 Hen. 6.18 pl. 1. â—â— Edw. 3.4 pl. 8. and not voluntarily rendred 〈◊〉 is in the nature of a thing obtained by Duress 6. If rent be payable at one day in a year and the Lord encroacheth seisin upon two days of the year this being involuntary yet shall be avoided is an Avowry for this that they agree in the â—â—â—ual sum Coke 9. part 34. B. Bucknalls case â—ide 21 Edw. 4.64 pl. 36 fol. 84. pl. 39. and the â—â—me is only in question and the Lord is not lessened in the rent Tenure In an Avowry the seisin is traversable and not the tenure Crooke 13 Hen. 7.31 B. for without seisin the Avowry is not issuable 1. When the Lord varies in avowing of the â—erity of the quantity of the services by colour of seisin the tenure shall be traversed Coke 9. part 33. A. Bucknals case 10 Hen. 7.11 pl. 31. Com 94. Mantels case Crooke 13 Hen. 7.31 B. â—iz he may say that he holds not by so much â—â—nt or so many services But then the Tenant ought to confess the Tenure in part for he needs not traverse all the tenure as to say that he holds not of him but he may disclaim or plead out of his fee Coke 9. part 35. A. Bucknals case 10 Hen. 6.6 7. pl. 20. 37 Hen. 6.25 pl. 13. 15 Rich. 2. Avowry 214. as to part But note 11 Hen. 4.10 pl. 22. the Tenant said that the Avowant did give the Lordship to A in tail the remainder to B in tail and that A died without issue B yet living there he needs not suffer a Disclaimer or plead out of his fee but there fol. 7. pl. 40. he had judgment of the Avowry and admitted good 2. When they agree in the quantity of the Services and vary in the quantity of the Land there the Plaintiff may traverse absque hoc that he held modo forma or say that he held one Acre only Coke 9. part 35. B. Bucknals case 20 Hen. 6.20 21. And so one may avow severally where it is a joynt Tenure or to the contrary Coke 9. part 35. B. Bucknals case 9 Hen. 6.26 pl. 24. 2. Edw. 3.34 pl. 19. But if he vary in the quantity of the Land and of the Services he may not confess the Tenure according to the verity of the case but may traverse mode forma or say he held one only Coke 9. part 35. A B. Bucknals case 5 Hen 5.4 3. When one distrains for fealty rent and suit of Court and alledges seisin in all and avows for rent the Tenant may confess that he held by fealty and rent and plead as to the rent nothing arrear without that that he held by fealty rent â—nd suit modo forma as is alledged and good â—â—d if upon Issue joyned it be found that he â—eld by fealty and rent and not suit although that â—he Avowry be for rent yet insomuch that the tenure alledged by the Avowant was traversed and found against him Judgment shall be given against the Avowant for in vain shall he make this traversable and yet that he should have the return when it is found against him Coke 9. part 35 36. Bucknals case Tender of Homage ought to be to the person of the Lord Tender ubicunque fuerit infra regnum proper reverentiam Bracton lib. 2. fol. 80. A. quaere for this may be prejudicial to the Tenant Judgment If the Plaintiff counts upon a Detainer and the Defendant appears and makes default the other shall have Judgment for dammages and costs and also for the value of the Cattel Nat. br 69. L. No. Lib. Intra 610. C. Sect. 20. for by the default he confesseth the tort
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
that he lost his Service Battery Mayheme and Imprisonment per quod c. Trespass lies Crooke 7 Hen. 8.80 pl. 4. If the Count be not per quod Servitium amisit although that Verdict pass for the Plaintiff yet he shall never have Judgment 21 Hen. 7.71 pl. 15. Crooke for there appears no dammages by the Plaintiffs shewing For enticing my Servant to depart Trespass lies not but an Action upon the Case 11 Hen. 4.3 pl. 46. for here is no vi armis in the case as all Trespasses do imply For taking away his Apprentice Apprentice Regist orig 109. A. per quod c. Q. whether he need to count so for it seems it must be so intended For a Goaler for taking away his Prisoner Prisoner Regist orig 104. A. 4 Edw. 4.6 pl. 7 antea For taking his Captive from him Captive Regist orig 95 A. 102. B. Nat. br 88. A. Q. what Captive whether one taken in the Wars Chattels personals Living Si quis distringit ordine non observato facit transgressionem Bracton Lib. 4. fol. 217. A. for the Law requires regularity and order in doing of things Trespass quare Averia cepit abduxit Regist orig 97. B. The Count Lib. Intra 628. B. Sect. 1. 670. B. sect 1. Note for live Cattel the Writ shall be cepit abduxit Nat. br 88. B. 21 Hen. 6.39 pl. 5.12 Hen. 8.9 B. if dead cepit asportavit And the Writ for live Cattel shall be Averia sua or shew the thing in certain 21 Hen. 6.39 pl. 5. And if the thing be dead or alive it is not material whether the Writ be pretii seu ad valentiam Nat. br 88. L. Q. for if alive it seems it should be pretii if dead ad valentiam For taking away his Boar Regist orig 110. B. Boar. For taking away his Oxen Regist orig 110. B. Oxen. For taking away his Mastiff Coke 7. part 18. Mastiff A. 12 Hen. 8.3 Regist orig 109. A. but he shall not say pretii or ad valentiam because a Dog is not a Marketable creature though valuable to the Owner 12 Hen. 8.5 A. Elliot Regist orig 109. A. For taking away his Capons Capons the Writ was bona catalla and good 17 Edw. 3.41 pl. 19. for they are general words and extend to all manner of goods proprietory whatsoever For taking away his Conies out of his Close Conies the Writ shall be suos Nat. br 87. A. Regist orig 93. B. 102. A. for the Owner of the Close hath a property in them Quaere if not tame Conies So if it be in a Park Regist 110. B. because he hath a property in the game in respect of the enclosure But if it be for entring into his Warren and taking his Conies he shall not say suos for he hath them but ratione privilegii viz. of hunting them 3 Hen. 6.55 pl. 34. Regist orig 110. A. Coke 7. part neither shall he declare of the value 8 Edw. 4.5 pl. 16. Lakin Quaere differentiam The Writ was Quare Warrennam intravit cuniculos cepit asportavit without saying ibidem and yet good 43 Edw. 3.13 pl. 7. for it shall be intended that he took them there where he entred for the Conjunction Et couples all together If Conies go out of a Warren any may kill them in his own Land and no Action lies Coke 5. part 104. 43 Edw. 3.13 pl. 7. For they cannot be said to have animum revertendi and so the property is gone Deer if they be tame Deer he shall say suas but then he ought to shew that they were tame 43 Edw. 3.24 pl. 2. For if he declare generally it shall not be intended that they were tame for tame Deer is but a rarity and not usual But if it be in a Park or Chase he shall not say suas because he hath them but ratione privilegii viz. of the place where they are so long as he can keep them there which is uncertain For taking away young Hawks he shall say suos Hawks because he hath a property possessory in them for he might have taken them when he pleased Coke 7. part Regist orig 93. B. 96. B. 110. B. Nat. br 89. K. So if they be reclaimed Hawks that is Hawks made tame or managed which were wild before For taking away a Horse Regist orig 95. A. Nat. br 87. M. the Count No. Lib. intra 666. B. sect 15. Lib. intra 682. D. For his Sheep taken away Regist orig 110. B. For taking his Fish Fish this is good although the Count be of a hundred Fishes because this word Piscis est nomen collectivum 4 Hen. 6.11 Coke 5. part 35.21 Hen 6.39 and comprehends any number as well as one Fish But the Count ought to shew the nature and number of the Fishes particularly Coke 5. part 35.31 Hen. 6.39 though the Writ be general that the dammage may be known De tauro suo libero Bull. Oves captae fugatae Regist orig 109. A. Oves fugatas per quod morierunt Lib. intra 616. B. sect 1. Nat. br 89. L. Regist orig 97. A. Porcos fugatos per quod interierunt Hogs Regist orig 97. A. Nat. br 89. L. Capta fugata imparcata There he shall say the price where he declares of a taking because Cepit implies that he had gained a property but it is otherwise if this word be put out 1 Hen. 5.3 4. But Regist orig 97. B. fuit Cepit abduxit without shewing the price of them and good because it may be he was seised of the Cattel Cepit in S. interfecit at W contra pacem Capta interfecta c. is nought because Cepit implies a property and then contra pacem is not good for he might kill them if they were his own 27 Assize 64. Averia ad loca incognita fugata upon the Stat. Districta of Marlebridge cap. 4. Regist orig 97. A. 102. A. 30 Assize 38. Nat. br 89. N. De Com. in com ibidem imparcata upon the Stat. of Marlebridge cap. 4. Westm 1. cap. 16. 1 2 Mariae cap. 12. Regist orig 97. B. 1 Eliz. Dyer 168. pl. 20. 2 Eliz. Dyer 177. pl. 32. Nat. br 89. P. And there are two causes of bringing this Action 1. He cannot give them Meat 2. They cannot be replevied 22 Edw. 4.11 Q. For he might lose his Cattel and have no remedy if he might not have this Action of Trespass Note Note upon these cases upon the Statute the Writ shall not be general but special upon the Statute 43 Edw. 3.30 pl. 16. as it is usual in all other such like cases The Action was of a Cow the Count Lib. intra 464. C. Pound For Marlebridge cap 4. saith districtiones but not upon 1 2 Mariae cap. 12. for the Statute saith Cattel and upon the second branch it lies well
6.35 B. Paston 7 Hen. 6.41 Coke 5. part 99. B. Hoes case Garnishee For he is bound by the judgment Garnishee in London upon an Attachment according to the Custom shall have error 22 Edw. 4.30 31. For the judgment is in part against him Tenant per Receipt shall have error Coke 3. part 3.4 Assize 7. 20 Edw. 3. Error 2. Tenant For by the Receipt he is made party to the Suit and concerned in the judgment Vouchee shall have a Writ of error 8 Hen. 4. 3. Nat. br 21. C. 4. Assize 7. 17 Edw. 3. Error Vouchee 90. Nat. br 21. M. 108. A. For by the Voucher he is called in and made a party And the Tenant shall have another Writ of Error 8 Hen. 4.3 21 Nat. br 21. C. for they are severally concerned But if the Vouchee release before Error brought the Tenant shall not have it 17 Edw. 2. Recovery in value 32. for by the release he is barred viz. a release of Errors or of his right Heir general shall have a Writ of Error 20 Edw. 4.13 Lib. Intra 269. A. Sect. 1. for he is prejudiced by the Judgment And if the Ancestor be outlawed of Felony Heir general he viz. the Heir shall have it Nat. br 21. N. viz. to reverse the Outlawry and to gain his own interest But not for High Treason per 28 Eliz. cap. 2. because thereby the blood is corrupt and disabled The Heir special shall have it for the Lands to which he is heir Heir special 3 Hen. 4.19 Nat. br 21. K. 9 Hen. 6.47 1 Mariae Dyer 90. pl. 5. but he must have a special Writ as it seems Executor shall have Error upon judgment for debt or dammages Executor Nat. br 21. M. given against the Testator for the regaining of the Testators estate Although that he be Executor to the Bishop Parson or other sole Corporation Nat. br 22. A. Coke 4. part 65. A. Fulwoods case 8 Hen. 6.25 A. Martin for that makes no difference in the case And this upon the Statute of 29 Eliz. cap. 8. Coke 6. part fol. ult Executor shall have error upon an Outlawry of the Testator and restitution of the goods lost by the Outlawry 11 Hen. 465. pl. 22. 5 Edw. 4.7 Although that the Outlawry be for Felony Coke 5. part 111. A. vid. antea Administrator shall have error in the same manner as Executor shall have Administrator Nat. br 21. M. 6 Edw. 6. Dyer 76. pl. 31. for he hath the same interest in the Intestates personal estate A Successor shall have error for a thing which toucheth the Succession Successor to a thing whereof he is so Nat. br 22. A. 16 Edw. 3. Error 69. 8 Hen. 6.25 A. Martin The King collates A to a Chappel King against whom an Action is brought A resigns to the King the King collates B Judgment is given pro querente B shall have Error 15 Edw. 3. Error 7. 15 Assize 8. for now the interest concerns him But for Debt or Dammages recovered against a Bishop Bishop c. or against any Secular sole Corporation the Successor shall not have Error Nat. br 22. A. for the dammages concern the Executor and not the Successor and so he hath no right to sue He in Reversion after the particular estate ended shall have Error at Common Law Reversâ—on and not before Coke 3 part 4. A. 21 Hen. 6.29 Newton 3 Hen. 4.6 32 Edw. 3. Error 73. 4 Hen. 8. Dyer 6. pl. 5. com 24. B. Weston for before he is not concerned in the Judgment Q. And per 9 Rich 2. cap. 3. he shall have it during the Estate for life Coke 3. part 4. 22 Edw. 4.31 A. Vavisor 3 Hen. 4 6. 12 Hen. 8.9 A. Brudnell And this seems reasonable for he may be prejudiced by the delay Q. And by equity he in the remainder shall have it Nat. br 108. A. 1 Mariae Dyer 90. pl. 5. But at Common Law the Donor in tall shall not have it altogether com 241. B. Q. And yet he shall not have Error during the estate Tail because he is not within the Statute of 9 Rich. 2. cap. 3. Coke 3. part 61. A. Lincoln Colledge case 10. part 44. B. Portingtons case But after the Estate tail ended he shall have it because the Law reserves the reversion in the Donor Coke 3. part 3. B. And although Tenant in tail suffered a Common Recovery and released Errors and yet â—â—ings error and is barred and dies without issue â—et the Donor or he in Remainder shall have Erâ—or 3 Eliz. Dyer 188. pl. 9. to reverse the Recovery â—or if that be erroneous then the Estate â—ail is not barred by it Note regularly no Stranger shall have Error Estranger â—2 Edw. 4.31 per Brian viz. a Stranger to the Judgment but this holds not always Conusor aliens Execution is sued erroneously Conusor the Alience shall have error Nat. br 22. B. 4 Hen. 8. Dyer 1. pl. 5. 17 Assize 24. 18 Edw. 3.25 pl. 17. Crooke 6 Hen. 8.169 A. Pollard for his title is concerned A claims wood in a Forest Tenant and this allowed before two Justices of the Forest B C which claim Estovers brought a writ of Error in Ban. Regis 21 Edw. 3.48 pl. 70. and good to reverse this allowance which is in nature of a Judgment and binds their right to the Estovers The Tenant in a Praecipe enfeoffs B Judgment given pro quer B shall have Error for the mischief that may fall to him by the Judgment 21 Edw. 3.53 21 Assize 41. 20 Assize 2. 50 Assize 3. But quaere 50 Assize 3. if the Tenant in the Praecipe aliens to B which releases to the Feoffor for life and judgment pro querente if B shall have Error per 9 Rich. 2. cap. 3. It seems he shall for all his interest is not gone by the release Where the King is party to the judgment King there shall be Error against him but not before Petition made to the King Pasch 12 Jac. Ban. Regis Davies case 23 Edw. 3.12 pl. 14. 18 Hen. 6.17 22 Edw. 3.3 pl. 25. 24 Edw. 35. pl. 43. for it may be that upon the Petition the King will let the judgment be reversed without Suit and it is not fit to sue the King where one may have right of him for asking it without suit The Writ of Error The Writ ought to make mention of him which was summoned and severed 9 Hen. 6.38.13 because he was once party to the suit An Action of Covenant is brought against A as Assignee and judgment given against him he brought Error the Writ needs not mention him as Assignee because this Addition was not of substance 19 Eliz. Dyer 356. pl. 41. Q. for then he must be called Lessee which properly he is not but by construction of Law The Process in Error 1. Vpon Judgment in Ireland 2. Vpon a Bill sealed
3. Judgment in another Court Error brought upon a Judgment given in Ban. Regis in Ireland Ireland there shall be a Scire facias in the Writ of Error against him that had the judgment for by Sharde this is the usage and in no other manner 34 Assize pl. 7. and it is dangerous to alter the ancient practice of proceedings in Law In Error upon a Bill sealed Bill sealed there shall be a Scire facias against the Justices which sealed it ad cognoscend Sigilla c. per Westm 2. cap. 31. Lib. Intra 293. C. Sect. 1. 11 Hen. 4.92 This is where Error is brought upon a Bill of exceptions But the Justices may deliver it in Court by their own hands 11 Hen. 4.52.92 and then there shall be no Scire facias for thereby they acknowledge their hands The Process in a writ of Error against the Judges to whom the Writ is directed is Alias Process Pluries and Attachment Nat. br 22. G. if they do not certifie the Record which is before them Errors â—ssigned When the Record is removed after Errors assigned the Plaintiff shall have a Scire facias against the Defendant ad audiend Errores Nat. br 22 E. 10 Edw. 4.13 3 Eliz. Dyer 195. pl. 38. 201. pl. 63. 17 Edw. 3.5 This is to give him notice that the Record is removed and of his proceeding thereupon And upon two Nihils a Non est inventus returned the Court shall come to examination of the errors 3 Eliz. 201. pl. 63. without the Defendants in the writ of Errors appearance But until Error assigned the party shall not have a Scire facias 24 Edw. 3.31 pl. 8. for it is to no purpose for his appearance is to hear the cause And if he assign that for Error which the Court takes clearly to be no error he shall not have a Scire facias 18 Hen. 6.17 for that would be to trouble the Court to no purpose but if it be colourable it is otherwise But in Error brought against the King there shall be no Scire facias because the King is intended to be always in Court Nat. br 21. H. either himself or his Counsel for the Judges are of his Counsel The Writ needs not mention the names of the Tertenants Against whom a Sci. fac in Error shall be sued because it is of common form used otherwise 8 Hen. 4.17 pl. 3. and the naming of them is not material If the Sheriff return that the Heir is not in his Bailywick Other County and the Tertenant shews that he is in another County there shall go a Scire facias into that other County 8 Hen. 4.18 pl. 3. Q. if he remove out of that into another if another Scire facias shall issue and so till he is found If a Recoverer make a Feoffment Tertenant and die without Heir it seems there that a Scire facias lies against the Tertenant only and a Writ of Error 8 Hen. 4.17 pl. 3. 9 Hen. 6.49 B. pl. 30. Q. whether not against the Lord by Escheat also because he comes in by virtue of the Judgment Former Judgment But the 9 Hen. 6.46 B. pl. 30. a Writ of Error lies against none but the party or them that are privy to the former Judgment Q. if not against privities in Law as well as in fact Gardein in right Gardein in right of the ward recovers in a Quare Impedit and dies the Defendant brought Error and a Scire facias against the Heir of the Recoverer and against the Heir of him from whose right he took his title and against the Incumbent without naming the Executor yet good because he recovers as Gardein in right but the contrary as Gardein in deed 8 Hen. 6.35 pl. 1. for there it seems the Executor is concerned for the wardship is a Chattel False Judgment Error upon false Judgment in Oxford viz. for Land the party being dead that hath the Judgment there shall go a Scire facias as well against the Heir of the Recoverer as against the Ter-tenant 8 Hen. 4.18 pl. 3. A Scire facias needs not be sued against the Tertenant before the Judgment be reversed 47 Edw. 3.7 for before that the Tertenants estate is not stirred But before that he enter he shall have a Scire facias against the Tertenant for otherwise he shall be a Disseisor 4 Hen. 7.10 47 Edw. 3.7 but by the Scire facias it appears that he enters not as a Disseisor But if the Recoverer make a Feoffment to his own use and then the Judgment be reversed Feoffment there needs no Scire facias against the Feoffâ—e for this is aided per the Stat. of 1 Rich. 3. 26 Hen. 8.2 Scire facias in Felony Error upon an Outlawry in Felony the Plaintiff ought to have a Scire facias to all the Lords mediate or immediate 7 Hen. 7.5.53 4 Edw. 4.10 11 Hen. 4. because they are intitled by the Outlawry And also against the party at whose Suit and the Tertenants Lib. Intra 308 B. Sect. 3. And in a writ of Error Delay if the Plaintiff hasten not his Suit the Defendant shall have a Scire facias against the Plaintiff to shew cause why he should not have Execution 24 Edw 3.24 9 Hen. 6.13 or else he may proceed in Court to have the Judgment affirmed And in such case upon two Nichils returned the Defendant shall have execution but after this the Plaintiff shall have a Scire facias 9 Hen. 6.13 Q. for then it seems to be too late Diminution in Error 1. by whom 2. in what cases 3. at what time 1. The Plaintiff in Error may alledge Diminution Nat. br 25 A. that is alledge that a whole Record is not removed The Defendant may do it also 28 Hen. 6.11 15 Eliz. Dyer 321. pl. 21. for if the Record be not wholly removed the Court cannot judge of it nor can the parties tell how to assign Errors But this alledging of Diminution is now used mostly for delay Error in London 2. Error upon a Judgment in London the Recorder certifies the Record yet he is held to do according to the custome Quaere if Diminution shall be alledged 34 Hen. 6.42 it seems it should When all the Record is not removed Diminution may be alledged Nat. br 25. A. vide the Writ there Diminution may be alledged in 1. The Essoin Lib. Intra 290. C. Sect. 1. 1 Hen. 7.2 2. Continuance of the Jury Lib. Intra 290. D. Sect. 2. 3. Words in title in Assize Lib. intra 290. D. sect 3. or any thing material in the body of the Record Diminution shall not be alledged upon a Bill sealed because the bill is not of Record 11 Hen. 4.52 Hull 65. but is given in to the Court by him that takes the exceptions 3. After in nullo est erratum pleaded in another Term the Plaintiff may not alledge Diminution Diminution 28 Hen. 6.11
for then he hath pleaded to the Record as it is and acknowledged it to be rightly removed But the Defendant may 28 Hen. 6.11 for he hath done nothing to conclude himself But per 7 Edw. 4.25 Error 45. the Defendant may not Q. But Coke 5. part 37. B. Bishops case after in nullo est erratum pleaded no Diminution shall be alledged by either party for if it should be suffered it would cause great delay The Plaintiff to the Writ before that he assigns Errors or a Scire facias ad audiend errores may alledge diminution and by this means the Defendant may not afterwards alledge Diminution 16 Eliz. Dyer 330. pl. 18. vide 13 Hen. 4 Error 92. because it is done already and it seems it may not be twice done But note Note that the Defendant after that he had rejoyned in the Writ alledged Diminution No. Lib. Intr. 232. B. Q. The Plaintiff may not alledge Diminution for any Error in fact after a Scire facias awarded 22 Edw. 4.45 but only for matter in Law for the Scire facias admits the matter of fact to be right The Assignment of Errors 1. by whom 2. at what time 3. upon what Record 4. of what things Assignment of Errors is in place of a Declaration 9 Edw. 4.32 for therein the Plaintiff declares why the Defendant should not have execution upon his Judgment Assign Errors If one brings a Writ of Error and he and another assign Errors this is good as to him that brought the Writ of Error and void as to the other for that was but superfluous but if two brought error and one assign errors this is not good to either because the Writ was joynt Mich. 9 Jac. in the Chequer Chamber Shakely versus Porter Conusor of a Fine shall not assign error in the Conusance to reverse his own Fine Conusor which is his own act neither the Conusee in the Grant and Render which is his act neither the Recoverer in the Recovery Coke 5. part 39. B. for they ought not to defeat but to maintain their own acts Executor in Error by him upon a Judgment given against him Executor shall not assign for error that the debt was but upon a simple Contract Com. 182. A. 10 Hen. 6.24 for he might have pleaded it in barr of the Action Party shall not shew error in Process Party unless he shews that it is for his advantage in his prosecution 7 Edw. 3.25 Coke 8. part 59. A. Nat. br 21. F. But may afterwards shew that the Judgment is erroneous by reason of such Error Coke 8. part 59. A. Beechers case 14 Eliz. Dyer 315. pl. 99. and then is his proper time to do it Reversioner not being made a party shall not assign for Error Reversioner that the Sheriff made a warrant to the Baily to make a pannel where the party was guisdable 3 Hen. 4.6 for the trial concerns him not The Successor shall assign for error Successor that his Predecessor was but named Gardein 15 Edw. 3. Error 7. where he ought to have been otherwise named Error shall be assigned before a Scire facias shall be awarded 24 Edw. 3.31 pl. 8. Scire fac for that is the ground of the Scire facias For after a Scire facias awarded the Plaintiff cannot assign error in deed 22 Edw. 4.45 for upon the return of the Scire facias the Defendant is to come in and to hear the errors assigned upon the Record Upon a Judgment given upon a Demurrer in Law and a Writ to enquire of dammages awarded Demurrer and a Writ to enquire of dammages awarded a Writ of Error was brought and he assigned errors 17 Edw. 3.5 and good as it seems Quaere tamen If the Record and the Writ of Error do not agree Error cannot be assigned upon that Record Record Error cannot be assigned upon that Record 9 Hen. 6.4 2 Eliz. Dyer 180. pl. 48. 28 Hen. 6.11 for it shall not be judged to be the same upon which the Writ of Error was brought New Writ of Error If the Writ of Error be faulty in substance errors shall not be assigned upon the Record but shall have a new Writ Quod coram vobis residet 3 Hen. 6.3 26.5 Mariae Dyer 164. pl. 58. that is upon the Record which is removed and remains where the new Writ is brought False Judgment But if it be false Judgment then there must be a new Writ to the Suitors who were the Judges for it is not of Record 3 Hen. 6.26 Error without a day If Error be put without a day there shall be a new Writ before that error be assigned 26 Hen. 6. Scire facias 33. Nat. bâ— 20. G. for the old Writ is null and so the Judgment stands as if no writ had been brought Bill sealed Upon a Bill sealed a man shall assign error per Westm 2. cap. 31. 11 Hen. 4.52 27 Hen. 8.15 25. Coke 9. part 13. B. Dowmans case 9 Assize 8. 14 Hen. 4.15 4 Hen. 6.15 A. Martin 33 Hen. 6.34 Littleton pl. 9. 7 Hen. 6.37 10 Hen. 7.8 And if the bill is refused to be sealed the party shall have a writ to compel them to seal it Regist orig 182. A B. But by Hill Justice it is intended of a thing pleaded in Court for otherwise it shall not be sealed for the Judges are not to take notice of it Challenge in an Assize was put in a bill sealed Challenge and good 9 Assize 8. 21 Edw. 4.11 20 Edw. 3.63 Lib. Intra 346. C. 27 Hen. 8.24 25. Priviledge claimed and not allowed Priviledge there may be a bill sealed 22 Edw. 4. Priviledge 1. Conusance claimed Conusance if the plea be challenged by one that is not party there cannot be a bill sealed 20 Edw. 3. Conusance 46. for it concerns him not A Patent to three to take an Assize where two take it there may be a bill sealed Patent and error upon it 29 Assize 42. 11 Hen. 92. Assize Bill sealed the Tenant shews that the Sheriff was beyond Sea and had a bill sealed of it 1. Although the bill did bear date after the Record removed yet it is good 2. Although the party did not bring it within the bill but the Justices yet good 3. The party shall have a writ to the Justices commanding them to seal it where they do refuse to do it 4. A writ to the Justices ad cognoscenda sigilla vid. antea 5. Two Justices seal it yet one of them may deliver it for the sealing not the delivery is the principal matter 6. The party brought a Scire facias ad cognoscend sigilla before the Justices come in Court yet good for after that they come the bill was of Record ab initio and so the Scire facias may have a good relation Upon a transcript of the note of a Fine error shall be assigned
Transcript and if Error appears they shall send for the note it self and reverse it 21 Edw. 3.24 16 Edw. 3. Record 35. 40 Assize pl. 29. For otherwise perchance the Fine may not be ingrossed which may prove mischievous 1 Mariae Dyer 89. pl. 4. Lib. Intra 296. A. sect 1. Fines Nat. br 20. B. But note 5 Mariae Dyer Record 79. the Record shall be certified and no other proclamation shall be made This is intended of a Fine with Proclamations But 1 Mariae Dyer 89. pl. 4. è contra Ergo quaere Upon a transcript in Parliament error is assigned for the Chief Justice brought up the Record and reported it Ban. Regis 8 Hen. 5. Error 88. 23 Eliz. Dyer 375. pl. 19. 22 Edw. 3.3 pl. 25. But in another Court it is otherwise 40 Assize 29. Nat. br 20. F. Quaere rationem It seems because all Courts agree not in one way of proceedings Upon an award by the Justices upon return Priviledge upon a writ of Priviledge no writ of Error lies Coke 8. part 127. B. case of the City of London for this is no judgment upon Record Upon allowance of claim by the Justices of the Forest Claim 21 Edw. 3.48 pl. 70. error lies vid. antea for it is in nature of a Judgment Record removed Upon a Judgment in an annuity and after that a Judgment in a Scire facias upon the judgment Error is brought upon the former judgment the Record shall be removed 11 Hen. 4.4 viz. the whole Record as it seems Error upon a Fine with proclamations Proclamations the proclamations shall be certified Com. 265. A. Fishes case for they are part of the Record by virtue of the Statute A Writ of Error shall not be awarded until the final judgment be given Award Coke 11. part 40. A. Metcalfs case 7 Rich. 2. Error 68. for the tenour of the Writ supposeth the judgment to be given Unless the Award be ad grave dampnum Coke 11. part 41. A. Metcalfs case for then it seems a necessity to grant it before As in Debt against many by several Praecipes and judgment is given against one he shall have error and the pleadings shall be several from the original and if Error be in the original tenore tantum shall be certified Coke 11. part 41. A. Judgment in an Account quod computet Account error lies not until the final judgment Coke 11. part 38. B. 21 Edw. 3.9 1 Hen. 7.2 B. for the judgment is not perfect and entire before nor the Record made up When an Action of Trespass is in part determined Trespass error lies not until it be determined all 32 Hen. 6.5 pl. 5. 36 Hen. 6. Coke 11. part 39. B. for before the whole Action is not determined and so no compleat judgment So in a Formedon 12 Eliz. Dyer 291. pl. 67. Coke 11. part 39. B. Formedon So in Trespass against two Trespass 34 Hen. 6.41 pl. 9. So in a Quare Impedit 34 Hen. 6.41 Quare Impedit Partition So in Partition Mich. 40 41 Eliz. Com. Ban. Countess of Warwick against Henry Lord Barkley All upon the same ground If error be brought before the fourth day in Com. Ban. yet it is good Day because of Record at the Commencement 34 Hen. 6. Quaere whether so in Banco Regis In an Assize of Darrein Presentment a Writ was awarded to the Bishop and the Assize is for dammages error brought and allowed 17 Edw. 3.5 pl. 12. for this was a judgment Error upon a judgment in a Scire facias upon a Fine Record and no Record removed but the proceedings upon the former judgment and yet good 20 Edw. Error 2. viz. the Fine which is a Judgment in its nature and the Scire facias is but to have Execution upon it yet it seems better if all were removed Praecipe quod reddat Upon a Praecipe quod reddat judgment is given and error brought the original nor the judicial Writ nor the essoyn shall be removed 2 Edw. 3. Error 2. Thorpe 37. Assize 5. but only the Record of the judgment for there the error is only supposed Unless Error be assigned in the Original 24 Edw. 3.24 and then it must be removed viz. the tenour of it And then the transcript of the Record only shall be removed Transcript 34 Assize 7. 36 Hen 6.13 for the Record is supposed not to be erroneous Error upon an execution upon a Statute-Merchant Statute-Merchant and error in process assigned the original shall be removed 18 Edw. 3.24 for the original is part of the process Ancient Demean And if it be of Ancient demesn Lands the Original shall be removed 34 Assize 7. out of that Court. But Error upon a judgment in Ireland the Original shall not be removed 74 Assize 7. 37 Assize 15. Finchden Quaere rationem it seems because it is a Record of another Kingdom Fine and Recovery Error lies not upon a Fine or Common recovery for false Latin rasure interlining mis-entry of the warrant of Attorney Proclamation mis-returned or not return of the Sheriff or default of form in words 23 Eliz. cap. 3. This Statute was made in favour of Fines and to support them because they are the common Assurances of the land And by 27 Eliz. cap. 9. this extends to Fines in Wales and Recoveries there But if the fine be passed before the Kings Silver be entred it is Error No. Lib. Intra 231. A. sect 2. viz. for the not entring of it which is paid pro licentia concordandi If a Writ of Covenant be returned before the Teste this shall be amended Coke 5. part 45. B. Gages case for it is the misprision of the Clerk The Caption before the Teste of the Dedimus is no error No. Lib. Intra 255. C. Sect. 11. for the same reason Pasch 1. Jacobi Regis Rot. 426. the Countess of Bedford against Foster 1. Error assigned was because the Writ of Covenant was of eight Messuages and two Tofts and the Fine certified is of eight Messuages and two Messuages but non allocatur because the Record hath relation to the Writ of Covenant 2. Error assigned because the Indorsement was Executio istius brevis patet in quadam panella c. where it should be in quadam schedula sed non allocatur because in substance it is the same thing expressed by divers names Mich. 30 Eliz. Ban. Regis Austein Steede versus Conaway Webbe a Fine was levied of two Tenements and void because a Praecipe lies not of it this case is entred Hill 30 Eliz. Rot. 165. for a Tenement is a thing incertain of which a Fine cannot be levied Infancy good Error in a Fine Infancy Nat. br 21. D. 3 Hen. 6.16 B. 2 Rich. 3.1 17 Edw. 3.53 pl. 33. 27 Assize pl. 53. if it be brought during his Minority that he may be inspected by the Court and
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
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