3.72 pl. 1. Testamentum abstulit asportavit Will. Regist orig 107. B. Tunicam sc a Coat Armor Coat 9 Edw. 4.14 pl. 8. Five Tuns of Wine Wine the Writ was bona catalla and good Wine taken and carried away 39 Edw. 3.18 pl. 17. Lib. intra 684. A. sect 1. The Count Lib. intra 684. A. sect 1. Vestimenta 11 Hen. 4.31 pl. 57. Q. whether he must not shew what Cloaths Trespass Quare spinas suas crescent Thorns cepit asportavit ad valen c. Good without shewing the number of Loads for this is special and the value reduces it to a certainty Mich. 15. Jac. Ban. Regis Jones Wilson But if it be quasdam garbas tritici it is not good for the uncertainty what is meant by Garbes Shocks of Wheat Trin. 7 Jac. Ban. Regis For it seems a Garb may be more or less ERROR Error is either by 1. Common Law 1. Judgment in Court of Record 1. Out of the Realm 1. Ireland 2. Wales 2. In the Realm 1. Superior 1. Parliament 1. Parliament the Sheriff in Redisseism per Merton cap. 3. 1. Assizes 2. Oyer Terminer 3. Conusance of Pleas. 1. Village 2. Single person 4. Forest 5. Stannaries 2. Ban. Regis 3. Com. Ban. 4. Chancery 5. Exchequer 2. Inferior prescription 1. In him and his Successors 2. In him and his Heirs 3. In him and whose Estate he hath 2. Agard Execution 3. Other Record Fine Grant of the King 4. Custom 1. London 2. Cinque ports 3. In any Village 5. Common Right 1. Pypowders in Fair or Market 2. Marshalsey Coke 10 part 69. B. 3. Tourne 4. Leet 2. Statute Law Westm 1 2 cap. 30. upon a Bill of exception 5 Edw. 3. cap. 2. Error in Marshalsey Redress in Ban. Regis 9 Rich. 2. cap. 8. He in Reversion his Heirs or Successors shall have Error upon Judgment against Tenant for life c. and by equity he in Remainder 34 Hen. 8. cap. 16. Error upon Judgment before the Justices in the grand Sessions in Wales shall be redressed in Ban. Regis in England if it be in plea real or mixt but for personal matters it was to be redressed before the President and Council in Wales 23 Eliz. cap. 3. False Latine rasing interlining mis-entring of a Warrant of Attorney or Proclamation Mis-return or not Return of the Sheriff or fault of form in words shall not be Error in Fine or common Recovery 27. Eliz. cap. 9. ordains that this Statute of the 23 Eliz. cap. 3. extends to Fines and Recoveries in Wales 27 Eliz. cap. 8. Judgment given in Ban. Regis shall be redressed before the Judges of the Common Pleas and Barons of the Exchequer but then it ought to be in Debt Detinue Account Covenant Ejectione firmae Trespass Action upon the Case and there shall be nothing assigned in the Jurisdiction of the Court or in form in a Writ returned Plaint Bill Declaration Pleading Process Verdict or Proceedings 31 Edw. 3. cap. 12. Error redressed in the Exchequer-Chamber before the Chancellor and the Treasurer calling to them the Barons of the Exchequer and Justices 31 Eliz. cap. 1. The not coming of the Chancellor shall not make a Discontinuance of the Error in the Exchequer-Chamber And for Error therein sued upon a Judgment in Ban. Regis three of the Justices or Barons may adjourn it and it shall be no discontinuance Error In what Court Error shall be redressed Upon Judgment in Court out of the Realm Ireland JUdgment given in Ban. Regis in Ireland Error lies in Ban. Regis in England 15 Edw. 3. Error 72 37 Assize pl. 7. 5 Edw. 2. Error 89. 36 Assize 5. Nat. br 22. E. Coke 7. part 18. Calvins A. case But not upon a Judgment given in another Court in Ireland 5 Edw. 2. Error 89. Nat. br 22 E. but they shall be as it seems reversed in the Kings Bench there if they be erroneous and not trouble the Kings Bench here Erroneous Judgment in Wales shall not be redressed in Ban. Regis in England Wales Dodderidge De Principalitate Walliae fol. 18. because Wales was not parcel of the Crown of England 27 Hen. 7.33 pl. 32. but a Principality of it self belonging to the Crown But Crooke 11 Hen. 8.202 pl. 19. è contra for there it is said it is parcel of England Q. But in Parliament this ought to be reversed 19. Hen. 6.12 Ascue And also before Justices itincrant there 19 Hen. 6.12 Newton viz. in Wales But at this day Judgment given at the Grand Sessions in Wales in a plea real or mixt shall be redressed in ban regis in England per Statute 34 Hen. 8. cap. 26. But in plea personal it shall be redressed before the President of the Council in Wales by Bill exhibited before him But Judgments given in the Assizes in Wales cannot be redressed in Com. Ban. here 8 Eliz. Dyer 250.87 Isle of Man Erroneous Judgment given in the Isle of Man may not be redressed in England because it is not parcel of England Crooke 11 Hen. 8.202 pl. 19. Upon a Judgment given in ban regis Error lies in the same Court per Common Law 2. Within the Realm in Court superior as Parliament Ban. Regis if it be upon Error in Process or default of Clerks Nat. br 21 I. 7 Hen. 6.28 pl. 22. 19 Hen. 6.2 pl. 2.15 Edw. 4.7 8. 3 Eliz. Dyer 196. pl. 39. 27 Hen. 8.15 B. Knightley But if it be Error in Law which is the fault of the Justices it shall not be redressed but by Parliament per Common Law Nat. br 21. I. 9 Edw. 4.3 3 Eliz. Dyer 196. pl. 39. 201. pl. 64. 23 Eliz. Dyer 374. pl. 19. 27 Hen. 8.25 B. Fitz-James For they shall not reverse their own Judgments But Error in process or default of Clerks ought to be reversed in the same Term or otherwise it lies not in the same Court as it seems by the Justices Trin. 7. Jac. ban regis Prowse Skeynner Q. But one case was Mich. 41 42 Eliz. Rot. 639. which is a rule that Error lies in another Term upon Error in Process when the party cannot have Error in the Exchequer Chamber But by the Stat. of 27 Eliz. cap. 8. if Judgment be given in ban regis upon a Suit commenced there the Writ of Error lies in the Exchequer-Chamber before the Iustices of the Common Ban. and Barons of the Exchequer or six of them Coke 3. part 7. B. 4. part 53 86. A. 5 part 18. B. 28. A. 43. A. 97. B. But then it ought to be in Debt Detinue Account Covenant Ejectione firmae Trespass upon the case and no other Actions for the Stat. shall not be largely expounded And also nothing shall be assigned for Error in the jurisdiction of the Court or form of the Writ Return Plaint Bill Declaration Pleadings Process Verdict or Proceedings but only in matter in Law And also a
Writ of Error lies upon this in Parliament viz. upon a judgment given in the Kings Bench. Iudgment given in Chancery according to the Common Law that is on the Petty-bag side shall be redressed in Parliament 37 Hen. 6.13 11 Edw. 4.8 Choke So it seems of a judgment in the Exchequer-Chamber Or in ban regis 14 Eliz. Dyer 315. pl. 100. and so it seems 37 Hen. 6.13 8 Edw. 3.25 17 Assize pl. 24. com 393. A. 39. Assize 18. And in case of Partition one Scire facias was brought in Chancery upon Error and good 42 Assize 22. If Letters Patents are enrolled in Chancery there shall be a Scire facias to reverse it there 16 Edw. 3. bre 651. 2 Rich. 3.1 A. if erroneous But another Subject upon this being grieved shall have this redressed in Parliament 16 Edw. 3. bre 651. 37 Hen. 6.13 But no Writ of Error lies altogether upon a Decree in Chancery because in their proceeding the Court is not a Court of Record 37 Hen. 6.13 27 Hen. 8.15 Rnightley but meerly arbitrary A Judgment given in com ban if it be erroneous in Process Com. Ban. or in default of Clerks it shall be redressed in the same Court the same Term without a Writ Nat. br 21. I. 15 Edw. 4.7 8. 7 Hen. 6.28 pl. 22. 19 Hen. 6.2 pl. 2. viz. upon a motion at the Bar. But for Error in Law in the same Term or other Error in another Term this shall be redressed in ban re only Nat. br 21. I. Coke 8. part 5. A. 5 Mariae bre commission 25. It shall not be redressed at the Council-Table 39 Edw. 3.14 pl. 28. For that is not a Court of Law but of State Judgment given before the Barons of the Exchequer Exchequer shall be redressed in the Exchequer-Chamber before the Chancellor of England Treasurer Barons and Justices 31 Edw. 3.12 A. 37 Hen. 6.15 8 Hen. 7.13 pl. ult com 260. B. Coke 1. part 11.34.3 part 11. B. 8. part 58. A. 65. B. 15 Edw. 4.18 39 Hen. 6.52 6 Hen. 7.15 Inferior Court The Statute of Merton cap. 3. makes the Sheriff Judge of Record in redisseisin and Error lies upon a judgment given by him in ban regis Coke 6. part 12. a Gentlemans case Judgment given at the Assizes in the Countrey Assizes shall be redressed in ban regis 33 Edw. 3. Verdict 48. 7 Eliz. Dyer 235. pl. 21. 23 Eliz. Dyer 375. pl. 19. 2 Rich. 3.1 pl. 1.10 Assize pl. 25. Or in Com. Ban. Nat. br 25. E. But judgment given at the Assizes in Com. Monmouth shall be redressed only in ban reg and not in the com ban because the other Iustices at the Assizes are by Letters Patents 8 Eliz. Dyer 250. pl. 87. and if the Assizes be adjourned in com ban and judgment given there it shall be redressed in ban regis 8 Hen. 6.17 And if judgment be given at the Assizes in a Quare Impedit Error lies in ban regis 6 Edw. 6. Dyer 76. pl. 34. But judgment given at the Assizes shall not be redressed at the Council-Table 39 Edw. 3.14 pl. 28. vid. antea rationem quare non Oyer and Terminer Upon Commissions of Oyer and Terminer by Iustices of the Peace the judgment given by them shall be redressed in ban regis 29 Edw. 3.30 5 Mariae brev Commissions 25. But Error lies not upon a thing done before the Iustices of the Peace 4 Hen. 6.24 Martin For such things are not accounted judgments but may be rectified in some cases upon a motion made to that power But Error was brought upon an Utlawry upon an Indictment taken before Iustices of the Peace 11 Hen. 4.53 For an Outlawry is a kind of a judgment given by the Coroner though the Indictment pended before them Conusance granted to a City or Village corporate Judgment Conusance of pleas granted to a City or Village corporate their judgment shall be redressed in Ban. Regis Or to a Body Natural and not Corporate for such are judgments upon pleading For a judgment in Chester Error lies in Ban. Regis Coke 2. part 89. B. 19 Hen. 6.12 6 Hen. 4.8 pl. 30. But note Note in a Writ of Error upon a Judgment given in Chester day shall be given for so long time that three Counties may be held there before the return of the Writ in Ban. Regis within the which time the Justices or Lieutenant of the same County may redress the Error by the usuage of the said County Regist orig 17. A. if they please But in a Writ of Error upon a Writ of Error depending there they have no such power but the Record and the process ought to be remanded at the first County or Court into Ban. Regis Regist orig 17. A. Lib. intra 290. A. sect 1. Chester And by usuage in the same County of Chester nine County-Courts shall be held one year and eight another year c. Regist orig 17. A. The usuage is to have a Writ out of the Chancery retornable in Ban. Regis for Writs of Error are excepted in the Charters granted to Chester And in this Error there the Justices may award a Scire facias against the Defendant returnable at the next County and if the Judgment be affirmed the party may have a special Writ of Error reciting the former Writ and have the Records and Process of both Judgments removed in Ban. Regis there to be examined and a Scire facias awarded against the Tertenant ad audiendum errores for otherwise the party shall not be restored to that which he lost 15 Eliz. Dyer 321. pl. 20. 21 Hen. 7.34 pl. 32. Fineux 34 Hen. 6.42 6 Hen. 4.8 pl. 36. Lib. intra 290. B. sect 1. Chester And by 18 Eliz. Dyer 345. pl. 6. if the judgment be reversed the party shall be restored and the Judges there forfeit to the King 100 l. although the Judgment was given by their Predecessors But then it is not intended of Error in fact but only of Error within the Record or Process No. Lib. intra 231. A. sect 2. Upon a Claim allowed by the Justices of the Forest Error lies upon it in Ban. Regis Forest 21 Edw. 3.48 pl. 70. For such Allowance is a Judgment in its nature If eroneous Judgment be given in the Stannaries Stannaries it shall be redressed first before the Warden of the Stannaries and after before the Council of the Prince and after before the King himself as supream Judge It seems at the Council-Table and not in the Kings Bench. Pasch 7. Jac. Regis per Flemming chief Justice a Writ of Error or false judgment lies not upon judgment given in the Court of the Stannaries as was resolved by all the Justices and it seems the reason is because it is but an English Court and not a Court of Record Judgment in the County Palatine of Durham shall be redressed by a Writ of Error there and upon Error in this
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.
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
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
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
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.
accord with satisfaction is no Bar Obligation simple accord because the duty being certain ought to be avoided by matter of as high a nature as it was created which cannot be by parol Coke 6. part 44. A. Blakes case But if the duty accrue not until some subsequent act be performed there accord with satisfaction a good plea Coke 6. part 44. A. For there the duty was not certain but depended upon a matter ex postfacto A. obliged to B. in 100 l. shews 3 Acquittances Acquittance 1 of 10 l. 2 of 20 l. and 3 of 20 l. which amount to a receipt of 50 l. parcel of the 100 l. in which he was bound to pay 50 l. this is a good Bar because it appears that it was but 50 l. principal debt for which the Bond was made though the penalty was 100 l. 43 Edw. 3.31 pl. 26. Foreign Attachment in London is a good Bar Attachment as it seems No. Lib. intra 139. C. sect 20. 22 Hen. 6.47 pl. 2. By the Custom there Q. tamen for it may be unduly attached and no Judgment upon it But a Legacy cannot be attached because it may not be due in respect of payment of the Testators debts Mich. 14. Jac. Ban. Regis Vaughans case and so it is a thing uncertain Attainder of Felony no plea Attainder Mich. 38 39. Eliz. com Ban. Banister versus Trusselle in debt for the Attainder doth not discharge the debt Nil debet Nil debet in debt upon a Obligation is no plea because an Obligation shall not be avoided by a nude Averment but by matter of as high a nature Doct. Stud. 22. Non compos mentis Non compos mentis pleaded by the party is no good Bar. Trin. 37. Eliz. ban Regis Strode versus Marshal vide 5 Edw. 3.70 For the party shall not plead in his own disability Payment without acquittance no plea Payment in debt without a specialty 33 Hen. 8. Dyer 51. pl. 10. Coke 5. part 43. Doct. Stud. 22. 20 Hen. 6.3 A. Paston 26 Hen. 8. Dyer 6. pl. 3. 28 Hen. 8. Dyer 25. pl. 160. 41 Edw. 3.7 pl. 15. because it must be avoided by a matter of as high a nature A. by indenture sold Land for 20 l. and there were Covenants in the Deed for the performing of which he bound himself in 40 l. Debt was brought for the 40 l. Payment without Acquittance is no plea 26 Hen. 8. Dyer 6. pl. 3. fol. 25. because the Action is grounded upon the Indenture and the Bond. A Defeazance upon a Statute-Merchant to pay 20 l. thereof without an Acquittance is a good plea for the Defeazance is instead of an Acquittance and this is without bringing an audita querela when the party is not in execution 17 Edw. 3.3 pl. 10. For if he be in execution there he must have an audita querela Obligation conditional A. is bound by obligation to pay his Rent there payment without an Acquittance is a good bar 46 Edw. 3.1 pl. 1. because the obligation was but conditional and made no present duty When the original contract is for money Accord an accord with satisfaction is a good bar Coke 9. part 79. A. Petoyes case 22 Edw. 4.25 A. For thereby the contract is discharged But an accord made with a general receiver is no bar to his Master if he had not a special authority Doct. Stud. 137. B. But when the condition of the agreement is for a collateral thing there an accord is no bar Coke 9. part 79. A. 12 Hen. 4.23 9 Hen. 7.4 4 Hen. 8. Dyer 1. For such a thing cannot be accorded for And if it be before the day of doing the thing then part of the sum received is a good bar Coke 5. part 117. Pinnels case 27 Edw. 3.84 to the Action because the Action is brought upon the whole Contract part whereof was discharged before the time agreed on for performing it But at the day or after it is no bar unless it be in another place Coke 5. part 117. Pinnels case Because then the whole duty was due upon the entire contract part received is a good bar in another Country else the party shall be without remedy for so much as he paid The Defendant pleads he paid so much in full satisfaction the which the Plaintiff received and not that he paid so much the which the Plaintiff received in satisfaction Coke 5. part 117. A. Pinnels case and good for he must receive the money as it was paid and not as he will receive it Conditions performed Conditions performed is a good barr 41 Edw. 3. 10. pl. 7. fol. 25. pl. 19. Thorpe in an action of Debt upon a Bond for performance of Conditions One pleads part of the Arbitrement Arbitrement it shall be intended all that was arbitrated until the contrary be shewed by the other party 2. The other may shew the remnant and traverse absque hoc that they arbitrated that only as he pleaded it 3. The other needs not to rejoyn to more but joyn issue because else it shall be a departure from his Plea which must not be in pleading Pasch 12 Jac. Ban. Regis Linsey versus Ashton Condition to levy a Fine Upon an Obligation with a Condition to levy a fine upon Garnishment the Sheriff returns him garnished in debt he pleads that he was not by the Law 28 Edw. 3.100 pl. 42. 29 Edw 3.44 pl. 4. and good because it is penal unto him and the Bond is but conditional and no present duty and therefore the Sheriffs return shall not bind him Deed poll A enfeoffs B by Deed poll provided that if he pay 20 l. to B he may re-enter and is bound to perform all Covenants and Payments contained in the Deed poll he is not bound to pay the 20 l. for it is at his election to pay it or lose the Land Trin. 9 Jac. Ban. Regis Briscoe versus Knight Rott 271. for if the Proviso be not performed the Feoffment is absolute and the Bond is but to strengthen the Feoffment A is bound to B to pay a sum granted by C by Indenture to B and to levy it of his goods and Chattels viz. of C this is void and therefore no barr in Debt brought by C 41 Edw. 3.7 pl. 15. Belknap 46 Edw. 3.18 pl. 17. Belknap Quaere A thing void in Law cannot be pleaded in barr A Conditions that B shall lease to C the Land in his occupation Condition except the Trees this exception is not good unless they were excepted in the Original Lease and then B ought to shew it Mich. 15 Jac. Ban. Regis Dores case for he letts him not the land in his occupation if he had the Trees and excepted them A Conditions that Lessee for life shall make a Lease for 10 years and he makes one for ten years if he live so long this is good
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
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.
part 29. B. qua a Jew but if a convert it seems he may 8. Illiterate 12 Eliz. Dyer 293. pl. 3. Coke 5. part 58. A. Specotts case 40 Edw. 3.25 pl. 31. For he is unfit to teach and had more need to be taught 9. Perjured For he will make little conscience of Religion 10. Irreligious 5 Hen. 7.6 Q. how 11. Miscreant Coke 5. part 58. A. Specotts case viz. that believes not rightly the Articles of the Faith For how will he maintain and instruct others in it 12. Not able upon examination 39 Edw. 3.1 pl. 5. viz. of the Ordinary in the principles of Religion and other fit qualifications 13. Premunire 38 Edw. 3.3 pl. 9. In regard of the heinousness of the offence and punishment 14. Himself patron 31 Hen. 6.621 For he ought not to present himself 15. Saracen Coke 11. part 29. B. or Turk or Infidel not acknowledging God and Christ 16. Schismatick Coke 5. part 58. A. Specotts case For he will make disturbance in the Church 17. Simonist Lib. intra 532. A. Q. By what Law 18. Villain 14 Hen. 7.28 B. for he is not sui juris 19. Utlaw Coke 5. part 48. A. Specotts case For he is fit for no society and unfit to teach obedience to others that hath none himself These are good Causes of refusal viz. which are above specified Where one having a Parsonage in Wales Note and could not speak Welsh and therefore excepted unto as insufficient it was demurred to Trin. 27 Eliz. Albany versus Episcopum S. Asaf Q. Deley as not a sufficient cause These are not good causes of refusal That he hath another Benefice with Cure 14 Hen. 7.28 B. For he may be qualified to have two Benefices by the Stat. Hunter of Taverns and a player at unlawful Games Coke 5. part 57. Specotts case 9 Eliz. Dyer 254. For this makes him not unfit to watch though it make him scandalous for which he ought to be punished Criminosus 34 Hen. 6.39 A. For that is a word of a very large extent and uncertain These are good causes of refusal in the Presenter Attainted 15 Hen 5.17 B. Keble viz. of Felony or Treason Presenter which is Excommunicated per 40 days 115 Hen. 7.7 B. Keble and so stands excommunicated in contempt of the Church This Law is now altered by the taking away the Ecclesiastical jurisdiction in that point and now is again revived Infant not of the Age of 14 years Perkins 4. A. For he shall not be judged of sufficient discretion to present a fit person Q. tamen Joynt Tenant or Tenant in common not agreeing Nat. br 34. V. concerning their presenting for that is litigious The same Law is of one present alone 14 Eliz. Dyer 340. pl. 54. except it be by consent A Master of a Colledge presented by the Colledge 14 Hen. 8.23 For that is like as when the Patron presents himself Utlawed 15 Hen. 7.17 B. Keble For he can have no Title A Corporation ought to present in writing Presentation 14 Hen. 8.2 and not by parol for they cannot ill speak at once as they may by writing A Body natural may present by word 14 Hen. â— 22 The King may present by word 19. Edw. 3. Quare impedit 60. For he is but one person numerical though he hath a political capacity and speaks in the plural number It is no Bar to say that the other Writ was abeted Abatement if it were for form or false Latine Coke â— part 27. B. Portmans case For that is not the fault of the Plaintiff but of the Clark But that it was abated because the 1 Plaintiff was made Knight the Writ depending this is 〈◊〉 good Bar Coke 7. part 27. B. Portmans case For it was his own fault The Plaintiff counts of the presentment to the Advowson in Gross Appendant and a Grant of it to him the Defendant pleads it was appendant he cannot traverse that it was not in gross because by intendment they are several Advowsons Crooke 19 Hen. 7.51 pl. 1. For one and the same Advowsee cannot be in gross and also appendant An Arbitrement is a good Bar Arbitrement Lib. intra 498. C. s 1. A Confirmation or ratification by the King to the Incumbent is a good Bar against the King 7 Hen. 4.13.14 Hen. 4.25.837 Lib. intra 531. sect 22. by way of estopple Confirmation But this ought to be after Induction 11 Heâ— 4.9 For before he shall not be said to be a perfect Incumbent as to the King If the King be deceived he may repeal the Confirmation 31 Edw. 3. Quare impedit 161 This by his prerogative for the King ought 〈◊〉 be truly informed But then the repeal ought to be before Indâ—ction or Installation 25 Edw. 3.47 for after 〈◊〉 is too late If the King recover and confirm the Incumbent this is no Bar to the next avoidance because his Judgment cannot be executed Nat. br 34. F. 10. Edw. 3.389 pl. 32. 18 Edw. 3.57 pl. 87. But if he Lease the Advowsons afterwards â—uare who shall have them Where one brought a Quare impedit Discontinuance and discootinued his Action adjudged a good Bar although that the Writ was purchased afterwards within the 6 Months Coke 7. part 27. B. Portnans case For it shall be intended he hath no right A Fine levied by the Ancestor of the Plaintiff of the Advowson is a good Bar Fine Lib. intra 532. C. sect 3. Warranty and Assets descended to the heir Warranty is a good Bar against the Issue in Tail 43. Edw. 3.24 pl. 31. No Disturber That he did not disturb is a good bar Lib. â—â—tra 503. C. sect 2. 22 Edw. 3.17 pl. 71. For a good Issue may be taken upon it This may be pleaded to the grand Distress 22 Edw. 3.17 pl. 71. as well as if he had appeared upon the first summons But 21 Hen. 6.45 A. 2 Edw. 3.32 pl. 7. It is held that it is no Bar because no Title is made 14. Edw. 3. Judgment 158. and before Title made there needs no plea yet Q. For he may as it seems admit a Title But if it be a good plea before Issue yet after Issue joyned it is not because it is a delay and so a disturbance in it self in the eye of the Law 3 Edw. 3.50 pl. 6.4 Edw. 3.97 pl. 31.17 Edw. 3.71 But 18. Edw. 3.149 pl. 15. fol. 359. 〈◊〉 è contra after title made this is no plea 5 Hen. 4.20 Br. Quare impedit 62. Q. Against the King it is no Bar because the patty there ought to make a title 7 Hen. 4.32 pl. 18. Non-suit after appearance in another Quare impedit before for the same advowson Non-suit is a good Bar although the last be purchased within 6 Months Coke 7. part 27. B. Portmans case 21 Hen. 6.25.27 For that argues he had no right and that his Suit was only vexatious And so if the former Writ
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
brought against the Gardein of the Spiritualties upon refusal of the Bishop which is dead Vet. Nat. br 26. A. Nat. br 47. J. and well for he is now in the room of the Bishop But it was denied against the Archbishops Gardein of the Spiritualties vivente Archiepiscopo at videtur And yet quaere per 17 Edw. 3.27 pl. 9. if the Metropolitan of Common right be not Gardein of the Spiritualties It seems not since Hen. 8. come It was maintained against the Official of the Bishop Nat. br 47. N. who used as it seems to admit Clerks presented In what Cases this lies When a man recovers his presentation and the Bishop will not admit his Clerk the party shall have this Writ Vet. Nat. br 25. B. Nat. br 47. C. And this is although the Bishop return cause why he will not admit the Clerk 9 Eliz. Dyer 260. pl. 21. Coke 6. part 52. A. Boswels case for he must take notice of the Judgments given at the Law in such cases But if the Record be removed by a Writ of Error it lies not till Judgment be affirmed Nat. br 47. E. for till then it doth not appear the Judgment was duly given and this Writ doth suppose right Judgment given The Bishop refuses and afterward admits him yet the party it seems shall have this Writ Nat. br 47. L. Q. for it seems to little purpose except it be to recover dammages for not admitting at first The Writ 1. It ought to rehearse the Recovery in the Quare Impedit Nat. br 47. C. because that is the ground of the Writ 2. It ought to be brought in the County where the refusal was because he shall recover nothing but dammages Vet. Nat. 25. B. Nat. 47. F. Coke 7. part 3. A. Bulwers case 38 Hen. 6 14 15.39 Edw. 3.2 pl. 5. 29 Hen. 8. Dyer 40. pl. 69. and the dammages can be best enquired and known there The Count. The writ was against the Bishop and counted though the Vicar general refused and yet good 〈◊〉 Edw. 3. Quare non admisit 4. Vet. Nat. br 26. 〈◊〉 rid antea why so The King counted not upon what original or â—â—t Title he recovered and yet good 20 Edw. 3. â—â—e non admisit 10. for he is not bound to be 〈◊〉 punctual in pleading as a Common person for â—â—â—â—ceth if it be good in the substance The Barr. That he admitted him and made Letters to 〈◊〉 Archdeacon to induct him a good barr 38 〈◊〉 6.14 Nat. br 47. H. for this doth disaffirm 〈◊〉 Writ That the Bishop collated by Lapse is a good 〈◊〉 Nat. br 47. M. for by that the Plaintiffs Tiâ—â—s destroyed hac vice Or that it was litigious by the presentment of â—anger 9 Edw. 3. Quare non admisit 12. 34 〈◊〉 6. Quare Impedit 89. 34 Hen. 6.41 pl. 10. 〈◊〉 also the Ordinary could not know who was to 〈◊〉 admitted But if A and B contend by reason of which 〈◊〉 Bishop collates by Lapse and after the King â—overs in a Quare Impedit this is no barr in a â—ure non admisit brought by the King 23 Edw. 〈◊〉 12. Quare non admisit 11. for the Kings Title â—â—dgne to the collating Excommunication cannot be pleaded in the Plaintiff because the Writ supposeth a contempâ— in the Ordinary in that the Plaintiff hath presented his Clerk in the Writ named after Judgment given for him which supposeth him not Excommunicated but a good plea that the Incumbeâ—â— did not make request after Judgment 21 Hen. 7.71 pl. 14. Crooke for without request the Ordinary is not bound to take notice No such Record is a good plea Coke 8. part Dreuries case viz. as he pretends he hath Judgment upon A good barr that the Church was full before the Recovery of one not named in the Recovery Nat. 47. K. and so the Ordinary had no cause to admit his Clerk The Bishop returned that the Advowson is seised into the hands of the King by reason of Wardship and is so full of the Kings presentment this is good 9 Eliz. Dyer 260. pl. 21. tameâ— Coke 6. part 52. A. Boswels case è contra Q. The Judgment The Judgment is but to have dammages Nat. br 47. G. Quare Incumbravit In what Court it shall be brought It is a Writ Original and therefore it ought to issue out of the Chancery Nat. br 48. G. as all Originals do for the Chancery is Officina brevium But it shall be brought in Com. Ban. because it a Common plea Vet. Nat. br 26. B. viz. made â—â—rnable there And although the Record be removed out of 〈◊〉 Common pleas Nat. br 48. F. because it is an â—â—â—ginal Writ per Shard 17 Edw. 3.55 A. But the King may bring this in Ban. Regis alâ—â—â—gh the Record be in Com. Ban. But a Comâ—â—â— person shall not Nat. br 48. F. 17 Edw. 3.50 〈◊〉 â—1 for the King may sue in what Court he â—â—â—seth though a Subject in some cases is conâ—â—ed What person shall have it The Plaintiff or Defendant in a Quare Impedit 〈◊〉 Darrein Presentment that recovers for by the â—ecovery it appears they have Title Against whom it lies It lies against the Bishop Vet. Nat. br A. In what Cases this lies not It lies not in right of Advowson Nat. br 48. Q. 〈◊〉 that concerns not the presentation It lies not unless a Ne Admittas be first directed 〈◊〉 the Bishop a Quare Impedit depending Vet. â—â—t br 26. B. Nat. br 48. H. for by that he is to â—ake notice of the Suit which otherwise he is not â—â—und to Yet it was maintained although no other Writ â—as first attained Vet. Nat. br 27. A. Q. It lies not unless the party hath recovered before by Judgment of the Court Nat. br 48. 〈◊〉 17 Edw. 3. 50. pl. 21. and so cleared his Title The Incumbring by his Collation ought to bâ— alledged to be within six Months Nat. br 48. 〈◊〉 for after the six Months there can be no incumbrance in respect of the Lapse And if he admit the Clerk of the other person after the six Months which was presenteâ— before the Action the Writ lies Nat. br 48. L. Quaere The Writ is Original and issueth out of the Chancery only Nat. br 48. G. 17 Edw. 3.74 B. vide the Writ Nat. br 48. O. Regist orig 32 A. It ought to be brought in the County where the Church is because the Clerk of the Bishop shall by this be removed and the Clerk of the other admitted Coke 7. part 3. A. Bulwers case Nat. br 48. D. 38 Hen. 6.14 pl. 32 and the wrong is done in the County where the Church is and that County may have best conusance of the cause It ought to make mention of the Recovery Nat. br 48. K. Regist orig 32. B. But 18 Edw. 3.17 by Wilby he ought not to mention it Quaere The Writ needs not mention before whaâ— Justices the Recovery was and yet good for the Recovery is the
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.
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
Hen. 6.23 7 Hen. 4.18 pl. 22. 11 Hen. 7.12.17 Edw. 2. brev 8 22. as Ordinary for he hath a kind of property in it But not for a thing which was not in his possession Nat. br 92. A. Coke 9. part 39. A. Henslees case 7 Hen. 4.18 pl. 22. For the Law takes no notice of his right without a possession A Parson shall have Trespass for Tithes taken after severance of the 9 parts Parson 10 Hen. 4.2 pl. 2. Gascoign 21 Hen. 7.27 pl. 5. before any seisure because it is certain by the severance what was his and the Law casts the possession and property upon him Com. 281. A. Foxes case But not of a Mortuary before seisure Com. 281. A. 10. Hen. 4.1 but there is but a bare customary right A Parson or Vicar shall have Trespass for the Walls or Glass of the Church or Grass or Trees in the Church-yard c. or Glebe-Land 11 Hen. 4.12 pl. 25. 8 Hen. 6.9 pl. 20. 11 Hen. 6.4 B. Danby Q. For the Church belongs to the Parishioners and the Chancel to the Parson yet the free-hold of the Church is in the Parson Parson imparsonee shall have Trespass against any that is admitted and inducted into the said Church if he intermeddle with the Glebe or Tythes Com. 500. B. 38 Hen. 6.24 39 Hen. 6.24 27. because they belong unto him Protected person He that hath a protection Royal shall have Trespass against him that takes his Goods Nat. br 92. B. though if not protected he might take them for during the protection he is not to be molested and so hath wrong done him If one hath the possession of a thing Possessor he shall maintain an Action against him that hath no right Com. 546. A. whether his possession be lawful or not But note Note that upon a possession in Law only he shall not have Trespass 22 Hen. 6.49.5 but it must be an actual possession for that is visible and notorious and the other is not so but may be disputable But if A gives Goods to B B shall have Trespass before possession for he hath the property in Law in them 2 Edw. 4.25 per 2 Justices Coke 3. part 26 27. Butler Baker and property in Law is made then a possession in Law In a Trespass brought it was found by office that another was Tenant and that it escheated to the King this shall abate the Writ as to the things upon the Land Com. 488. B. Nichols case 546. A. 19 Edw. 4.2 pl. 5. because the Land was the Kings and not the Plaintiffs He that enters upon the possession of the King shall not gain possession therefore he shall not have Trespass Com. 546. A. Paramors case 2 Hen. 4.7 pl. 29. For nothing can pass out of the Crown but by matter of Record Or upon a Farmer of the King 2 Hen. 4.7 pl. 29. For he is in upon the Kings right and the prejudice done unto him is done unto the King immediately But against him that outs the Farmer the King shall have Trespass Com. 546. A. Paramors case Q. whether the Farmer may not also have Trespass The King shall have Trespass King Nat. Br. 90. I. Regist orig 99. A. And in this case the party cannot make fine because the dammages are to the King himself to Hen. 4.3 pl. 7. and the fine shall be included in the dammages Q. tamen For it seems he shall make fine But for Trespass in the Rings Lands there uses to be an information in the Exchequer Nat. br 90. I. This is not by way of English Bill but on the Pleas side Q. if it may not be by an English Bill And in such case the judgment is that the party shall be removed and put out of possession although that it be but a personal Suit and the removal shall be by Writ formed in the case ditected to the Sheriff Com. 561. B. This Judgment is by way of Decree ergo on the Pleas side But the King may have a Trespass quare clansum fregit Nat. br 90. I. if he will The Queen shall have Trespass without the King Queen Nat. Br. 101. for Lands belonging to her Revenue and she is not in the nature of another Feme covert Revusancy shall be pleaded in disability to sue an Action of Trespass for as many Hereditaments as are not seised into the Kings hands Recusant 3 Jac. cap. 5. For such as are seised concern not the Recusant A Bishop shall not have an Action of Trespass for a Trespass made in a vacancy of the Bishoprick Bishop 39 Edw. 3.12 pl. 18. 18 Edw. 2. Trespass 237. For that could not concern him but the Guardian of the Spiritualties as it seems Vide tamen Regist 101. A Writ formed in such case for the succeeding Bishop Ergo. Q. Master of an Hospital A Master of an Hospital shall have an Action of Trespass for a thing done in the time of his Predecessor for the dammage redounds to the House Nat. br 89. G. Regist orig 196. B. the Writ there And by the same reason why may not the Bishop for a Trespass done in the Vacancy Tenant at will Tenant at Will shall have Trespass against a Stranger 19 Hen. 6.45 pl. 94. 12 Edw. 4.8 pl. 20. 35 Hen. 6.5 pl. 7. For he hath a Title against him For entring his Close and burning his Hay 35 Hen. 6.5 pl. 7. Copy-holder shall have Trespass Copy-holder Coke 4. part 31. A. 2 Hen. 4.12 pl. 49. Coke 4. part 4.21 B 23. B. and this before his admission per descent for his admission is but a Ceremony yet essential to his Estate Tenant in common Tenants in Common join in Trespass touching their Tenancies Littleton sect 315. 18 Hen 6.5 14 Hen. 6.9 pl. 38. 12 Hen. 6.4 pl. 11. 45 Edw. 3.13 5 Hen. 4.1 14 Hen. 4.31 43 Edw. 3.24 pl. 3 22 Hen. 6.12 in respect of their common and undivided interests But if one dies the other shall have an Action for all the Trespass 43 Edw. 3.24 pl. 3. For it survives with the Land They ought to join in Trespass 5 Rich. 2. cap. 7. 34 Hen. 6.32 pl. 16. 4 Edw. 4.18 21 Hen. 7.22 because it concerns them both in common and undividedly Note For battery they shall not join Reg. orig 105. B. For that is a distinct Trespass for the beating of one is not the beating of the other A had Male Swans B Female which having young ones for the young ones they shall join if they be taken away because they are Tenants in Common Coke 7. part 17. A. 2 Rich. 3.15 16. of the Swans and the young ones One Tenanant in common shall not have Trespass de bonis asportatis against his companion that takes them Lib. Intra 653. B. sect 3. because he hath an interest in them Tenant for anothers life Tenant for anothers Life is disseised he for whose life he held dies Tenant