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.
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
6.35 B. Paston 7 Hen. 6.41 Coke 5. part 99. B. Hoes case Garnishee For he is bound by the judgment Garnishee in London upon an Attachment according to the Custom shall have error 22 Edw. 4.30 31. For the judgment is in part against him Tenant per Receipt shall have error Coke 3. part 3.4 Assize 7. 20 Edw. 3. Error 2. Tenant For by the Receipt he is made party to the Suit and concerned in the judgment Vouchee shall have a Writ of error 8 Hen. 4. 3. Nat. br 21. C. 4. Assize 7. 17 Edw. 3. Error Vouchee 90. Nat. br 21. M. 108. A. For by the Voucher he is called in and made a party And the Tenant shall have another Writ of Error 8 Hen. 4.3 21 Nat. br 21. C. for they are severally concerned But if the Vouchee release before Error brought the Tenant shall not have it 17 Edw. 2. Recovery in value 32. for by the release he is barred viz. a release of Errors or of his right Heir general shall have a Writ of Error 20 Edw. 4.13 Lib. Intra 269. A. Sect. 1. for he is prejudiced by the Judgment And if the Ancestor be outlawed of Felony Heir general he viz. the Heir shall have it Nat. br 21. N. viz. to reverse the Outlawry and to gain his own interest But not for High Treason per 28 Eliz. cap. 2. because thereby the blood is corrupt and disabled The Heir special shall have it for the Lands to which he is heir Heir special 3 Hen. 4.19 Nat. br 21. K. 9 Hen. 6.47 1 Mariae Dyer 90. pl. 5. but he must have a special Writ as it seems Executor shall have Error upon judgment for debt or dammages Executor Nat. br 21. M. given against the Testator for the regaining of the Testators estate Although that he be Executor to the Bishop Parson or other sole Corporation Nat. br 22. A. Coke 4. part 65. A. Fulwoods case 8 Hen. 6.25 A. Martin for that makes no difference in the case And this upon the Statute of 29 Eliz. cap. 8. Coke 6. part fol. ult Executor shall have error upon an Outlawry of the Testator and restitution of the goods lost by the Outlawry 11 Hen. 465. pl. 22. 5 Edw. 4.7 Although that the Outlawry be for Felony Coke 5. part 111. A. vid. antea Administrator shall have error in the same manner as Executor shall have Administrator Nat. br 21. M. 6 Edw. 6. Dyer 76. pl. 31. for he hath the same interest in the Intestates personal estate A Successor shall have error for a thing which toucheth the Succession Successor to a thing whereof he is so Nat. br 22. A. 16 Edw. 3. Error 69. 8 Hen. 6.25 A. Martin The King collates A to a Chappel King against whom an Action is brought A resigns to the King the King collates B Judgment is given pro querente B shall have Error 15 Edw. 3. Error 7. 15 Assize 8. for now the interest concerns him But for Debt or Dammages recovered against a Bishop Bishop c. or against any Secular sole Corporation the Successor shall not have Error Nat. br 22. A. for the dammages concern the Executor and not the Successor and so he hath no right to sue He in Reversion after the particular estate ended shall have Error at Common Law Reversâ—on and not before Coke 3 part 4. A. 21 Hen. 6.29 Newton 3 Hen. 4.6 32 Edw. 3. Error 73. 4 Hen. 8. Dyer 6. pl. 5. com 24. B. Weston for before he is not concerned in the Judgment Q. And per 9 Rich 2. cap. 3. he shall have it during the Estate for life Coke 3. part 4. 22 Edw. 4.31 A. Vavisor 3 Hen. 4 6. 12 Hen. 8.9 A. Brudnell And this seems reasonable for he may be prejudiced by the delay Q. And by equity he in the remainder shall have it Nat. br 108. A. 1 Mariae Dyer 90. pl. 5. But at Common Law the Donor in tall shall not have it altogether com 241. B. Q. And yet he shall not have Error during the estate Tail because he is not within the Statute of 9 Rich. 2. cap. 3. Coke 3. part 61. A. Lincoln Colledge case 10. part 44. B. Portingtons case But after the Estate tail ended he shall have it because the Law reserves the reversion in the Donor Coke 3. part 3. B. And although Tenant in tail suffered a Common Recovery and released Errors and yet â—â—ings error and is barred and dies without issue â—et the Donor or he in Remainder shall have Erâ—or 3 Eliz. Dyer 188. pl. 9. to reverse the Recovery â—or if that be erroneous then the Estate â—ail is not barred by it Note regularly no Stranger shall have Error Estranger â—2 Edw. 4.31 per Brian viz. a Stranger to the Judgment but this holds not always Conusor aliens Execution is sued erroneously Conusor the Alience shall have error Nat. br 22. B. 4 Hen. 8. Dyer 1. pl. 5. 17 Assize 24. 18 Edw. 3.25 pl. 17. Crooke 6 Hen. 8.169 A. Pollard for his title is concerned A claims wood in a Forest Tenant and this allowed before two Justices of the Forest B C which claim Estovers brought a writ of Error in Ban. Regis 21 Edw. 3.48 pl. 70. and good to reverse this allowance which is in nature of a Judgment and binds their right to the Estovers The Tenant in a Praecipe enfeoffs B Judgment given pro quer B shall have Error for the mischief that may fall to him by the Judgment 21 Edw. 3.53 21 Assize 41. 20 Assize 2. 50 Assize 3. But quaere 50 Assize 3. if the Tenant in the Praecipe aliens to B which releases to the Feoffor for life and judgment pro querente if B shall have Error per 9 Rich. 2. cap. 3. It seems he shall for all his interest is not gone by the release Where the King is party to the judgment King there shall be Error against him but not before Petition made to the King Pasch 12 Jac. Ban. Regis Davies case 23 Edw. 3.12 pl. 14. 18 Hen. 6.17 22 Edw. 3.3 pl. 25. 24 Edw. 35. pl. 43. for it may be that upon the Petition the King will let the judgment be reversed without Suit and it is not fit to sue the King where one may have right of him for asking it without suit The Writ of Error The Writ ought to make mention of him which was summoned and severed 9 Hen. 6.38.13 because he was once party to the suit An Action of Covenant is brought against A as Assignee and judgment given against him he brought Error the Writ needs not mention him as Assignee because this Addition was not of substance 19 Eliz. Dyer 356. pl. 41. Q. for then he must be called Lessee which properly he is not but by construction of Law The Process in Error 1. Vpon Judgment in Ireland 2. Vpon a Bill sealed
3. Judgment in another Court Error brought upon a Judgment given in Ban. Regis in Ireland Ireland there shall be a Scire facias in the Writ of Error against him that had the judgment for by Sharde this is the usage and in no other manner 34 Assize pl. 7. and it is dangerous to alter the ancient practice of proceedings in Law In Error upon a Bill sealed Bill sealed there shall be a Scire facias against the Justices which sealed it ad cognoscend Sigilla c. per Westm 2. cap. 31. Lib. Intra 293. C. Sect. 1. 11 Hen. 4.92 This is where Error is brought upon a Bill of exceptions But the Justices may deliver it in Court by their own hands 11 Hen. 4.52.92 and then there shall be no Scire facias for thereby they acknowledge their hands The Process in a writ of Error against the Judges to whom the Writ is directed is Alias Process Pluries and Attachment Nat. br 22. G. if they do not certifie the Record which is before them Errors â—ssigned When the Record is removed after Errors assigned the Plaintiff shall have a Scire facias against the Defendant ad audiend Errores Nat. br 22 E. 10 Edw. 4.13 3 Eliz. Dyer 195. pl. 38. 201. pl. 63. 17 Edw. 3.5 This is to give him notice that the Record is removed and of his proceeding thereupon And upon two Nihils a Non est inventus returned the Court shall come to examination of the errors 3 Eliz. 201. pl. 63. without the Defendants in the writ of Errors appearance But until Error assigned the party shall not have a Scire facias 24 Edw. 3.31 pl. 8. for it is to no purpose for his appearance is to hear the cause And if he assign that for Error which the Court takes clearly to be no error he shall not have a Scire facias 18 Hen. 6.17 for that would be to trouble the Court to no purpose but if it be colourable it is otherwise But in Error brought against the King there shall be no Scire facias because the King is intended to be always in Court Nat. br 21. H. either himself or his Counsel for the Judges are of his Counsel The Writ needs not mention the names of the Tertenants Against whom a Sci. fac in Error shall be sued because it is of common form used otherwise 8 Hen. 4.17 pl. 3. and the naming of them is not material If the Sheriff return that the Heir is not in his Bailywick Other County and the Tertenant shews that he is in another County there shall go a Scire facias into that other County 8 Hen. 4.18 pl. 3. Q. if he remove out of that into another if another Scire facias shall issue and so till he is found If a Recoverer make a Feoffment Tertenant and die without Heir it seems there that a Scire facias lies against the Tertenant only and a Writ of Error 8 Hen. 4.17 pl. 3. 9 Hen. 6.49 B. pl. 30. Q. whether not against the Lord by Escheat also because he comes in by virtue of the Judgment Former Judgment But the 9 Hen. 6.46 B. pl. 30. a Writ of Error lies against none but the party or them that are privy to the former Judgment Q. if not against privities in Law as well as in fact Gardein in right Gardein in right of the ward recovers in a Quare Impedit and dies the Defendant brought Error and a Scire facias against the Heir of the Recoverer and against the Heir of him from whose right he took his title and against the Incumbent without naming the Executor yet good because he recovers as Gardein in right but the contrary as Gardein in deed 8 Hen. 6.35 pl. 1. for there it seems the Executor is concerned for the wardship is a Chattel False Judgment Error upon false Judgment in Oxford viz. for Land the party being dead that hath the Judgment there shall go a Scire facias as well against the Heir of the Recoverer as against the Ter-tenant 8 Hen. 4.18 pl. 3. A Scire facias needs not be sued against the Tertenant before the Judgment be reversed 47 Edw. 3.7 for before that the Tertenants estate is not stirred But before that he enter he shall have a Scire facias against the Tertenant for otherwise he shall be a Disseisor 4 Hen. 7.10 47 Edw. 3.7 but by the Scire facias it appears that he enters not as a Disseisor But if the Recoverer make a Feoffment to his own use and then the Judgment be reversed Feoffment there needs no Scire facias against the Feoffâ—e for this is aided per the Stat. of 1 Rich. 3. 26 Hen. 8.2 Scire facias in Felony Error upon an Outlawry in Felony the Plaintiff ought to have a Scire facias to all the Lords mediate or immediate 7 Hen. 7.5.53 4 Edw. 4.10 11 Hen. 4. because they are intitled by the Outlawry And also against the party at whose Suit and the Tertenants Lib. Intra 308 B. Sect. 3. And in a writ of Error Delay if the Plaintiff hasten not his Suit the Defendant shall have a Scire facias against the Plaintiff to shew cause why he should not have Execution 24 Edw 3.24 9 Hen. 6.13 or else he may proceed in Court to have the Judgment affirmed And in such case upon two Nichils returned the Defendant shall have execution but after this the Plaintiff shall have a Scire facias 9 Hen. 6.13 Q. for then it seems to be too late Diminution in Error 1. by whom 2. in what cases 3. at what time 1. The Plaintiff in Error may alledge Diminution Nat. br 25 A. that is alledge that a whole Record is not removed The Defendant may do it also 28 Hen. 6.11 15 Eliz. Dyer 321. pl. 21. for if the Record be not wholly removed the Court cannot judge of it nor can the parties tell how to assign Errors But this alledging of Diminution is now used mostly for delay Error in London 2. Error upon a Judgment in London the Recorder certifies the Record yet he is held to do according to the custome Quaere if Diminution shall be alledged 34 Hen. 6.42 it seems it should When all the Record is not removed Diminution may be alledged Nat. br 25. A. vide the Writ there Diminution may be alledged in 1. The Essoin Lib. Intra 290. C. Sect. 1. 1 Hen. 7.2 2. Continuance of the Jury Lib. Intra 290. D. Sect. 2. 3. Words in title in Assize Lib. intra 290. D. sect 3. or any thing material in the body of the Record Diminution shall not be alledged upon a Bill sealed because the bill is not of Record 11 Hen. 4.52 Hull 65. but is given in to the Court by him that takes the exceptions 3. After in nullo est erratum pleaded in another Term the Plaintiff may not alledge Diminution Diminution 28 Hen. 6.11
for then he hath pleaded to the Record as it is and acknowledged it to be rightly removed But the Defendant may 28 Hen. 6.11 for he hath done nothing to conclude himself But per 7 Edw. 4.25 Error 45. the Defendant may not Q. But Coke 5. part 37. B. Bishops case after in nullo est erratum pleaded no Diminution shall be alledged by either party for if it should be suffered it would cause great delay The Plaintiff to the Writ before that he assigns Errors or a Scire facias ad audiend errores may alledge diminution and by this means the Defendant may not afterwards alledge Diminution 16 Eliz. Dyer 330. pl. 18. vide 13 Hen. 4 Error 92. because it is done already and it seems it may not be twice done But note Note that the Defendant after that he had rejoyned in the Writ alledged Diminution No. Lib. Intr. 232. B. Q. The Plaintiff may not alledge Diminution for any Error in fact after a Scire facias awarded 22 Edw. 4.45 but only for matter in Law for the Scire facias admits the matter of fact to be right The Assignment of Errors 1. by whom 2. at what time 3. upon what Record 4. of what things Assignment of Errors is in place of a Declaration 9 Edw. 4.32 for therein the Plaintiff declares why the Defendant should not have execution upon his Judgment Assign Errors If one brings a Writ of Error and he and another assign Errors this is good as to him that brought the Writ of Error and void as to the other for that was but superfluous but if two brought error and one assign errors this is not good to either because the Writ was joynt Mich. 9 Jac. in the Chequer Chamber Shakely versus Porter Conusor of a Fine shall not assign error in the Conusance to reverse his own Fine Conusor which is his own act neither the Conusee in the Grant and Render which is his act neither the Recoverer in the Recovery Coke 5. part 39. B. for they ought not to defeat but to maintain their own acts Executor in Error by him upon a Judgment given against him Executor shall not assign for error that the debt was but upon a simple Contract Com. 182. A. 10 Hen. 6.24 for he might have pleaded it in barr of the Action Party shall not shew error in Process Party unless he shews that it is for his advantage in his prosecution 7 Edw. 3.25 Coke 8. part 59. A. Nat. br 21. F. But may afterwards shew that the Judgment is erroneous by reason of such Error Coke 8. part 59. A. Beechers case 14 Eliz. Dyer 315. pl. 99. and then is his proper time to do it Reversioner not being made a party shall not assign for Error Reversioner that the Sheriff made a warrant to the Baily to make a pannel where the party was guisdable 3 Hen. 4.6 for the trial concerns him not The Successor shall assign for error Successor that his Predecessor was but named Gardein 15 Edw. 3. Error 7. where he ought to have been otherwise named Error shall be assigned before a Scire facias shall be awarded 24 Edw. 3.31 pl. 8. Scire fac for that is the ground of the Scire facias For after a Scire facias awarded the Plaintiff cannot assign error in deed 22 Edw. 4.45 for upon the return of the Scire facias the Defendant is to come in and to hear the errors assigned upon the Record Upon a Judgment given upon a Demurrer in Law and a Writ to enquire of dammages awarded Demurrer and a Writ to enquire of dammages awarded a Writ of Error was brought and he assigned errors 17 Edw. 3.5 and good as it seems Quaere tamen If the Record and the Writ of Error do not agree Error cannot be assigned upon that Record Record Error cannot be assigned upon that Record 9 Hen. 6.4 2 Eliz. Dyer 180. pl. 48. 28 Hen. 6.11 for it shall not be judged to be the same upon which the Writ of Error was brought New Writ of Error If the Writ of Error be faulty in substance errors shall not be assigned upon the Record but shall have a new Writ Quod coram vobis residet 3 Hen. 6.3 26.5 Mariae Dyer 164. pl. 58. that is upon the Record which is removed and remains where the new Writ is brought False Judgment But if it be false Judgment then there must be a new Writ to the Suitors who were the Judges for it is not of Record 3 Hen. 6.26 Error without a day If Error be put without a day there shall be a new Writ before that error be assigned 26 Hen. 6. Scire facias 33. Nat. bâ— 20. G. for the old Writ is null and so the Judgment stands as if no writ had been brought Bill sealed Upon a Bill sealed a man shall assign error per Westm 2. cap. 31. 11 Hen. 4.52 27 Hen. 8.15 25. Coke 9. part 13. B. Dowmans case 9 Assize 8. 14 Hen. 4.15 4 Hen. 6.15 A. Martin 33 Hen. 6.34 Littleton pl. 9. 7 Hen. 6.37 10 Hen. 7.8 And if the bill is refused to be sealed the party shall have a writ to compel them to seal it Regist orig 182. A B. But by Hill Justice it is intended of a thing pleaded in Court for otherwise it shall not be sealed for the Judges are not to take notice of it Challenge in an Assize was put in a bill sealed Challenge and good 9 Assize 8. 21 Edw. 4.11 20 Edw. 3.63 Lib. Intra 346. C. 27 Hen. 8.24 25. Priviledge claimed and not allowed Priviledge there may be a bill sealed 22 Edw. 4. Priviledge 1. Conusance claimed Conusance if the plea be challenged by one that is not party there cannot be a bill sealed 20 Edw. 3. Conusance 46. for it concerns him not A Patent to three to take an Assize where two take it there may be a bill sealed Patent and error upon it 29 Assize 42. 11 Hen. 92. Assize Bill sealed the Tenant shews that the Sheriff was beyond Sea and had a bill sealed of it 1. Although the bill did bear date after the Record removed yet it is good 2. Although the party did not bring it within the bill but the Justices yet good 3. The party shall have a writ to the Justices commanding them to seal it where they do refuse to do it 4. A writ to the Justices ad cognoscenda sigilla vid. antea 5. Two Justices seal it yet one of them may deliver it for the sealing not the delivery is the principal matter 6. The party brought a Scire facias ad cognoscend sigilla before the Justices come in Court yet good for after that they come the bill was of Record ab initio and so the Scire facias may have a good relation Upon a transcript of the note of a Fine error shall be assigned
Transcript and if Error appears they shall send for the note it self and reverse it 21 Edw. 3.24 16 Edw. 3. Record 35. 40 Assize pl. 29. For otherwise perchance the Fine may not be ingrossed which may prove mischievous 1 Mariae Dyer 89. pl. 4. Lib. Intra 296. A. sect 1. Fines Nat. br 20. B. But note 5 Mariae Dyer Record 79. the Record shall be certified and no other proclamation shall be made This is intended of a Fine with Proclamations But 1 Mariae Dyer 89. pl. 4. è contra Ergo quaere Upon a transcript in Parliament error is assigned for the Chief Justice brought up the Record and reported it Ban. Regis 8 Hen. 5. Error 88. 23 Eliz. Dyer 375. pl. 19. 22 Edw. 3.3 pl. 25. But in another Court it is otherwise 40 Assize 29. Nat. br 20. F. Quaere rationem It seems because all Courts agree not in one way of proceedings Upon an award by the Justices upon return Priviledge upon a writ of Priviledge no writ of Error lies Coke 8. part 127. B. case of the City of London for this is no judgment upon Record Upon allowance of claim by the Justices of the Forest Claim 21 Edw. 3.48 pl. 70. error lies vid. antea for it is in nature of a Judgment Record removed Upon a Judgment in an annuity and after that a Judgment in a Scire facias upon the judgment Error is brought upon the former judgment the Record shall be removed 11 Hen. 4.4 viz. the whole Record as it seems Error upon a Fine with proclamations Proclamations the proclamations shall be certified Com. 265. A. Fishes case for they are part of the Record by virtue of the Statute A Writ of Error shall not be awarded until the final judgment be given Award Coke 11. part 40. A. Metcalfs case 7 Rich. 2. Error 68. for the tenour of the Writ supposeth the judgment to be given Unless the Award be ad grave dampnum Coke 11. part 41. A. Metcalfs case for then it seems a necessity to grant it before As in Debt against many by several Praecipes and judgment is given against one he shall have error and the pleadings shall be several from the original and if Error be in the original tenore tantum shall be certified Coke 11. part 41. A. Judgment in an Account quod computet Account error lies not until the final judgment Coke 11. part 38. B. 21 Edw. 3.9 1 Hen. 7.2 B. for the judgment is not perfect and entire before nor the Record made up When an Action of Trespass is in part determined Trespass error lies not until it be determined all 32 Hen. 6.5 pl. 5. 36 Hen. 6. Coke 11. part 39. B. for before the whole Action is not determined and so no compleat judgment So in a Formedon 12 Eliz. Dyer 291. pl. 67. Coke 11. part 39. B. Formedon So in Trespass against two Trespass 34 Hen. 6.41 pl. 9. So in a Quare Impedit 34 Hen. 6.41 Quare Impedit Partition So in Partition Mich. 40 41 Eliz. Com. Ban. Countess of Warwick against Henry Lord Barkley All upon the same ground If error be brought before the fourth day in Com. Ban. yet it is good Day because of Record at the Commencement 34 Hen. 6. Quaere whether so in Banco Regis In an Assize of Darrein Presentment a Writ was awarded to the Bishop and the Assize is for dammages error brought and allowed 17 Edw. 3.5 pl. 12. for this was a judgment Error upon a judgment in a Scire facias upon a Fine Record and no Record removed but the proceedings upon the former judgment and yet good 20 Edw. Error 2. viz. the Fine which is a Judgment in its nature and the Scire facias is but to have Execution upon it yet it seems better if all were removed Praecipe quod reddat Upon a Praecipe quod reddat judgment is given and error brought the original nor the judicial Writ nor the essoyn shall be removed 2 Edw. 3. Error 2. Thorpe 37. Assize 5. but only the Record of the judgment for there the error is only supposed Unless Error be assigned in the Original 24 Edw. 3.24 and then it must be removed viz. the tenour of it And then the transcript of the Record only shall be removed Transcript 34 Assize 7. 36 Hen 6.13 for the Record is supposed not to be erroneous Error upon an execution upon a Statute-Merchant Statute-Merchant and error in process assigned the original shall be removed 18 Edw. 3.24 for the original is part of the process Ancient Demean And if it be of Ancient demesn Lands the Original shall be removed 34 Assize 7. out of that Court. But Error upon a judgment in Ireland the Original shall not be removed 74 Assize 7. 37 Assize 15. Finchden Quaere rationem it seems because it is a Record of another Kingdom Fine and Recovery Error lies not upon a Fine or Common recovery for false Latin rasure interlining mis-entry of the warrant of Attorney Proclamation mis-returned or not return of the Sheriff or default of form in words 23 Eliz. cap. 3. This Statute was made in favour of Fines and to support them because they are the common Assurances of the land And by 27 Eliz. cap. 9. this extends to Fines in Wales and Recoveries there But if the fine be passed before the Kings Silver be entred it is Error No. Lib. Intra 231. A. sect 2. viz. for the not entring of it which is paid pro licentia concordandi If a Writ of Covenant be returned before the Teste this shall be amended Coke 5. part 45. B. Gages case for it is the misprision of the Clerk The Caption before the Teste of the Dedimus is no error No. Lib. Intra 255. C. Sect. 11. for the same reason Pasch 1. Jacobi Regis Rot. 426. the Countess of Bedford against Foster 1. Error assigned was because the Writ of Covenant was of eight Messuages and two Tofts and the Fine certified is of eight Messuages and two Messuages but non allocatur because the Record hath relation to the Writ of Covenant 2. Error assigned because the Indorsement was Executio istius brevis patet in quadam panella c. where it should be in quadam schedula sed non allocatur because in substance it is the same thing expressed by divers names Mich. 30 Eliz. Ban. Regis Austein Steede versus Conaway Webbe a Fine was levied of two Tenements and void because a Praecipe lies not of it this case is entred Hill 30 Eliz. Rot. 165. for a Tenement is a thing incertain of which a Fine cannot be levied Infancy good Error in a Fine Infancy Nat. br 21. D. 3 Hen. 6.16 B. 2 Rich. 3.1 17 Edw. 3.53 pl. 33. 27 Assize pl. 53. if it be brought during his Minority that he may be inspected by the Court and
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
96 For not doing of a thing that ought to be done by the Law to the dammage of another touching suits in Law Fol. 97 Assumpsit FOr the not doing of a thing which ought to be done by the agreement of the party to the dammage of another touching things hereditary Fol. 98 Assumpsit quid Quotuplex Fol. ib. General Bar Fol. 99 For not doing of a thing which ought to be done by the agreement of the parties touching Chattels Fol. 102 The Judgment Fol. 114 The Writ Fol. ibid. For not doing a thing which is to be done by agreement touching the body Fol. 115 The Writ Fol. ibid. For not doing a thing which is to be done by agreement of the parties touching suits in Law Fol. 116 For not doing a thing where a man is bound to do it in one manner and he doth it in another Fol. ibid. For negligent suffering a thing to be done to the dammage of another Fol. 117 Bar Fol. 118 For deceit in bargains and agreements with warrant Fol. 122 For deceit in bargains and agreements without warranty Fol. 124 Trover and Conversion QUid Quotuplex Fol. 125 Of what things it lies Fol. 126 Covenant IN what Court Covenant lies 1. personal 2. real Fol. 131 Who shall have a Covenant 1. personal 2. real Fol. 132 Against whom Covenant lies 1. personal 2. real Fol. 137 The Count in Covenant 1. personal 2. real Fol. 145 Writ in Covenant 1. personal 2. real Fol. 147 The Process in Covenant 1. before appearance 2. after Fol. 148 Bar in Covenant 1. personal 2. real Fol. 149 Judgment in Covenant 1. personal 2. real Fol. 150 Detinue 1. QUid Fol. 154 2. Quotuplex ib. In what Court detinue lies 1. of Chattels 2. of Deeds for Landâ— Fol. 155 Who shall have a Detinue 1. of Chattels 2. of Deeds Fol. ibid. Against whom Detinue lies 1. of Chattels 2. of Deeds Fol. 163 For what things Detinue lies 1. of Chattels 2. of Deeds Fol. 167 Count in Detinue 1. of Chattels 2. of Deeds Fol. 169 The Writ in Detinue 1. of Chattels 2. of Deeds Fol. 173 The Process in Detinue 1. before appearance 2. after Fol. 174 The Garnishment in Detinue 1. of Chattels 2. of Deeds Fol. 175 Enterpleader in Detinue 1. Of Chattels 2. Of Deeds Fol. 176 Bar in Detinue 1. Of Chattels 2. Of Deeds Fol. 178 Execution in Detinue 1. Of the Defendant 2. against The Judgment in Detinue 1. Of Chattels 2. Of Deeds Fol. 182. the Garnishee 3. of what Lands 4. of what Goods Fol. 184 Debt DEbt in what Court it lies Fol. 191 Who shall have Debt Fol. 193 Against whom Debt lies Fol. 203 For what things Debt lies Fol. 216 Judgment in Debt Fol. 227 The Writ in Debt 1. in the County 2. in Com. Ban. Fol. 234 The Process in Debt 1. before appearance 2. after Fol. 239 The Bar in Debt Fol. 240 The Judgment in Debt Fol. 265 Execution in Debt Fol. 269 Ejectment IN what Court it lies Fol. 272 Who shall have an Ejectione firmae Fol. 273 Against whom Ejectment lies Fol. 276 Of what things an Ejectment lies Fol. 278. The Count generally Fol. 281 The Writ Fol. 283 The Process 1. before appearance 2. after Fol. ibid. The Bar. Fol. 284 The Judgment Fol. 285 Quare Impedit QVid Fol. 286 In what Court it lies Fol. 287 Who shall have a Quare Impedit Fol. 288 Against whom a Quare Impedit lies Fol. 311 Quare Impedit of what disturbance it lies Fol. 312 Quare Impedit of what things it lies Fol. 313 The Count in Quare Impedit Fol. 315 The process in Quare Impedit 1. before appearance 2. after Fol. 317 Barr in a Quare Impedit 1. by the Ordinary 2 by others Fol. 319 Good causes of refusal in a Quare Impedit Fol. 322 These are not Fol. ib. These are likewise good causes of refusal Fol. 323 Who shall plead plenarty and who not Fol. 327 Against whom plenarty was is no plea Fol. 328 Judgement in a Quare Impedit 1. when be shall have Judgement 2. of what things he shall have Judgement Fol. 330 The Writ to the Bishop to whom it shall be directed Fol. 334 Process in the writ to the Bishop Fol. 336 Of what things a man shall have Judgement Fol. ib. A Writ to the Bishop and single dammages Fol. 338 A Writ to the Bishop and double dammages Fol. 340 Single dammages and no Writ to the Bishop Fol. ib. Double dammages and no writ to the Bishop Fol. 341 Two writs to the Bishop Fol. ib. In what Court and what Judges have power to award a writ to the Bishop Fol. 342 Ne Admittas WHat person shall have it Fol. 342 In what cases it lies Fol. ib. Within what time this ought to be brought Fol. 343 The Writ Fol. 344 The Process Fol. ib. Quare non Admisit OVt of what court this issues Fol. ib. What person shall have it Fol. 345 Against whom it lies Fol. ib. In what case it lies Fol. 346 The Writ Fol. ib. The Count. Fol. 347 The Bar. Fol. ib. The Judgement Fol. 348 Quare Incumbravit IN what Court it shall be brought Fol. 348 What person shall have it Fol. 349 Against whom it lies Fol. ib. In what cases this lies not Fol. ib. The writ Fol. 350 The Count. Fol. 351 The Process Fol. ib. The bar Fol. 352 The judgement Fol. ib. Replevin IN what Court it lies Fol. 353 Who shall have a Replevin Fol. 354 Against whom a Replevin lies Fol. 356 Of what things a Replevin lies Fol. 357 The writ Fol. 359 The process 1. of a man replevied 2. of chattels Fol. 361 Second Deliverance Fol. 362 In what case a man may distrain Fol. 364 Of what things a man may distrain Fol. 369 What person shall distrain Fol. 373 At what time a man may distrain Fol. 374 In what place a man may distrain Fol. 375 What distress shall be sold Fol. 378 What shall not be said to be a distress excessive Fol. ib. 1. The Bar 2. Justification 3. Conusance 4. Avowry Fol. 379 Who shall avow Fol. 381 For what things a man may avow Fol. 384 Seifin in avowry in whom it may be alledged Fol. 386 By what hands Seisin shall be alledged Fol. 386 In what time Seisin ought to be alledged Fol. 388 When it is not requisite to alledge Seisin ib. What Seisin shall be good ib. Bar to an Advowry Fol. 390 Judgment 397 Trespass IN What Court Trespass lies Fol. 405 Who shall have Trespass Fol. 407 Against whom Trespass lies Fol. 422 For what matter Trespass lies viz. for the doing of wrong to the dammage of another 1. Touching Inheritance 2. Touching Chattels 3. Touching the body Fol. 432 Error IN what Court Error shall be redressed Fol. 453 Who shall have a Writ of Error Fol. 461 The Writ of Error Fol. 468 The Process in Error 1. upon a judgement in Ireland 2. upon a Bill sealed 3. judgement in another Court
remainder Lib. Intr. 22. A. Sect. 2. for if there be just cause to account for part the Action is maintainable But if he confess part and traverse the other no Judgment shall be till the other be tried 41 Edw. 3. Account 34. for it may be he is to account for all notwithstanding his traverse which may be false The Judgment is Ideo consideratum quod praedictus W. recuperet versus praefat M so much as he is found in Arcarages dampna sua occasione implacitationis c. Coke 11. part 40. A. Metcalfs case The King is not held to bring a particular Account against any as Receiver but to declare generally quod ille ad computum domino Regi reddend tenetur and against Executors quod tenebantur tempore mortis suae Coke 11. part 90. Devoushers case for the King is not tied to punctualities of Law where no person is injured by his not observance of them The Writ against a Receiver In Comitatu Rex c. pr. A quod juste c. reddat B rationabilem computum suum de tempore quo fuit Receptor denariorum ipsius B In Com. Ban. c. Regist orig 135. ibidem B. vide diversa brevia de computo versus Receptorem Writat the Com. Law by the Stat. of Marleb cap. 29. But there is another form of a Writ founded upon the Statute of Marlebridge cap. 23. Nat. br 117. H. Regist orig 136. B. A good plea to the Writ that he was Baily and not Receiver for otherwise he shall be twice charged viz. as Baily and Receiver 3 Edw. 3.70 pl. 28. 18 Edw. 4.3 pl. 17. which the Law judges unreasonable and will prevent by making the Writ certain A good plea to the Writ that he was Guardian in Soccage 18 Edw. 4.3 pl. 17. and so not properly a Receiver as the Writ supposeth The Writ shall be always general and if the cause be special it shall be set forth in the Count Nat. br 118. Q. F. The Defendant pleads the Receipt by deed and demands judgment of the Writ without shewing it this is no plea to the Writ because the Receipt and not the Deed is the cause of Action and he hath confessed the Receipt and the Deed appears not to the Court 1 Hen. 6.8 28 Hen. 8. Dyer 20. pl. 121. But 9 Edw. 4.50 B. per Choke contra 2. Hen. 6.9 quaere No plea to the Writ if it do not agree with the Plaintiff concerning the manner of the Receipt 4 Hen. 6.12 pl. 4. The Process against a Receiver 1. before Appearance 2. after At the Common Law the Process was but a distress infinite Coke 3. part 12. A. Harberts case But per Sat. de Marlebridge cap 23. a Capias is given Coke 3. part 12. A. for more expedition for Liberty is more precious than ones Estate in the eye of the Law And by Westm 2. cap. 11. Process of Outlawry is given Coke 3. part 12. A. 17 Edw. 3. Process 203. 17 Edw. 3.59 pl. 55. Shard 26 Edw. 3.5 pl. 13. which is a more violent prosecution to bring the Defendant to do right A Scire facias shall issue against Tenant per Elegit to account 21 Edw. 3.2 pl 6. 5 Edw. 3.159 pl. 20. Regist Judicial 73. B. Old Nat. br 34. what profits he hath received out of the lands extended and how far his debt is satisfied And if he come not upon Summons returned Judgment shall be given against him 5 Edw. 3.159 pl. 20. 21 Edw. 3.1 Quod computet Conusor of a Statute shall have a Scire facias against a Conusee to Account Coke 4. part 67. B 47 Edw. 3.11 pl. 9. fol. 25. pl. 63. So the Assignee of a Conusor 25 Edw. 3.53 pl. 17. both for the former reason upon the Elegit But then he cannot surmize that it was appraised and found of base value 17 Edw. 3.36 pl. 6. For by the bringing of the Action he admits of a certain value to account upon and such a surmize is a matter dehors If a Receiver come in by a Capias or Exigend he shall be forthwith committed to the Fleet 29 Edw. 35. pl. 63. for his contempt in not coming in till compelled by force which is a disturbance of the publick Peace So if he come in by distress and the account be adjudged against him 29 Edw. 3.35 pl. 63. for then it doth appear he was a Fort feasor But if the account be adjudged against him and he be not present in Court a Capias ad computandum shall issue out 1 Edw. 3.2 pl. 10. 1 Hen. 7.1 pl. 1. Townsend Lib. Intr. 18. Sect. 1 2 3. to make it appear to the Court whether he was to account or no. If in Judgment given quod computet the Plaintiff dies the Executor shall have a Scire facias which being served if the Defendant appear not an Exigend shall issue forth against him 14 Hen. 4.1 But if the Defendant be taken per Capias ad computandum and dies in prison a Scire facias lies not against his Executors 10 Edw. 4.7.41 Assize So that a Scire facias lies for an Executor but not against an Executor for the Executor may not be so privy to the receipts and payments of the Testator as to know what to plead to the Account Bar by a Receiver 1. to an Action of Account 2. before Auditors The Defendant pleads he bought the goods of the Plaintiff Bought before he brought this Action for them a good bar 14 Hen. 4.19 pl. 21. for thereby he claims the property in them The Defendant pleads Accord that it was agreed that he should be bound to the Plaintiff for the principal and use the which he did this is a good bar to the Action 22 Hen. 6.55 pl. 32. for this drowns the former contract otherways he ought to plead this before Auditors Q. Whether it may be pleaded in bar of the Action or in discharge of the Account before Auditors It seems it is no plea before Auditors So if the Plaintiff grant that if the Defendant pay 20 l. he will withdraw his Action this is a good bar to the Action because of this Accord 7 Edw. 3.325 pl. 11. 18 Edw. 3.39 pl. 35. which hath taken away the ground of the Action No plea that he put it in a bag and that the Plaintiff agreed that he should keep it in lieu of a debt because the Receipt for Account-render is confessed 28 Hen. 6.7 pl. 9. and so it appears the Plaintiff hath cause of Action The Plea was that he did account of such a Sum such a day and year and place before A and B Auditors assigned by the Plaintiff a good Bar Lib. Intra 19. D. Sect. 3. 25 Edw. 3.39 pl. 1. 2 Edw. 3.45 pl. 13. For they are Judges and so shall not account twice for one sum The Plaintiff Counts of divers sums received between such and such a day and the Defendant pleads to parcel of the
time that he hath fully accounted and to the remainder that he was not his Receiver there he ought to shew of what he had accounted 30 Edw. 3.1 pl. 4. for otherwise his plea is too general incertain and captious which the Law will not permit That he accounted to the Plaintiff from three months to three months and so to the time of the action a good Bar 39 Edw. 3.5 pl. 22. A good bar that he did Account 1º April but then he ought to say without that that he wâ—â— his Receiver after 21 Edw. 4.66 pl. 47. 7 Hen. 4.14 pl. 17. 45 Edw. 3.14 pl. 13. 34. Hen. 6.44 Counts that he was Receiver for seven years iâ— is no bar that he accounted 1º Maii Anno 5º with out answering for the two other years becauâ—â— he is to answer for the whole time as well soâ— the increase as principal 7 Hen. 6 5. pl. 8. As to 20 s. received 1º Jun. fully accountâ— for and to the Receipt afterward or before thâ—â— he never was Receiver 27 Hen. 6.1 pl. 8. a gooâ—â— plea. A good bar quod 21. Januarii Anno c. 〈◊〉 D in the County of W he fully accounted wiâ—â— the Plaintiff Lib. Intra 20. B. Sect. 8 9 10 11. Before the Writ brought he did account with thâ— Plaintiff a good bar 4 Hen. 6.43 pl. 4. But he ought to account to the Plaintiff beforâ— he is imprisoned or else no bar because it is peâ—â— dente lite and it appears the Plaintiff had cause 〈◊〉 action else he not not been committed 22 Edw. â— 3. pl. 32. 7 Hen. 4.14.34 Hen. 6.44 pl. 4. For the Plaintiff cannot commit him to prison for Westm 2. cap. 11. gives this power only to the Auditors 45 Edw. 3.14 pl. 13. who are the Judges To an Account brought by Executors it is a good bar that the Defendant did account to the Testator and shew his Acquittances 1 Edw. 3.2 pl. 10. for then the Executors have no colour of action The Defendant pleads an award made by Arbitrators that he should re-deliver the goods this is nought but if he had been charged only with the safe custody of them then good 2 Hen. 5.2 pl. 6. For the Defendant is chargeable to Account for the provent of the goods as well as for the goods themselves Account upon a Receipt by other hands Arbitrement is a good bar 22 H. 6.39 pl. 10. For the submission to the Arbitrement creates a new Contract Execution against a Receiver 1. per Common Law 2. per Statute Law 1. By the Common Law it was but a Levari facias or Fieri facias Coke 3. part 12. A. Harberts case to levy the arrears upon his Lands or Goods and Chattels Q. And this only within the year for if the year was past then an Action of debt only lay upon the Judgment Unless the Process be continued 33 Hen. 6.49 pl. 33. For the Court will not grant out Executions upon sleeping Judgments for this may prove dangerous 2. Per Westm 2. cap. 45. a Scire facias is given after the year Coke 3. part 12. A. upon the Judgment against the Defendant to shew why he should not pay the Arrears due to the Plaintiff by the Judgment Per Marlebridge cap. 23. Westm 2. cap. 11. a Capias was given in Process and by consequence a Capias ad satisfaciendum in execution Coke 3. part 12. A. Lib. Intra 18. C. Sect. 1 2 3. which are both to lay hold on the person of the Defendant Per Westm 2. cap. 11. if the Accountant before Auditors be found in Arrearages he shall be committed by them to the next Goal in execution the same law is if he will not account before the Auditors 10 Edw. 3.387 pl. 28. when he is adjudged by the Court to do it But this shall be forthwith Coke 8. part 119. B. Bonhams case 27 Hen. 6.8 Com. 17. for the Statute being penal must be strictly pursued But if he account before the Plaintiff he cannot commit him to Prison for the Statute saith before Auditors 45 Edw. 3.14 pl. and no imprisonment lay before the Statute But an Accountant to the King shall be imprisoned and his goods and lands in execution per the Common Law Coke 3. part 12. B. 5 Eliz. Dyer 224. Com. 32. which is tender of the King as well in his Revenue as his Person Ex parte talis Per Westm 2. cap. 11. if Auditors be assigned by the party Plaintiff who will not allow reasonable charges to the Receiver or charge him with a thing he never received and then commit him to prison he shall have this Writ Nat. br 129. F. 4 Hen. 6.18 A. pl. 3. Regist orig 137. B. which is in the nature of an Audita querela But if Auditors be assigned by the Court which do not make allowance yet the Defendant shall not have this Writ but may complain to the Court and they shall order them Nat. br 129. E. 3 Edw. 3.56 pl. 30. to do justice for they are Ministers of the Court and to be answerable for their actions If one be sued in London and the Court assign Auditors who make not allowance c. the Defendant shall have this Writ Nat. br 129. F. But note Regist orig 137. contra Q. The Writ shall be returnable before the Treasurers and Barons in the Exchequer at a certain day and a Scire facias in the Writ to warn the Plaintiff in the Account and also the Defendant to be there Nat. br 129. G H. Regist orig 137. vid. Westm 2. cap. 11. Note that an account lieth in one Writ against a Baily and Receiver Nat. br 116. P. 21 Hen. 6.21 pl. 42. 9 Edw. 3.356 pl. 38 pl. 40. 14 Hen. 4.20 pl. 25. vide the Writ Nat. 117. C. Regist orig 135. For one and the same person may be Baily and also Receiver at one time to one and the same person Vide the Count Lib. Intra 17. B. Sect. 1. And for all the other parts they are in the same manner as is described before in Baily and Receiver Action upon the Case 1. Quid. 2. Quotuplex Action upon the Case is either by 1. Doing of wrong to another 1. Inheritance Real 2. Chattels Personal 3. Body 4. Name 5. Suits in Law 2. Not doing of a thing ought to be done by Law to the wrong of Inheritance Reaâ— Chattels Person Corps Suits in Law Assumpsit touching Inheritance Reaâ—â— Chartels Person Body Suits in Law 3. Misdoing 4. Negligence 5. Deceit in bargains With warranty Without warranty 6. Trover and Conversion in Deed. Law as to persons discoâ— continued Wasting Denial to re-deliver In what Court it lieth IN Ban. Regis In Com. Ban. It lieth not in the Marshalsey Coke 10. part 7â— A. 76. A. Marshalsey For that Court is limited 〈◊〉 hold plea but in particular cases But this learniâ—â— was now out of doors in respect that that Court was wholly taken away but now again revived For
poysons my water by reason where of my Fish dies Piscary Coke 9. part 59. A. Aldreds case and so is it for infecting the Air thereby vid. antea Procurement 1. For releasing to me with warranty and procuring another to sue me 34 Edw. 3.20 for this is fraudulent dealing 1. Against Tenant in a Precipe Protection which hath protection allowed to Westm for one year and within the year he stays at Gloucester 15 Edw. 4. Q. If I sue a Schoolmaster for erecting a School in the same Town the Action lies not School for it is no Nusance 11 Hen. 4.47 pl. 21. 22 Hen. 6.14 prisott and it is for the good of the weal publick which is to be preferred before any ones private profit Sâ—ander of my Title If A says that B hath right in my Land for years an Action lies Coke 1. part 177. Mildmayâ— case No. Lib. Intra 30. A. Sect. 27. but I ought to shew how I am prejudiced particularly else there appears no cause of Action A brought an Action upon the case against B because that he published that he had the lease of the Land of A and that he intended to sell it and was hindred B said that he had an Indenture as in the Count is mentioned and traverseth that he forged it 1. when B claims a right though he had none yet the Action lies not for it may be he thought he had a right and so there cannot be said any malice 2. The Count is good because it is that it was against the knowledge of B that it was forged 3. Sciens is not traversable Coke 4. part 18. A. case 14. 1. For stopping a Ditch Land by which my Land is surrounded Nat. br 88. E 89. M. 39 Hen. 6.32 11 Hen. 4.82 14 Hen. 8.31 for the Land is thereby made worse else it will not lie For not scouring a Ditch by which my Land is overflown Regist orig 100. A. Non-feasance is punishable as well as a Misfeasance For breaking of a Seabank by which my land is surrounded Nat. br 86. F 89. B C. Regist orig 95. A. vid. antea It lies not for erecting of Coney-burroughs by which I lose the profits of my Land because the party had no property in them Coke 5. part 104. Boulstons case and I may take them upon my land and justifie it vid. antea 1. If one hath the trade of a Bakehouse by prescription for the whole Town Trade and another erects another and sells and Action lies Coke 8. part 125. case of London 19 Rich. 2. Action sur Case 52. The Law favours Ancient rights for it tends much to peace 2. For using the trade of a Dyer in R without License of the Archbishop of York Regist orig 105 106. Coke ibidem for the priviledge of the Bishop is thereby impaired 3. The King grants to A the sole faisance of play-cards yet A shall not have an Action upon the case against others that use the trade because the grant is void Coke 11. part 86. A. Monopolies for it is a Monopoly which is against the publick good and the liberty of the Subject Tenant at will makes voluntary waste Waste an Action of waste lies against him Littleton 15. A. 14. Hen. 8.12 Brown Coke 15 part B. Salops case 48 Edw. 3.25 Dyer 121. pl. 17. 11 Hen. 6.38 and not an Action on the Case For diverting of part of the stream by the owner of the Land by which the stream flows over Water-course 12 Hen. 4.47 21 Hen. 7.30 Dyer 248. pl. 80. Coke 4. part 86. Lutterels case the Count there 3 Eliz. Dyer 195. pl. 37. But for diverting majoris partis Assize lies 8 Eliz Dyer 248. pl. 80. but this is intended when the Mill cannot go for that is prejudicial to the Freehold For stopping a Pit that one hath for water although it is not a common watering-place Watering-places 21 Hen. 7.35 No. Lib. Intra 18. D. sect 15. for thereby I that digged it lost my labour and easement The Writ Ought to be certain as the Count except in the place and time 22 Hen. 7.91 which in this actioâ— are not traversable It ought to have the same certainty as the Count and to have the effect of all the Count except the year and day the quantity and certainty of the Land 38 Hen. 6.9 pl. 20. Prisott for the Land comes not in question Q. The Writ shall not be vi armis Nat. br 92. E. for it supposeth not the breach of the publick Peace but only a particular dammage When there are two causes of Actions 1. causâ— causans 2. causa causata the former may be alledged vi armis Coke 9. part 50. B. Salop case For that is but as an inducement to the cause of action upon which the Action is brought The Process 1. before appearance 2. after At Common Law a Capias lieth not 43 Edw. 3.11 Coke 10. part 72. A. Marshalsey for liberty was preferred before private wrongs which concerned the estate only But 10 Hen. 7. cap. 9. such process is given in an Action sur le Case in Ban. Regis Com. Ban. as for Trespass or debt Br. exigend 29. vid. the Statute The Judgment For not repairing of a Bridge per quod c. the judgment shall be to recover dammages to the party damnified and a Distress to the Sheriff to compel the Defendant to repair to prevent further dammage to any For what things it lies Chasing Sheep 1. For chasing Sheep into the water 2 Hen. 7.11 B. Q. if the Sheep be not hurt by it if it do not lie It seems not 2. For taking of Sheep delivered to me for a year to dung my Land Nat. 26. B D. Q. for I thereby am damnified 1. Against him that I give money to give to my Attorney and he gives it to my adversary 20 Hen. 7.9 for here is breach of trust by which I am damnified For goods lent and are wasted 2. If I lend my Plate or other goods to one and he wastes them or misuseth them or converts them to his own use 27 Hen. 8.25 28 Hen. 8. Dyer 22. pl. 137. 20 Hen. 7.4 2 Hen. 7.11 2 Edw. 4.5 18 Edw. 4.23 21 Edw. 4.19 Crook 2 Hen. 8.160 pl. 2. For here the Law creates a trust and Covenant which is broken 3. If against a Baily that cuts my Trees or kills my Cows 18 Edw. 4.23 Q. 4. If a Baily lend them to B. and he wastes them it lies against B. 12 Edw. 4.13 for the Bally might lend them 5. Against my Butler that breaks my Hanaper 18 Edw. 4.27 Now it is Felony by the Statute Q. 6. Upon bailment of a Bag in which was 20 l. and he breaks the Seal 21 Edw. 4.30 pl. 25. 7. So for an obligation 39 Hen. 6.46 for I may be damnified thereby 8. Against a Baily of Beasts which kills them Littleton 15. A. Dyer
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
Law for they have a joynt trust and interest The Process in Covenant 1. Before appearance 2. After Covenant Personal 1. By the Common Law the Process before appearance was but a distress infinite 22 Hen. 6.13 Br. exigend 29. 48 Edw. 3.29 pl. 15. and no Capias 2. After appearance the parties appear and day is given over salvis partibus c. the Defendant makes default at the day a distress was awarded against him Lib. Intra 134. B. Sect. 1. and not a Capias Quia non fit breve de Attachiamento Covenant Real quia oporteat quod partes compareant personaliter in Curia Regist orig 165. A. and here was day given over salvis partibus which was no personal appearance The Bar in Covenant 1. Personal 2. Real 1. When a certain duty accrues by the Covenant at the time of the making of it Accord an Accord with satisfaction is no plea Coke 6. part 44. A. Blakes case for such an Accord cannot discharge the duty But a release may be pleaded in bar But where no certain duty accrues until the subsequent act or wrong there Accord with satisfaction is a good plea Coke 6. part 44. A. Blakes case for he may make satisfaction for the wrong by the agreement of the Covenantee Covenant to a Parson for the enjoying his Benefice and the Parson deserts the Cure is void if he deny it after such desertion 14 Eliz. cap. 11. Rastall Leases 244. D. 23 Eliz. Dyer 372. pl. 11. This is after the Parson is absent forty days in the year and not otherwise for that is a desertion in Law whereby he may be deprived A covenants to gather the Rents in D Disturbance and he pleads that he was interrupted by the Plaintiff and so could not do it this is a good bar Crooke 13. Hen. 7.34 pl. 2. for the Plaintiff shall not take advantage of his own wrong Lessee covenants to surrender before the term ends and a Stranger that hath right enters upon the Lessee this is a discharge because the Lessee is disabled by an act in Law Hill 41 Eliz. Com. Ban. Andrews versus Nedham 45 Edw. 3.48 Performance generally a good plea Performance 6 Hen. 4.8 pl. 34. In a Covenant upon a demise by Indenture and an eviction by a Stranger by a higher Title it is no Bar to traverse the possession of the Plaintiff without particular causes shewing how the other had title because it is by Indenture Trin. 3 Jac. Ban. Regis Stile versus Hearing which is a general estoppel without shewing of special matter to avoid it A covenants to make a good estate in Copy-hold land to B before Easter during the life of Cox it is no plea to say that it was surrendred to the Lord by his procurement to the use of C if he shews not that he was admitted for nothing vests in him to whose use it is till admittance Mich. 15 Jac. Ban. Regis Stiles versus Smith and so the Lord was not disabled to perform the Covenant Release is no Bar before the Covenant is broken Release viz. generally Coke 4. part 71. Hors case 5 Eliz. Dyer 217. pl. 2. Coke 1. part 99. A. Shelley◠case If it be not by express words Coke 5. part 71. A. 35 Hen. 8. Dyer 57. pl. 24. Bramly for so the Covenant may be released Judgment in Covenant 1. Personal 2. Real Judgment against an Executor for a Covenant broken after the death of the Testator is of the Testators goods 15 Eliz. Dyer 324. pl. 34. for he is in the Testators stead and trusted with his estate If a Lessee recovers being outed by the Lessor he shall recover his term viz. the remainder unexpired Nat. br 145. M. 47 Edw. 3.24 pl. 61. 20 Edw. 3. Judgment 177. and also Dammages Nat. br 145. M. Execution in Covenant 1. Personal 2. Real 1. Per Common Law 2. Per Statute Law By the Common Law it is but a Levari facias Personal Lib. Intra 133. D. sect 2. fieri facias Lib. Intra 138. A. sect 1. extending but to goods and Chattels But no other Execution Coke 3. part 12. A. Harberts case And this only within the year for if the year be past it was an Action of debt upon the Judgment Coke 3.12 A. Unless the Process were continued 33 Hen. 6.49 pl. 33. for the continuance of it made it as if no time were passed but continued a present Judgment By the Stat. by Westm 2. cap. 45. a Scire facias was given after the year Coke 3. part 12. A. to revive the Judgment and so the party is not now forced to bring an Action of debt upon it And per Westm 2. cap. 18. Elegit is given Coke 3. part 12. A. which extends to lands as well as goods By the Stat. of 23 Hen. 8. cap. 14. Capias ad exigend fuit given in Process and by consequence a Cap. ad satisfaciond in execution against the person By the Common Law it was but a Writ de fine facto 2. Real or to pay a fine as it seems which was but a Writ of Covenant in its nature 43 Edw. 3.12 B. Belknap Glanvil lib. 8. cap. 4. vide the Writ there But entry was congeable to execute it 8 Edw. 3.277 24 Edw. 3.40 pl. 49. Coke 7. part 32. and to hold till satisfaction made as it seems If Land be tailed to one by fine Fine he shall have a Formedon in Remainder 6 Edw. 3.185 pl. 9. Herle to execute the Fine But when the King levies a find he ought to make Letters Patents to the Conusee to enter Coke 7. part 32. for the King passeth nothing but by Record A Fine levied of an Advowson this may be executed by a Quare Impedit 24 Edw. 3.69 pl. 78. But if an usurpation be no Scire facias lies 33 Edw. 3. Quare Impedit 193. Knivet against the Usurper Fine levied of Services there shall be a per que servitio 29 Edw. 3.46 pl. 9. to execute the Fine If a Fine be levied of Rent there may be 〈◊〉 Writ of Covenant 22 Edw. 4.2 pl. 6. to execute the Fine Tenant grants to do his services there shall be but a Distress 10 Edw. 3.371 pl. 3. for that is the proper remedy to recover them and there needed no Covenant Tamen quaere Fine levied of a Reversion there shall be a quid juris clamat to execute this And if the Tenant alien yet the Writ shall be against him and his Assignee shall be bound by his Attornment 8 Hen. 6.17 B. 18 Hen. 6.3 B. pl. 2. by the Judgment given against the Assignor and himself Conusor of a Fine dies there shall be no quid juris clamat against him that claims but if the Conusee only die quaere if his Heir shall have the Writ 34 Hen. 6.7 B. Moyle against the party that hath the particular estate Fine levied before memory there shall be no Execution 1 Edw. 4.6 pl. 13.
that he was robbed Robbery Coke 4. part 84. Southcots case 〈◊〉 Hen. 7.11 B. Townsend but they must take their remedy against the Thieves and they are by Law answerable to the owners of the goods So if goods are delivered to keep Coke 4. part 83. B. for such an acceptance implies a warranty to keep them safe and to redeliver them But it is a good plea if they are taken to keep as my own Coke 4. part 83. for there is no such warranty implied Vid. antea Recovery in Trespass a good barr in Detinue Recovery 20 Hen. 7.58 B. Crooke for there shall not be a double recovery for one thing The bailment is not traversable where he may wage his Law Travers 8 Edw. 4.3 pl. 7. for there his Oath that he detains not is sufficient for if he detains not there could be no bailment No barr that the Horse was sold in a Market overt unless it were tolled Vendee according to the Statute 1 2 Phil. Mariae cap. 7. for no property is altered by such a sale Vid. antea Detinue for Deeds as Heir Bastardy Bastardy is a good plea 35 Hen. 6.9 pl. 12. for if a Bastard he is no Heir A bailed to B to rebail and dies Feostment having two Sons which makes partition he which had the Land comprehended in the deed delivered enfeoffs B this is a good barr 17 Edw. 3.12 pl. 45. for by the purchase the deed belongs to B. Warranty and Assets is no barr against the issue in Tail in Detinue Warrant 9 Hen. 6.15 pl. 5. 4 Hen. 7.10 pl. 4. for he comes in by the Donor Rebailment in another County a good barr Rebailment because he cannot wage his Law 22 Hen. 6.15 pl. 27. because the bailment was in one County and the Action is brought in another County Release per the Plaintiff a good barr Release Lib. Intra 290. B. Sect. 1. for by the Release the property was altered The Defendant pleads bailment of deeds by the Plaintiff Retainer upon condition that if his wife the Plaintess survive the Plaintiff that the Defendant should retain it and that his wise is alive a good barr but then he ought to shew what Lands they concern 18 Edw. 4.18 that it may be known unto whom the deed belongs Infancy is no plea Infancy because he may avoid an obligation in debt 14 Hen. 6.11 pl. 41. by pleading deins age A good bar that the Garnishee brought a Detinue against the Defendant Recovery and prays Garnishment against the Plaintiff which makes default and he had judgment 34 Hen. 6.47 pl. 13. 21 Hen. 6.35 pl. 2. per Newton Garnishee pleads release between the time of this Action brought Release and the delivery quaere 20 Hen. 6.28 pl. 23. 49 Edw. 3.13 But 39 Edw. 3.13 adjudged that it is a good barr and so it seems the Law to be The Judgment in Detinue 1. Of Chattels 2. Of Deeds Against the Defendant 1. Quod praedictus W. recuperet versus praefat J. praedicta octo quarteria frumenti vel valorem eorundem No. Lib. Intra 169. C. Sect. 1. Lib. Intra 218. B. Sect. 4. dampua sua c. and upon the return of the Writ if it appears that W. did not deliver the Corn then the judgment shall be for the value with dammages and costs So see the difference where the Plaintiff himself delivers the thing and where another The Plaintiff shall have judgment to recover the thing named Plaintiff 17 Edw. 3.45 1 Rich. 3.1 2. or the value of it and dammages for detaining of it as appears above The judgment was that he should recover his Chattels and his dammages 21 Hen 6.36 A. Bracton Lib. 3. fol. 102. B. non tenetur precise ad rem restituend sed sub disjunct vel ad rem vel ad pretium either the thing or the value of it indammages Against the Defendant The judgment was that he should recover the deeds if they are found and also dâ—mmages for the detainer and if not found then all in dammages 7 Hen. 6.31 pl. 25. 22 Hen. 6.41 pl. 17. as well for the deeds as for the detainer of them And this shall be although it be proved that the Defendant burnt the deed 17 Edw. 3.45 pl. 1. for that shall not excuse Ideo confideratum est quod praedictus A. recuperet versus praefat B. pyxidem praedictam cum chartis c. Lib. Intra 218. A. Sect. 1. the box with the writings The Heir in Detinue had judgment to recover one box with as much as was in it contained that belongs to him 5 Edw. 3.159 B. intended to be of writings Against the Defendant and the Garnishee The judgment was that he should recover the deeds against the Defendant haberet liberationem versus the Garnishee 21 Hen. 6.36 A. Lib. Intra 219. D. sect 17. 9 Hen. 6.38 pl. 13.7 Hen. 6.45 pl. 27. This is a double judgment viz. of the right and of the possession But if Judgment be given upon default of the Garnishee before appearance no dammages shall be given 20 Hen. 6.4 pl. 27. for this is not the Defendants fault If the Plaintiff and Defendant make default the Garnishee shall have Judgment and the Plaintiff and Defendant in misericordia 40 Edw. 3.39 pl. 15. for his unjust vexation Execution in Detinue 1. Of Defendant 2. Against the Garnishee 3. Of what Lands 4. Of what Goods Execution against the Defendant by distress for the thing detained and recovered Chattels Nat. Lib. Intrâ— 169. C. sect 1. 20 Edw. 4.3 pl. 12. No. Lib. Intrâ— 170. D. 17. A. 6 Rich. â— Execution But if the thing be not delivered to the Plaintiff then he shall have execution for the dammages by Capias Lib. Intra 216. B. sect 6. 20 Edw. 4.3 pl. 12. against the person of the Defendant For a Capias was given in the main Process per 25 Edw. 3. cap. 17. and by consequence a Capiâ—â— ad satisfaciend in execution by the equity of that Statute At the Common Law execution was for dammages by fieri facias and also for the goods Lib. Intra 216. B. sect 8. to be levied upon the goods of the Defendant For dammages by fieri facias and for the thing by distress of the Goods and Chattels 6 Rich. 2. Execution 45. The Plaintiff and Defendant make default Garnishee had Judgment and distress against the Defendant 40 Edw. 3.39 pl. 15. Vid. antea Distress issued forth in execution Lib. Intra 215. C. sect 1. 20 Edw. 4.3 pl. 12. 22 Hen. 6.41 pl. 17. But Capias lies not 5 Eliz. Dyer 223. pl. 24. 21 Hen. 6.42 vid. antea If the deeds concern Lands 8 Hen. 6.29 pl. 24. 14 Hen. 6.1 pl. 1. But for the dammages if they will not deliver them a Capias lies 22 Hen. 6.41 pl. 17. 20 Edw. 43. pl. 12. If deeds are in a box
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.
nomine poenae 45 Edw. 11. pl. 7. for then he must hold him to the penalty which shall not fall upon the wife Q. When a woman in debt takes a husband they both shall be sued Coke 5. part 36. A. 12 Hen. 4. 1. pl. 1. Nat. br 120. F. for the marriage makes it both their deeds Conusor Debt lies against a Conusor of Statute Merchant Staple or Recognizance Nat. br 122. D. 11 Hen. 6.49 pl. 7. Coke 3. part 15. Harberts case 36 Hen. 6.2 pl. 2. 22 Elix Dyer 369. pl. 52. 39 Hen. 6.3 pl. 5. for here is a duty vid. antea Customer Debt lies against a Customer after Liberate delivered to him pay the sum to the party if he hath Assets Nat. br 121. F. else not So after a Tallee delivered to pay the party 27 Hen. 6.9 pl. 1. So against a Collector of Tenths and Fifteens 37 Hen. 6.15 pl. 5. granted by Parliament Debt lies against an Enfant for Tabling and Apparel 18 Edw. 4.3 A. Enfant for these are necessary for the support of the Enfant For Rent upon a Lease for years 21 Hen. 6.31 B. upon the words yielding and paying which make it a duty For a Escape if he be a Goaler Doct. Stud. 147. B. for the sum for which the prisoner was committed to him For a thing due to one as Executors Coke 5. part 27. B. Russels case Debt lies against an Executor although he be not bound 45 Edw. 3.17 pl. 4. Executor because he is in place of the Testator who was bound and hath the estate chargeable Debt by the Daughter against the Executor of her Father which had levied aid to marry her per Westm 1. cap. 35. Nat. br 83. A. 122. G. and had not paid it to her to whom it properly belonged Debt lies against Executors of the Ordinary which will not deliver the Administration to another Nat. br 120. D. Com. 280. A. vid. ante to whom they belong Debt lies against an Executor of an heir Lib. Intr. 172. C. sect 4.18 Eliz. Dyer 344. pl. 1. where the heir is bound Against an Executor of a Sheriff for not returning a Knight of the Parliament duly elected 23 Hen. 6. cap. 15. for dammages are to be recovered with which the Executor is chargeable if be have Assets Debt against an Executor of his own wrong Coke 5. part 30. Coulters case 33 34. Reads case for he hath made himself liable by meddling with the estate which was chargeable And the Count was general although he took Letters of Administration afterwards Quaere vid. antea Executor shall not be charged upon a surplusage of an account made by the Testator Coke 9. part 87. A. Pinchons case because the Testator may wage his Law 29 Edw. 3.26 22 Hen. 6.41 38 Hen. 6.6 14 Hen. 6.24 that he owed nothing upon the Account which would have been a good bar to the Action But if an Executor assign Auditors they shall be charged in debt for the surplusage 10 Hen. 6.24 pl. 84. because there they submit to the Account and stand upon their justification If an Executor account before Auditors debt lies for the Arrearage 2 Hen. 4.13 pl. 2. 19 Hen. 6.5 A. Fortescue for by his Accounting he submits to pay what shall be found arrear An Executor shall not be charged for Arrearages found due upon an account before the same party to whom he is to account Lib. Intra 149. B. sect 3. for this is as if no account had been and is but a voluntary act and not binding But for Arrearages before Auditors he shall because Auditors are Judges of Record per Westm 2. Lib. Intra 149 B. Sect. 5. see the Count there Debt against an Executor for Arrearages of an Annuity due in the use of the Testator after it is determined Lib. Intra 151. C. sect 1. 45 Edw. 3. Execution 71. because then he cannot distrain In Debt against an Executor the pleading of an Outlawry in the Testator no good bar 14 Hen. 6.14 21 Hen. 6.3 quaere 3 Hen. 6.17 for to plead it generally is not good for it might be reversed before his death But an Outlawry at the time of the death is a good bar or where he was a Villain to the King 8 Edw. 4.6 pl. 7. Doct. Stud. 11 12. 36 Hen. 6.27 pl. 38. for there he died in a disability to sâ—e Debt lies not against an Executor upon an Escape suffered by the Testator unless Judgment be given against the Testator 10 Eliz. Dyer 271. pl. 26.15 Eliz. Dyer 322. pl. 15.41 Assize 15. Coke 9. part 87. A. for that proves the escape and makes a duty to the Testator It lies not against an Executor upon a Tailee ensealed by the Testator 12 Hen. 4.23 25 Edw. 3.40 pl. 9. for this makes a duty acknowledged It lies not upon a simple contract of the Testator but if he plead in barr and it be found against him it shall Com. 182. A. 10 Hen. 6.24 for there he wants his advantage which the Law gives and stands upon his justification But in London by Custome 1 Edw. 4.6 it lies Lessee for years grants his Term his Executor shall not be charged for Rent due after his death Coke 3. part 24. A. Walkers cafe for he died not possessed of it Quaere tamen Debt for one retained according to the Statute of Labourers lies against the Executor without specialty for the detainer makes the duty 2 Hen. 4.14 4 Hen. 6.19 Goaler resusing to receive one committed by the Colledge of Physicians forfeits double the Fine Goaler per Marlebridge 1. cap. 9. Q. the Stat. If a man levy Aid for the marrying of his daughter Heir and dies if his Executors have not sufficient Debt lies against the Heir Nat. br 83. A. per Westm 1. cap. 35. Nat br 122. G. for this is for the advancement of the Family Debt lies against an Heir upon the obligation of his Father if he hath Assets by descent and be bound Nat. br 120. C I. otherwise not for generally Executors are to pay debts But if he alien the Assets before the Action brought he shall not be charged Coke 5. part 60. A. Regist orig 140. A. 27 Edw. 3.7 B. 10 Hen. 4. pl. 14 19 Hen. 6.46 pl. 95. 42 Edw. 3.10 pl. 1â— 48 Edw. 3.32 pl. 22. for it was the Latches of the party that brought his Action no sooner Unless it be fraudulent to deceive Creditors Coke 5. part 60. Geoches case for the Law will not countenance fraud And if they be heirs in Gavel-kind they shall all be charged as one heir 7 Eliz. 239. pl. 39. Dyer vid. the Count Lib. Intra 208. D. 11 Edw. 3. Debt 7. But if all alien but the eldest he shall be charged sole for he is chargeable in respect of his Assets The Count against an heir Lib. Intra 172. B. sect 1. No. Lib. 126. B. The Count needs not shew that he hath
assets for it shall be intended unless the contrary be shewed 18 Eliz. Dyer 344. pl. 2. 11 Hen. 6.2 pl. 6. and if he have not he may plead riens per descent For nothing by descent in Fee-simple is a good bar by him Lib. Intra 172. B. Sect. 1. the day of the purchase of the Writ But debt lies not against an heir upon a Statute-Merchant Staple or Recognizance because he is not bound Coke 3. part 15. A. Harberts case but the Lands are bound and may be extended Goaler suffers an escape his heir shall not be charged 15 Eliz. Dyer 322. pl. 25. for this is a personal wrong and only dammages recoverable Grandfather Father and Son or Father and his two Sons or Grandfathers two Sons who have two Sons the heir mediate shall be sued in debt as well as if they were immediate heirs 22 Dyer 368. pl. 14.7 Eliz. Dyer 239. pl. 39. that is in case the heir immediate die for the heir mediate is bound by the word Heir A Right shall not be Assets for it is a disputable thing and no certainty of it to be reduced into possession What shall be Assets to the Heir Disselsee obliges him and his heirs and dies this is not Assets for it is but a Right descended Pasch 6. Jac. Com. Ban. Molineux versus Molineux for his Ancestor died out of possession Right without an estate in Possession Reversion or Remainder is not Assets until it be reduced into possession Coke 6. part 58. Bredimans cases and then it shall release to the time of the death of the Ancestor Land in ancient demesn shall be Assets 7 Hen. 4.14 pl. 11. Q. to whom and where pleadable Copyhold Land is not Assets to the heir Coke 4. part 22. A. for it doth not descend but depends upon the Lords admittance If an heir alien bona fide before the Action brought it shall not be Assets Coke 5. part 60. A. Gooches case 27 Edw. 3.78 pl. 16.10 Hen. 7.8 pl. 17. 19 Hen. 6.46 pl. 95. 42 Edw. 3.10 pl. 12. 48 Edw. 32. pl. 22. Vid. antea for he is not tied from sâ—lling the Land If Land descend to the heir although he enter not yet it is Assets 42 Edw. 3.10 pl. 12. for he might have entered and may do when he will the Grandfather makes a Fâ—offment in Fee to the use of the heir of his body and dies per 26 Hen. 8. the Father enters and obliges him and his heirs and dies quaere 182 Mariae Dyer 111. pl. 46. whether the Grandchild be bound A Reversion expectant upon an estate Tail is not Assets because it lies in the will of Tenant in tail to dock and barr it at his pleasure Coke 6. part 58. B. Bredimans case 42. A. Mildmays case Q. if it be Assets when it happens Franktenement descendible express is not Assets Coke 10. part 98. A. Seymors case for it is an incertain estate Rent-seck descendible is not Assets until seisin of it Coke 6. part B. Bredimans case for before seisin he hath no estate in it If the heir had Assets in debt brought against him and afterwards Assets come to his hands the first judgment is no barr of the Action 19 Hen. 6.37 A. Markham because there was no satisfaction made which may now be by matter ex post facto The profits taken by the heir at the time of the descent are sufficient and if this be shewed to the Court and the heir cannot deny it there shall be a general judgment against him per Dyer 18 Eliz Dyer 344. pl. 1. to pay the debt and dammages quod querens recuperet The heir confesses the action and says that he had nothing but a Reversion descended to him there the Plaintiff shall have judgment to recover upon the said Reversion and the Debt to be levied when it comes in possession and the Plaintiff shall have a special Writ of extent 23 Eliz. Dyer 373. pl. 14. mentioning the special matter If the Father recover and Error be brought against the Son and a recovery against him he shall not render dammages unless he hath Assets of Land in Fee-simple from his Father If one be robbed Hundred he shall have debt against the Hundred per 27 Eliz. cap. 13. antea Debt lies against a Lessee at will for rent during the Term Lessee Coke 5. part 10. antea Quaere if he hold over So against a Lessee for years Nat. br 120. H. And this during the term Coke 4. part Or after the term ended by effluction of time Coke 3. part 23. B. for rent due during the term By limitation ended By condition in Law or in deed Common Law Nat. br 120. H. Statute Law 19 Hen. 6.42 A. waste Nat. br 120. H. re-entry Coke 3. part 23. B. Walkers case 30 Edw. 3.7.17 Edw. 3.48 fol. 73. pl. 107. It lies not against Tenant for life so long as his estate continues Life Coke 4. part 49. A. 11 Hen. 6.14 pl. 4. viz. for rent for the Land is charged But yet by the Statute 32 Hen. 8. cap. 37. the Executors of a Lessor for life shall have debt during the estate for life Coke 4. part which seems but reasonable Debt lies not against the Master upon the buying of the Servant Master unless it comes to his use or by his assent Doct. Stud. 137. A. for otherwise it might be mischievous to the Master Debt lies against an Ordinary Ordinary when a man dies intestate Nat. br 120. D. Coke 5. part 83. A. Snellings case 9. part 39. B. 11 Hen. 7.12 9 Edw. 4.33 Danby 18 Hen. 6.23 com 277.8 Eliz. Dyer 247. if the goods come into the hands of the Ordinary The Ordinary administers and then grants Administration yet debt lies against the Ordinary but it was said that such Administration ought to be alledged in the Diocess of the Ordinary 12 Rich. 2. Administrator 21. else it might be prejudicial to the Creditors But note no Debt lies against the Ordinary after that he hath committed Administration to another 8 Eliz. Dyer 247. pl. 73. viz. where he never administers Debt was brought against the Father for the Sons Commons in a Colledge in Oxon although the Father had delivered it to the Tutor of the Son Pasch 9. Jac. Ban. Regis St. Johns in Oxford against Brickâ—nden for the Father and not the Tutor is hable yet quaere for this is not usually practised Debt lies against him that becomes pledge without deed Pledge Nat. br 122. K. 18 Edw. 3.13 pl. 7. Finchden if the principle pay it not A borrowed of B 20 l. to pay it at Michaelmas at which day D prays B to take him for his Debtor and he gives him day over and D obliges him to pay it by one Tally ensealed Debt lies not against D because A was not by this discharged 44 Edw. 3.21 pl. 23. and so he may recover one Debt twice if D should be chargeable A
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.
for by the recovery it is become a Duty A Debt was recovered in a Court of Pypowders and debt brought upon it in com Ban. super tenorem recordi and good 7 Hen. 6.19 The record must be mentioned in the Count. For damages and costs If a man recover dammages in waste he shall have an action of debt for the dammages Nat. br 122. C. 43 Edw. 3.2 pl. 5. the count Lib. Intra 197. C. sect 15. for the recovery of them hath made them duty Debt lies for dammages recovered in Assize 32 Hen. 6.29 pl. 23. but then this debt sued for ought to agree with the Record See the count Lib. Intr. 194. D. sect 7. So for dammages in a Mort-dauncesler 46 Edw. 3.25 pl. 10. If the Plaintiff in com ban is non-suited and the Record removed by Writ of Error before the Costs paid upon the Nonsuit the Defendant in the Writ of Error shall have debt for his costs 29 Hen. 8. Dyer 32. pl. 5. for the Law makes them a duty Dammages recovered in ancient d mesne and the tenour of the Record was removed by Certiorari debt lies upon it for the dammage 39 Hen. 6.3 pl. 5. count Lib. intra 195. C. sect 11. for they are become a duty Dammages recovered before the Mayor of Hull debt lies there 11 Hen. 4.12 but not in another Court Debt lies for a Fine Fine Coke 8. part 41. B. Greisleys case 7. Hen. 6.2 B. Q What fine and where Debt lies for an amerciament in a Leet Amerciament Lib. Intra 151. B. sect 1. 23. Hen. 8. br Leet 37. The count Lib. intra 151. B. for it is a duty Debt lies in a Court Baron No. Lib. intra 118. B. sect 1. for a debt grown due within the jurisdiction thereof Judgment out of Court as Statute Debt lies upon a Statute Merchant or Staple according to the Stat. 23 Hen. 8. Nat. br 122. C. 11 Hen. 6.49 pl. 7. for the Statute makes it a duty Debt lies upon a Recognizance it self Recognizance Nat. br 122 C. 11 Hen. 6.49 pl. 7. Eliz. Dyer 306. pl. 63. The count Lib. intra 192. B. sect 1. for it is in the nature of a Judgment Or upon the tenour of the Recognizance 39 Hen. 6.3 pl. 5. 22 Eliz. Dyer 369. pl. 52. So upon a Recognizance taken before the Mayor of Hull 36 Hen. 6.2 pl. 2. In Hull Q. if elsewhere Debt brought upon a Recognizance after the Recognizance taken and afore the enrolment of it and good Pasch 43 Eliz. Com. Ban. For the Enrolment makes not the duty Account at the common Law Debt lies upon Arrerages of Account at the Common Law the count Lib. intra 149. A. sect 1. Also a Bayliff shall have debt upon the surplusage of account Nat. br 121. I. 38. Hen. 6.5 19 Edw. 2. Debt 176. against his Master for the Law makes it a duty in the Master He ought to count the place and day where the Auditors were assigned Hil. 32. Eliz. Com. Ban. Lord Dacres case before whom accompted and the Accompt stated for they are traversable But if the Lord will not hear his Accompt he hath no remedy for the surplusage 7 Edw. 3.12 per Herle For then it appears not whether any thing be due to him or not But it lies not by a Receiver 38 Hen. 6.5 pl. 14. Mich. 12. Jac. Ban. Regis Countess de Suffolk versus Floyde For a receiver is not to lay out for his Master But a receiver for Merchandize shall have it 38 Hen. 6.5 Prisott Moyle because he receives it for to be employed and the Master is to stand to the gain and loss if there be any Debt lies upon an Arbitrement Arbitrement Nat. br 121. G. Coke 9. part 92. B. the count Lib. intra 153. C. sect 1. For an Arbitrement is a judgment by consent of both parties and by it a duty is created By-laws or Ordinances Debt lies upon an Ordinance or by-Law Coke 5. part 64. A. Q. What Ordinance A Pain is laid upon one in a Leet to reform a Nusance and afterwards it is presented that it is not done the Lord shall have debt 23 Hen. 8. br Leet 37. for the same for it is a duty conditionally upon the non-feasars For a Penalty inflicted upon one in London per the Common Council debt lies for it in Ban. Regis Mich. 9. Jac. Ban. Regis by the custom of the City as it seems Matter in Law as for Aid Debt lies for the Daughter for Ayd to marry her Nat. br 83. A. 122. G. vid. antea For the Ayd is for her advancement For an Annuity against a Customer c. after delivery of a Liberate A man having an Annuity of the King delivers a Writ to a Customer to pay it who hath assets he shall have debt Nat. br 121. F. against the Customer else not So if he deliver a Tally to a Customer 27 Hen. 6.9 pl. 1. For that is a sufficient warrant to him to pay it So if he deliver a Tally to a Collector of Tenths and Fifteens 37 Hen. 6.15 pl. 5. for the same reason Debt lies pro rationabili parte bonorum where the custom gives such part Pro rationabili parte bonorum Nat. br 122. L. 3 Edw. 3. Debt 156. for him that is to have such part The count was that the Son or Daughter which is not heir nor preferred in the life of the Father shall have a reasonable part and shews the things to the value c. Lib. intra 564. B. sect 1. The value is to be shewed to reduce it to a certainty But shall not have this Writ but where such custom is 40 Edw. 3.38 pl. 13. Mowbray 7 Edw. 4.20 pl. 23. for the common Law takes no notice of such reasonable part For it cannot be founded upon Magna Charta cap. 8. because it is but only foreprised Regist orig 141. B. 30 Edw. 3.26 A. Seton and not ordained or enacted But other Books say it lies at Common Law Nat. br 122. L. Glanvil Lib. 12. cap. 20. 17 Edw 3 9. pl. 29. Q. tamen for custom makes Law in many cases And the account is upon the Common Law No. Lib. intra 565. A. sect 2. viz. per legen terrae So debt lies where the custom is that the heir shall have the principal goods 30 Edw. 3.2 pl. â— 39 Edw. 3.6 pl. 24. fol. 9. pl. 15. for thereby they are a duty vested in him For a relief per Executor Executor shall have debt for a relief because it is but an improvement of a rent-service Coke 4. part 49. B. 34 Edw. 1. Avowry 233. 11 Hen. 6.15 pl. 4. and is not a rent-service And it is a chattel to the Executor 34 Edw. 3. Avowry 233. and ought to be assets in his hands But the Lord shall not have debt Coke 4. part 49. B. 7 Hen. 6.13 For it is no Chattel to the Lord 34.
17 Hen. 7.40 pl. 12. It seems not for there may be more due and therefore it ought to be put in issue In debt upon a sale that he owes nothing by the Law a good bar although the Defendant bought it of the servant of the Plaintiff for the contract of the Servant is the contract of the Master 30 Edw. 3.19 pl. 27. If the Servant had authority to buy and sell or that the thing bought came to the Masters use Unless the Contract be by deed 39 Hen. 6.35 pl. 46. Which must be avoided by Deed and not by the Oath of the party Debt against the Husband and Wife upon a contract of the wife dum sola fuit the Husband wages his Law as now he may for now it is his debt but if at the day of the doing of his Law the Wife be not there the Husband shall be condemned 33 Hen. 6.43 pl. 23. For the debt originally was hers and therefore she must join That he recovered in an Action upon the Case upon an Assumpsit a good bar Coke 4. part 94. B. Slades case in debt upon a Contract for it was in his election to bring his Action upon the Case The breaking of the Prison by Enemies or a Tempest Escape a good bar 33 Hen. 6.1 pl. 3. in debt against a Gaoler upon an escape for he could not prevent it nor can have satisfaction But not by Rebels 33 Hen. 6.1 pl. 3. For Rebels may be compelled to make the Gaoler satisfaction The Sheriff pleads that his predecessor suffered him at large and that he did take him again c. a good bâ—r 2 Edw. 6.67 pl. 17. in debt brought against him for an escape in his predecessors time Enfancy no plea because the Statute is general Doct. Stud. 147. B. In debt for necessaries vid. antea Debt against a Bayliff because the Sheriff had not made out his Warrant for apprehending one in execution and yet returns that he was taken and was not quaere whether the Bayliff shall say no such Warant against the return of the Sheriff 5 Edw. 4.1 It seems not but must have his remedy against the Sheriff Non permisit ire ad largum a good bar 10 Hen. 4.10 38 Hen. 6.29 3 Mariae Dyer 121. pl. 18. in debt brought upon an escape for this is a direct tender of an issue that there was no escape A Return by a Bayliff of a Liberty that the Precept was not come to him at the time and that afterwards he was not in the Liberty 18 Edw. 3.35 is a good bar in debt against him Taken again before the Action brought a good bar if that he agree not to the escape and make fresh suit Coke 3. part 52. Rigwayes case 34 Edw. 1. debt 162. Otherwise not for then he is particeps criminis That he owes nothing is no Plea because this Action is brought not upon a contract but upon a special clause of the Statute 2 Rich. 2. Issue 160. Which cannot be discharged by a plea parol but he must answer to the Statute Account upon a recovery of dammages and the party committed in execution Nul tiel record a good bar 30 Hen. 6.6 For the Action is grounded upon the Record and if there be no such Record there can be no Action Judgment in Court Debt upon a Judgment in Pypowders a good bar that he was taken in execution 7 Hen. 6.18 upon the Judgment given in the Court of Pypowders Upon a recovery in a Court Baron if an Action of debt be brought the Defendant shall say that he owes nothing by the Law 49 Edw. 3.3 A. Hanmer 13 Hen. 7.3 B. Conesby For such recoveries are of an inferior nature Debt for dammages Debt for Dammages recovered in Assize of the Plaintiff after Verdict and before Judgment pleaded quaere 2 Mariae Dyer 107. pl. 24. Levied by the Sheriff a good bar 11 Hen. 4.58 pl. 8. For that is satisfaction in Law as to the party Elegit pleaded in Bar good 13 Eliz. Dyer 299. pl. 34. For by the Elegit he hath elected his Execution Upon a recovery of Dammages in ancient demesne debt is brought against the Defendant he shall not say that he owes nothing but shall plead Non tiel Recovery quare 34 Hen. 6.49 A. pl. 15. Littleton For it seems he may as well here as upon debt brought upon a recovery in a Court Baron vide antea For an Amerciament in a Leet that he owes nothing For fine or amerciment by the Law no plea. 12 Rich. 2. Law 33. For a Court-Leet is the Kings Court and not a base Court For an Amerciament in a Court-Baron that he owes nothing by the Law a good plea 12 Rich. 2. Stathan debt 35. No. Lib. intra 119. A. sect 1. vid. antea In Debt upon a Statute Merchant with a defeasance the Defendant said that he was a Lay-man and not Learned and that the condition should have been but to bind him to pay 40 l. and it was made 60 l. This is a good plea for the Action is brought as upon an Obligation with a condition but otherwise if execution be sued upon it as a Statute Hil. 9. Jac. Banc. Regis Fox versus Brooke For then such plea comes too late for the Statute is extended as a Judgment Arbitrement is no Bar in debt for arrerages of account before Auditors Arbitrement because the sum being due by matter of Record ought to be answered by matter of as high a nature 3 Hen. 4.5 pl. 23. 6. Hen. 4.6 pl. 28. 8 Hen. 5.3 pl. 13. Hâ—ll 3 Hen. 6.55 A. quaere 4 Hen. 6.17 pl. 3. 10 Hen. 7.4 A. which an Arbitrement is not Debt upon an in simul computaverunt that he was not accountable by the Countrey no bar for where the Defendant may wage his Law the Contract is not traversable Crooke 13 Hen. 7.39 pl. 4. For the Action supposeth that he assented to the accompt so that that is not to be put in issue Nullum fecerunt arbitrium a good Bar because this lies in notice of the Countrey Crooke 13 Hen. 7.39 pl. 4. In action of debt upon a Bond to perform an award But if he plead such a plea he cannot rejoyn afterwards and say that the Arbitrators gave no notice but must plead it in Bar and not by way of Rejoynder Crooke 7 Hen. 8.155 pl. 8. For such a Rejoynder confesses an Award and the Bar denies it so that the Bar and the Rejoynder cannot stand together The Arbitrators gave no notice no Bar unless the submission be so viz. that the Arbitrators should give notice for else the parties are to take notice at their peril The Defendant said that before the Arbitrement made he discharged the Arbitrators this is a good Bar 21 Hen. 6.30 28 Hen. 6.6 Coke 8. part 82. B. Vniors case and needs not to aver that the Arbitrators had notice for they must be discharged without notice Debt upon an Obligation
for it was implied before Mich. 15 Jac. Ban. Regis per Montague Chief Justice Woolridge Banbury for such a Lease could be made but conditionally A Condition to deliver such a Lease as shall be devised by the Judge of the Court of Audience Non devisavit aliquid c. is no barr for he ought to procure him to make one at his peril Coke 5. part 23. B. Lambs case the Pleading No. Lib. Intr. 130. A. for the Condition is for the Obligors benefit and therefore he must do his best to see it performed Impossible condition A is obliged to B in 20 l. upon Condition to pay 10 l. to such a person at such a place and time as B should name in his Will B makes his Will and names none the Executors shall not have it for the Condition is become impossible for he ought to be named in deed Trin. 12 Jac. Com. Ban. Pease alii versus Mead Mich. 11 Jac. Rott 945. The Defendant said that he made another obligation to the Plaintiff the which he did accept in satisfaction of the former this is no barr because it is but a thing in Action Mich. 12 Jac. Com. Ban. Rand. Strut Trin. 6 Jac. Com Ban. Rott 10001. Lovelace and one thing in action cannot be discharged with another thing in action Payment according to the Condition a good barr Coke 8. part 58. A. Beechers case Payment but he must shew the place where he made the payment 9 Edw. 4.141 B. becauss it is material Payment of parcel hanging the Writ is not good to abate the Writ without an Acquittance 3 Hen. 7.3 pl. 12. 5 Hen. 7.10 pl. 15. 7 Edw. 4.15 Vide 28 Hen. 8. Dyer 6. pl. 3. because the duty was by specialty A is bound to B in 10 l. and after the date is a clause that he shall pay him 5 l. the Obligation is void as to the 10 l. payment there without Acquittance is good 30 Edw. 3.3 pl. 12. Q. because the Obligation is void But payment after the day is not good without Acquittance 46 Edw. 3.29 pl. 23. 47 Edw. 3.13 pl. 14. 5 Hen. 7.41 pl. 5. because then it is a duty vested A is bound to pay 20 quarters of Maule and if he pay it not at the day then 40 quarters in Debt for the 40 quarters he may plead payment of the 20 quarters without Acquittance because it is to save a penalty but not in debt for the 20 quarters 28 Hen. 8. Dyer 24. pl. 154. 1 Hen 5.7 A. because that was the original duty Three are bound to pay their Rent one pays it the other pleads payment without Acquittance 45 Edw. 3.4 pl. 9. and good for the payment of one is the payment of all and he may not have an Acquittance A is bound by an Obligation dated 17th of November 12 Jac. with condition of payment the 19th November next ensuing per Curiam payment 19th November 13 Jac. is sufficient for it shall not be intended 19th November in the same month Mich. 13 Jac. Com. Ban. Price Coe for it shall not be intended that an Obligation should be made for two days and the next ensuing shall relate to the month and not the day Conusee of a Statute had Execution for 20 l. and by Indenture grants that if the Conusor pay 8 l. at a day to come the Statute shall be void this is a good discharge 20 Assize pl. 7. Quaert whether the Statute or the Execution shall be void Payment to a Deputy a good barr 42 Edw. 13. pl. 35 Q. what Deputy Payment to the Baily of a Bishop without his command is a good barr 22 Edw. 4.25 pl. 5. for it is payment to the Bishop But payment to a Servant without command is no barr unless it comes to the use of his Master Doct. Stud. 38. A. for a Servant as a Servant is no Receiver Payment to a Creditor of the Obligee by his command is a good barr 46 Edw. 3.33 pl. 45. Perkins 145. A. for it is a payment to himself being for his benefit But then he ought to shew that the Creditor was the Creditor of the Obligee 27 Hen. 6.6 pl. 1. viz. in his plea. In debt upon an Obligation with a Condition to pay 20 l. to B assoon as he comes to the Age of 21 years 1. The Defendant ought to shew in performance of the Condition that B is of full Age. 2. He ought to shew the place where he paid it for otherwise there cannot be any traverse Mich. 12 Jac. Ban. Regis Halse Condition to permit one to enjoy Permit c. he pleads that he did permit him and good 10 Eliz. Dyer 279. pl. 6. for that answers the Condition fully The Defendant said that the Plaintiff was indebted to him Retainer and that he commanded him to retain it a good barr 22 Edw. 4.25.65 for such retainer is satisfaction in Law Barr general to an obligation Acquittance Acquittance a good barr from the party himself But an Acquittance by a general Receiver without receipt of the money by his Master is not good unless he be Receiver by deed and hath authority to make Acquittances Doct. Stud. 137. B. for then his Master shall be estopped by the deed to say he was not his Receiver A brought debt in Ban. Regis against B and that depending brought debt for the same debt in London and had goods attached in the hands of C and had judgment upon them this is a good barr in debt brought by B against C for the goods attached but if A brings debt against B and after the debt is attached in London and Judgment given there if the Creditor sue B he cannot plead the Attachment in barr because he might have pleaded it to the Action brought against him in Com. Ban. Mich. 39 40 Eliz. Com. Ban. Jaques versus Lewkner in barr of the Action brought in London and so have avoided the Attachment A Debt is attachable before the day in which it is payable because it is a duty and the debtor debet although non detinet but an obligation made to perform Covenants is not attachable Mich. 39 40 Eliz. Com. Ban. Beacher versus Minors for this is incertain whether it may ever become a duty Coverture a good barr Coverture Lib. Intr. 168. B. sect 1. in an Action of debt brought against a Feme Covert upon an obligation made during Coverture Infancy a good barr Infancy Lib. Intra 163. A. sect 1. for an Infant cannot be bound nor contract to his prejudice Non est factum Non est factum a good barr but not if the deed be inrolled 16 Hen. 5. B. 9 Hen. 6.60 A. Babington 39 Hen. 6.32 pl. 45. because the party hath acknowledged it to be his deed before the Judge or Master of the Chancery When a deed is but voidable non est factum no plea Coke the 5. part 119. A.
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
Westminster for the judgment is well given The Goods that he had at the time of the execution shall be only liable to execution Coke part 171. A. Fleetwoods case 2. Hen. 4.14 9 Hen. 6.58 11 Hen. 4.7 34 Hen. 6.23 B. Prisot 21 Hen. 7.87 pl. 1. Crooke Unless it be in case of Executors 34 Hen. 6.23 B. Prisot For they may have other goods of the Testator come to their hands afterward But sale by covin after Judgment cannot hinder the execution 22 Assiz 72. 13 Hen 4.4 pl. 9. Q. if sale be made pending the Suit before Judgment by covin Hill 40. Eliz. Com. Ban. per Curiam if a Writ of execution be awarded for debt or dammages and between the Test of the Writ and Execution the party sold the goods bona fide yet these are liable to the execution Q. If so where the Vendee knows not of the Judgment for it seems hard and yet it seems as hard on the other side also Ejectment In what Court it lies IT lies not in the Marshalsey Coke 10. part 72. A. Marshalsey For no Title for Land could be tried there In Ban. Regis it lies In Com. Ban. it lies In the Exchequer it lies for a party priviledged Coke 1. part 3. A. Pelhams case and this was by Bill It seems it lies as well on the Pleas side and more properly than by Bill But if it be for ancient demesne-Land it lies not in the Court of the King Coke 5. part 105. A. Aldens case 9. part 77. B. but in the Court of the Mannor by their priviledge but by consent it may be as it seems tried elsewhere Because the possession is to be removed in such action per Hobart Chief Justice Hill 11. Jac. com Ban. Rot. 25.41 Cox versus Barnibee But none can plead this out ter-tenant of the Land in ancient demesne because the possession doth only concern him 2 Hen. 7.17 pl. 1. But if the Plaintiff do not put in his declaration until the end of the Term the Defendant cannot plead ancient demesne the next Term but must move the Court that the Plaintiff put in his declaration so late and pray no advantage may be taken against him and then the advantage shall be saved Trin. 12. Jac. Ban. Regis and he shall have liberty by rule of Court to plead ancient demesne the next Term. But he may plead this after view because by this he may confess if it be frank fee or not 50 Edw. 3.9 pl. 20. Q. Who shall have an Ejectione firmae Lessee for years only shall have it Possession Nat. br 120. F. because this action is only to recover the present possession and concerns not the Title but ex obliquo or collaterally And this only upon the possession in deed for he shall not have it upon a possession in Law 23 Hen. 8. br quia ejecit infra c. 5. For that is not an actual possession and so there is no present disturbance Nor upon a Lease to commence in futuro 37 Hen. 6.18 A. For the same reason and it may be it may never come in esse Note that Tenant for years needs not count that he entred Note but that a Lease was made to him by virtue of which he has possessed com 503. B. Grendons case For the Word Possessed supposeth an Entry or at least a taking of the Profits Tenant for years leases to B. at will who is outed by a stranger tenant for years shall not have an action because he had not the actual possession Pasch 11 Jac. in the Exchequer inter Sir Richard Grebham Stone Q. if Tenant at will may for the feebleness of his estate it seems he may Tenant for years Tenant for years leases for one year or a Lease is made for years the remainder for years a stranger enters none shall have an ejectment but the Tenant in possession Crooke 130. pl. 99. for none else is disturbed Lessee shall have an ejectment after the term ended Lessee and recover all in dammages 21 Edw. 4.30 pl. 25. Brian 7 Edw. 4.6 B. Fairfax For other remedy he hath not to recover them Lessee which may have a real Action cannot have an ejectione firmae Com. 419. B. Bracebridges case For real Actions are to be preferred before possessory and personal because of a higher nature and thereby justice is more speedily done Husband and wife Husband and Wife ought to to join if it be in right of the Wife 21 Edw. 4.10 pl. 1.30 pl. 25. 7 Edw. 4.6 B. Fairfax Com. 418. B. Bracebridges case For the Husband cannot declare of a Lease made to himself though he be interessed in it by reason of the Marriage and the Lease may come again to the Wife by his Death But if the term be ended the Husband alone shall have it because nothing shall be recovered but dammages 7 Edw. 4.6 B. Fairfax Which do only concern the Husband Lessee for one year of a Copy-holder shall have an ejection firm Coke 4. part 26 For he is a possessor for a term of years because the time is certain and of less term certain than for years the Law takes no notice Lessee of a Copy-hold for more years Copy-hold shall have an ejection firm although that such Lease be a forfeiture for it is a good Lease against all but the Lord Trin. 36 Eliz. Ban. Regis Downings case and it may be the Lord will take no advantage of it Executor of a Lessee shall have it Executors No. Lib. intra 195. D. sect 6. because the possession is come to him and he is damnified by the disturbance Executor Plaintiff Husband and Wife Co-executors Defendants and the Count. Lib. intra 252. B. sect 6. Executor shall have an ejection firm in vita Testatoris per the equity of the Statute 4 Edw. 3. cap. 6. Coke 9. part 78. B. Peytoes case else he should lose the term Churchwardens shall have it of Land leased to them 15 Hen. 7.8 in right of the Church Church-wardens for it is their possession pro tempore Q. If new be elected before the trial what shall be done Tenant by Elegit Tenant by Elegit shall not have an ejectione firmae Crooke 109. pl. 29. For he hath no certain term for the Owner may redeem the Land when he will Tenant in common Tenant in Common shall have it against his Companion Littleton 73. A. For they have distinct interests in Law Father and Son having several inheritances in divers Lands the Father levies a Fine of it all the Son being beyond sea at the time dies his Issue enters and leases it being within Age to A without rendring any Rent A. enters the Conusee of the Fine enters and leases it to B yet B. shall not have an ejectione firmae against A if he be outed without express outing of A because as to the moyery the Plantiff had not title for of that the Father might levie the