be intended that he hath assets else he would have pleaded so and not a shifting plea. One dies intestate and Administration is committed to D by the Ordinary and the Defendant pleads that he comes as servant to D. to administer absque hoc that he did administer in any other manner this is no plea because he did not shew that it was the Ordinary of the place and Judgment de bonis Testatoris 31 Hen. 6.13 pl. 5. as he ought because it is traversable This is an unskilful and not a false plea therefore the Judgment shall not be de bonis propriis 17 Edw. 3.20 pl. 58. where one Executor pleaded non factum and found against him there the Judgment was against him of the goods of his own as well as of the goods of the Testator and against the other of the goods that he had at the day of the Writ vide 17 Edw. 3.20 pl. 1. stat 9 Edw. 3. cap. 3. statute 1.17 Edw. 3.46 pl. 3. because by the Deed the Testators Estate is chargeable and by the false plea his own In Plenè administravit pleaded the Judgment was for so much of the principal debt as they had and for the dammages de bonis Testatoris si c. if there were sufficient and if not then for dammages de bonis propriis and for the residue as much as they had Coke 8. part 134. Shipleys case 34 Hen. 6.32 B. Prisot com 440. B. Pepyes case vide 17 Edw. 3.66 pl. 83. 46 Edw. 3.9 pl. 6. Judgment special for the debt Upon such a plea of the Defendant the Plaintiff may pray execution forthwith because it is a confession of the debt but no execution shall issue until the Defendant hath goods of the Testators Coke 8. part Shipleys case vide 21 Hen. 6.40 But if it be found for the Plantiff no scire facias lies against them 4 Hen. 6.4 pl. 8. Q. Unless he prays Judgment upon the plea. But yet 33 Hen. 6.24 pl. 1. is That a scire facias lies yet Coke 8. part 53. A. Syms his 04 case that if it be for Land he shall not have a scire facias because there is no Record upon which it may be founded Q. Against an heir In debt if the heir confess the Action for as much as did descend then there shall be a special Judgment against him of so much as did descend Com. 440. A. Pepyes case 22 Eliz. Dyer 373. pl. 4. the Judgment Lib. intra 172. D. and he shall be charged for no more But if he plead any other plea and it be found against him the Judgment shall be general Com. 440. Pepyes case for the whole for his false plea. So if he confess the Action and shew as much as descends if it appear to the Court that the profits of the Land from the time of the descent until the time of the execution are sufficient for the debt the Judgment shall be general else not per Dyer 18 Eliz. Dyer 344. pl. 1. Execution in debt 1. For the Plaintiff 2. For the Defendant 3. Of what Lands 4. Of what Goods At the Common Law it was but a fieri facias Coke 3. part 12. or a levari facias Coke 3. part 12. A. and this is of Chattels and Profits of Lands and Rents com 441. A. Pepyes case And this only within the year for if the year were past the party was put to his action of debt upon the Indictment Coke 3. part 12. A. Herberts case unless the process be continued 33 Hen. 6.49 pl. 33. For if it be continued then is the cause still fresh before them otherwise the Court will take no notice of it But for a recovery against an heir then it was but a Liberate of the Land Com. 441. A. Pepyes case Lib. Intra 172. D. 173. A. 3 Edw. 3. Execution 107. For the heir is only bound in respect of the Lands descended to him But by Westm 2. cap. 45 a Scire facias was given after the year and per Westm 2. cap. 18. an Elegit was given Coke 3. part 12. A. If a man have an Elegit filed on Record and there be a Nichil returned he shall never have any other Execution 19 Hen. 6.4 5 Edw. 4.41 15 Hen. 7.15 Fairfax for it is the last and highest Execution and the Court cannot descend à majore ad minorem executionem But if it be not filed it is otherwise And by the Stat. of 25 Edw. 3. cap. 17. a Capias was given in debt and per consequence a Capias ad satisfaciendum in execution of a Judgment in debt Coke 3. part 12. A. Harberts case Foâ— it is reason an Execution may be of as high a nature as the mean process in the Action was and 〈◊〉 the same nature Mich. 41 42 Eliz. com Ban. if the Plaintifâ— die after Execution yet the Sheriff may levy 〈◊〉 and if there be no Executor or Administrator the Moneys shall remain in Court until Administration Q. whether the Ordinary may not haâ—â— it But if the Defendant die before Execution there the Sheriff cannot make Execution 〈◊〉 the words of the Writ are That it shall be levied of the Goods of the Defendant Thoroughguâ—â— case Q if it may not be against the Executor because the Testators Goods in their hands may be said to be the Defendants Goods Upon a non est inventus returned of the Principal upon a Capias upon a Judgment in com Ban. the party shall have Execution against the Baâ—â— because the debt being by Original is certain 〈◊〉 it is mentioned particularly in the Writ and there the Lands of the Bail which they had 〈◊〉 the day of the taking the recognizance shall be liable but quaere in ban Regis if more Lands aâ—â— liable than they had the day of the Judgment because the debt is uncertain Mich. 15. Jac. Ban Regis Baskervile Brocket special verdict The Defendant for Dammages and Costs shall have the same execution as the Plantiff should have had if he had recovered against the Defendant per 23 Hen. 8. cap. 15. Viz. Of the Lands which he had at the 〈◊〉 of the Judgment and not before Coke 8. paâ—â— 171. Fleetwoods case 42 Edw. 3.11 pl. 13. â— Edw. 193. pl. 14. But if the Judgment be the last day of the Term the Lands which he had the first day of the Term are liable because all the Term is but one day in Law 42 Assiz 17. as to the Judgment for a Judgment given the last day is a Judgment of the first day If two Joint-Tenants are for life and one of them and against whom the Judgment is given dies before execution this shall not be put in execution 13 Hen. 7.22 A. viz. against the other because he was not party Land in ancient demesne shall be put in execution Coke 5. part 105. A. Aldens case Hill 11. Jac. Com. Ban. Rot. 2541. Cox Barnesly upon a Judgment in debt given at
Westminster for the judgment is well given The Goods that he had at the time of the execution shall be only liable to execution Coke part 171. A. Fleetwoods case 2. Hen. 4.14 9 Hen. 6.58 11 Hen. 4.7 34 Hen. 6.23 B. Prisot 21 Hen. 7.87 pl. 1. Crooke Unless it be in case of Executors 34 Hen. 6.23 B. Prisot For they may have other goods of the Testator come to their hands afterward But sale by covin after Judgment cannot hinder the execution 22 Assiz 72. 13 Hen 4.4 pl. 9. Q. if sale be made pending the Suit before Judgment by covin Hill 40. Eliz. Com. Ban. per Curiam if a Writ of execution be awarded for debt or dammages and between the Test of the Writ and Execution the party sold the goods bona fide yet these are liable to the execution Q. If so where the Vendee knows not of the Judgment for it seems hard and yet it seems as hard on the other side also Ejectment In what Court it lies IT lies not in the Marshalsey Coke 10. part 72. A. Marshalsey For no Title for Land could be tried there In Ban. Regis it lies In Com. Ban. it lies In the Exchequer it lies for a party priviledged Coke 1. part 3. A. Pelhams case and this was by Bill It seems it lies as well on the Pleas side and more properly than by Bill But if it be for ancient demesne-Land it lies not in the Court of the King Coke 5. part 105. A. Aldens case 9. part 77. B. but in the Court of the Mannor by their priviledge but by consent it may be as it seems tried elsewhere Because the possession is to be removed in such action per Hobart Chief Justice Hill 11. Jac. com Ban. Rot. 25.41 Cox versus Barnibee But none can plead this out ter-tenant of the Land in ancient demesne because the possession doth only concern him 2 Hen. 7.17 pl. 1. But if the Plaintiff do not put in his declaration until the end of the Term the Defendant cannot plead ancient demesne the next Term but must move the Court that the Plaintiff put in his declaration so late and pray no advantage may be taken against him and then the advantage shall be saved Trin. 12. Jac. Ban. Regis and he shall have liberty by rule of Court to plead ancient demesne the next Term. But he may plead this after view because by this he may confess if it be frank fee or not 50 Edw. 3.9 pl. 20. Q. Who shall have an Ejectione firmae Lessee for years only shall have it Possession Nat. br 120. F. because this action is only to recover the present possession and concerns not the Title but ex obliquo or collaterally And this only upon the possession in deed for he shall not have it upon a possession in Law 23 Hen. 8. br quia ejecit infra c. 5. For that is not an actual possession and so there is no present disturbance Nor upon a Lease to commence in futuro 37 Hen. 6.18 A. For the same reason and it may be it may never come in esse Note that Tenant for years needs not count that he entred Note but that a Lease was made to him by virtue of which he has possessed com 503. B. Grendons case For the Word Possessed supposeth an Entry or at least a taking of the Profits Tenant for years leases to B. at will who is outed by a stranger tenant for years shall not have an action because he had not the actual possession Pasch 11 Jac. in the Exchequer inter Sir Richard Grebham Stone Q. if Tenant at will may for the feebleness of his estate it seems he may Tenant for years Tenant for years leases for one year or a Lease is made for years the remainder for years a stranger enters none shall have an ejectment but the Tenant in possession Crooke 130. pl. 99. for none else is disturbed Lessee shall have an ejectment after the term ended Lessee and recover all in dammages 21 Edw. 4.30 pl. 25. Brian 7 Edw. 4.6 B. Fairfax For other remedy he hath not to recover them Lessee which may have a real Action cannot have an ejectione firmae Com. 419. B. Bracebridges case For real Actions are to be preferred before possessory and personal because of a higher nature and thereby justice is more speedily done Husband and wife Husband and Wife ought to to join if it be in right of the Wife 21 Edw. 4.10 pl. 1.30 pl. 25. 7 Edw. 4.6 B. Fairfax Com. 418. B. Bracebridges case For the Husband cannot declare of a Lease made to himself though he be interessed in it by reason of the Marriage and the Lease may come again to the Wife by his Death But if the term be ended the Husband alone shall have it because nothing shall be recovered but dammages 7 Edw. 4.6 B. Fairfax Which do only concern the Husband Lessee for one year of a Copy-holder shall have an ejection firm Coke 4. part 26 For he is a possessor for a term of years because the time is certain and of less term certain than for years the Law takes no notice Lessee of a Copy-hold for more years Copy-hold shall have an ejection firm although that such Lease be a forfeiture for it is a good Lease against all but the Lord Trin. 36 Eliz. Ban. Regis Downings case and it may be the Lord will take no advantage of it Executor of a Lessee shall have it Executors No. Lib. intra 195. D. sect 6. because the possession is come to him and he is damnified by the disturbance Executor Plaintiff Husband and Wife Co-executors Defendants and the Count. Lib. intra 252. B. sect 6. Executor shall have an ejection firm in vita Testatoris per the equity of the Statute 4 Edw. 3. cap. 6. Coke 9. part 78. B. Peytoes case else he should lose the term Churchwardens shall have it of Land leased to them 15 Hen. 7.8 in right of the Church Church-wardens for it is their possession pro tempore Q. If new be elected before the trial what shall be done Tenant by Elegit Tenant by Elegit shall not have an ejectione firmae Crooke 109. pl. 29. For he hath no certain term for the Owner may redeem the Land when he will Tenant in common Tenant in Common shall have it against his Companion Littleton 73. A. For they have distinct interests in Law Father and Son having several inheritances in divers Lands the Father levies a Fine of it all the Son being beyond sea at the time dies his Issue enters and leases it being within Age to A without rendring any Rent A. enters the Conusee of the Fine enters and leases it to B yet B. shall not have an ejectione firmae against A if he be outed without express outing of A because as to the moyery the Plantiff had not title for of that the Father might levie the
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
be shewed in the Count or Declaration 3 Hen. 6.36 11 Hen. 4.33 A Consideration of a thing past is not good Doct. Stud. 104. B. except it be a continuing consideration and benefit to the party An Assumpsit may be made in the absence of another if he will agree to it afterward 27 Hen. 8.24 and it shall be all one as if it were made to the party Quaere whether he that assumed may not refuse before the other consent General Bar. 1. Concord pleaded viz. after the Assumpsit made Lib. Intr. 6. C. sect 6. 2. Non assumpsit and this a man may plead although there is no consideration Pasch 26 Eliz. Ban. Regis for if there was no consideration for the promise it is all one as if there had been no such promise made But if the former were upon an entire sum upon two Assumpsits then no bar Trin. 14 Jac. Ban. Regis Paine and Selley A good Bar that he promised upon Condition which is not performed Lib. Intr. 5. D. sect 1. and so he is not bound to perform his promise for the Condition is to be precedent Non emisses the Land of him a good bar Lib. Intra 6. B. sect 5. viz. an Action brought for moneys promised to be paid upon a purchase of lives That the Plaintiff discharged him of the bargain a good bar Lib. Intr. 685. C. sect and so there could be no money due upon it To make an estate The Action lies 1. against him that sells Land to me and promises to make an estate and doth it not 3 Hen. 7.14 14 Hen. 8.15 21 Hen. 7.41 2 Hen. 7.11 12. 20 Hen. 7.9 22 Hen. 6.44 20 Hen. 6.34 Lib. Intra 5. D. Sect. 1. and 685. B. sect 1. the Writ Lib. Intra 6. A. Sect. 2. for I am thereby prejudiced in my title to the Land 2. Against him that sells Land to me and promises to give me seisin of it and does not Regist 112. A. for he hath consented to pass the Land by that kind of Conveyance 3. A promises to convey Land to such a person as B shall name and the Defendant shews that he conveyed it to B this is good for it shall be intended a nomination in B insomuch that he did accept of it Mich. 13 Jac. Com. Ban. Huligo and Wilde for he might nominate himself as well as another 4. Against him that first sells Land to me and afterwards sells it to another Lib. Intra 685. B. sect 1. Nat. br 98. F. 20 Hen. 6.34 for I may be thereby troubled in my possession 5. The same Law is if he grant a Rent and afterwards infeoff me not giving me notice of the Rent 20 Hen. 6.34 for thereby my Land is charged Against one that promises to scour his Ditch Ditch and doth not by which my Land is drowned 3 Hen. 6.36 and I damnified Against an Alien that brought Salt to London Cranage and promises to the Major to pay so much as shall be due for Cranage 18 Eliz. Dyer 352. pl. 27 and doth it not for here is damage by the loss of the profit Against the Lessor that promises Lessor that the Lessee shall enjoy pacifice quiete and is expulsed by a Trespassor 16 Eliz. Dyer 328. pl. 8. Q. 1. Against him that promises to amend his house House 19 Hen. 6.49 and doth it not Q. whose House 2. For not building a House according to his promise 2 Hen. 6.55 21 Hen. 7.41 20 Hen. 7.9 14 Hen. 6.18 Nat. br 145. G. 3. Against him that promises to cover a house and doth it not 3 Hen. 6.36 14 Hen. 6.18 4. A Leases a House to B at will and in consideration that he will permit him to enjoy it till such a day he promiseth to keep A harmless from all damage ratione inhabitationis occupationis Messuagii praedicti and for every farthing hurt he will satisfie 2 d. upon request The Servant of B suffers the house to be burnt 1. the Assumpsit extends to negligent waste because it is a damage to the Lessor 2. the Plaintiff ought to shew how many farthings he is damaged or else he cannot recover two pence for every farthing 3. he ought to request so many farthings due to him and to demand two pence for every one in a gross sum 4. upon the promise to the Tenant at will 5. he needs not to averr that he did there inhabit at the time c. for if he occupied it it is sufficient 6. by the assumpsit that B should have it until c. And it being a Lease for years ergo the Action lies not Mich. 9 Jac. Ban. Regis Coventry Woody Q. Against him that promises to purchase Land for me of B and doth not do it Purchase he is not excused though B will not sell it 11 Hen. 6.18 3 Hen. 7.14 for by his promise he is bound to do it at his peril But if he be retained and do his endeavour he is excused 16 Hen. 6. Action upon the Case 44. Against him that promises to make B. to release to me Release and doth not 14 Hen. 6.18 pl. 58. For not doing of a thing which ought to be done by the agreement of the parties touching Chattels Assumpsit 1. Against him that puts in Cattel without paying for the Agistment Agistment Nat. br 86. B. Regist orig 92. A. the Writ there for here is not quid pro quo in recompence Annual payment Against him that promises to pay 10 l. a year for Land for four years and fails of the first payment Action lies presently Coke 3. part 22. A. Walkers case 3 Mariae Dyer 113. pl. 54. pro tanto Trees cutting Against him that promises to cut Trees and carry them to my house Regist 109. B. Against him that promises an agreement Arbitrement and doth it not Coke 5. part 77. B. Sammons casee Ne. Lib. Intra 3. B. sect 4. for the other thereby is delaied in his right A grants his term to B if C agree B promises 20 l. to C for his assent Assent this is a good assumpsit Trin. 12 Jac. Com. Ban. in the case of Griesly and Louther for the assent shall be intended to be for his benefit 1. Against one that promises to re-deliver money and doth not Lib. Intr. 10. sect 1. 2. Against a Baily that takes upon him to keep Cattel safe and doth not Lib. Intra 9. A. sect 1. fol. 3. B. sect 1. but they are lost by his negligence 3. But if he promise to guard the goods and after refuses no Action lies Doct. Student 102. B. if there were no consideration taken to do it 1. Against a Carrier that undertakes to carry goods safe and doth not Carrior 2 Hen. 7.11 Lib. Intra 2. D. sect 1. the Carrier is chargeable without such a promise per legem terrae 2. Against him that promises to carry Wine and breaks
was only made to try a Title an Action of Covenant lies not for such breach Trin. 11 Jac. Com. Ban. Rot. 384. Selby versus Shute for this was but a Lease in trust only for the benefit of the Lessor and not of the Lessee Lessee by deed Poll shall have a Covenant against the Lessor Lessee if he out him Nat. br 145. l. 35 Hen. 8. Dyer 57. pl. 24. Shelley for the Action ariseth upon the covenant of the Lessor which may be by deed Poll. But not upon outing by a stranger without Title Nat. br 145. L. 22 Hen. 6.52 pl. 26. Hill 12 Jac. Com. Ban. Tisdale Essex yet quaere if he had a colourable Title Although it be by Recovery by Verdict Coke 4. part 80. B. Nokes case vid. antea But if a Stranger hath Title then it lies Nat. br 145. L. 32 Hen. 6.32 pl. 27. Nedham for theâ— the Lessor could not lett But Tenant for life shall not have Covenant for such ousting Nat. br 145. M. 26 Hen. 6. Covenant so for ousting is intended of a term and not of a Freehold for such ousting is a disseisin If it be not exprest Nat. br 145. M. for that declares what ousting was meant by the parties Lessee for years shall have Covenant upon a demise and grant Coke 4. part 80. B. Nokes case 5. part A. Spencers case viz. upon the words demise and grant in the Lease for they imply a Covenant Lease for years with warranty the Lessee outed shall have Covenant 26 Hen. 8.3 pl. 13. by all 9 Eliz. Dyer 257. pl. 13. for the warranty implieth a Covenant for quiet enjoying Tenant for anothers life leases for years with warranty he for whose life the Lease was dies the first Lessor enters Covenant lies 32 Hen. 6.32 pl. 27.9 Eliz. Dyer 257. pl. 13. against the Lessee for life upon his warranty because his estate was but a contingent estate and the warranty supposed t absolute But if it be without warranty it lies not 9 Eliz Dyer 257. pl. 13. for he letts no greater estate than he hath A Covenants to serve B for years and dies no Action lies quia mors omnia solvit 48 Edw. 3.2 B. pl. 4. Finchden Hill 33 Eliz. Ban. Regis Wilson Mapes A Parson leases his Rectory and covenants to save harmless the Lessee concerning the lands and profits for one year against Blunt Blunt enters within the year Covenant lies because it is expressed against a certain person Quaere if it had been generally Lessee covenants that he will not assign his Term over by which it may come to D the Lessee assigns it to K per Curiam Covenant lies for he hath put the power out of him Trin. 13 Jac. Com. Ban. Guines case and it may come to D whether he will or no. Of a Fine levied of Rent a Writ of Covenant lies 22 Edw. 4.2 pl. 6. The Count in Covenant 1. Personal 2. Real The Count was that per Indenturam suam testat existit that the Defendant covenanted so and so this is good but such plea in bar is not good Mich. 7 Jac. Ban. Regis Wyrdnam versus Fankner 2 Mariae 117. pl. 78. but he must plead Covenants performed and tender an issue Prior and Covent leases to two for years with warranty Count. per Indenture rendring Rent one dies after possession the other survives and was sole possest the Prior dies the Defendant fuit electâ—â— praefectus Prior tali die expulsus ejectus est the Survivor by the new Prior and so the Defendant did not hold Covenant made between the late Prior and the said Survivor Lib. Intr. 135. D. sect 2. this is a good Count for the Covenant lies by the Survivor against the Successor Count upon covenants to make a new Lease Com. 2. Chapmans case and good A leases to B for 6 years if C live so long and covenants that he had power to demise it c. B in covenant needs not count that C was in life for if he were dead at the time of the demise yet Covenant lies 2. he need not shew that he had the better right because he did pursue the words of the Covenant negative Coke 9. part 60. Bradshawes case or else it cannot appear it is the Covenant upon which the Action is brought Count by the Lessor against the Lessee that Covenants to pay all charges and pays not the tenths granted per Parliament Lib. Intr. 136. C. sect 4. for the word Charges includes the Tenths for they are charges issuing out of the Land or payable ratione terrae The Count shall be general that he hath broken covenants between them to the dammage c. the other shall say that they are performed the Plaintiff may reply that they are not because he shall have several dammages for every Covenant broken but upon an Obligation he ought to shew in what he hath made a breach because he shall have the forfeiture for one breach 6 Hen. 4.8 pl. 34. if but one breach Tenant for life leases for years rendring Rent the Lessee covenants and is expulsed by him in remainder 1. he ought to count that he was possess'd 2. he ought to shew the estate for life and the remainder certain 9 Eliz. Dyer 257. pl. 13. because it is a special ouster and not by the Lessor and for the first if he were not in possession he cannot be said to be ousted Writ in Covenant 1. Personal 2. Real Rex In Comitat. c. justicies A. quod teneat B. conventionem inter eos factam de quibusdam defectibus in Manerio ipsius B. de N. existentibus sumptibus ipsius A. competenter emendand sicut c. ne amplius c. Regist orig 167. A. This is in the County Court as it seems Rex In Banco c. praecipe A. de B. quod juste c. teneat W. conventionem inter eos factam de viginti acris terrae in K. frumento alio blado competenti seminandis de bladis terris praedict crescentibus metend ad domus ipsius W. sumptibus ejusdem A. in eadem villa cariandis nisi fecerit c. Regist orig 166. A. This in the Common Pleas. The Writ shall be brought where the Covenant was made Nat. br 146. E. 11 Rich. 2. viz. in that County where it is a real Covenant But it is no plea to abate the Writ unless the Deed bears date in another County Nat. br 146. E. than where the Covenant is brought and it may be a Covenant by parol The Writ for outing the Lessee shall be de dampuis de perditis occasione expulsionis c. 9 Eliz. Dyer 257. pl. 13. for if he be not damnified no Action lies The Writ ought to mention all the Executors which did administer 47 Edw. 3.22 pl. 20.48 Edw. 3.2 pl. 4. where an Action of Covenant is brought against Executors for all the Executors are but one Executor in
Hen. 6.23 7 Hen. 4.18 pl. 22. 11 Hen. 7.12.17 Edw. 2. brev 8 22. as Ordinary for he hath a kind of property in it But not for a thing which was not in his possession Nat. br 92. A. Coke 9. part 39. A. Henslees case 7 Hen. 4.18 pl. 22. For the Law takes no notice of his right without a possession A Parson shall have Trespass for Tithes taken after severance of the 9 parts Parson 10 Hen. 4.2 pl. 2. Gascoign 21 Hen. 7.27 pl. 5. before any seisure because it is certain by the severance what was his and the Law casts the possession and property upon him Com. 281. A. Foxes case But not of a Mortuary before seisure Com. 281. A. 10. Hen. 4.1 but there is but a bare customary right A Parson or Vicar shall have Trespass for the Walls or Glass of the Church or Grass or Trees in the Church-yard c. or Glebe-Land 11 Hen. 4.12 pl. 25. 8 Hen. 6.9 pl. 20. 11 Hen. 6.4 B. Danby Q. For the Church belongs to the Parishioners and the Chancel to the Parson yet the free-hold of the Church is in the Parson Parson imparsonee shall have Trespass against any that is admitted and inducted into the said Church if he intermeddle with the Glebe or Tythes Com. 500. B. 38 Hen. 6.24 39 Hen. 6.24 27. because they belong unto him Protected person He that hath a protection Royal shall have Trespass against him that takes his Goods Nat. br 92. B. though if not protected he might take them for during the protection he is not to be molested and so hath wrong done him If one hath the possession of a thing Possessor he shall maintain an Action against him that hath no right Com. 546. A. whether his possession be lawful or not But note Note that upon a possession in Law only he shall not have Trespass 22 Hen. 6.49.5 but it must be an actual possession for that is visible and notorious and the other is not so but may be disputable But if A gives Goods to B B shall have Trespass before possession for he hath the property in Law in them 2 Edw. 4.25 per 2 Justices Coke 3. part 26 27. Butler Baker and property in Law is made then a possession in Law In a Trespass brought it was found by office that another was Tenant and that it escheated to the King this shall abate the Writ as to the things upon the Land Com. 488. B. Nichols case 546. A. 19 Edw. 4.2 pl. 5. because the Land was the Kings and not the Plaintiffs He that enters upon the possession of the King shall not gain possession therefore he shall not have Trespass Com. 546. A. Paramors case 2 Hen. 4.7 pl. 29. For nothing can pass out of the Crown but by matter of Record Or upon a Farmer of the King 2 Hen. 4.7 pl. 29. For he is in upon the Kings right and the prejudice done unto him is done unto the King immediately But against him that outs the Farmer the King shall have Trespass Com. 546. A. Paramors case Q. whether the Farmer may not also have Trespass The King shall have Trespass King Nat. Br. 90. I. Regist orig 99. A. And in this case the party cannot make fine because the dammages are to the King himself to Hen. 4.3 pl. 7. and the fine shall be included in the dammages Q. tamen For it seems he shall make fine But for Trespass in the Rings Lands there uses to be an information in the Exchequer Nat. br 90. I. This is not by way of English Bill but on the Pleas side Q. if it may not be by an English Bill And in such case the judgment is that the party shall be removed and put out of possession although that it be but a personal Suit and the removal shall be by Writ formed in the case ditected to the Sheriff Com. 561. B. This Judgment is by way of Decree ergo on the Pleas side But the King may have a Trespass quare clansum fregit Nat. br 90. I. if he will The Queen shall have Trespass without the King Queen Nat. Br. 101. for Lands belonging to her Revenue and she is not in the nature of another Feme covert Revusancy shall be pleaded in disability to sue an Action of Trespass for as many Hereditaments as are not seised into the Kings hands Recusant 3 Jac. cap. 5. For such as are seised concern not the Recusant A Bishop shall not have an Action of Trespass for a Trespass made in a vacancy of the Bishoprick Bishop 39 Edw. 3.12 pl. 18. 18 Edw. 2. Trespass 237. For that could not concern him but the Guardian of the Spiritualties as it seems Vide tamen Regist 101. A Writ formed in such case for the succeeding Bishop Ergo. Q. Master of an Hospital A Master of an Hospital shall have an Action of Trespass for a thing done in the time of his Predecessor for the dammage redounds to the House Nat. br 89. G. Regist orig 196. B. the Writ there And by the same reason why may not the Bishop for a Trespass done in the Vacancy Tenant at will Tenant at Will shall have Trespass against a Stranger 19 Hen. 6.45 pl. 94. 12 Edw. 4.8 pl. 20. 35 Hen. 6.5 pl. 7. For he hath a Title against him For entring his Close and burning his Hay 35 Hen. 6.5 pl. 7. Copy-holder shall have Trespass Copy-holder Coke 4. part 31. A. 2 Hen. 4.12 pl. 49. Coke 4. part 4.21 B 23. B. and this before his admission per descent for his admission is but a Ceremony yet essential to his Estate Tenant in common Tenants in Common join in Trespass touching their Tenancies Littleton sect 315. 18 Hen 6.5 14 Hen. 6.9 pl. 38. 12 Hen. 6.4 pl. 11. 45 Edw. 3.13 5 Hen. 4.1 14 Hen. 4.31 43 Edw. 3.24 pl. 3 22 Hen. 6.12 in respect of their common and undivided interests But if one dies the other shall have an Action for all the Trespass 43 Edw. 3.24 pl. 3. For it survives with the Land They ought to join in Trespass 5 Rich. 2. cap. 7. 34 Hen. 6.32 pl. 16. 4 Edw. 4.18 21 Hen. 7.22 because it concerns them both in common and undividedly Note For battery they shall not join Reg. orig 105. B. For that is a distinct Trespass for the beating of one is not the beating of the other A had Male Swans B Female which having young ones for the young ones they shall join if they be taken away because they are Tenants in Common Coke 7. part 17. A. 2 Rich. 3.15 16. of the Swans and the young ones One Tenanant in common shall not have Trespass de bonis asportatis against his companion that takes them Lib. Intra 653. B. sect 3. because he hath an interest in them Tenant for anothers life Tenant for anothers Life is disseised he for whose life he held dies Tenant
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
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
doing of wrong to the dammage of another touching a thing hereditary who shall have it Baron and Feme Baron and Feme joyn upon an assumpsit to the Wife dum sola fuit and good Hill 9 Jac. Ban. Regis Wolverton and his Wife against Day For else the party would be without remedy Baron and Feme joyn in Trover and conversion for a Deed for an annuity granted to the Wife and it is good for if he survive he shall have the Deed Trin. 40 Eliz. Com. Ban. Russel Caresby Q. Husband had an Action sole upon the Assumpsit to the Wife and counted of the assumpsit to him 27 Hen. 8.24 25. for the assumpsit made to the Wife is made to the Husband Commoner shall have it for feeding his Common Commoner though he be but a Copyholder Coke 9. part 112. B. Mayes case For he is thereby damnified and no other Action lies for him But then it shall be such feeding by which he loseth his Common or else cannot have it in that beneficial manner as he ought Coke 9. part 231. A. Mayes case De minimis non Curat Lex Executor shall have it for putting him out of his Term by the Lessor Executor Nat. br 92. G. Regist 97. Coke 4. part 95. A. Slades case For a Term belongs to an Executor except it be otherwise disposed of For money for Grain fold Lib. Intra 4. B. Sect. 2. the Court there Q. whether debt lies not Upon an Assumpsit to the Testator to marry one or pay 20 l. Lib. Intra 10. B. Sect. 5. For by the Consideration the Testators estate is prejudiced if the assumpsit be not performed Upon an assumpsit to save the Testator harmless of an obligation Lib. Intra 12. B. Sect. 2. for the Executor is liable to be sued upon it If a Nusance be made Feoffee and a Feoffment is made if this continue as a new Nusance the Feoffee shall have an action Coke 5. part 101. A. Penruddocks case For the Feoffee is thereby hindred of enjoying the best of his bargain The Heir shall have an action for a Nusance made in the time of his Father Heir if it be continued c. for the Inheritance is prejudiced thereby Coke 5. part 101. A. Penruddocks case Two cannot joyn for calling them false Knave and Thief Joynder 28 Hen. 8. Dyer 19. pl. 112. for they are several slanders and personal Two cannot sue in the Admiralty where one of them ought to have an Action at Law 5 Mariae Dyer 157. pl. 39. for the Common Law is to be preferred Lessor shall have it against Tenant at will for voluntary waste Lessor Littleton 15. A. 14 Hen. 8.12 Brown Coke 5. part 13. B. Salops case 48 Edw. 3.25 Dyer 121. pl. 17. 11 Hen. 6.38 for an Action or waste doth not lie But not for negligent or permissive waste Coke 5. part 13. B. Salops case because he is not bound to repair Tenant in Common Tenant in common shall have it against the other for breaking a Gutter between their houses 2 Hen. 5.3 pl. 12. for sic debes uti tuis ut aliens non noces For making a Lime-pit in his Land which they have in common by which the water surrounds his house 13 Hen. 7.26 for the same reason Tenants in Common may joyn in an action for a Nusance upon their Land committed because this concerns all their profit Mich. 7 Jac. Ban. Regis Stone against Dromage For taking of a Meer-stone 1 Hen. 5.1 Lib. Intra 9. C. sect 1. for the Land may thereby be endangered to be lost 2. Against whom this lieth It lies against an Administrator Administrator upon an assumpsit of the Testator Lib. Intra 4. C. sect 3. for he received benefit by the consideration viz. their estate Which cuts Trees without cause 18 Edw. 4.27 Against a Baily of a Baily of goods Baily 12 Edw. 4.13 It lies against Baron and Feme Baron and Feme for not repairing Seabanks upon the Land of his Wife 7 Hen. 4.31 for the tort is done by the Husband as well as by the Wife Trover and Conversion lies against Baron and Feme for the Conversion of the Feme for it is a disloyal act which his Wife may do Mich. 7 Jac. Ban. Regist Drapers case and so an Action upon the Case lies not Trover and Conversion lieth not against a Carrier for a delivery to his Servant Carrier but an Action upon the Case Pasch 9 Jac. Ban. Reg. Wornhall and Bradshaw For the delivery to the Servant is a delivery to the Master and for which he is answerable A Counsellor is retained to purchase land Counselor and discloses the Secrets by which the party is damnified c. 11 Hen. 6.18 Upon an assumpsit to pay a debt Assumpsit No. Lib. Intra I. B. sect 1. Coke 9. part 86. B. Pinchons case 1. Coke 9. part 94. A. Banes case viz. upon the special agreement Against Churchwardens for not repairing a Gutter of the Church Church-wardens which is a Nusance to my house Lib. Intra 10 D. sect 1. For they ought to repair the Church and are publick Officers of whom the Law takes notice Divers do make an assumpsit Joynder action lies not against two of them only but if the Plaintiff shews that the others are dead then it is good and it is sufficient to shew that at the request of them that are alive and the others the thing was done and that the others are now dead Trin. 7 Jac. Ban. Regis Brereton and his Wife against King and Milner Against a Master upon a sale and warranty of the Servant Master 11 Edw. 4.6 for the act of the Servant being for the Masters advantage is the act of the Master Tenant at will Against Tenant at will for voluntary waste Littleton 15. A. 14 Hen. 8.12 Brown Coke 5. part 13. Salops case Dyer 121. pl. 17. But not for permissive or negligent waste Coke 5. part 13. B. Salops case for the Law makes a difference betwixt negligent and wilful and malicious wrongs Tenant per Elegit Against Tenant per Elegit which holds over and cuts the Trees after money tendered to him 21 Edw. 3.16 to satisfie the debt for he is to hold the Land till his debt is satisfied Tenant in common Against a Tenant in common of a House by his Companion for breaking his Gutter between their houses 2 Hen. 5. plea 12. for trespass vi armis he cannot have because he is seised per jug per tout For making a Lime-pit to burn Lime Kiln by which his house is damnified 13 Hen. 7.26 Tenant for years A having an ancient Light B erects a house which stops it and leases it to C yet an Action lies not against C because the Lessee had done no wrong and he could not pull it down Trin. 13 Jacobi Ban.
Regis Bolds case Q. as the Law is now taken whether it lies against B. When a man prescribes in an I le in a Church Vicar and the Vicar will not suffer him to make a Sepulchre there No. Lib. Intra 8. B. sect 7. for he disturbs his Inheritance Against a Sheriff upon a false return Sheriff Lib. Intra 11. A. sect 1. Upon returning nichil where the party had sufficient Lib. Intra 11. C. sect 2. for this is a false return For what things this Action lies Against a Tenant by elegit Trees that holds the Lands after his money tendered him and cuts the Trees 21 Edw. 3.16 vid. supra So if Tenant at will cuts the Trees Littleton 15. A. Coke 8. part 13. B. Salops case 48 Edw. 3.25 for that is voluntary waste for which he is punishable If a Baily cuts Trees without cause 18 Edw. 4.27 Chappel For disturbing of men to come to my Chappel with offerings 19 Rich. 2. Action upon the Case 52. This is now out of doors since the Reformation temps Edw. 6. Against the Owner of the Land in which I have a Way Way 1. Estreite and he straitens it for I am thereby abridged of my easement 33 Hen. 6.26 For trenching of it 2. Trench for the former reason Lib. Intra 616. C. Sect. 1. For any manner of disturbance in my passage or part of my way 3. Disturb so that I cannot pass so commodiously as I did before 14 Hen. 8.31 21 Hen. 7.35 22 Hen. 6.15 10 Hen. 7.21 4. Stopping of it If the whole way be stopped by one that is not owner of the Soil it lies 22 Hen. 5. 33 Hen. 6.26 10 Hen. 7.21 For I am wholly deprived of my easement and no other Action lies against him So if Tertenant and others stop it 34 Hen. 6.4 tamen quaere as to the Tertenant For against Tertenant that stops all the way an assize of Nusance doth lie and not this Action 22 Hen. 6.14 3 Eliz. Dyer 250. pl. 88. 19 Hen. 6 29. pl. 49. Paston 2 Hen. 4.11 pl. 48. No. Lib. Intra 12.6 Sect. 10. Q. whether two Actions may not be brought in the former case But if I have it but for years an Action on the Case lies 33 Hen. 6.26 Nat. br 176 184. L. eodem For he can claim no inheritance in the Land where the way lies If A stops my way and leases the Land to B it lies against B if he do not open it for continuing of the wrong but if A build a House and leases it to B there B cannot pull it down for to lay open my way for this is waste in B. Trin. 13 Jac. Regis Bolds case and Rutlandshiers case and therefore an Action lies not against B for not pulling down the house for that were unreasonable But by 11 Hen. 4. an Action upon the case lies for stopping of a way in gross only and an assize of Nusance for a way appendant 21 Edw. 3.2.6 34 Hen. 6.4 pl. 11. Note the difference one savours of the realty the other is but personal But for stopping of a way in my own Land Trespass vi armis lies and not this Action 31 Edw. 3. Action upon the Case 38. 13 Hen. 7.26 For there is a plain breach of the Peace by disturbing my possession But for stopping of a Highway the Desendant shall be punished in the Leet and not by this Action unless the party had a special loss for a special loss admits of a special remedy 27 Hen. 8.26 5 Edw. 4.2 b. 7 Edw. 4 8. 33 Hen. 6.26 Coke 5. part 73. A. Williams case 21 Hen. 7.35 Coke 9. part 113. Mayrs case For a Court Leet is to redress such publick grievances Slander of my Title If A says that B hath right in my Land for years an Action lies Coke 1. part 177. Mildmays case No. Lib. Intr. 30. A. sect 27. but I ought to shew how I am prejudiced by his saying so or else it lies not for his lye were it a trespass only the Law will not punish it A brought an Action upon the Case against B because that B published and declared falsly that he had the Lease of the Land of A and that he intended to sell his Land and was thereby hindred B said that he had an Indent of Lease as in the Count is mentioned and traverseth that he forged it not 1. when B claims a right though he had none yet the Action lies not for it appears not whether he had a right or not 2. the Count is good because it is that it was against the knowledge of B that it was forged 3. Sciens is not traversable Coke 4. part 18. A. case 14. See the Case at large For stopping a Ditch by which my land is surrounded with water Nat. br 88. E 89 M 39 Hen. 6.32 11 Hen. 4.82 14 Hen. 8.31 Q. whether it lies for suffering it to be stopped by negligence Land viz. by another For not scouring a Ditch by which my land is overflown Regist orig 100. A. Q. if I be not thereby damnified For breaking of a Seabank by which my land is surrounded Nat. br 86. F. 89. B C. Reg. orig 95. A. It lies not for erecting of Coney-burroughs by which I lose part of the profits of my land because the party that erected them had no property in the Coneys for they are ferae naturae Coke 5. part 104. Boulstons case and it is lawful for me to kill them if they come upon my ground Q. tamen in regard of the trouble If one hath a Bakehouse by Prescription Trade and I set up another by him to his prejudice for the Law favours and protects ancient Rights presuming they had lawful commencements 1. For disturbing my Baily to distrain for an amercement Distress 18 Hen. 6.9 pl. 20. for the wrong is done to me for the Baily is my Servant and acts for my benefit 2. For disturbing me to distrain or to attach Nat. br 102. F. This is stronger than the former case and the injury more apparent 3. For distraining more Suitors to come to my Leet than ought to be Nat. br 94. G. Coke 4.94 B. Regist orig 103. B. for the Law hates needless troubles and vexations 4. For distraining Parsons or Vicars in their Spiritual possessions Nat. br 94. E. and the Writ is contra legem consuetudinem regni nostri contra formam articulorum contra pacem nostram ibidem For the Common Law protects the Clergy and takes care for their estates to preserve them from violence Fair and Market 1. Against him that sets up a new Fair or Market against my Fair or Market 22 Hen. 6.14 11 Hen. 4.74 for I am prejudiced thereby in my ancient right But 41 Edw. 3.24 per Belknap Quod permitt at lies and not this Action Q. tamen car semble nemy 2. For disturbing Customers to come to the
poysons my water by reason where of my Fish dies Piscary Coke 9. part 59. A. Aldreds case and so is it for infecting the Air thereby vid. antea Procurement 1. For releasing to me with warranty and procuring another to sue me 34 Edw. 3.20 for this is fraudulent dealing 1. Against Tenant in a Precipe Protection which hath protection allowed to Westm for one year and within the year he stays at Gloucester 15 Edw. 4. Q. If I sue a Schoolmaster for erecting a School in the same Town the Action lies not School for it is no Nusance 11 Hen. 4.47 pl. 21. 22 Hen. 6.14 prisott and it is for the good of the weal publick which is to be preferred before any ones private profit Sâ—ander of my Title If A says that B hath right in my Land for years an Action lies Coke 1. part 177. Mildmayâ— case No. Lib. Intra 30. A. Sect. 27. but I ought to shew how I am prejudiced particularly else there appears no cause of Action A brought an Action upon the case against B because that he published that he had the lease of the Land of A and that he intended to sell it and was hindred B said that he had an Indenture as in the Count is mentioned and traverseth that he forged it 1. when B claims a right though he had none yet the Action lies not for it may be he thought he had a right and so there cannot be said any malice 2. The Count is good because it is that it was against the knowledge of B that it was forged 3. Sciens is not traversable Coke 4. part 18. A. case 14. 1. For stopping a Ditch Land by which my Land is surrounded Nat. br 88. E 89. M. 39 Hen. 6.32 11 Hen. 4.82 14 Hen. 8.31 for the Land is thereby made worse else it will not lie For not scouring a Ditch by which my Land is overflown Regist orig 100. A. Non-feasance is punishable as well as a Misfeasance For breaking of a Seabank by which my land is surrounded Nat. br 86. F 89. B C. Regist orig 95. A. vid. antea It lies not for erecting of Coney-burroughs by which I lose the profits of my Land because the party had no property in them Coke 5. part 104. Boulstons case and I may take them upon my land and justifie it vid. antea 1. If one hath the trade of a Bakehouse by prescription for the whole Town Trade and another erects another and sells and Action lies Coke 8. part 125. case of London 19 Rich. 2. Action sur Case 52. The Law favours Ancient rights for it tends much to peace 2. For using the trade of a Dyer in R without License of the Archbishop of York Regist orig 105 106. Coke ibidem for the priviledge of the Bishop is thereby impaired 3. The King grants to A the sole faisance of play-cards yet A shall not have an Action upon the case against others that use the trade because the grant is void Coke 11. part 86. A. Monopolies for it is a Monopoly which is against the publick good and the liberty of the Subject Tenant at will makes voluntary waste Waste an Action of waste lies against him Littleton 15. A. 14. Hen. 8.12 Brown Coke 15 part B. Salops case 48 Edw. 3.25 Dyer 121. pl. 17. 11 Hen. 6.38 and not an Action on the Case For diverting of part of the stream by the owner of the Land by which the stream flows over Water-course 12 Hen. 4.47 21 Hen. 7.30 Dyer 248. pl. 80. Coke 4. part 86. Lutterels case the Count there 3 Eliz. Dyer 195. pl. 37. But for diverting majoris partis Assize lies 8 Eliz Dyer 248. pl. 80. but this is intended when the Mill cannot go for that is prejudicial to the Freehold For stopping a Pit that one hath for water although it is not a common watering-place Watering-places 21 Hen. 7.35 No. Lib. Intra 18. D. sect 15. for thereby I that digged it lost my labour and easement The Writ Ought to be certain as the Count except in the place and time 22 Hen. 7.91 which in this actioâ— are not traversable It ought to have the same certainty as the Count and to have the effect of all the Count except the year and day the quantity and certainty of the Land 38 Hen. 6.9 pl. 20. Prisott for the Land comes not in question Q. The Writ shall not be vi armis Nat. br 92. E. for it supposeth not the breach of the publick Peace but only a particular dammage When there are two causes of Actions 1. causâ— causans 2. causa causata the former may be alledged vi armis Coke 9. part 50. B. Salop case For that is but as an inducement to the cause of action upon which the Action is brought The Process 1. before appearance 2. after At Common Law a Capias lieth not 43 Edw. 3.11 Coke 10. part 72. A. Marshalsey for liberty was preferred before private wrongs which concerned the estate only But 10 Hen. 7. cap. 9. such process is given in an Action sur le Case in Ban. Regis Com. Ban. as for Trespass or debt Br. exigend 29. vid. the Statute The Judgment For not repairing of a Bridge per quod c. the judgment shall be to recover dammages to the party damnified and a Distress to the Sheriff to compel the Defendant to repair to prevent further dammage to any For what things it lies Chasing Sheep 1. For chasing Sheep into the water 2 Hen. 7.11 B. Q. if the Sheep be not hurt by it if it do not lie It seems not 2. For taking of Sheep delivered to me for a year to dung my Land Nat. 26. B D. Q. for I thereby am damnified 1. Against him that I give money to give to my Attorney and he gives it to my adversary 20 Hen. 7.9 for here is breach of trust by which I am damnified For goods lent and are wasted 2. If I lend my Plate or other goods to one and he wastes them or misuseth them or converts them to his own use 27 Hen. 8.25 28 Hen. 8. Dyer 22. pl. 137. 20 Hen. 7.4 2 Hen. 7.11 2 Edw. 4.5 18 Edw. 4.23 21 Edw. 4.19 Crook 2 Hen. 8.160 pl. 2. For here the Law creates a trust and Covenant which is broken 3. If against a Baily that cuts my Trees or kills my Cows 18 Edw. 4.23 Q. 4. If a Baily lend them to B. and he wastes them it lies against B. 12 Edw. 4.13 for the Bally might lend them 5. Against my Butler that breaks my Hanaper 18 Edw. 4.27 Now it is Felony by the Statute Q. 6. Upon bailment of a Bag in which was 20 l. and he breaks the Seal 21 Edw. 4.30 pl. 25. 7. So for an obligation 39 Hen. 6.46 for I may be damnified thereby 8. Against a Baily of Beasts which kills them Littleton 15. A. Dyer
pacem for this is in contempt of the Common Law Against him who gets a Protection of the King for one Protection and gives it to another of the same name 30 Hen. 6.18 viz. by him who is thus deceived in the trust reposed in the party Against a Tenant in a Praecipe that hath a Protection to come to Westm and stays at Gloucester 15 Edw. 4.19 Regist orig 119. B. 20 Hen. 6.10 for this is an abuse to the Law and prejudice to the party Against him that gets a protection where he was not in service of the King Lib. Intr. 49â— D. the Count 493. Sect. 2 3. and so abuse the King and the party Purchase of a Writ Against him that purchases a Writ whereby I am sued to pay a fine without my privity Regist 112. A. Quare Impedit 112. A B. 3. Against an officer in Ban. Regis which purchases a supersedeas for one that I have a Plaint against in London upon a false surmise that the Defendant is his Servant 21 Edw. 4.23 and so abuseth the Court to the prejudice of the Plaintiff But upon surmise that he hath an Action depending there it lies not because the Court cannot have notice ibidem Q. 4. Against an Officer in Chancery which purchaseth a Supersedeas for his Servant where he was not his Servant retained before the time 11 Hen. 6.8 for this is abusing his priviledge to anothers hurt 1. By a Goaler against Rescoussors of one in Execution Rescous Dyer 241. pl. 47. for he is liable to the debt thereby 2. A being arrested upon a Latitat at the suit of B and Rescoussed by C B shall have an Action against C and ought to shew that he intended to declare against A in debt for there are no other Process in this Court Pasch 7 Jac. Ban. Regis Kemps case viz. the Latitats upon which one may declare in what action he pleaseth Against him that acknowledged a Statute in my Name without my privity Statute 112. B. Regist orig for this may be very mischievous to the party Against him that sues me on purpose to vex me Vexation 8 Edw. 13.43 1 Edw. 3.20 for the Law hates vexatious Suits But for causeless Suits no Action 11 Eliz. Dyer 285. for pro falsa actionis prosecutione nulla sequatur poena 2 Rich. 3.9 pl. 22. so that there was probable cause 2. Against him that sues me for a thing arbitrated before that the day come to perform the award Regist 111. A. for this is unjust vexation For the not doing of a thing which ought to be done by the Law touching a thing hereditary to the damage of another A Copyholder by Custome that may nominate him which shall succeed him and names one Admission and prays to be admitted and offers reasonable fine to the Lord which resuseth the Copyholder shall not have an Action of the Case against the Lord because before admittance he had no right Pasch 13 Jac. Ban. Regis Forde and Hoskins A Beadle of a Hundred brought his Action oâ— the Case against many Brewers Beadle of a Hundred and prescribes to have three gallons of the best Beer of even Brewer for 7 d and good for it is not unreasonable 1. He need not shew what estate he hath 2. It is good against many because all in common are accessory 19 Rich. 2. Action upon the Case 51. Against him which ought to enclose against me Enclosure and doth not by which my grass is consumed 11 Rich. 2. Action on the case 36. be it by his own Cattel or a Strangers But if it be between two houses a Guria clâ—â—denda lies ibidem a Writ to enforce him to enclosâ— his own Yard A sold Land to B Feosment and he will not enseoff him Action lies 22 Hen. 6.44 Newton Q. for he may make him another Conveyance Against an Archdeacon which refuseth to â—â—duct Induction whâ—ch is as much as to give possession of a Living Institution 26 Hen. 8.3 Nat. br 47. because here the Archdeacon is in place of the Sheriff Mich. 12 Jae Ban. Regis Poole and Godfrey But in this cast by Doderidge and Coke it lies not against the Ordinary for not instituting a Clerk because this is meerly Spiritual in the case above specified and the Clerk may be unfit which they are to judge of A hath a nomination Presentation and B the presentation A names one B will not present yet an Action lies not by the Court Pascb 13 Jae Ban. Regis in the case of Forde and Hoskins for B hath a greater interest than A or equal Against one that ought to find a Priest To find a Priest and will not viz. to say Mass sing Dirges c. 21 Hen. 7.5.22 Hen. 6.46 Lib. Intra 2. D. sect 5. this was Law in the time of Popery but not now But if he shall be found by the Lord and his Tenants of his Mannor no such Action lies Coke 4. part A. Williams but it shall be in the Court Christian for the incertainty where the fault is that he is not found 1. Against a Lessor that refuses to repair his house Reparations Dyer 36. pl. 37. viz. where he promised to do it But quaere if he do not promise 2. Against him that ought to repair a Bridge by which I have a way to my Mannor 11 Hen. 4.82.45 Edw. 3.17 for I am hindred in my easement 3. But if a Highway be not repaired by which my Horse is mired I shall have an Action by Heiden 5 Edw. 4.3 Q. viz. for my particular miring 4. Against him which ought to repair a Mound or Bank by which my Land is drowned 29 Edw. 3.32 12. Hen. 4.7 Nat. br 93. G. 7 Hen. 4.31 pl. 13. 5. So of the Banks of a River Nat. br 93. G. 15 Edw. 4.18 45 Edw. 3.17 7 Hen. 4.8.31 11 Hen. 4.82 83. 33 Hen. 6.26 29 Edw. 3.32 pl. 49. for in all these cases I am damnified and am to be repaired by him that is the cause thereof But if they be broke by Tempest no Action lies 29 Edw. 3.32 pl. 49. for this could not be foreseen nor prevented and so there is no fault in any body 6. For not scouring Ditches 11 Rich. 2. an Action upon the Case lies 36. Nat. br 93. G. 7. For not repairing of a Gutter Lib. Intra 10. D. sect 1. whereby another is damnified For not repairing a house that is ready to fall upon my house Crooke 22 Hen. 7.98 pl. 4. per Fineux Brudnel for I am like to suffer damage and an Action may sometimes be brought to prevent a wrong Against him that is retained to purchase Lands and doth not Retain 11 Hen. 6.18 Q. for it may be it iâ— not to my prejudice yet here is breach 〈◊〉 trust But if he doth his endeavour it sufficeth so ultra posse non est esse But if he be a Counsel with
the other partyr Action lies 11 Hen. 6.18 pl. 10. Babinton 55 pl. 26. for then he is retained against me to my prejudice Against a Lord in Ancient demesn which 〈◊〉 not hold his Court To hold Court 11 Edw. 2. Action upon the â—â—j 46. lies for the Tenants may be prejudiced thereby Toll 1. Against a Millar that refuseth to grind Toâ— free for one that is Toll-free 43 Edw. 4.24 Crâ—â—â— 130. pl. 100 l. per Keble for this is appareâ— wrong to take my goods where I am exempâ—eâ— by the Law from being charged 2. Against him that bought or sold in 〈◊〉 Market or Fair without paying Toll 7 Hen. 4 4â— pl. 11. for this is my loss and to the ill exampleâ— others 3. But if one pass over my passage or poâ— where I have Toll and doth not pay it quâ—â— what remedy 21 Hen. 7.16 pl. 25. It seems 〈◊〉 Action on the Case doth lie if it be demanded For not doing of a thing which ought to be done by the Law to the damage of another concerning Chattels A borrowed a Horse of B Borrowed which died suddenly without his default Action lies not 40 Edw. 3.36 for this is the act of God and not the faulâ— of the borrower It lies not against an Attorney that will not do his office unless he be retained Attorney 20 Hen. 7.9 for he is but in the nature of a Servant and is not bound to be retained Against a Baily that hath money to bail my Attorney Bailment and doth it not 20 Hen. 6.9 B. Against my Servant because he pays not money for bailing and saving harmless 20 Hen. 6.9 for I may be damnified thereby S being a Dutchman Cocket his Parents being subjects to the King brought an Action against a Customer for not putting a Cocket upon his Merchandize and avers that he tender'd the Customes Coke Ch. Just said that insomuch that the Dutchmen here assembling are not of our Nation nor free of any company of Merchants that the Action lies not Pasch 14. Jac. Stephens his case Farrier Smith 1. Against a Smith that refuseth to shooe my Horse 14 Hen. 6.18 Crooke 18 Hen. 7.50 pl. 4. for this is for the publick good as well as private 2. But then he ought to have all necessaries and his wages tendered 2 Hen. 6.55 Q. for the wages are not due till the work is done 3. Against a Farrier that applies medicine and cures not my Horse But if no default be in him it lies not 19 Hen. 6.49 43 Edw. 3.33 48 Edw. 3.6 for he doth his best according to his skill Against an Innkeeper that will not lodge me Innkeeper 39 Hen. 6.18 Crooke 18 Hen. 7.50 pl. 4.14 Hen. 7.22 B. Higham for it is against the good of the weal publick Pledge 1. Against him that will not deliver my Pledge upon tender of the money borrowed Nat. br 86. C. Regist 91. B. Lib. Intra 8. B. Sect. 1. for the Pledge is judged to be more worth than the Money Servant 2. Against a Servant that will not do his service 2 Hen. 7.11 B. Q. for the Master is damnified thereby For his Wages is certain by the Statute and he hath his Action to recover it 3 Hen. 6.36 B. So note it must be a Covenant-Servant hired according to the Statute 3. Against one that will not serve not having Land Regist orig 101. A. B. for such are bound by the Law to serve 4. Against one that will not serve in Summer Regist orig 101. B. In time of Haryest it seems more especially For the not doing of a thing which ought to be done by the Law to the damage of another touching his Body Against an Innkeeper that refuseth to lodge me Innkeeper 39 Hen. 6.18 A good bar that his house was full Bar. and had no room 5 Mariae Dyer 158. pl. 32. for he is not bound to provide lodging out of his own house Against a Chirurgion that takes upon him a Chiturgion Cure and neglects it 48 Edw. 3.6 whereby the Cure is become impossible or is retarded Against a Victualler that refuseth to sell to me Victualler 39 Hen. 6.18 for his profession is for the publick and he ought to make no distinction of persons For not doing of a thing which ought to be done by the Law to the damage of another touching Suits in Law 1. It lies against an Attorney that is retained Attorney and makes default Lib. Intra 2. A. sect 1 Regist orig 113. A. if his Client be prejudiced by it Clerk of Assize Against a Clerk of Assize that takes a Fee and enters not the Jury 34 Hen. 6.4 for thereby the Cause is delayed by his nonfeasance Feoffee to use Against a Feoffee to use which doth not plead according to the directions of the Feoffor 14. Hen. 8.24 B. pl. 2. Q. for the pleading is for his advantage or disadvantage To hold Court Against a Lord of a Mannor that will not hold his Court 11 Edw. 2. Action upon the Case 46. for the Tenants of the Mannor are thereby prejudiced and the Lord is as well bound to hold his Courts duly as the Tenants are to do their services 1. Against a Sheriff that will not execute Process Sheriff 14 Hen. 7.23 the party being shewed to him 8 Edw. 4.14.17 for Justice is thereby delayed 2. For the Plaintiff against a Sheriff that will not return his Writ 2 Hen. 6.5 8 Edw. 4.14.7 for he is thereby hindred in his Suit 3. Against a Sheriff that will not return an Outlawry 42 Assize 12. for though it properly concerns the King yet the party may receive prejudice by not returning it 4. For delivering a distress upon a second deliverance and not returning the Writ 2 Edw. 3.43 for thereby the further proceedings of the Avowant are hindred Assumpsit For the not doing of a thing which ought to be done by the agreement of the party to the damage of another touching things hereditary Assumpsit Quid. Quotuplex ASsumpsit is either by word or deed Poll. If it be by Covenant it lies and needs not any consideration to be averred 2 Hen. 7.11 21 Hen. 6.55 for a Covenant supposeth a consideration because it is a solemn act If it be by word then it ought to be upon a consideration otherways it is but Nudum pactum unde non oritur actio for the other hath no wrong though the promise be not performed A Consideration is a cause or occasion meritorious Consideration Quid. Quotuplex requiring mutual recompence in deed or in Law in Deed expressed in words in Law not expressed but created by Law 16 Eliz. Dyer 336. B. pl. 34. The Consideration is either expressed in words or implied by Law in every Contract there is an Assumpsit or promise implied by Law Coke 4. part 94. Slades case If it be expressed it ought to
Law for they have a joynt trust and interest The Process in Covenant 1. Before appearance 2. After Covenant Personal 1. By the Common Law the Process before appearance was but a distress infinite 22 Hen. 6.13 Br. exigend 29. 48 Edw. 3.29 pl. 15. and no Capias 2. After appearance the parties appear and day is given over salvis partibus c. the Defendant makes default at the day a distress was awarded against him Lib. Intra 134. B. Sect. 1. and not a Capias Quia non fit breve de Attachiamento Covenant Real quia oporteat quod partes compareant personaliter in Curia Regist orig 165. A. and here was day given over salvis partibus which was no personal appearance The Bar in Covenant 1. Personal 2. Real 1. When a certain duty accrues by the Covenant at the time of the making of it Accord an Accord with satisfaction is no plea Coke 6. part 44. A. Blakes case for such an Accord cannot discharge the duty But a release may be pleaded in bar But where no certain duty accrues until the subsequent act or wrong there Accord with satisfaction is a good plea Coke 6. part 44. A. Blakes case for he may make satisfaction for the wrong by the agreement of the Covenantee Covenant to a Parson for the enjoying his Benefice and the Parson deserts the Cure is void if he deny it after such desertion 14 Eliz. cap. 11. Rastall Leases 244. D. 23 Eliz. Dyer 372. pl. 11. This is after the Parson is absent forty days in the year and not otherwise for that is a desertion in Law whereby he may be deprived A covenants to gather the Rents in D Disturbance and he pleads that he was interrupted by the Plaintiff and so could not do it this is a good bar Crooke 13. Hen. 7.34 pl. 2. for the Plaintiff shall not take advantage of his own wrong Lessee covenants to surrender before the term ends and a Stranger that hath right enters upon the Lessee this is a discharge because the Lessee is disabled by an act in Law Hill 41 Eliz. Com. Ban. Andrews versus Nedham 45 Edw. 3.48 Performance generally a good plea Performance 6 Hen. 4.8 pl. 34. In a Covenant upon a demise by Indenture and an eviction by a Stranger by a higher Title it is no Bar to traverse the possession of the Plaintiff without particular causes shewing how the other had title because it is by Indenture Trin. 3 Jac. Ban. Regis Stile versus Hearing which is a general estoppel without shewing of special matter to avoid it A covenants to make a good estate in Copy-hold land to B before Easter during the life of Cox it is no plea to say that it was surrendred to the Lord by his procurement to the use of C if he shews not that he was admitted for nothing vests in him to whose use it is till admittance Mich. 15 Jac. Ban. Regis Stiles versus Smith and so the Lord was not disabled to perform the Covenant Release is no Bar before the Covenant is broken Release viz. generally Coke 4. part 71. Hors case 5 Eliz. Dyer 217. pl. 2. Coke 1. part 99. A. Shelley◠case If it be not by express words Coke 5. part 71. A. 35 Hen. 8. Dyer 57. pl. 24. Bramly for so the Covenant may be released Judgment in Covenant 1. Personal 2. Real Judgment against an Executor for a Covenant broken after the death of the Testator is of the Testators goods 15 Eliz. Dyer 324. pl. 34. for he is in the Testators stead and trusted with his estate If a Lessee recovers being outed by the Lessor he shall recover his term viz. the remainder unexpired Nat. br 145. M. 47 Edw. 3.24 pl. 61. 20 Edw. 3. Judgment 177. and also Dammages Nat. br 145. M. Execution in Covenant 1. Personal 2. Real 1. Per Common Law 2. Per Statute Law By the Common Law it is but a Levari facias Personal Lib. Intra 133. D. sect 2. fieri facias Lib. Intra 138. A. sect 1. extending but to goods and Chattels But no other Execution Coke 3. part 12. A. Harberts case And this only within the year for if the year be past it was an Action of debt upon the Judgment Coke 3.12 A. Unless the Process were continued 33 Hen. 6.49 pl. 33. for the continuance of it made it as if no time were passed but continued a present Judgment By the Stat. by Westm 2. cap. 45. a Scire facias was given after the year Coke 3. part 12. A. to revive the Judgment and so the party is not now forced to bring an Action of debt upon it And per Westm 2. cap. 18. Elegit is given Coke 3. part 12. A. which extends to lands as well as goods By the Stat. of 23 Hen. 8. cap. 14. Capias ad exigend fuit given in Process and by consequence a Cap. ad satisfaciond in execution against the person By the Common Law it was but a Writ de fine facto 2. Real or to pay a fine as it seems which was but a Writ of Covenant in its nature 43 Edw. 3.12 B. Belknap Glanvil lib. 8. cap. 4. vide the Writ there But entry was congeable to execute it 8 Edw. 3.277 24 Edw. 3.40 pl. 49. Coke 7. part 32. and to hold till satisfaction made as it seems If Land be tailed to one by fine Fine he shall have a Formedon in Remainder 6 Edw. 3.185 pl. 9. Herle to execute the Fine But when the King levies a find he ought to make Letters Patents to the Conusee to enter Coke 7. part 32. for the King passeth nothing but by Record A Fine levied of an Advowson this may be executed by a Quare Impedit 24 Edw. 3.69 pl. 78. But if an usurpation be no Scire facias lies 33 Edw. 3. Quare Impedit 193. Knivet against the Usurper Fine levied of Services there shall be a per que servitio 29 Edw. 3.46 pl. 9. to execute the Fine If a Fine be levied of Rent there may be 〈◊〉 Writ of Covenant 22 Edw. 4.2 pl. 6. to execute the Fine Tenant grants to do his services there shall be but a Distress 10 Edw. 3.371 pl. 3. for that is the proper remedy to recover them and there needed no Covenant Tamen quaere Fine levied of a Reversion there shall be a quid juris clamat to execute this And if the Tenant alien yet the Writ shall be against him and his Assignee shall be bound by his Attornment 8 Hen. 6.17 B. 18 Hen. 6.3 B. pl. 2. by the Judgment given against the Assignor and himself Conusor of a Fine dies there shall be no quid juris clamat against him that claims but if the Conusee only die quaere if his Heir shall have the Writ 34 Hen. 6.7 B. Moyle against the party that hath the particular estate Fine levied before memory there shall be no Execution 1 Edw. 4.6 pl. 13.
Littleton so that the bale be not broken But otherwise it lies not Nat. br 138. A. 22 Hen. 8. Dyer 22. pl. 137. for then the money cannot be known Note a Detinue was brought for one piece of Dornex of the value of 22 s. and tried at Gloucester Assizes 5 Martii 15 Jac. Q. what Judgment Vide tamen 21 Hen. 7.82 pl. 3. Detinue brought of a piece of silver Quaere what piece It lies of Rationabile parte bonorum Rationabile parte bonorum Heir 17 Edw. 3.9 pl. 29. by custome See before Custome that the Heir shall have the principal goods Detinue lies for them 30 Edw. 3.2 pl. 9. 39 Edw. 3.6 pl. 24. fol. 9. pl. 15. See before Land leased with implements Implements at the end of the term Detinue lies for them although wasted 20 Hen. 6.16 pl. 2. See before Goods lost If goods are lost Detinue lies Nat. br 138. E. against him that finds them or a Trover Goods bail Goods bailed to deliver over Detinue lies Nat. br 138. A. 18 Hen. 6.9 A. against the bailee by the party to whom they should have been bailed over See before A. bails goods to B. which are stole Detinue lies against B. for them Coke 4 part 84. Southcots case Vid. antea But if he receive them to keep as he doth his own goods and they are stole it lies not Coke 4. part 83. Southcots case 9 Edw. 4.40 pl. 22. Danby Antea Carrier loseth goods Carrier loseth goods or is robbed yet Detinue lies against him Coke 4 part 84. 2 Hen. 7.11 B. Townsend Antea A. contracts for Corn to be delivered at a day to come Corn. he shall have a Detinue at the day for this No. Lib. Intra 169. B. sect 1. for by the contract he had a property in the Corn. After divorce it lies for goods given in marriage Divorce Nat. br 139. A. 26 Hen. 8.7 pl. 1. 28 Hen. 8. Dyer 13. pl. 61. Vid. antea It lies of a Horse Cow c. or more Cows oâ— Horses Nat. br 138. A. be the number what it will It lies for the Plaintiff in Replevin Replevin for goods taken in Withernam because he from whom they were so taken had not the property in them 2 Hen. 4. br debt 51. 6 Hen. 7.8 B. Quaere if the Avowant shall have a Detinue for his goods taken in Withernam after appearance and claim of the property 11 Hen. 4.10 pl. 21. for he claim makes not the property Tender amends in Replevin The Plaintiff in a Replegiare after return irreplevisable upon tender of amends shall have a Detinue for the goods Coke 8. part 147. A. for he had the property in them 10 Eliz. Dyer 280. pl. 14. notwithstanding such Writ Vid. antea Corn. Wine A delivered B Corn and Wine c. and they perish yet Detinue lies for them Doct. Stud. 129. A. Q. what shall be recovered dammages â—t videtur But if it be a thing that be to be redelivered Horse as a Horse c. if it be used in other manner than was agreed and if it perish in default of the party to whom it was delivered and Action lies Doct. Stud. 129. A. Vid. antea But if it be used but in such manner as it was agreed and it perish but not by default of the party to whom it was delivered Action lies not Doct. Stud. 129. A. Vid. antea Note Note in brevi de chartis reddendis semper debet poni cerius numerus chartarum vel scriptorum Regist orig 159. B. Nat. br 138. B. Et sic ut videtur est de aliis bonis catallis The Count in Detinue 1. Of Chattels 2. Of Deeds The Count ought to name all things certain Count. and the value 1 Rich. 3.20 A. 3 Hen. 6. viz. time and place The Count was Bailment that such a year day and place A bailed to B bona catalla c. scilicet one Cup of Silver c. ad valentiam c. salvo custodiend eidem querenti cum inde requisitus fuisset redeliber and. c. Lib. Intr. 212. B. A counts de bailment of Spoons Spoons c. ad valentiam c. Lib. Intr. 211. D. sect 2. naming the number The Count was Devenerunt Ag. Executors quod cum ipse the year day and place deliberasset W. in vita sua catalla c. posteaque praedictus W. obiit c. post ejus mortem praedictam c. devenerunt such a day year and place to the hands of the aforesaid Executors praedictus W. nec praedicti Executores c. Lib. Intra 212. C. Sect. 4. This against an Executor Per Executor Count per Executor Com. 275. A. Foxes case vid. the Count there Count upon bailment to B Trover which loses it and that the Defendant found it and yet detinet lies Lib. Intra 212. B. sect 3. for neither by the bailment nor by the losing and finding it is the property altered or divested out of the Bailor Count of a Horse found No. Lib. Intr. 169. D. Sect. 2. A counts upon a bargain for Corn to be delivered at a day to come Contract that such a day year and place he bargained for eight quarters of Corn ad valentiam to be delivered c. No. Lib. Intra 169. B. sect 1. Vid. antea by the contract the property was divested out of A. For two Obligations Obligation Lib. Intra 220. A. Sect. 1. Husband and Wife for box with deeds The Husband and Wife count that they were possessed of a Box sealed with Deeds concerning Lands of the Wife c. and lost them and they came to the hands of the Defendant such a year day and place per Trover c. Lib. Intra 209. B. Sect. 3. Count of a box with Deeds Lib. Intra 202. B. Sect. 7. Though unsealed yet it lies Q. whether he must not shew what deeds particularly Heir against husband and wife Counts that his Brother whose Heir he is was seized of Land in Fee and of a box sealed with Writings touching the Land and he lost the box and it came to the hands of the wife dum sola fâ—it and that his brother dies without issue and the Lands descended to him and that the woman takes a Husband per quod c. Lib. Intra 209. D. sect 4. the Action lay against them for the marriage gains no property where the wife had none before Heir against Executors Heir Lib. Intra 210. A. sect 5. of the Ancestor for things touching the Lands he inherits The heir in a Detinue for a box with deeds ought to count that it was sealed for otherwise it belongs to the Executors 36 Hen. 6.27 pl. 26. 39 Edw. 3.7 8. 41 Edw. 3.2 11 Hen. 49. A. Paston Q. how the sealing should make a difference And yet the sealing is not traversable 41
cap 5. Gâ—kâ—â— part Grâ—gories case for those Courts are fine to interpret Statutes and not inferiour Courss Who shall have Debt If a Baily account for his Master Accountant and surplusage be found due to his Master he shall have debt for it Nat. br 121. I. the Count Lib. Intra 150. D. sect 1. quaere if it be not meant where the Baily accounts with his Master But a Receiver shall not Nat. br 121. I. 38 Hen. 6.5 pl. 14. Mich. 12 Jac. Ban. Regis Countess of Suffolke Floyde for the Law takes not so much notice of a Receiver as of a Baily Administrator shall not have debt until Administrator 31 Edw. 3. cap. 11. Nat. br 120. D. Coke 9. part 39. A. Hensloes case for the Common Law takes no notice of an Administrator 1. An Administrator ought to count that he which committed the Administration was the Ordinary of the place where the intestate died 31 Hen. 6.23 pl. 5. Com. 277. A. per Dyer If it be a particular Jurisdiction he must say cui administratio pertinuit 2. he ought to name the place where the Administration was to him committed 35 Hen. 6.31 pl. 39. Danby Moyle because it is traversable 3. He needs not name the Ordinary by his Christian name 7 Hen 4.10 pl. 18. for the place where makes it certain enough who it is But in a Writ de Colligend he shall be named Q. de ceo brief An Administrator shall have debt upon 1 Edw. 2. cap. 14. for money given to Chantery If the Ordinary release a debt to a Debtor of the Intestate and afterwards grants Administration to A yet A shall have debt against the Debtor for the Release is void in Law 18 Hen. 6.23 Coke 9. part 39. A. vide Crooke 127. pl. 90. for the Debt is not the Ordinaries Attorney shall have Debt for his Fees Attorney and Fees of Counsel and costs of Suits Nat. br 121. L. 21 Hen. 6.4 Quaere of Counsells Fees if not expended by his Clients direction If J. deliver money to bail over Bailor or to a Merchant to trade with for me or to be given is Alms or upon a condition to rebail if he break the trust J. shall have debt against him 28 Hen. 8. Dyer 22. pl. 135. 11 Hen. 6.39 pl. 3. 42 Edw. 3 9. pl. 7. Crooke 21 Hen. 7.69 pl. 2. per Froâ—icke for if the trust be not performed the money belongs to the Bailor A is bound to the Husband and Wife Husband the Husband alone shall have the Action 3 Hen. 6.37 pl. 35. 12 Rich. 2. bre 637. in his own name only if he will Or in both their names 39 Edw. 3.5 pl. 19. 43 Edw. 3.10 pl. 31. 3 Hen. 6.37 pl. 35. 12 Rich 2. bre 639. 16 Edw. 4.8 for the Husband may interest his Wife in the debt Husband and wife Husband and Wife assign Auditors to receive 〈◊〉 debt due to the Wife dum sola fuit and brought debt for the Arrearages in both their names and good because the wife was the cause of the Action 16 Edw. 4 8. pl. 4. because the debt was due to her dum sola Husband and wife lease for years Lands of the wife rendering Rent the Husband dies and the second Husband brought debt and good 28 Edw. 3.90 pl. 4. for the Law creates a privity in him A Woman leases at will rendering rent and takes a husband the Rent is behind they joyn in debt and good Coke 5. part 10. Hensteads case for the marriage shall not determine her will so as to extinguish the debt A Woman shall not have an Action against her husband although she is Executrix 8 Edw. 3. 330. pl. 48. for she cannot sue her self and the husband and wife are but one person in Law A is bound to the husband and wife and they are divorced causa prae-contractus and they brought debt in both their names No. Lib. Intra 121. sect 5. for the divorce makes the marriage void ab initio and so the obligation is void and therefore the Action not well brought as it seems B had a Rectory in right of his wife for years and they both joyned in debt upon the Statute of 2 Edw. 6. for not setting forth of Tithes Hill 39 Eliz. Ban. Regis Rot. 699. and good for the Action is grounded by reason of the wife Lease for years rendering Rent by the husband and wife husband may have debt in his own name 7 Edw. 4 5. pl. 16. for the Rent belongs to him The same Law is if the Reversion be assigned to the husband and wife although that the husband count as Assignee Trin. 12 Jac. Ban. Regis Wyats case Quaere whether in both cases the Action may not be brought in both their names Husband and wife sold the Land of the wife the husband alone shall have debt 48 Edw. 3.18 pl. 4. for the money belongs only to him Husband and wife recover dammages the husband alone shall have debt for them 16 Hen. 6. bre 939. for the husband shall have them A woman Tenant in dower of Rent takes a husband and dies the husband shall have debt for the Arrearages during the Coverture Nat br 121. C. 14 Hen. 6.26 A. 10 Hen. 6.11 22. Hen. 6.25 26 Edw. 3.64 for the Rent was due to him And by 32 Hen. 8. Ca. 37. the husband shall have debt for the Arrearages before the Coverture Coke 5. part 51. A. Ognels case else the Rent would be lost Annuity to the wife that takes a husband Arrearages incurr the wife dies the husband shall have debt because it is more than a thing in Action Hill 29. Eliz. Com. Ban. St. Legers for it is a duty incurred But if it be but for a thing in action before the Coverture as an Obligation the husband shall not have it Nat. br 121. C. 39. Hen. 6.26 pl. 38. because of the incertainty whether it were due to the wife or not But during the Coverture the husband may release it 17 Edw. 3.66 pl. 78. Hill for that passeth nothing but by way of extinguishment of his right if he have any Husband makes his wife Executrix which takes a husband and makes him Executor and dies the husband brought debt for the debt to the former husband and good 4 Hen. 6.31 for now it is become due to him as Executor of an Executor Clerk of the Peace It lies in the name of the Clerk of the Peace for the Hundred against the Village where default is made in Hue and Cry by the Statute of 27 Eliz. cap. 13. and reason because thereby the Hundred becomes liable to pay the money robbed Colledge in Oxon. A Colledge shall have debt for Commons of any Student Pasch 9 Jac. Ban. Regis Colledge of St. Johns in Oxford versus Brickeden Q. if the Student be of the Foundation Colledge of Physicians Colledge of Physicians for practising without License shall have debt upon the
Law no barr because Auditors are Judges of Record 2. cap. 11. Coke 103. A. Denbounds case 4 Hen. 6.17 8 Hen. 6.5 14 Hen. 19. pl. 21. 9 Hen. 5.3 pl. 9. and they have adjudged him to owe. But the Plaintiff may be examined by the Auditors and if it be not found that the Defendant is in Arrearages the Defendant may wage his Law per the Statute 5 Hen. 4. cap. 8. Coke 10. part 103. A. 8 Hen. 6.10 15. 19 Hen. 6.43 pl. 90. 20 Hen. 6.32 Ashton for then he is not concluded by the Auditors And if the Plaintiff or his Attorney refuse to be examined the Defendant shall wage his Law 33 Hen. 6.24 pl. 5. for then the Defendant may be believed as well as the Plaintiff But if the Executor brings Debt for Arrearages of account in vita testatoris he shall not be examined but his Attorney shall but not upon Oath 3 Hen. 6.40 pl. 2. 19 Hen. 6.8 10 Hen. 6.20 34 Hen. 6.32 Ashton 20 Edw. 4.3 pl. 24. for the Executors shall not be intended to be privy to the contracts of the Testator But 21 Hen. 6.4 pl. 10. the Executor was examined but not precisely which signifies little for in generalibus non est certitudo So if another brought such Action against an Executor he shall not be examined 20 Edw. 4.3 pl. 14. viz. the Plaintiff So if it be found that they submit themselves to Arbitrement so that they were not Auditors but Arbitrators they shall wage their Law 22 Hen. 6.41 pl. 13. for Arbitrators are not Judges of Record The Lord shall say that he owes nothing Lord. and waged his Law Westm 2. cap. 11. doth not extend to the Lord 14 Hen. 6.24 22 Hen. 6.41 38 Hen. 6. A. 29 Edw. 3.26 pl. 20. Coke 9. part 87. A. Pinchons case Q. The Defendant alledges before Auditors that he delivered to the Plaintiff one Statute Merchant in lieu of the sum the Plaintiff wages his Law 30 Edw. 3.4 pl. 19. upon the delivery Quaere Lending to Predecessor Successor shall wage his Law upon a thing lent to his predecessor 13 Edw. 4.4 pl. 9. because not privy to the contract To the party That he owes nothing by the Law a good barr Lib. Intra 152. C. sect 5. although the thing lent be by others hands 29 Edw. 3.26 pl. 24. for the Law wager is upon the receipt and not the delivery Debt upon bailment Bailment the Defendant pleads that they were delivered to be redelivered to B the which he had done a good barr Nat. br 138. M. for the trust was performed and the contract thereby discharged Contract Real 1. for years 2. for life 3. at will Arbitrement of Rent Trespass and payment of the thing awarded a good barr without saying he owes nothing 10 Hen. 7.4 pl. 4. Q. for thereby the agreement is waved An Accord a good plea 10 Hen. 7.24 2 Rich. 3. Debt 100. Coke 9. part 97. A. Peytoes case for the same reason Acquittance of the last day shall discharge all Arrearages 11 Hen. 4.24 10 Eliz. Dyer 271. pl. 26. due before for it shall be intended there was nothing due when the Acquittance was given The Lessee pleads the command of the Lessor to repair the house with the rent because it was decayed this is no good plea because it is waste 34 Hen. 6.17 14 Hen. 4.27 pl. 35. 11 Rich. 2. Barr in the Lessee to suffer the house to decay if he was not Lessee at will But if the grand Timber be in decay perchance it may be a good barr ibidem because Lessee at years is not bound to repair them except he be tied by special Covenant as it seems Quaere The Lessee was Advocate in the Spiritual Court the Lessor promises that he shall keep the Rent for his Fees this is no barr for steppage is no plea but he hath a good ground to have an Assumpsit to recover his fees Mich. 9 Jac. Ban. Regis Jarvis versus Lea and here is no consideration for the promise for he was his Advocate upon another ground The Lessee pleads that the Lessor entred before the day of payment and ejected him a good barr 27 Hen. 6.10 pl. 6. 46 Edw. 3.1 pl. 1. Lib. Intra 175. D. sect 10 11 12. for then the Rent could not be due for it was payable for the whole term and cannot be apportioned for it is entire A good barr to say that the Lessor entred before his day without any more 34 Hen. 6.21 pl. 40. for the entry implies an ejectment for both cannot be in possession So if the Lessor enter but in part a good barr Coke 3. part 22. B. Walkers case for the Rent is payable for the whole thing lett and is entire But if the Lessee enter again before the day of payment no barr for then he regains the possession and hath elected to wave this advantage of the entry made upon him So if the Lessor cuts the Trees no barr because the Lessor ejects not the Lessee 33 Eliz. but is only a Trespasser Entry by a Stranger which hath a better title a good barr Perkins 163. Lib. Intra 176. A. Sect. 13. 45 Edw 3.8 pl. 10. for that makes void the Lease But not for Arrearages due before the entry 9 Hen. 6.17 B. Cottesmore 19 Hen 6.42 B. Paston 20 Hen. 6.20 pl. 15. for so long the Lease continues in being Debt for Rent in com M. where the Land is in com E. levied by distress is a good plea without saying more 4 Hen. 6.5 pl. 12. 22 Hen. 6.31 pl. 19. 28 Hen. 6.6 pl. 2. Although the Lease be by Indenture 4 Hen. 6.5 pl. 12. 18 Hen. 6.17 A. per 2 Justices 11 Hen. 7.4 pl. 16. for it shall be intended to be levied where the Land lies which cannot be tried where the Action is brought But if it be in the same County where the land is then it ought to conclude that he owed nothing because the Countrey may have notice whether he did or not 28 Hen. 6.6 pl. 2. 33 Hen. 6.4 pl. 12. and may try the issue But the 9 Edw. 3.33.4 pl. 16. Herle it is good without such conclusion Q. It seems he thought levied by distress doth imply that he owes nothing Debt upon a Lease for Tithes levied by distress is no barr because there is nothing subject to distress 22 Hen. 6.35 pl. 53. 11 Hen. 4.40 br debt 234. and so the plea is impossible A good barr that the Lessor distrained and sold the distress for the Rent by the assent of the Defendant 2 Rich. 2. Debt 235. for so he might do but not without his consent Payment in another County a good barr without saying more 22 Hen. 6.36 pl. 1.34 Hen. 6.17 B. Moyle 9 Hen. 5.2 pl. 6. 11 Hen. 7.4 pl. 16. 1 Hen. 5.6 7. 20 Hen. 6.16 B. 22 Hen. 6.35 pl. 53. for the payment is the substance and the place it not traversable For otherways it shall
tamen For it may be more certain It lies not of a piece of ground called Michels piece Trin. 38 Eliz. Ban. Regis Rot. 450. Palmer Humphreys for that is incertain both in the quantity and quality and other Lands may be called of the same name and so that makes no certainty in it It lies not of a virge of Land 38 Eliz. Rot. 453. Mell versus Moor for that may be incertain and may differ in respect of the place The Count Generally If it be of a Lease made by a Bishop Bishop it ought to count upon the Deed No. Lib. Intr. 186. D. Sect. 2. and set it forth because it is not an ordinary Lease whereof the Law takes notice But if it be of a Lease made by the husband and wife Husband and wife he needs not count that it was by Indenture Lib. Intra 252. C. Sect. 8. Coke 2. part 61. B. Wiscots case but it sufficeth to say that they lett and the Law will supply the rest If it be of a Lease made by a Person tunc adâ—uc seized of the Reversion Person it is good without averring of the life of the person 13 14 Eliz. Dyer 304. pl. 52. for the Lease is good whether he be alive or not If the Account be of a Lease made by three where two have nothing in it it is not good although they all joyned in the Lease for they could not all lett but contrary if he count by him only that hath right per Williams Crooke Mich. 10 Jac. Ban. Regis Longs case for he did only in truth lett though the others joyned A Lease to commence at Michaelmas next after the death of A Lease the Count ought to shew that A is dead 1 Mariae Dyer 97. pl. 46. fol. 89. 19 Eliz. Dyer 357. pl. 46. for else the Plaintiff shews no title but shews matter against himself The Plaintiff Counts that A demised to him per Indenture dated 27 Martii Demise 11 Jac. primum delibat 10. decimo Aprilis eodem anno for 21 years from Michaelmas next before and the Ejectment 12 Aprilis this is good though the year be mistaken or he may Count that by Indenture dated 27 Martii primum delibat 10 Aprilis Mich. 11 Jac. Ban. Regis Michels case which is more plain and certain The Count upon the Imparlance Roll was upon a Lease made 10. of December 10 Jac. and upon the Plea-roll it was upon a Lease made 30 Januarii 10 Jac. babendum from the 20. of Decomber before this is not good Hill 14 Jac. Milward Wats Ban. Regis for it cannot be the same Lease upon which he counted so there is no certainty in the pleading to which the Defendant may answer The Count was that J. S. was seized and so seised leased to the Plaintiff 9 Eliz. Dyer 258. pl. 16. Com. 416. A. Bracebridges case Com. 187. A. Adams case Com. 223. B. Barkleys case Com. 530. B. Howel Crosts case here is a good colour of a Title to his Lessor and to his own Lease But 14 Eliz. Dyer 340. pl. 57. he doth not count of the seisin Coke 11. part 3. B. Coke 3. part 16. A. Borastons case Coke 3. part 45. Browns case Coke 4. part 96. A. Lamberts case Com. 459. B. Studs case Com. 504. B. Snowes case but only declares upon a Lease made unto him by the Lessâ—r and it seems good enough The Writ In Wales it may be by plaint without an original Writ for this action is out of the Statute 26 Hen. 8. cap. 6. Hill 36 Eliz. Ban. Regis 610. Griffin â—â—â—sus Eliot Wilkins and is there still as it was 〈◊〉 the Common Law It is Vi armis 1 Hen. 5.3 Coke 9. part 78. 1. Petoes case 21 Edw. 4. pl. 1. Choke which alâ—â—ys supposeth breach of the publick Peace But Hill 36 Eliz. Ban. Regis Rott 610. Griffin â—â—â—sus Eliot Wilkins in Error that it may be without Vi armis 7 Hen. 6.4 17 Edw. 3.1 It â—â—â—ms it was so held because the Defendant might â—â—â—er by colour of title to the Land Fuit ad terminum qui nondum praeteriit 2 Marie Dyer 116. pl. 71. but there 's not the certainty of the time for that is not material Et est pone per vad salvos pleg 21 Edw. 4.10 〈◊〉 1. 31. pl. 25. Brian that is the taking of bail It may be bonis catallis Com. 228. B. Lib. Intra 252. B. Sect. 7 8. Although Regist orig 227. B. says to the contrary Quaere ergo But it may be without it Com. 229. A. 199. A. Adams case The Process 1. before 2. after appearance The Process is Attach and Distress and Process of Outlawry Nat. br 220. H. 35 Hen. 6.6 per Wangford Moyl Com. 228. B. Coke 9. part 78 A. Peytoes case Attachment against the person Distress against the goods Outlawry against person and goods and lands The last Process in Law is the strictest and most severe The Barr. Accord with satisfaction a good barr Accord Coke 〈◊〉 part 78. A. Petoyes case because it is but in the nature of a Trespass for here is no land in question but only a possession Duress a good barr Duress Lib. Intra 253. B. sect 10. viz. that the Plaintiff gained the Lease by distess for the Law hates fraud and force and will protect no person in them Non ejecit a good barr Ejecit si bona catalla are not in the Writ 7 Edw. 6.89 pl. 111. 19 Hen. 6.56 for that is a barr only as to the Land for a man cannot be properly said to be ejected out of goods Quaere But if such words be in quaere whether it be good It is a good barr Entry that the Lessor had it but in right of his wife and he entered after the death of the Lessor in right of his wife Lib. Intra 252. D. sect 8. That he surrendred before the Action brought Surrender quod non ejecit a good barr 21 Edw. 4.10 pl. 1.30 pl. 25. Q. if there should not be a traverler it seems it needs not The Judgment The judgment shall be quod recuperet against â—â—e Defendant terminum suum praedictum venturum 〈◊〉 in c. ac dampua sua occasione c. quod â—â—â—end capiatur this supposeth a Vi armis 〈◊〉 â—liz Dyer 258. pl. 16. 7 Edw. 6. Dyer 89. pl. 109. 〈◊〉 420. A. Bracebridges case 5â—5 Snowes case 〈◊〉 Intra 253. A. sect 8.256 C. sect 13.259 C. 〈◊〉 15. No. Lib. Intr. 188. A. pl. 7. â—03 A. Sect. 8. 〈◊〉 D. Sect. 11.216 B. Sect. 13. Com. 526. A. â—â—â—nthams case But note this is when the term is not ended Note 〈◊〉 9. part 80. A. Peytoes case 4. part 104. Lamâ—â—s case Nat. br 220. H. 7 Edw. 4.6 13 Hen 7. 〈◊〉 B. Wood for if the term be ended then there 〈◊〉 to term to come to
passed with the Mannor by the Feoffment But 33 Hen. 6.33 Prisot to the contrary for there it is said that until Recovery the Disseisee shall not have the Advowson Q. Disseisor dies seized of a Mannor to which the Advowson belongs the Disseisee shall not have a Quare Impedit 24 Hen. 8. Dyer 5. pl. 6. 33 Hen. 6.33 B. vide 19 Hen. 6.33 in respect of the descent which takes away his entry into the Mannor and so he must recover the Mannor before he can have the Advowson But if it void in the time of the Disseisor the Disseisee shall have it although the Disseisor died seized afterwards of the Mannor to which c. 24 Hen. 8. Dyer 5. pl. 6. for there was no descent barr when the Church became void and so it was a Chattel vested A Disseisor suffers a Usurpation Disseisee enters into the Mannor Disseisee shall have a Quare Impedit Nat. br 36. F. 14 Hen. 6.14 3 Hen. 4.7 for the usurpation is defeated by the entry of the Disseisee Executor of the King shall not have a Quare Impedit Executor but the Successor of the King for this is a Chattel Royal 7 Hen. 4.25 pl. 3. 1 Edw. 3.17 pl. 8. 5 Edw. 3.149 pl. 15. which shall not go to an Executor for it is vested in the Crown Executor of a Common person shall have a presentment to a Church which was void in the time of the Testator although the Testator were but Tenant in tail Nat. br 33. P V. because it was a Chattel vested in the Testator Although the Heir be in ward to the King Nat br 33. R. for the King in respect of the Wardship shall not be in a better condition than the Heir should have been if he had been at full age at the death of his Ancestor If one recover in a Quare Impedit and die the Heir shall not have execution but the Executors 9 Hen. 6.57 A. Rolfe for the recovery made it a Chattel vested in the Testator At the Common Law the Infant was bound by suffering an Usurpation Enfant 35 Hen. 6.6 that is to suffer one to present in his stead 31 Edw. 3. Quare Impedit 186. 10 Edw. 2. Quare Impedit 43. for the Common Law respects the Churches good before Infants Widows or Orphans although it be tender of all But at this day he is not per Westm 2. cap. 5. The Law before seemed too hard against Infants who may be presumed not conusant of the Law and ignorant of his title Unless he be a Purchaser 10 Edw. 2. Qu. Imped 43. 35 Hen. 6.60 Nat. br 31 34. It seems he is not within the Statute He may if a Purchaser be presumed not so well conusant of his title as if he had it by descent Or that the party that usurps be remitted to an eigne title Nat. br 35. M. for then the presentation did not belong to the Infant If he suffer Usurpation having it by descent he is bound till full age 16 Edw. 3.9 Quare Impedit 62. for he shall be judged better conusant of such estate than of a purchased estate and he might have presented himself And if in his minority he suffer Usurpation and at full age enfeoff B of the Mannor to which c. yet B shall not be in Nat. br 34. X. because it was out of the Feoffor at the time of the Feoffment and so it passeth not But by 16 Edw. 3. Quare Impedit 67. Coke 6. part Boswels case the Infant is also bound in all these cases Q. Feme Covert The Usurpation at the Common Law shall bind a Woman Covert 35 Hen. 6.6 Prisot 31 Edw. 3. Quare Impedit 180. 10 Edw. 2. Quare Imped 43. vid. antea The husband suffers an Usurpation where the Woman is the purchaser she shall not have a Quare Impedit but the husband but if she had it by descent she shall have the next turn per Westm 2. cap. 5. Nat. br 34 S. to present The husband discontinues one Acre of his wives Mannor to which an Advowson is appendant with the Advowson the wife may not present unless after the Alience sever the Advowson from the Acre Nat. br 32. 17 Edw. 3.5 pl. 12. for then the Advowson is not appendant to any thing Feoffee or Grantee 1. of the King 2. of another The King grants the Advowson in Fee the Church being void the Grantee presents Nat. br 33. N. for the grant shall be taken most beneficially for the Grantee But this is intended when the King hath but one Title to the Advowson 10 Eliz. Dyer 269. pl. 19. 9 Edw. 3.26 Stamford Praerogat 44. 16 Hen. 7.7 18 Edw. 3.22 A. Pole for if he have two the Grant shall not be taken to two intents For if he had two Titles the Grantee shall not present 13 Eliz. Dyer 300. pl. 36. 18 Eliz. Dyer 300. pl. 36 Eliz. Dyer 348. pl. 12. for it is incertain which Title was granted nor can be known with what Title he presents But 9 Edw. 3.348 pl. 24. the orders of the Templers were dissolved the Church belonging to them to present to voids and after the Advowsons c. appendant to their mannors were given to the Hospitallers per Parliament the King shall not have the presentation for here the King had but one Title and also acts of grace shall be construed largely against the King A Common person grants the Advowson in Fee when the Church was void the Grantee shall not have the presentation because it is a thing in action 11 Hen. 4.54 which lies not in grant but may pass by Act of Parliament So of a Feoffment of Land to which an Advowson is appendant 24 Eliz. Staffords case the Church being void at the time of making of the Feoffment But if the Feoffment be upon condition and the Church becomes void and afterwards the Feoffor enters for the Condition broken the Feoffee shall present because it is a Chattel vested in him 24 Edw. 3. before the entry of the Feoffor If there be a Feoffment of the third part of a Mannor the Feoffee shall not have the third presentment 6 Edw. 3.215 A. for the Advowson is not appendant to it for it cannot be appendant by parcels Unless it be with three presentments 9 Edw. 3.341 pl. 31. viz. where three present to the Advowson by turn Q. Grantee of the next Avoidance shall have a Quare Impedit 39 Hen. 6. Quare Imp. 95. for he hath a good Title to present hac vice The Count Lib. Intra 520. D. And if the Grantee of a Mannor to which an Advowson is appendant levies a Fine of the Advowson yet this puts him not out of possession of the Advowson 19 Edw. 3. Quare Imped 154. because it puts him not out of possession of the Mannor to which it appertains Grantee by Parliament suffers a usurpation this doth not put him out of possession 16 Hen. 7.8 Keble because he is in by
of all Coke 9. part 34. A. Bucknals case 21 Edw. 3.52 13 Edw. 3. Avowry 103.19 Edw. 2. Avowry 224.16 Edw. 4.11 pl. 11. for Escuage includes all the rest Tenure by Homage Fealty or Escuage or Suit of Court and other services and seisin is alledged of all he may traverse the seisin of Homage and Escuage 2 Edw. 3.21 pl. 4. because they include the rest Not seised within 40 years Not seised within 40 years is a good barr 32 Hen. 8. cap. 2. Coke 9. part 36. Bucknals case 14 Eliz. Dyer 315. pl. 101. for it is not likely if he had any right there would have been no seisin in so long time But he that pleads this ought first to confess a tenure to the intent that the Lord may have a Writ of Customes and Services 15 Rich. 2. Avowry 214. Coke 9. part 34. B. Bucknals case It seems the pleading so doth impliedly confess a tenure or at least doth not deny it But this is no plea in an Avowry for rent upon a grant or reservation by deed because the deed makes the Title Coke 8. part 65. A. Fosters case and not the seisin Or upon a gift in Tail because the commencement of the Estate is within the time of memory Coke 8. part 64. A. Fosters case 4. part 11. A. Bevills case Or if it be for casual services as homage fealty or to go to war because perchance it may not happen within 40 years Coke 4. part 10.11 Bevills case and so there could be no seisin of it So if the Lord release to the Tenant so long as A hath heirs of his body because A may have heirs a long time after Coke 4. part 11. A. Bevilis case So if Land be conveyed to a Major and Commonality which was held by homage and fealty which conveys this over this is no plea because the Major and Commonalty cannot do homage or fealty Coke 4. part 11. A. Bevills case for that must be done by one single person and not by a body politick consisting of multitudes Note 1. The Issue in tail shall avoid seisin by the hands of the Tenant in tail Seisin avoided in Avowry Coke 9. part 34. A. Bucknalls case 34 Edw. 3. Avowry 131. for he comes in by the Donor But this is intended when the Tenant of the Lord makes a gift in Tail the remainder in Fee for the Tenant in tail shall himself avoid the encroachment and seisin made between by the Donor because he ought to shew the commencement of the reservation Coke 8. part 65. A. Fosters case 10. part 108. Lofields case 2. Successor of a Bishop shall avoid seisin beâ—â—en by the hands of the predecessor Coke 9. 〈◊〉 34. A. for the predecessors act shall not bind â—im 3. Veray Tenant of the land if he have deed â—od shew the contrary Coke 9. part 34. A. 10 Hen. â— 11 Nat. br 163. C. 22 Hen. 6.5 4 Edw. 2. â—â—vry 201 202. shall avoid seisin 4. Encroachment of seisin is not material there is no tenure Coke 9. part 34. B. Bucknalls â—se for the tenure is the ground of the seisin 5. Such seisin shall be avoided because it was 〈◊〉 coercion of distress Coke 9. part 34. B. Buckâ—nllâ— case 12 Edw. 4.7 pl. 18. 8 Hen. 6.18 pl. 1. â—â— Edw. 3.4 pl. 8. and not voluntarily rendred 〈◊〉 is in the nature of a thing obtained by Duress 6. If rent be payable at one day in a year and the Lord encroacheth seisin upon two days of the year this being involuntary yet shall be avoided is an Avowry for this that they agree in the â—â—â—ual sum Coke 9. part 34. B. Bucknalls case â—ide 21 Edw. 4.64 pl. 36 fol. 84. pl. 39. and the â—â—me is only in question and the Lord is not lessened in the rent Tenure In an Avowry the seisin is traversable and not the tenure Crooke 13 Hen. 7.31 B. for without seisin the Avowry is not issuable 1. When the Lord varies in avowing of the â—erity of the quantity of the services by colour of seisin the tenure shall be traversed Coke 9. part 33. A. Bucknals case 10 Hen. 7.11 pl. 31. Com 94. Mantels case Crooke 13 Hen. 7.31 B. â—iz he may say that he holds not by so much â—â—nt or so many services But then the Tenant ought to confess the Tenure in part for he needs not traverse all the tenure as to say that he holds not of him but he may disclaim or plead out of his fee Coke 9. part 35. A. Bucknals case 10 Hen. 6.6 7. pl. 20. 37 Hen. 6.25 pl. 13. 15 Rich. 2. Avowry 214. as to part But note 11 Hen. 4.10 pl. 22. the Tenant said that the Avowant did give the Lordship to A in tail the remainder to B in tail and that A died without issue B yet living there he needs not suffer a Disclaimer or plead out of his fee but there fol. 7. pl. 40. he had judgment of the Avowry and admitted good 2. When they agree in the quantity of the Services and vary in the quantity of the Land there the Plaintiff may traverse absque hoc that he held modo forma or say that he held one Acre only Coke 9. part 35. B. Bucknals case 20 Hen. 6.20 21. And so one may avow severally where it is a joynt Tenure or to the contrary Coke 9. part 35. B. Bucknals case 9 Hen. 6.26 pl. 24. 2. Edw. 3.34 pl. 19. But if he vary in the quantity of the Land and of the Services he may not confess the Tenure according to the verity of the case but may traverse mode forma or say he held one only Coke 9. part 35. A B. Bucknals case 5 Hen 5.4 3. When one distrains for fealty rent and suit of Court and alledges seisin in all and avows for rent the Tenant may confess that he held by fealty and rent and plead as to the rent nothing arrear without that that he held by fealty rent â—nd suit modo forma as is alledged and good â—â—d if upon Issue joyned it be found that he â—eld by fealty and rent and not suit although that â—he Avowry be for rent yet insomuch that the tenure alledged by the Avowant was traversed and found against him Judgment shall be given against the Avowant for in vain shall he make this traversable and yet that he should have the return when it is found against him Coke 9. part 35 36. Bucknals case Tender of Homage ought to be to the person of the Lord Tender ubicunque fuerit infra regnum proper reverentiam Bracton lib. 2. fol. 80. A. quaere for this may be prejudicial to the Tenant Judgment If the Plaintiff counts upon a Detainer and the Defendant appears and makes default the other shall have Judgment for dammages and costs and also for the value of the Cattel Nat. br 69. L. No. Lib. Intra 610. C. Sect. 20. for by the default he confesseth the tort
br 87 H. Regist orig 95. A. for the dammages do concern the Husband 21 Hen. 6.30 pl. 16. Lib. Intr. 6.50 C. Sect. 3. and the Count shall be bona catalla of the wife 7 Hen. 7.2 vide 14 Eliz. Dyer 305. pl. 59. the Count Lib. Intra 650. C. Sect. 3. Husband and wife may joyn in Trespass for the beating of the wife 46 Edw. 3.3 pl. 5. 22 Assize 60 87. Regist 105. B. Lib. Intra 612 668. C. Sect. 4. for he is damnified by it as well as his wife viz. by losing his labour and society So for imprisonment of the Wife Coke 5. part 59. A. Fosters case for the same reason But if they joyn for battery of both this abates for the battery of the Husband 9 Edw. 4.54 3 Edw. 3. brev 737. For the battery of the Husband is not the battery of the Wife and so as to that she hath no cause of Action And if they brought a Trespass for beating and taking away of Goods during the coverture thé Writ shall say de bonis of the Husband for the Wife cannot have a property during the coverture Regist orig 105. B. And if the Husband and Wife are beaten they shall have several Actions Regist orig 105. in the Note quia transgressio personalis ought to be brought only by the person injured Trespass quare domum suam fregit maremium iude asportavit c. being the house of the Wife is good by the Husband alone because he may pull it down and sell it 43 Edw. 3.16 pl. 15 fol. 26. pl. 6. Q. It seems so because he cannot be sued for it during the coverture So for entring and chasing and carrying away of the Deer in a Park although the Wife had a joint Estate with her Husband yet it is a personal thing in the Husband 43 Edw. 3.8 pl. 23. So for Deeds concerning the Land of the Wife 8 Hen. 5.9 pl. 13. For Deeds are Chattels though they concern the Realty So in trespass upon the Statute of 5 Richard 2. cap. 7. because he only shall have dammages 38 Hen. 6.3 pl. 9.4 Edw. 4.13 if he recover So for taking away of his Wife and his Goods Nat. br 89. O. 14 Hen. 6.2 pl. 11. 6 Edw. 3.208 pl. 2. 43 Edw. 3.23 pl. 15. 44 Assize pl. 13. Regist orig 97. A. for this is given by Westm 1. cap. 12. Westm 2. cap. 34. It seems this Statute was but in affirmance of the common Law Quando breve fertur ab aliquibus ad liberum tenementum annexis fiat in nomine amborum Nota. sed si sit de rebus libero tenemento non annexis in nomine viri tantum sed si sit de domo fracta sit in nomine amborum sed alii Clerici dicunt quod fiat in nomine viri tantum Regist orig 108. B. This is when trespass is brought concerning House and Lands of the Wife being covert Vide tamen in nomine amborum de clauso fracto bona c. Lib. intra 640. B. sect 4. fol. 662. D. sect 21 Rich. 2. brev 933. Q. Chaplain of a Chappel The King collates and the Sheriff puts him in who is collated he shall have trespass Nat. br 37. D. if the Trespass be done after he be put in A Commoner shall not have Trespass for any thing in the Land Commoner viz. the soil of a Common 4 Hen. 7.3 15 Hen. 7.13 pl. 1. fol. 12. pl. 23. For he hath only an interest in the Herbage Q. tamen He that hath not soil A lets Land to B for to sow and A to have the Moiety of the Corn yet B cannot have trespass Quare clausum fregit against him for wasting of the Corn for he hath interest in the whole Crop Hill 30 Eliz. Hâ—re versus Oakley And although this was not pleaded in abatement yet the special matter being found the Plaintiff shall not have judgment because it appears to the Court they cannot be disjoined to have an action in such form For they are upon the matter joint-tenants of the Land He to whose use He to whose use shall not have Trespass in his own name but in the name of the Feoffees Crooke 17 Hen. 7.41 pl. 2. For the Estate in Law is in them A Copy-holder shall have trespass for the breaking his Close and cutting his Trees Copy-holder 2 Hen. 8.4.12 Coke 4. part 21. B. No. Lib. intra 644. C. sect 3. the pleadings For he hath an interest in both to some purposes He shall have it against the Lord 20 Edw. 3. â—0 Coke 4. part 22. A. For the Lord in this â—espect is in no better condition than a stranger Disseisee shall have Trespass for the mean profits Disseisee and all other things after his re-entry Coke 11. part 51. A. Liffords case 3 Hen. 4.13 pl. 18. Gascoigne 37 H. 6.7 pl. 13. but not before because then he had no interest in the Land but a bare right But before his entry he shall not have Trespass 32 Hen. 6.32 A. 38 Hen. 6.28 A. Fortescue viz. against one that entred before he was disscised Q. Unless in case of necessity as Tenant for the Life of another is disseized and he for whose life he hath it dies or Tenant for years is outed and the years expire they shall have Trespass asore the entry and recover the mean profits 38 Hen. 6.28 B. Where there is a necessity the Law doth give way to usual things rather than there should be a failure of Justice An Executor shall have Trespass for Goods taken out of the possession of the Testator Executor Nat. Br. 87. E. Regist 98. A. in respect of his interest by his Executorship And the Writ shall not say ad grave damnum neque in retardationem executionis testamenti Regist orig 98. A. the Count Lib. intra 640. A. sect 2. But this was given by the Stat. of 4 Edw. 3. cap. 6. 14 Hen. 7.13 And at this day an Executor of an Executor shall have such an Action Regist 98. A. the rule there it seems upon the equity of the former Statute But he should not have had it before 25 Edw. 3. viz. at the Common Law cap. 5. Com. 290. A. Chapmans case But an Executor shall not have such Action De clauso fracto 11 Hen. 4.3 pl. 8. 4 Edw. 4.8 A. Catesby viz. in vita Testatoris for this is not within the Statute Neque de Arboribus succisis tempore Testatoris 18 Edw. 4.16 A. Pigott Nor this and so both are left at the Common Law An Executor shall not have Trespass before probate of the Will unless it be for a thing taken out of his own possession Com. 281. Q. rationem differentiae One Executor shall have Trespass for a thing taken out of his possession with his companion 42 Edw. 3.26 pl. 12. 2 Rich. 2. Executor 75. For Executors are but as one person in Law or he
may bring it alone But the 19 Hen. 6.65 to the contrary Q. Executor shall have Trespass de bonis Testatoris â—sportatis in custodia sua exten Regist orig 94. A. 2 Hen. 7.15 6 Edw. 4.1 and good for they are accounted the Testators though to be disposed of by the Executor in performance of the will A. takes Administration of the Goods of B C proves a Will by which he was made Executor and brought Trespass against A for the Goods it lies although the Administration was not repealed for the Administration was void from the beginning Mich. 12. Jac. Ban. Regis Fisher Young because there was a Will made An Executor shall have Trespass against the lessor which outs him during the Term Regist rig 102. B. if he have a Lease parol Q. if by Deeds whether he ought not to bring an Action of Recovery If the Lessor outs the Executor of the Lessee the Writ shall be Summon per bonos summonit c. but if he outs him and takes the Goods of the Lessor within the Land the Writ shall be pone per vad c. Regist orig 102. B. in the Note and this is in respect of the dammages he is to answer for taking the Goods Trespass lieth by a Goaler against one that takes 〈◊〉 prisoner from him Goaler for the Gaoler is liable for the person but a good bar that he is not Goaler because it is the ground of the Action 4 Edw. 4.6 pl. 7. fol. 44. pl. ult Church-wardens shall have Trespass for the Goods of the Church taken in their time Church-wardens or in the time of their Predecessors Nat. br 91. K. 8 Edw. 4.6 pl. 5. 12 Hen. 7.27 pl. 7. 11 Hen. 4.12 8 Hen. 5.4 37 Hen. 6.30 10 Hen. 7.9 pl. 5. For they are intrusted with them to the use of the Parishioners But they shall count ad damnum parocbianorum 8 Edw. 4.6 pl. 12 Hen. 7.27 pl. 7. For the Goods are the Parishioners and the Church-warden is interested in their right and is accountable unto them But a good plea that he is not Churchwarden 4 Edw. 4.7 A. For that destroys the supposal of the Writ But 19 Hen. 6.66 says that it is not good for Goods in the time of their Predecessors Q. yet the Law seems to be otherwise else the parishioners might be damnified Trespass for making a Grant of Rent in see taken to the use of the Parochians Lib. intra 7. D. Q. Heir Ravishment Every Ancestor male or female shall have Trespass for ravishing of his or her Heir apparent against a stranger but not against the Gardein in Chivalry unless the Father only Coke 3. part 38. B. Ratcliffs case Nat. br 143. R. 30. Edw. 6. pl. 7. fol. 16. pl. 19. Regist orig 98. B. 99. A. and the Mother for the education of the Heir doth properly belong to the Father and Mother A man shall have Trespass for his Son and Heir Daughter and Heir taken away Nat. br 98. H. 29 Assize 35. 21 Hen. 6.14 pl. 29.12 Hen. 4.16 pl. 9. 3 Edw. 4.12 B. Danby For it is an injury to the Parents to lose the comfort of the Child especially the eldest And this of what age soever his Son be 32 Edw. 3. Gard. 32. though the dammage may be greater or less in regard of the Age. A Grantee of Herbage of Land shall have Trespass Grantee quare clausum fregit for the Grass but not for the other profits of the Land as Fruit-trees and the like 11 Eliz. Dyer 285 pl. 40. 3 Hen. 16. 13. A. 5. Hen. 7.10 B. For he hath nothing but the Herbage granted unto him The Heir shall have Trespass for taking of a Deed concerning Land to him descended Heir and it is good although he doth not say scriptum suum because of necessity it must belong to him 1 Edw. 3.18 pl. 11. For it goes along with the inheritance But not against an Executor that taketh a Box with Deeds 1. Because the Box appertaineth to him 2. He had not knowledge what was in the Box. 3. The Heir hath other remedy against him scilicet a Detinue 43 Edw. 3.24 pl. 3. because the Box and Deeds come to him in a lawful way though he cannot justifie the detaining But it lies against an Executor for taking away a Furnace fixed or Fatts fixed to the Free-hold or Pales fastned Windows Doors Evidences loose 21 Hen. 7.26 pl. 4. because they all belong to the Free-hold as part of it It lies for an Heir against an Executor for taking Fishes out of a Pond Mich. 36 Eliz. Ban. Regis Rot. 25. Parlett versus Gray Crooke 118 pl. 60. For they belong to the soil viz. the Land covered with Water which makes the Pond So for Deer or Pigeons vide Assize 27. pl. 29. but not tame Deer or tame Pigeons the out is as it were an Inheritance the other a Chattel The Lessor excepts the Trees Lessor he shall have Trespass quare clausum fregit 14 Hen. 8.1 28 Hen. 8. Dyer 19. pl. 48. 46 Edw. 3.22 pl. 3. Coke 8. part 63. A. Swaynes case against the Lessor if he cut them down A Lessor at Will shall not have Trespass although he determines his Will until he enters Crooke 3. Hen. 8.163 pl. 4. For before he hath no Title A enters upon Tenant at Will and subverts the soil he shall have one Action and the Lessor another 19 Hen. 6.45 pl. 94. so of a Copy-holder and Lord 2 Hen. 4.12 Coke 4. part 31. A. For as they are both damnified so it is reason they should both have recompence Lessee cuts Trees to the intent to repair Lessee the Lessor takes them the Lessee shall have Trespass 44 Edw. 3.44 for the dammage done him in causing him to lose his labour in cutting of them A stranger cuts Trees the Lessee shall have Trespass and shall recover treble dammages Doct. Stud. 34. A. 23 Hen. 8. Br. wast 138. 44 Hen. 8.26 because the Lessor shall recover so much of the Lessee in respect of the Waste But if the Lessor dies the Lessee shall recover but single dammages 44 Edw. 3.26 Crooke 3 Hen. 8.163 pl. 4. because no more shall be recovered against him by the Heir 1. If the Servant be beat Master the Master shall have Trespass Nat. br 91. I. Regist orig 102. A. 8 Hen. 6.28 19 Hen. 6.35 pl. 73. although he be but a servant at will 21 Hen. 6.9 A. Newton vide 11 Hen. 4.2.2 For the beating of the Servant is a dammage to the Master and the Servant may also have this Action 2. For taking away his Apprentice Nat. br 91. I. 8 Hen. 6.28 21 Hen. 6.31 pl. 18. whereby he loseth his service 3. The Lord of a Villain shall have Trespass 22 Hen. 6.30.32 for taking away his Villain or beating him as it seems The Ordinary shall have it for a thing taken out of his possession Ordinary Nat. br 91. M. 18
the herbage of a Forest shall â—ave Trespass quare clausum fregit Forest against any that takes the grass 11 Eliz. Dyer 285. pl. 40. in respect nf his interest by virtue of his grant For entring his Chase Chase 42 Edw. 3.2 pl. 8. 43 â—dw 3. fol. 8. pl. 23. 43 Edw. 3.8 pl. 23. for â—â—ereby his game is disturbed He needs not shew how he came to the Chase â—2 Edw. 3.2 pl. 8. 43 Edw. 3.8 pl. 23. for the Title of the Chase it may be will not come 〈◊〉 question For hunting in his Chase the Count Lib. â—â—tra 650. C. Sect. 1. hunting and disturbing his â—ame For fishing in his pond Pond Regist orig 95. B. Nat. br 87. A. and taking his Fish For breaking his Pond by which the water and fish went out Nat. br 87. L. For carrying away his Tithes Tithes being severed from the Ninth part No. Lib. Intra 686. C. Sect. 23. the Count No. Lib. Intr. 678. B C. vide Stat. 2 Edw. 6. But before this Statute an Action of Trespass lay at the Common Law For hindring the Parson to carry away his Tithes Regist orig 105. A. for thereby he is damnified in his loss of time besides what other loss might befal Trees Inheritance For cutting his Trees where one had the Land and the other the Trees Crooke 12 Hen. 7.16 B. Vavisour Coke 8. part 137. B. Barringtons case Coke 11. part 49. B. Lyffores case and he that had the Land cuts the Trees For fishing in his severed water Fishing Regist orig 96. A B. 109. in fine Nat. br 87. G. 89. B. The Count Lib. Intra 666. A. For hindring his free Fishing Regist 95. B. Nat. br 88. G. It is severed Fishing that a man hath in his own Land and free in the Land of another 17 Edw. 4.7 pl. 5. per 2 Justices For entring his Warren Warren Regist orig 93. B. 96. B. 109. B. 110. A. Nat. br 86. M. 5 Hen. 7.10 B. 3 Hen. 6.55 B. 34 Hen. 6.20 pl. 9. Nat. br 89. K. to take destroy or disturb his game The Writ shall not say Lepores suos because he hath not a property in them 3 Hen. 6.55 pl. 34. Regist orig 109. B. 96. B. And for this cause he shall not say pretii or 〈◊〉 valentiam 8 Edw. 4.5 pl. 16. Lakin but leave 〈◊〉 to the Jury to consider of the dammages The Count Lib. Intra 650. C. Sect. 2 3. For breaking his Warren and carrying away his Conies 5 Edw. 53 54. For taking away his Swans Swans Coke 7. part 16 17. 〈◊〉 Hen. 6.27 For disturbing him to take toll in a Fair or Market or other place Toll Regist orig 103. A. Nat. â—91 G. But if he be disturbed in a Market or Fair he â—â—â—ght to shew the place 2 Edw. 3.32 pl. 9. beâ—ause it is traversable If a Miller take toll of them that are Tollâ—â—e it lies 41 Edw. 3.24 pl. 17. 44 Edw. 3.20 pl. 16. vid. antea for this is encroaching upon the â—â—iviledge of another to his dammage For taking a Wreck of the Sea Wreck Regist orig 103. A. 5 Edw. 3.174 pl. 91. without seisure Nat. br 91. D. for he who claims the right in it ought to seize it that the right may come in question if it be disputable For taking a Waif Waif Regist orig 100. A. B. without seisure Nat. br 91. B. for the same reason as it seems But quaere 16 Eliz. Dyer 338. pl. 40. for the 11 Edw. 4.16 pl. 7. it seems he may not Q. For taking an Estray Estray Regist orig 100. B. the Count Lib. Intr. 638. B. sect 1. Without seisure Nat. br 91. B. as before Tamen quaere for the 12 Hen. 8.10 è contra quaere 20 Hen. 7.1 Q. The Count Lib. Intra 638. B. Sect. 1. is without seizure and by that it seems there needs no seizure Q. Felons goods For taking Felons goods Regist orig 101. A. which belong not to him Felons goods within a Hundred where the Lord hath Felons goods if the Sheriff takes them the Lord shall have Trespass Nat. br 91. F. for the Sheriff hath no warrant to take them Fair or Market For disturbing a Fair or Market Regist orig 103. A B. for this is to the prejudice of the Lord thereof For breaking and hindring of the Foldage of the Lord Frank-foldage Regist orig 103. A. Nat. br 91. H. Chattels Real Competit etiam Domino actio indirecta quatenus sua interfuit non caruisse servitiis famulorum operibus servorum hujusmodi Bracton Lib. 3. fol. 115. A. For taking away his Son and Heir and marrying him Son Nat. br 90. H. 29 Assize 35. 3 Edw. 4.12 B. Danby 21 Hen. 6.14 pl. 29. Nat. br 143. R. for this is to the prejudice of his Family The Writ is quare filium baeredem and yet he is not heir during his life 8 Edw. 3.2 Trespass 235. The Law intends it is meant filium haeredem suum apparentem For taking away his Daughter and marrying her Daughter Regist orig 98. B. for thereby he loseth his Fatherly interest in his Child Heir Heir Regist orig 99. A. Coke 3. part 38. Ratcliffs case 12 Hen. 4.16 pl. 9. Consanguineum baeredem suum rapuit Nat. br 143. R. 30 Edw. 3.6 pl. 7. fol. 16. pl. 19. And needs not mention that he is within age because he shall have his marriage c. 32 Edw. 3. Gard 32. be he within Age or not For taking away a woman cum bonis viri Woman upon the Statute of Westm 2. cap. 34. Nat. br 89. O. 6 Edw. 3.208 pl. 2. 14 Hen. 6.2 pl. 11. the Count Lib. Intra 662. C. sect 1. And this lies although they are divorced before the Action brought if the Trespass was done before and also in respect of the goods taken away which belong to the Husband notwithstanding the divorce 43 Edw. 3.23 pl. 154 Assize pl. 13. For Assault Battery and Wounding the Count Battery Lib. Intra 668. C. Sect. 4. For Imprisonment until fine be made Imprisâ—â—ment 6 Edw. 3.208 pl. 2. For threatning my Servant Servant per quod Servitium amisit Regist orig 94. B. for there is apparent dammage The Plaintiff needs not count upon the Retainer for the Law supposeth it and if he be not retained he may plead non culp 21 Hen. 6.31 pl. 18. 22 Hen. 6.30 B. 43. B. 31 Hen. 6.12 pl. 2. Assault and Battery of his Servant per quod Servitium amisit Regist orig 102. A. Nat. br 91. I. The Count Lib. Intra 613. B. Sect. 19.674 C. Sect. 1. he ought to say by which he lost his Service Coke 9. part 113. A. 18 Edw. 4.27 pl. 24. 2 Hen. 4.12 pl. 49. 20 Hen. 6.14 and there it was quod Servitium amisit and good without this word per for quod implies it without per he beat him
because it is there Cattel or Goods The Count was of taking in one County 1 Eliz. Dyer 168. pl. 20. In this Action the place of the taking is material because the distance of the place of impounding makes the offence 7 Eliz. Dyer 238. pl. 33. But if Land in one County be held of a Mannor in another County the Distress belongs to the Mannor and may be impounded there in the Lords Pound 1 Hen. 6.3 pl. 9. 30 Edw. 3.6 Com. 204. B. 14 Edw. 3.275 22 Edw. 4.11 6 Hen. 3. Avowry 242. Crooke 18 Hen. 7.50 pl. 3. If the distress be put in several Pounds within the same County this is out of the Statute unless they are put in several Franchises otherwise the party needs not put in several Replevins Mich. 37 38 Eliz. Partridges case per Anderson because it is but as one impounding Trespass lies for Averia districta extra foedum upon Marlebridge cap. 15. Westm 1. cap. 16. Articuli Cleri cap. 9. Regist orig 97. B. Coke 8. part 60. B. Nat. br 90. A. Note Non dicitur simul in uno brevi Regia via extra foedum for there should be two Writs Regist orig 97. B. in nota In communi strato upon Marlebridge cap. 15. Regist orig 97. B. although that it be within his see 17 Edw. 3.43 pl. 31. Trespass lies Q. whether a common street or way be within the Lords see properly though it lie within his Mannor This Writ is contra pacem because against the Statute and not vi armis 17 Edw. 3.1 pl. 2. Q. For it is not against the common Law For excessive distress upon the Statute of Marlbridge cap. 4. Trespass lies Averia districta per Ballivum non jurat upon Westm 1. cap. 17. Averia Caruce upon the Statute 21 Edw. 1. Regist orig 97. B. Nat. br 90. B. 14 Eliz. Dyer 312. pl. 86. The Writ is contra pacem and not vi armis 17 Edw. 3.1 pl. 2. because upon the Statute The Count needs not shew that the Distress should be reasonable but shall say generally contra formam Satuti 14 Eliz 312. pl. 86. For that implies it is unreasonable This Action lies although that agreement be made 4 Edw. 3.1 pl. 2. For the Statute cannot be dispensed with by the agreement of the parties Oves districtas upon Statute 21 Edw. 1. Bracion fol. 217. Regist orig 97. B. Nat. br 90. B. But if there be not other Cattel on the Land at the day that the Lord comes to distrain he may distrain the Sheep 29 Edw. 3.16 pl. 48. else he should be without remedy Catalla districta quousque finem fecit Nat. br 87. C. The Law hates fraud and violence Averia impercata Impercata Catalla per quod terra remansit inculta Nat. br 88. J. viz. Beasts of the Plough which is against the common good Equo impercato mortuo sine alimento Regist orig 94. B. This must be of a private impounding or in a Pound close For if they die in a Pound overt the party had no remedy 46. Edw. 3.3 pl. 4. For he might have come to feed them But if it be a Pound close he shall have trespass 46 Edw. 3.3 if the Cattel die for he could not come to feed them Equo percusso Percussa Catalla the Count Lib. intra 614. A. sect 22. Equo percusso per quod the Master is hurt Regist orig 96. B. Nat. br 89. E. Q. whether a double Action lies not Oves tonsas Tonsa Catalla Regist orig 96. A. Nat. br 88. O Bracton Lib. 3. fol. 102. B. Si quis rem mobilem vendicaverit ex quacunque causa ablatam vel commodatam debet in Actione sua definire pretium sic proponere actionem suam quia ille à quo res petitur non tenetur praecisè ad rem restituendam sed sub disjunctione vel ad rem vel ad pretium The cause why the value must be expressed is here shewed The Writ for dead Cattel Chattels dead shall be Bona Catalla ad valentiam 21 Hen. 6.39 pl. 5. But if it be but one thing it shall not be Bona Catalla 22 Edw. 4.12 pl. 32. But shall name the thing it self Crooke 12 Hen. 7.35 pl. 1. The Writ for dead Cattel shall be Cepit asportavit ad valent Nat. br 88. B. 21 Hen. 6.39 pl. 5. For live Cattel cepit abduxit pretii Wool distrained until C and D oblige themselves to make deliverance Arrestata Wool 43 Edw. 3.6 pl. 18. the Writ is 1. Vi armis and good 2. Ad dampuum c. 3. The value is not shewed yet good because it is not in demand Arrested quousque commodum perdidit c. Regist orig 102. A. 105. A. Argentum cepit asportavit Capta asportata Regist orig 108. B. 110. A. Nat. br 87. M. 34 Hen. 6.10 pl. 21. 2 Edw. 4.26 shall not say pretii Regist orig 102. B. 108. B. For the Money comprehends the value Money 46 Edw. 3.16 pl. 12. per Moubray 46 Edw. 3.10 pl. 1. For Money out of a Chest the Count Lib. intra 614. A. sect 1. Auri tot Florenos there it shall be said pretii Regist orig 102. B. because they are outlandish Coin and not current in England Bona capta asportata the Count Lib. intra 615. D. sect 3.681 C. sect 3. If one puts his goods in my house and I will not deliver them Trespass lies not but a detinue Q for it was his folly to put them there Mich. 40 41 Eliz. com Ban. Briton versus the Countess of Shrewsbury but if I remove them or seize them to my use it lies for then I do in a sort dispose of them Carbones maritinos asportat Regist orig 94. Coles A. Nat. br 87. B. Plough Horse Carucam equos capt The Count Lib. intra 607. C. sect 1. Carucam capt ad cariand upon Westm â—1 cap. 1. Regist orig 98. A. For taking away Writings in a Box Writings Regist orig 110. B. 106. B. The Count Lib. intra 616. B. sect 1. For taking away Deeds Minuments and Writings Regist orig 111. A. For breaking open a Chest and taking away Deeds 36 Hen. 6.26 pl. 26. For taking away a Chest Regist orig 110. B. For taking away Hay Hay Regist orig 102. B. For taking away Frumentum Corn. the Writ was Bona Catalla and good 46 Edw. 3.16 pl. 12. For Frumentum is Chattels Timber and Wood capt asport the Count Timber Lib. intra 676. A. sect 7. Navem capt abduct Regist orig 95. Ship A. 102. B. Nat. br 87. I. viz. intra corpus Comitatus and not super altum mare Navem capt ad faciend cariag upon the Statute of Westm 1. cap. 1. Regist orig 98. A. Nat. br 90 C. Scriptum obligatorium delivered in nature of an Acquittance Obligation 5 Hen. 4.2 1 Hen. 7.14 3 Edw.
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