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
his Age proved But if he come to full age it is not for then he is not in the same condition as he was when he levied the Fine 17 Edw. 3.53 pl. 33. Greene 17 Assize pl. 17. no◠can it be so well tried And although the other ject a protection yet if the Infant be inspected when he comes to full age he shall have the benefit of his nonage 22 Edw. 3.6 pl. 24. 21 Assize pl. 10. for the Infant could not proceed to reverse the Fine during his Infancy by reason of the protection Feme Covert Feme Covert as Feme sole levies a Fine this shall bind all but the Husband Coke 7. part 8. Bedfords case 17 Edw. 3.52 78. 7 Hen. 4.23 because as to him she was covert and could not act without him though not in respect of others But if the Husband enters and dies Husband the Fine is void without more suit to all parties concerned Coke 7. part 8. Bedfords case 7 Hen. 4.2.23 for that shews his disagreement to his Wives act But if living the former Husband and she take a second Husband and they levy a Fine this is utterly void because the second Marriage is void 7 Hen. 4.24 B. Gascoign 9 Hen. 6.34 B. pl. 3. This was before the Statute of Jac. against having two wives or two husbands Note Note when a thing is amendable before the Writ of Error brought it is amendable as well after and this by a Superiour Court as well as an Inferiour Court Coke 8. part 162. A. Blackamores case for the Writ of Error doth not hinder such amendments Note Note that those things that are not amendable and yet vicious are Errors at this day for there is no other way to redress them When Judgment is given but not upon a verdict of 12. upon Issue joyned there are 7 Errors not amendable Coke 8. part 162. A. Blackamores case as upon a Judgment by default by Nihil dicit non sum informatus or upon a Demurrer c. Vid. some alterations by a late Statute temps Caroli Secundi concerning Errors Want of the Original Writ 1. Original No. Lib. Intra 246. D. Misprision of the form of the Original 2. Form false Latin in it or variance from the Register Material variance between the Original and the Count or Declaration 3. Count. as C.W. in the Writ and W. W. in the Count Coke 5. part 37. Bishops case Jeosail 4. Pleading fault of Colour insufficient pleading or some default of the person or of his Counsel Error or misprision of the Judges in another Term Misericordia pro Capiatur è contra Coke 8. part 59. A. 41 Eliz. Dyer 315. pl. 99. Want of warrant of Attorney 6. Warrant Error in pleas of the Crown and Appeals 7. Appeal or in proceedings upon them they are not amendable for they are excepted out of the Statute of Amendments and also Error in the exigent to make one to be outlawed Coke 8. part 162. A. Blackamores case Br. 10. This is in favour of life and liberty and property What things are amendable after verdict 1. Material variance When Judgment is given upon a verdict of 12. men upon issue joyned there are 10. Misprisions not to be remedied or amended Coke 8. part 163. Blackamores case Material variance between the Original and the Count Coke 5. part 37. Bishops case The Original is Barbara and the Count is Barbaria this is erroneous Mich. 9 Jac. Ban. Regis Harrison Fettiplace for they are two several names and so may be two several persons Waste brought in Burrum Appleby and Flackbridge and the Count is of waste made in Burrum Appleby Flackbridge Park in Langton and it is variance because there is more in the Count than in the Writ Hill 12 Jac. Com. Ban. Countess of Cumberlands case and so it may not be for one and the same matter When the Original and the Count differs in the substance Coke 5 part 45. Husband and wife brought debt or an Action for rent due to them where it was due to the wife before Coverture this is aided by the Statute and good after verdict Trin. 9 Jac. Ban. Regis Peore versus Boule Hill 36. Eliz. Ban. Regis Rot. 610. Griffin versus Elliot Ejectione firmae wants vi armis this is but a fault in form and shall not stay Judgment after Verdict and then it was also said that these words are not material for it may be without them 7 Hen. 6.4 17 Edw. 3.1 Q. 3. Misprision of the Visne When the Venue is mistaken The Issue was that within the Mannor of Wargrave and it was of the Mannor of Wafield demisable by Copy of Court Roll c. the Venue was of the Mannor of Wargrave and good because the issue was upon the Custome within the Mannor of Wargrave Coke 11. part 18. A. Nevils case but if one Mannor was in one County and another in another then it is otherways Mich. 11 Jac. Ban. Regis in the same case for then that Jury could not try the issue 1. Trin. 11 Jac. Ban. Regis Morton versus Orde resolved in a Writ of Error 1. Infancy during Nonage shall be tried by the Justices by inspection and other proof in Court Coke 9. part 30. 17 Edw. 2. Account 122. 46 Edw. 3.8 48 Edw. 3.11 14 Hen. 4. after Nonage by a Jury 2. If it be doubtful to the Justices the Infant and the Witnesses shall be examined in Court 25 Edw. 3.42 50 Edw. 3.5 3. If he be of full age in Actions reals it viz. the Issue shall be tried where the Land lies 21 Edw. 3.28 38 Edw. 3.17 44 Assize 10. 46 Edw. 3.7 13 Hen. 4.3 19 Hen. 6.51 for the Land is the principal matter 4. If it be an Action personal as Ejectione firmae it shall be tried where the Action is brought 21 Edw. 3.7 3 Hen. 6.40 34 Hen. 6.50 and so it was adjudged because it is transitory and not fixt to a place 4. Sheriffs Retorn When the Retorn is by the Sheriff where it ought to be by the Coroners or è converso for such is no retorn because made by a wrong Officer When the Sheriff puts not his name to the Retorn of the Jury 5. Jury as he ought to do for else it cannot be known to be his Retorn 6. Venire facias When there is no Retorn indorsed upon the Venire facias so if the name of the Sheriff be not put to the Writ of Inquiry of Dammages Mich. 9. Jac. in the Chequer Chamber Shackly versus Porter for these are things of substance When one gives the Verdict that was not returned in the Venire facias 7. Verdict though he be sworn When it appears to the Court by all the Record 8. Action that the Plaintiff had no cause of Action for the Court is to judge of the Record In Appeal 9. Crown or Pleas of
the Crown or in any proceedings upon them Antea Statutes penal Or to the Writ Bill or Action Informations upon popular or penal Statutes 10. Law Judgment Error in Law by misprision of the Judges in the judgment entred in another term Coke 5. part 57. B. Specots case but in the same term it may because all that term the judgment is in the breast of the Judges Action upon the Case in Cur. Wallingford the judgment was quod defend capiatur this is Error being but an Action upon the case Trin. 9 Jac. Ban. Regis Northcot versus Heywood for the Judge ought to be defendens in misericordia for it is capiatur only where the Action is vi armis in respect of the fine to the King Concessum est pro Consideratum est Concessum est where it should be Consideratum est this is Error although there are 21. Presidents in my Lord Cokes Reports to the contrary for by Man Secondary the Books are false printed Mich. 8. Jac. Ban. Regis Rot. 641. and by Williams if it be videbitur Curiae this is erroneous for the Court is not to vary from their forms in such high matters as Judgment are If it be Capiatur against the Defendant in an Ejectione firmae Mich. 8 Jac. Ban. Regis Rot. 232. Dolby versus Holbrook it is error for it should be ideo in misericordia JurisdictioÌ„ of Court It is ordained per 27 Eliz. cap. 8. that if Error be brought in the Chequer upon a judgment in Ban. Regis they shall not assign it in the Jurisdiction of the Court or in form of the Writ Return Plaint Bill Declaration Pleading Process Verdict or Proceedings but only insist upon the matter in Law And also there is a Proviso that it shall be in Debt Detinue Account Covenant Ejectione firmae Traverse Action upon the Case and not in other Actions of a higher nature In process The party cannot shew Error in Process in delay of the Defendant unless he shew that it is for his disadvantage and that he is injured thereby 7 Edw. 3.25 Coke 8. part 59. A. Beechers case Nothing that is done contrary to the Office of a Judge shall be assigned for Error Judge Nat. br 21. B. 7 Hen. 7.4 for their Authority shall not be questioned this way Granting of Aid where it should not be is not Error so of Receipt 7 Edw. 4.12 21 Edw. 4.65 B. 5 Hen. 7.8 8 Hen. 7.9 11. 14 Hen. 6.5 pl. 25. but if it be denied where it ought to be granted it is Error for none is prejudiced by the former but by the latter the Defendant is prejudiced So of Garnishment 14 Edw. 4.1 pl. 3. So of making of an Attorney Nat. br 22. D. 21 Edw. 4.77 But denial of Aid or Receipt Visne where it ought to be is Error Edw. 4.65 B. 5 Hen. 7.8 8 Hen. 7.9 vid. antea When the Visne is mistaken Visne it is error for there is no right trial In Replevin Replevin the Defendant prescribes to have all the Pasture of such a place in W. except Common for the Inhabitants of D. and the Prescription being traversed the Jury was of the Visne of W. only and this was ruled good in Error brought because the words of exception to the Inhabitants of D. was void therefore this was not put in issue Trin. 11 Jac. Ban. Regis Wicker versus Stockeman and so nothing in Dale was put in issue In waste In Waste brought the Issue was for certain Oaks cut for repairing of the Castle of Burrum the Visne was of the Village of Burrum where it should have been of the Castle of Burrum this is Erâ—or Hill 12 Jac. Com. Ban. the Countess of Cumberlands case for a Castle and a Village are two different places Trover Conversion Trover and Conversion brought in Coventry upon not guilty pleaded the Visne was De Vicineto Civitatis Coventriae and this shewed in arrest of judgment sed non allocatur and error upon in brought and it seems that by Williams and Yelverton Justices that it is error for it should be of Coventry for Vicinetum is of the Neighborhood of Coventry and excludes the City and the Sheriff of the Country ought to make it out 7 Hen. 6.36 B. 4 Edw. 4.39 7 Hen. 4.12.80 Inquest 36. Quare tamen for the Court did advise about bringing of a new Action and did not determine the Question Pasch 9. Jac. Ban. Regis Procter versus Clifton Trespass for lopping of Wood in Hurslay Trespass the Defendant pleads that the place is parcel of the Mannor of Mamden in the Parish of Hurslay and the Custom is that the Copy-holder may cut c. and found for the Plaintiff and the Visne was of Hurslay and it was moved that it was not good for the Parish is not certain because it may comprehend more Villages but it was good per Curiam because Hurslay shall be taken to be a Village and Parish and shall not be intended that there are more Villages in one Parish except it be shewed 5 Edw. 3.20 Mich. 9. Jac. Ban. Regis Brocke versus Spencer Condition to pay money Hill 9. Jac. Ban. Regis Savil Cavendish Condition to pay money in the Church porch of the Parish of H. and pleads performance the Visne was of H. and yet good for as it seems the Village and Parish shall be intended all one and the Parish shall not be intended to comprehend more Villages Debt upon an Obligation to perform Covenants Obligation and declares of the breaking of the Condition because a stranger recovered the Land at Westminster upon a good title where the Land lies in Com. Berks the Defendant said that it was by Covin without this that it was upon a good Title the Plaintiff said that it was upon a good Title the Visne shall be of the County of Berks where the Issue is joined upon the good Title and where the Land lies but contrary if the issue be joined upon the Covin for that is alledged at Westminster but it was said if it were a personal Action it shall be where the Recovery is alledged Mich. 9. Jac. Ban. Regis Hansaker versus Kirby Ejectione firmae of Land in S T the Defendant pleads a Feoffment of the Land by Deed at S. the Plaintiff said non feoffavit Ejectment c. the Visne was of S. and T. and good for the alledging of the Feoffment at S is idle for it cannot be but upon the Land which is alledged to be in S. and T. Mich. 9. Jac. Ban. Regis and so the Venue is rightly laid there Debt for 20 l. the Defendant pleads that at another time the Plaintiff sued him in London Debt in such a Parish for the same debt and shews the Record certain c. and that he had execution in another Parish c. the Plaintiff said that it was in debt for another
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
Fol. 469 Diminution in Error 1. by whom 2. in what cases 3. at what time Fol. 472 The assignments of Errors 1. by whom 2. at what time 3. upon what Record 4. of what things Fol. 474 Barr in Error Fol. 491 Iudgement in Error 1. for the Plaintiff 2. for the Defendant 3. for both Fol. 493 Execution in Error Fol. 495 ACCOUNT Account is by Common Law By Act of Law Guardian in Soccage Next of Kin. A Stranger Baily of a Court or Hundred in Law in case of a Subject of a Mannor-house c. in deed in case of the King By his own act Receiver By other hands in law in case of a Subject By his own hands in deed in case of the King Statute Law Marlebridge cap. 17. Against a Guardian in Soccage Marlebridge cap. 23. Against a Baily vagarant Westm 2. cap. 23. For Executors 25 Edw. 3. cap. 5. For Executors of Executors 3 Edw. 3. cap. 11. For Administrators 23 Hen. 8. cap. 8. Collectors for repairing of Goals shall account to Justices of Peace 2 3 Maria cap. 8. Against Head-Constables or Church-wardens 43 Eliz. cap. 2. Overseers of the Poor shall Account to Justices of Peace 1 Jacobi cap. 9. Against Churchwardens and Constables for Forfeitures of Alehouse-keepers by them received Account against a Guardian in Soccage In what Court Account lieth against a Guardian in Soccage IT lies in the County Court or Common Bank Nat. br 117. b. It lies not before the Sheriff 43 Edw. 3. fol. 21. pl. 11. Thorpe For Brook Account 14. saith the Sheriff cannot assign Auditors and therefore it is in vain to bring the Action before him A good plea to say the Land is ancient demesn because the reality may come in question Coke 5. part fol. 105. A. Aldens case It lies not in the Marshalsey Coke 10. part 74. b. Marshalsey Who shall have a Writ against Guardian in Soccage The Heir in ward shall maintain an Action against him after the age of 14 years or at his full age at his election Littleton S. 123. But Nat. br 118. b. he shall not have it till the age of 21 years Crook fol. 131. pl. 106. by reason of the words of the Statute of Marlebridge cap. 17. scil cum ad aetatem pervenerit 3 4 Mariae Dyer 137. pl. 25. New tenures 3. b. 18 Edw. 3.55 pl. 76. 29 Edw. 3. fol. 5. pl. 13. Vide Regist origin 136. Lib. Intra 21. D. 8 R. 2. Gard. 166. 10 Rich. 2. Account 132. Doct. Stud. fol. 14. b. Old Nat. br 91. A. If the Heir in such case die before his full age his Executor shall maintain an Action of Account Crook 131. pl. 106. because it concerns a Chattel Yet note the Heir in Gavel-kind at 15 years brought an Account against a Guardian in Soccage and shews by the Custome he may alien at such age and for this cause he was awarded to Account per Welby 29 Edw. 3. fol. 5. pl. 13. For if he may do the greater he may do the less to fell is more than to take an Account The Executor of an Heir shall have an Account per West 2. cap. 23. Littleton 27. A. Crook 131. pl. 106. Executor of an Executor shall have an Account by 25 Edw. 3. cap. 23. Com. 290. Filius Haeres Domini defuncti non habebit breve de computo quia pertinet ad executionem administrationis bonorum defuncti Regist Orig. 135. b A Recusant shall not have an action for any thing that is seized into the hands of the King 3 Jac. cap. 5. for the King is accountablle to no body Against what person an Account lieth as Guardian in Soccage Account lieth against any that taketh the profits before the Ward be of the age of 14 years Littleton Nat. br 118. D. 4. Hen. 7.6 10 Hen. 6.7 13 Edw. 3. Account 77. 29 Ed. 3.5 pl. 13. But if one occupy and after Guardian in Soccage recover in right of the Ward the party shall not render an Account to the Heir for the Guardian ought to account for this 27 Edw. 3.79 Gard. 22. and therefore the Account shall be made to the Guardian The reason is as it seems that the Writ doth not make mention of the blood Regist orig 136. b. neither the Count Lib. Intra Account lieth not against an Executor of a Guardian Littleton Nam non jacet versus Executores quia merè pertinet ad Curam Christianam cognoscere de computo reddendo versus Executores Regist orig 135. b. 28 Hen. 8. Dyer 23. pl. 145. But if Executors account an Action of Debt lieth for the Arrearages 2 Hen. 4.13 pl. 2. And if the Testator covenants to account to the Heir and doth not Covenant lieth against his Executor Regist origin 165. b. Nat. br 145. H. It lies against a Woman 19 H. 6. b. Newton It lies against the Husband and Wife 18 Ed. 3.55 pl. 76. For what things Account lieth It lies for Woods and Under-woods sold for Lands Tenements Meadow Pasture also for Rents and Services perquisites of a Court ad valentiam Lib. Intra 21. B C. Marlebridge cap. 17. Respondeant de exitibus per aequalem computationem salvis ipsius custodibus rationabilibus misis suis For Fines of Copyhold Land granted by one Trin. 1 Jac. Com. Banc. Shopland versus Rider Rot. 853. For the issues and profits of the Lands Littleton For the Marriage of the Heir if he marry before the Age of fourteen years Littleton 27. a. If the Marriage be not as great in value as the marriage of the Heir Littleton 27. A. No Account for the presentation of a Church therefore the Guardian cannot present thereunto Nat. br 33. T. 28 Edw. 3.89 29 Edw. 3.5 8 Ed. 2. Presentment 10. But by Daniel Justice Trin. 1. Jac. Com. Ban. Rot. 853. Shopland against Rider the Guardian shall present if the Heir be not of the age of discretion It lies for Writings 32 Edw. 3. Account 60. The Account against a Guardian in Soccage The Heir counts that it was ordained by the Common Council of the Land that the Guardian in Soccage should Account c. and shews the tenure specially and that the Defendant had the custody of the Lands c. from such a day for 12 years ensuing and hath not accounted for the issues and profits c. and that at such a day the Heir was at full age Lib. Intra 21. b. Sect. 1 2.29 Ed. 3.4 pl. 13. No. Lib. Intra 47 E. Sect. 3. The Writ against a Guardian in Soccage Rex c. si A. fecerit c. tunc summon c. B. quod sit coram Justic nostris c. ostensum quare cum de Comm. Concilio Regni nostri provisum sit quod custodes terrarum tenementorum quae tenentur in Soccagio haeredibus terrarum tenementorum cum ad aetatem pervenerint reddant rationabilem computum suum de exitibus terris tenementis illis provenient de
Capper Dickinson per Coke Chief Justice Against a Goaler that promises to the Sheriff to keep safe his Prisoners and lets them escape Goaler Regist 110. A B. for the Sheriff is answerable for the safe custody of the Prisoners within his County Against him that warrants for 10 l. that my Boat shall come safe upon the Thames Warranty 34 Hen. 8. br Action upon the Case 107. and it doth not for there ought to be quid pro que A Leases to B rendering Rent Lessor and paying all out-Rents and making reparations the Lessor in consideration of this promises defendere sustentare statum possessionem of the Lessee quiete pacifice absque interruptione 1. here is a good consideration 2. the said Clause amounts to so much as if he had said that the Lessee shall quietly enjoy his Term Mich. 7 Jac. B. R. Gamble Terrell Marriage money 1. Against him that promises in Marriage 10 l. if he marry his daughter No. Lib. Intr. 2. B. sect 2 4. B. sect 1. Doct. Stud. 104. A. 16 Hen. 3. Prohibition 22. for the Marriage is a good consideration 2. A being to marry B C living with A. says to B if she should marry A and his Father do not make such a Joynter to her he would give her a 100 l. B marries A the Joynture is not made A and B shall have an Action against C for peradventure the marriage had not taken effect but in regard of the promise of C Mich. 29 of Eliz. Ban. Regis 3. A promises to B 100 l. in consideration that B marrie his Daughter this is a good consideration insomuch that the advancement continues being even as in Frank-marriage after the marriage is good Trin. 29 Eliz. Ban. Regis Marche Rayneforde 4. A promises to B that whereas his Son was a Suiter to his Daughter if B would give his assent A would give to B 50 l. This is a good consideration 1. because the Daughter ought to have the consent of her Parents 2. because the Son of A was to have advancement by the marriage Trin. 12 Jac. Com. Ban. Greicely Louther Q. whether a man shall be intended to be advanced by marriage except it be shewn 5. A promises 50 l. to C if he marries B. In an Action upon the case for the 50 l. he is not bound to shew that he did give notice of the marriage neither to make request Mich. 7 Jac. Ban. Regis Brently Tod for A might as well take notice of the marriage as B and the bringing of the Action is a request in Law 6. A having speech with El. Stukely about marriage with her promiseth to M. the Daughter of the said Eliz. that if she marry him without disposing of her estate he will give to M in marriage 40 l. and in an Action brought upon this insomuch that she did not averr in his count that she had not disposed of her estate it was not good Mich. 15 Jac. Ban. Regis Kings case for that was the sole consideration Obtains a Lease Against him that promises to obtain a Lease for me for 10 l. and gets it for himself 3 Hen. 7.14 Quaere whether an Action of Deceit doth not lie A in consideration of divers sums received of divers persons to the use of the Plaintiff amounting to 24 l. assumes to pay this Payment and adjudged a good count though he doth not shew of whom he received the sums because this is not traversable for it is a consideration executed Trin. 14 Eliz. Ban. Regis Beckingham Lambert for the Account is confessed by the promise to pay Counts that upon an in simul computasset the Defendant was indebted to him in 20 l. and promised to pay it c. Crook Justice said it was a good consideration and Doderidge said that in every Action of debt an Action of the case is implied and when it appears how the debt grew due then it is a good Assumpsit Trin. 14 Jac. Ban. Regis Cullimore and Eynison Against him that takes upon him to plant Thorns and doth not do it Planting Lib. Intr. 13. C. sect 1. for the planting may be for my benefit Save harmless 1. My Servant being in prison I request his enlargement and promise to save A harmless an Action lies if I do it not but without request not 10 Eliz. Dyer 272. pl. 31. 2. If one become Bail for the Servant and after the Master promise to save him harmless an Action lies not for here is no consideration continuing Quaere if he continue his Servant 3. A being Bail for B in Ban. Regis B promise to save him harmless yet A shall not have aâ— Action against B although he pay the money iâ— no Capias be awarded against the Principal 〈◊〉 Scire facias against the Bail Trin. 7 Jac. Ban. Regis Bolles Jones error upon Judgment in Com. Buâ— for here is no due proceedings in Law against either 4. A being indebted to B prays C to be bound to B for the debt and he will be bound to C C is bound to B c. A refuseth to be bound to C C shall have an Action against A for it is a gooâ— consideration insomuch that C is liable to the dâ—â— Mich. 9 Jac. Ban. Regis Knyvet Pledall and it 〈◊〉 reason A should secure him 5. A promises to B to discharge him and sâ—â— him harmless from all bonds in which he wâ—â—â— bound for the Son of A at the request of the sâ—â—â— Son B. brought his Action and shews that he 〈◊〉 fidei jussor was bound 1. It is a good consideration 2. He ought to shew precisely that his Sâ—â—â— requested him to be bound for although fidei juâ—â—â— imply a request yet it is not sufficient Pasch 9 Jac. Ban. Regis Somerston Bâ—rnby postea Mich. 〈◊〉 Jac. it is shewed that it was alledged and for thâ— judgment was given for the Plaintiff Lib. Intr. 〈◊〉 C. Sect. 1. 6. An Infant borrows money Infant B is bound 〈◊〉 pay it at full age the Infant promises to save his harmless Action lies upon it for although thâ— Infant was not liable in Law yet in Conscience 〈◊〉 was and this sufficeth to maintain an Action upoâ— the Case which is an equitable Action for the consideration is good Trin. 29 Eliz. Ban. Regis adjudged A Widow promiseth for following her Suits to pay 200 l. this is not good Sollicitor for it is maintenance per 2. Justices but Dyer against them because it did not appear that they were Suits in Law 19. Eliz Dyer 356. and they may be Suits in equity or at the Court. A promises 10 l. to B Sufferance if he suffer C to enjoy the Landâ— there although C enjoy it not yet if A agree and do not interrupt C the Action lies Pasch 15 Jac. Ban. Regis Taylor Wilks for he hath performed the
Purveyor contracts for fat wares for the King Purveyor and makes a Bill of receipt to the use of the King and for this obliges himself to pay it but seals it not he shall be charged by Assumpsit and the King by Debt and by no other way 8 Eliz. Dyer 230. pl. 56. in an Action upon the Case upon his promise only for it is the Kings Debt and not the Purveyors Debt lies against a Receiver Receiver which takes more than he ought per 7 Edw. 6. cap. 6. Lib. Intr. 191. B. sect 1. com 201. Stradlings case for that shall be accounted money borrowed only An Abbot shall be charged with the borrowing of his predecessor Successor if it come to the use of his house Nat. br 121. K. Lib. Intr. 152. A. sect 1. but not otherways The Count shall be general Coke 7. part 10. B. Vghtreds case and he needs not shew it for it shall be so intended Praecipe societati Lombardiorum London mercatorum de Florentia Society and this was good 19 Hen. 6.80 pl. 11. for they are in nature of body Politick Sheriff Under-Sheriff Debt upon an escape of one in execution upon an account it lies per Westm 2. cap. 11. and as of the Debtor per 1 Rich. 2. cap. 12. For not returning a Knight of the Parliament per 23 Hen. 6. cap. 15. the Count com 118. Buckleys case Lib. Intra 186. A. sect 1. antea for the penalty given by the Statute A Sheriff takes an obligation for Appearance of the Defendant which doth not appear yet debt lies not against the Sheriff by the Plaintiff Trin. 13 Jac. Com. Ban. if he return a Cepi but an Action on the Case lies and the Sheriff may bring his Action upon the Bond. Outlawed person It lies against a person Outlawed Mich 38 39 of Eliz. Com. Ban. Banister versus Trussel No. Lib. Intr. 248. A. 7 Hen. 6.10 for another debt or in another Action Q. For what things Debt lies It lies for money lent to another Lent Nat. br 119. G. this most properly For a Horse lent till such a day and then to give 10 l. for him or the Horse after the day debt lies for the one or the other Nat. br 121. B. at the election of the Plaintiff but before the day or at it it was in the Defendants election A borrowed money for the Servant Debt lies not against the Master unless it came to his use or was borrowed by his assent Doct. Stud. 137. A. antea Upon a delivery to redeliver debt lies Bailment if it be not redelivered 28 Hen. 8. Dyer 22. pl. 135. 11 Hen. 6.39 pl. 31. 4 Edw. 3.9 pl. 7. although the Receipt be not by deed Upon a delivery to redeliver over to another if it be not performed debt lies 28 Hen. 8. Dyer 22. pl. 135. 11 Hen. 6.39 pl. 31. 42 Edw. 3.9 pl. 7. Mich. 40. 41 Eliz. com Ban. Britons case for no property was altered But 6 Hen. 4.8 pl. 33. if A. ought to pay an Annuity in see to B. and deliver money to C. to pay it to B. yet B. shall not have debt against C. for there is no trust or privity between them Lease for life of another debt lies not for the Rent during the term Contract Coke 4. part 49. A. Ognels case vid antea it lies by cestuy que vie But by the 32 Hen. 8. cap. 37. the executors or administrators shall have debt during the estate for life Coke 4. part 49. A. antea But after the estate ended debt lies Coke 4. part 49. A. for then there is no other remedy So it is by the death of the Lessee Coke 4. part 49. A. antea Or by Limitation of the term Or by condition Antea in deed 39 Edw. 3.22 pl. 11. Nat. br 120. H. Coke 23. B. 6 Hen. 7.3.30 Edw. 3.7 in Law Statute Law 19 Hen. 42. A. waste Common Law Lease for years by a Bayliff the Master shall have debt for the Rent Lib. intra 174. D. sect 3. for it is accounted the Lease of the Master for no interest passeth from the Bayliff being but an instrument only A Corporation made a Lease for years rendring to P. 10 l. at Mich. or 20 days after after verdict it was moved in arrest of judgment that they shewed not the deed sed non allocatur because it was after verdict and so the Lease was sound 2 good although they had brought debt for the rent due for 6 years ended at Mich. to P. and not 20 days after for the rent was due at Mich. Mich 9 Jac. Ban. Regis Baldry defendant in debt by the Corporation of Brewers Bargainec of a reversion in debt for rent ought to shew in what court the Deed was enrolled Mich. 9 Jac. Ban. Regis Welby Putley by which the reversion was granted for the enrolment is traversable and must be punctually set forth and the enrolment may be in divers places for that the debt cannot take notice where Debt lies for the agistments for Cattel for so long time as they went in such Lands Agistment Lib. intra 150. A. sect 1. count Lib. intra 151. A. sect 1. but then he must shew the certainty of the time and sum A. promises 20 l. to B. to marry his Daughter Marriage-money B. shall have debt Nat. 120. K. count Lib. intra 178. A. sect 1.37 Hen. 6.8 pl. 18.16 Hen. 3. prohibition 22. for the consideration creates a duty if performed But if he promise 20 l. in marriage with his Daughter he shall not have debt but shall sue in court christian Nat. br 50. S. 16. Hen. 3. pro 22. vide Regist 46. B. Q. differentiam It seems because no Money is promised him But if it be by deed then it is otherwise see 45 Edw. 3.24 for the Deed is triable at the Law though the Marriage be not but in the Spiritual Court Bracton Lib. 5. cap. 16. Sic de rebus datis ul promissis ob causam matrimonii principaliter Regula se de rebus quae accidunt matrimonio ut si pecunia promissa fuerit ob causam matrimonii quia ejusdem juris id est jurisdictionis esse debet accessorum cujus est principale The Marriage is the principal and the Portion the accessory Upon Partition betwixt two Partition one promiseth the other 20 l. for equality of partition debt lies for it Nat. br 122. H. 14 Edw. 3. Debt 137. if it be not paid for the promise upon the partition made it a Duty Rent upon a personal thing If a personal thing be leased rendring rent debt lies for it Coke 3. part 22. A. Walkers case as a Horse Sheep or the like the loan implies a duty upon the contract An Attorney shall have debt for his fees Salary and for fees of counsel and costs of suit Nat. br 121. L. Count Lib. intra 202.
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
three one makes default after apparance and it is found against the Plaintiff for the others that appeared who make a title and it seems they shall have a Writ to the Bishop 31 Hen. 6.15 pl. 5. Q. One Defendant makes Title by himself and others make default the Judgment shall be to have a Writ to the Bishop for him that makes Title but this is not before the Plaintiff have counted Nat. br 38. J. 10 Hen. 6.4 pl. 13. For before that the cause of Action doth not appear Upon the Non-suit of the Plaintiff Non-suit the Defendant shall have a Writ to the Bishop but not before Title made Nat. br 38. K. 2 Hen. 5.6 pl. 28. 19 Edw. 4.9 pl. 10. 6 Edw. 3.23 Collusion 5. 14 Hen. 4.11 That it may appear he hath a colourable right at the least Unless the Non-suit be after a Bar pleaded 33 Hen. 6.1 pl. 2. fol. 55. pl. 48. against the Defendants Title Three sue a Quare Impedit and two are non-suited and one of the Plaintiffs was also one of the Defendants therefore he cannot make Title ideo quaere if they shall not have a Writ to the Bishop without Title made 11 Hen. 6.8 pl. 13. Q. A. sued divers Writs of Quare Impedit against B of the same Church and is non suited in all exceptone the Defendant shall not have a Writ to the Bishop until that be determined Nat. br 38. R. For it may be the Plaintiff may clear his Title by that The Defendant makes Title to himself and another the Plaintiff is non-suited the Defendant shall have a Writ to the Bishop only 13 Edw. 3. br Epise 25. For his Title is a Bar to the Plaintiff which is not opposed The Sheriff returns a tardè c. the Plaintiff makes default he shall be non-suited Q. but the Defendant shall not have a Writ to the Bishop because the Writ was not served 2 Hen. 5.3 pl. 14. Nat. br 38. O. 2 Hen. 5.6 nor the other Non-suited as it seems because the Writ was not duly executed If an Infant be non-suited the Defendant shall have a Writ to the Bishop 2 Mariae Dyer 104. pl. 13. to avoid a lapse and that the Church may speedily be provided for A. brought a Quare Impedit against B C and D and is non-suited B dies C and D shall not have execution alone 11 Edw. 3. br Episcopo 55. because the Action was joyntly brought against all If one of the Co-parceners who bring a Quare Impedit be non-suited yet the other may sue and the Defendant shall not have a Writ to the Bishop upon this Non-suit 38 Edw. 3.35 br Episc 12. because they have several Inheritances and the default of one shall not bind another The Plaintiff discontinued his Suit Discontinuance the Defendant shall have Judgment to have a Writ to the Bishop Coke 7. part 27. B. For his discontinuance concludes he had no cause of Action A. brought a Quare Impedit against B Composition and sued a Ne admittas and then they compounded to present by turn there shall be a special Writ out of the Chancery to the Bishop to admit the Clerk that ought first to be admitted For a special Cause may have a special Writ and varying from the usual form In a Quare Impedit the Defendant disclaims in the Advowson the Plaintiff shall have Judgment Disclaimer and a Writ to the Bishop 6 Edw. 3.7 Error 78. For by the Disclaimer he acknowledgeth he hath no Title Where a Writ abates for form or false Latine Abatement there shall not be Judgment for the Defendant to have a Writ to the Bishop Nat. br 38. H. 14 Hen. 4.11 13 Hen. 4.7 For the Title is not determined but only the Plaintiff is delayed The Defendant makes default the Incumbent abates the Writ by plea the Defendant shall not have a Writ to the Bishop because he made default Nat. br 38. H and so is not rectus in Curia If the Plaintiff being a Prebend be made a Bishop in Dublin this shall abate the Writ per Wilby 24 Edw. 3.26 pl. 21. Q. how it shall be taken notice of here If the Writ abates for Misnosmer or other non-sufficiency in it the Defendant shall not have a Writ to the Bishop Nat. br 38. M. 31 Hen. 6.15 For the right is not determined If a Quare Impedit is brought in Com. M. and the Count is of a Church in Com. O the Writ shall abate but the Defendant shall not have a Writ to the Bishop 21 Rich. 2.29 for the former reason It was found by verdict that the Metropolitan collated where the Ordinary ought to have done it Verdict when the year is passed the Plaintiff shall have a Writ to the Bishop Nat. br 38. P. Q. In a Quare Impedit between A and B if the Title appear for the King Judgment shall be given for him Nat. br 38. E. notwithstanding he is not party to the Suit that is by his Prerogative All the Judges are the Kings Counsel and ought to give Judgment for him where his Right appears although he sue not for it The Writ to the Bishop to whom it shall be directed If a man recover against another as well as the Bishop he ought to have a Writ to the Bishop of the Diocess Nat. br 38. C. For a Bishop is but a Minister to admit the party If the Writ be against the Bishop although he claim but as Ordinary yet the Plaintiff shall have a Writ to the Bishop 8 Hen. 4.22 Lib. intra 521. For he claims no right nor doth any thing by executing the Writ in prejudice of himself If a man recover against the Bishop he shall have a Writ to the Bishop or Metopolitan Nat. br 38. B. and Q. 18 Eliz. Dyer 353. pl. 30. 38 Edw. 3.12 B. at the election of the party as it seems If it be once to the Metropolitan he shall never have it to an inferior Bishop afterwards ibidem for it is not usual in Law to descend from a higher authority to a lower Or to the Vicar general if the Bishop be out of the Realm Nat. br 38. Q. For the Vicar general â—an Officer under the Archbishop Or to the Gardein of the Spiritualties of the â—â—ch-bishop 7 Hen. 4.36 for the same reason 〈◊〉 it seems If there be no Bishop of the Diocess then to â—â—e Metropolitan if no Metropolitan then to â—â—e Gardein of the Spiritualties but if before the accution the Archbishop be made quaere if the power of the Gardein be not determined 18 Eliz. Dyer 350. pl. 19. It seems it is If it be against the Arch-bishop of York the Writ shall be to the Metropolitan 15 Eliz. Dyer 328. pl. 7. viz. of all England viz. the Archbishop of Canterbury The King recovers a Prebendary or Sub-Deaâ—â—â—ry or other Dignity against the Bishop and â—â—â—es it by Letters Patents to A yet A shall â—uve a Writ to the Bishop to
brought against the Gardein of the Spiritualties upon refusal of the Bishop which is dead Vet. Nat. br 26. A. Nat. br 47. J. and well for he is now in the room of the Bishop But it was denied against the Archbishops Gardein of the Spiritualties vivente Archiepiscopo at videtur And yet quaere per 17 Edw. 3.27 pl. 9. if the Metropolitan of Common right be not Gardein of the Spiritualties It seems not since Hen. 8. come It was maintained against the Official of the Bishop Nat. br 47. N. who used as it seems to admit Clerks presented In what Cases this lies When a man recovers his presentation and the Bishop will not admit his Clerk the party shall have this Writ Vet. Nat. br 25. B. Nat. br 47. C. And this is although the Bishop return cause why he will not admit the Clerk 9 Eliz. Dyer 260. pl. 21. Coke 6. part 52. A. Boswels case for he must take notice of the Judgments given at the Law in such cases But if the Record be removed by a Writ of Error it lies not till Judgment be affirmed Nat. br 47. E. for till then it doth not appear the Judgment was duly given and this Writ doth suppose right Judgment given The Bishop refuses and afterward admits him yet the party it seems shall have this Writ Nat. br 47. L. Q. for it seems to little purpose except it be to recover dammages for not admitting at first The Writ 1. It ought to rehearse the Recovery in the Quare Impedit Nat. br 47. C. because that is the ground of the Writ 2. It ought to be brought in the County where the refusal was because he shall recover nothing but dammages Vet. Nat. 25. B. Nat. 47. F. Coke 7. part 3. A. Bulwers case 38 Hen. 6 14 15.39 Edw. 3.2 pl. 5. 29 Hen. 8. Dyer 40. pl. 69. and the dammages can be best enquired and known there The Count. The writ was against the Bishop and counted though the Vicar general refused and yet good 〈◊〉 Edw. 3. Quare non admisit 4. Vet. Nat. br 26. 〈◊〉 rid antea why so The King counted not upon what original or â—â—t Title he recovered and yet good 20 Edw. 3. â—â—e non admisit 10. for he is not bound to be 〈◊〉 punctual in pleading as a Common person for â—â—â—â—ceth if it be good in the substance The Barr. That he admitted him and made Letters to 〈◊〉 Archdeacon to induct him a good barr 38 〈◊〉 6.14 Nat. br 47. H. for this doth disaffirm 〈◊〉 Writ That the Bishop collated by Lapse is a good 〈◊〉 Nat. br 47. M. for by that the Plaintiffs Tiâ—â—s destroyed hac vice Or that it was litigious by the presentment of â—anger 9 Edw. 3. Quare non admisit 12. 34 〈◊〉 6. Quare Impedit 89. 34 Hen. 6.41 pl. 10. 〈◊〉 also the Ordinary could not know who was to 〈◊〉 admitted But if A and B contend by reason of which 〈◊〉 Bishop collates by Lapse and after the King â—overs in a Quare Impedit this is no barr in a â—ure non admisit brought by the King 23 Edw. 〈◊〉 12. Quare non admisit 11. for the Kings Title â—â—dgne to the collating Excommunication cannot be pleaded in the Plaintiff because the Writ supposeth a contempâ— in the Ordinary in that the Plaintiff hath presented his Clerk in the Writ named after Judgment given for him which supposeth him not Excommunicated but a good plea that the Incumbeâ—â— did not make request after Judgment 21 Hen. 7.71 pl. 14. Crooke for without request the Ordinary is not bound to take notice No such Record is a good plea Coke 8. part Dreuries case viz. as he pretends he hath Judgment upon A good barr that the Church was full before the Recovery of one not named in the Recovery Nat. 47. K. and so the Ordinary had no cause to admit his Clerk The Bishop returned that the Advowson is seised into the hands of the King by reason of Wardship and is so full of the Kings presentment this is good 9 Eliz. Dyer 260. pl. 21. tameâ— Coke 6. part 52. A. Boswels case è contra Q. The Judgment The Judgment is but to have dammages Nat. br 47. G. Quare Incumbravit In what Court it shall be brought It is a Writ Original and therefore it ought to issue out of the Chancery Nat. br 48. G. as all Originals do for the Chancery is Officina brevium But it shall be brought in Com. Ban. because it a Common plea Vet. Nat. br 26. B. viz. made â—â—rnable there And although the Record be removed out of 〈◊〉 Common pleas Nat. br 48. F. because it is an â—â—â—ginal Writ per Shard 17 Edw. 3.55 A. But the King may bring this in Ban. Regis alâ—â—â—gh the Record be in Com. Ban. But a Comâ—â—â— person shall not Nat. br 48. F. 17 Edw. 3.50 〈◊〉 â—1 for the King may sue in what Court he â—â—â—seth though a Subject in some cases is conâ—â—ed What person shall have it The Plaintiff or Defendant in a Quare Impedit 〈◊〉 Darrein Presentment that recovers for by the â—ecovery it appears they have Title Against whom it lies It lies against the Bishop Vet. Nat. br A. In what Cases this lies not It lies not in right of Advowson Nat. br 48. Q. 〈◊〉 that concerns not the presentation It lies not unless a Ne Admittas be first directed 〈◊〉 the Bishop a Quare Impedit depending Vet. â—â—t br 26. B. Nat. br 48. H. for by that he is to â—ake notice of the Suit which otherwise he is not â—â—und to Yet it was maintained although no other Writ â—as first attained Vet. Nat. br 27. A. Q. It lies not unless the party hath recovered before by Judgment of the Court Nat. br 48. 〈◊〉 17 Edw. 3. 50. pl. 21. and so cleared his Title The Incumbring by his Collation ought to bâ— alledged to be within six Months Nat. br 48. 〈◊〉 for after the six Months there can be no incumbrance in respect of the Lapse And if he admit the Clerk of the other person after the six Months which was presenteâ— before the Action the Writ lies Nat. br 48. L. Quaere The Writ is Original and issueth out of the Chancery only Nat. br 48. G. 17 Edw. 3.74 B. vide the Writ Nat. br 48. O. Regist orig 32 A. It ought to be brought in the County where the Church is because the Clerk of the Bishop shall by this be removed and the Clerk of the other admitted Coke 7. part 3. A. Bulwers case Nat. br 48. D. 38 Hen. 6.14 pl. 32 and the wrong is done in the County where the Church is and that County may have best conusance of the cause It ought to make mention of the Recovery Nat. br 48. K. Regist orig 32. B. But 18 Edw. 3.17 by Wilby he ought not to mention it Quaere The Writ needs not mention before whaâ— Justices the Recovery was and yet good for the Recovery is the
is to take the person of the man that detained him or hath elongated him If upon the Capias in Withernam a Non est inâ—entus of the person be returned then a Capias in Withernam shall issue against his Goods Nat br 68. C. to make the Owner appear Repleg alias and pluries Nat. br 68. E F G. And an Attachment to the Coroners against the Sheriff Regist orig 81. A. for not making his return Upon a return that the Bayliff of a Franchise makes not an Answer or will not make deliverance there shall be a Non omittas propter aliquam libertatem but it seems that the Sheriff ought to do it without a Writ Nat. br 68. F. in favour of Liberty Q. tamen If the Sheriff return Fugavit in another County That the Bayliff of the Liberty returns elongata Or that he cannot have the view Or that the Cattel elongata sunt out of the County Or that the Bayliff of the Liberty returns that they are impounded within the Rectory of S. In all these Cases Withernam shall be awarded Nat. br 68. G. 69. A. because the Sheriff cannot execute the Writ of Replevin And upon this three Capias's and an Exigend shall issue 5 Edw. 4.18 A. by Danby The Writ of Withernam ought to rehearse the Return of the Sheriff Nat. Br. 69. B. For upon that it is grounded Vid. The Writ Regist Orig. 82. A. No. Lib. intra 611. B. sect 21. If the Replevin be in the County-Court per plaint and the Bayliff return elongata the Sheriff ought to enquire by Inquest whether it is so or not and then Withernam shall be awarded by him if it be true and if he refuse to grant the Withernam the party shall have a Writ against him and an Alias pluries and an Attachment Nat. br 69. C. directed to the Coroner Second Deliverance At the Common Law a man may be non-suited in a Repleg and have a new Replevin infinite 34. Hen. 6.37 Danby 10 Hen. 7.29 pl. 23. 19 Hen. 8.12 pl. 7. Q. For by this means the other party is delayed And if the Writ abate per Plea or Confession there shall be another Replevin 34 Hen. 6.37 and not a second Deliverance for this abatement was not by wilful fault of the party But by Westm 2. cap 2. if one be non-suited in Replevin he shall have but a Second Deliverance â—ut of the Rolls of the former Judgment and â—ot a new Replevin 19 Edw. 2. Repleg 25. 4 Hen. 4.23 30 Hen. 8. Dyer 41. pl. 4.21 Edw. 4. â— pl. 16.32 Edw. 3. Return of Cattel 18. But if Judgment be given against the Plaintiff 〈◊〉 a Repleg upon a Demurrer or Verdict no Seâ—ord Deliverance 2 Hen. 4.23 pl. 9. But then be party is barr'd by judgment of the Court. And Second Deliverance shall not be but in the â—â—me Court Com. 206. B. where the Replevin â—as brought and can best take notice of the Cause Yet if he be non-suited in the County-Court and it be removed in Ban. then it shall issue out of the Ban. 13 Edw. 3. Repleg 37. For there the Cause is now depending And if he be non-suited in the Second Deliâ—rance he shall not have another Writ 4 Hen. 6.8 Return of Cattel 6. viz. of Second Delirerance for this is final Second Deliverance is a Writ judicial issuing out of the former Record per 2 Westm cap. 2. depending Vide the Writ Lib. Intra 572. B. sect 2 3 4. Vide the Count Lib. intra 572. B. 5.6 No. Lib. intra 589. A. sect 8. And if a man be non-suited in a Repleg after the Declaration the Second Deliverance ought to agree with the Replevin in day place and number of Cattel c. 3 Hen. 6.9 pl. 10. 21 Hen. 7.28 vid. 12 Hen. 7.4 49 Edw. 3.29 Persay For it is to continue the same Sa it But 16 Edw. 3. Ayd 131. Thorpe 17 Edw. 3. Repleg 22. 26 Hen. 6. pl. 7. It may vary from the place Q. tamen And per 26 Hen. 8. pl. 27. Fitz Herbert it may vary from the number and day so there be a certain description of them Q. tamen Repleg of a Heifer the second deliverance was of a Cow and good 26 Hen. 8.6 pl. 27. For a Cow and a Heifer non variant specie for they differ only in age and appellation Upon a Non-suit in Repleg return awarded and upon Withernam awarded and other Cattel taken yet the second deliverance shall be of the former Cattel for so the Writ imports 36 Hen. 1. Dyer 59. pl. 14. 2 Edw. 3.17 Avowry 171. 22 Hen. 7.92 pl. 7 Crooke there shall not be a second deliverance because the Plaintiff had estrayed the former Husband had aid of a Wife in a Replevin and makes default the Wife cannot joyn in the second deliverance 18 Edw. 2. Repleg 23. For she is not the principal actor in the Replevin but the Husband Distress In what case a man may distrain For Fine or Amerciament in a Court Leet A man may distrain for a Fine or Amerciament in a Court-Leet Coke 11. part 45. A. Godfreys case for a Fine and all Amerciaments in a Court-Leet Distress is incident 5 Edw. 3.139 pl. 43. 10 Edw. 3.303 pl. 10. by the Common Law For a Fine imposed in a Leet Coke 8. part 41. A. Griesleyes case For breaking of a By-Law in the Leet of the Lord he may distrain for the Amerciament Coke 6. part 25. A. Distress is incident to an Amerciament in a Court-Leet 9 Hen. 7.2 pl. 22. 8 Hen. 4.15 pl. 16. Gasciogne 12. Hen. 7.15 B. 4 Edw. 3.95 pl. 24. 29 Edw. 3.28 pl. 30. Doct. Stud. 24. A. 5 Edw. 3.159 pl. 21. Tax by Parliament Collector of a Tax granted by Parliament may distrain him that will not pay when the Parishioners have assessed it 22 Edw. 3.10 pl. 52. and justifie by the Act that granted it Amerciament in a Court Baron A man shall be amerced for not doing of suit in a Court-Baron 9 Hen. 7.22 Wood Read Coke 4. part 95. A. Slades case 21 Hen. 6.39 pl. 8. and not distrained And for such Amerciament he shall distrain 9 Hen. 7.22 per two Justices by special prescription No. Lib. intra 570. C. Q. For Amerciament in a Court-Baron a man may not distrain 16 Hen. 7.14 pl. 9. 21 Hen. 6.39 pl. 8. The Lord may prescribe to distrain for an Amerciament in a Court-Baron 15 Eliz. Dyer 322. Coke 11. part 45. A. and such prescription is good Yet Doct. Stud. 74. è contra Q. Crooke If an Amerciament was at the Court-Leet he may distrain otherways not Crooke 20 Hen. 7.66 pl. 8. Q. What remedy is then for it for it seems debt lies for it Amerciament in a Tourne Special prescription in the Sheriffs Tourne to Amerce and for this there was a special prescription for a Distress 33 Hen. 8.30 pl. 2. Tax by the Inhabitants A Tax was made by the Inhabitants of a
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. 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