assets for it shall be intended unless the contrary be shewed 18 Eliz. Dyer 344. pl. 2. 11 Hen. 6.2 pl. 6. and if he have not he may plead riens per descent For nothing by descent in Fee-simple is a good bar by him Lib. Intra 172. B. Sect. 1. the day of the purchase of the Writ But debt lies not against an heir upon a Statute-Merchant Staple or Recognizance because he is not bound Coke 3. part 15. A. Harberts case but the Lands are bound and may be extended Goaler suffers an escape his heir shall not be charged 15 Eliz. Dyer 322. pl. 25. for this is a personal wrong and only dammages recoverable Grandfather Father and Son or Father and his two Sons or Grandfathers two Sons who have two Sons the heir mediate shall be sued in debt as well as if they were immediate heirs 22 Dyer 368. pl. 14.7 Eliz. Dyer 239. pl. 39. that is in case the heir immediate die for the heir mediate is bound by the word Heir A Right shall not be Assets for it is a disputable thing and no certainty of it to be reduced into possession What shall be Assets to the Heir Disselsee obliges him and his heirs and dies this is not Assets for it is but a Right descended Pasch 6. Jac. Com. Ban. Molineux versus Molineux for his Ancestor died out of possession Right without an estate in Possession Reversion or Remainder is not Assets until it be reduced into possession Coke 6. part 58. Bredimans cases and then it shall release to the time of the death of the Ancestor Land in ancient demesn shall be Assets 7 Hen. 4.14 pl. 11. Q. to whom and where pleadable Copyhold Land is not Assets to the heir Coke 4. part 22. A. for it doth not descend but depends upon the Lords admittance If an heir alien bona fide before the Action brought it shall not be Assets Coke 5. part 60. A. Gooches case 27 Edw. 3.78 pl. 16.10 Hen. 7.8 pl. 17. 19 Hen. 6.46 pl. 95. 42 Edw. 3.10 pl. 12. 48 Edw. 32. pl. 22. Vid. antea for he is not tied from sâ—lling the Land If Land descend to the heir although he enter not yet it is Assets 42 Edw. 3.10 pl. 12. for he might have entered and may do when he will the Grandfather makes a Fâ—offment in Fee to the use of the heir of his body and dies per 26 Hen. 8. the Father enters and obliges him and his heirs and dies quaere 182 Mariae Dyer 111. pl. 46. whether the Grandchild be bound A Reversion expectant upon an estate Tail is not Assets because it lies in the will of Tenant in tail to dock and barr it at his pleasure Coke 6. part 58. B. Bredimans case 42. A. Mildmays case Q. if it be Assets when it happens Franktenement descendible express is not Assets Coke 10. part 98. A. Seymors case for it is an incertain estate Rent-seck descendible is not Assets until seisin of it Coke 6. part B. Bredimans case for before seisin he hath no estate in it If the heir had Assets in debt brought against him and afterwards Assets come to his hands the first judgment is no barr of the Action 19 Hen. 6.37 A. Markham because there was no satisfaction made which may now be by matter ex post facto The profits taken by the heir at the time of the descent are sufficient and if this be shewed to the Court and the heir cannot deny it there shall be a general judgment against him per Dyer 18 Eliz Dyer 344. pl. 1. to pay the debt and dammages quod querens recuperet The heir confesses the action and says that he had nothing but a Reversion descended to him there the Plaintiff shall have judgment to recover upon the said Reversion and the Debt to be levied when it comes in possession and the Plaintiff shall have a special Writ of extent 23 Eliz. Dyer 373. pl. 14. mentioning the special matter If the Father recover and Error be brought against the Son and a recovery against him he shall not render dammages unless he hath Assets of Land in Fee-simple from his Father If one be robbed Hundred he shall have debt against the Hundred per 27 Eliz. cap. 13. antea Debt lies against a Lessee at will for rent during the Term Lessee Coke 5. part 10. antea Quaere if he hold over So against a Lessee for years Nat. br 120. H. And this during the term Coke 4. part Or after the term ended by effluction of time Coke 3. part 23. B. for rent due during the term By limitation ended By condition in Law or in deed Common Law Nat. br 120. H. Statute Law 19 Hen. 6.42 A. waste Nat. br 120. H. re-entry Coke 3. part 23. B. Walkers case 30 Edw. 3.7.17 Edw. 3.48 fol. 73. pl. 107. It lies not against Tenant for life so long as his estate continues Life Coke 4. part 49. A. 11 Hen. 6.14 pl. 4. viz. for rent for the Land is charged But yet by the Statute 32 Hen. 8. cap. 37. the Executors of a Lessor for life shall have debt during the estate for life Coke 4. part which seems but reasonable Debt lies not against the Master upon the buying of the Servant Master unless it comes to his use or by his assent Doct. Stud. 137. A. for otherwise it might be mischievous to the Master Debt lies against an Ordinary Ordinary when a man dies intestate Nat. br 120. D. Coke 5. part 83. A. Snellings case 9. part 39. B. 11 Hen. 7.12 9 Edw. 4.33 Danby 18 Hen. 6.23 com 277.8 Eliz. Dyer 247. if the goods come into the hands of the Ordinary The Ordinary administers and then grants Administration yet debt lies against the Ordinary but it was said that such Administration ought to be alledged in the Diocess of the Ordinary 12 Rich. 2. Administrator 21. else it might be prejudicial to the Creditors But note no Debt lies against the Ordinary after that he hath committed Administration to another 8 Eliz. Dyer 247. pl. 73. viz. where he never administers Debt was brought against the Father for the Sons Commons in a Colledge in Oxon although the Father had delivered it to the Tutor of the Son Pasch 9. Jac. Ban. Regis St. Johns in Oxford against Brickâ—nden for the Father and not the Tutor is hable yet quaere for this is not usually practised Debt lies against him that becomes pledge without deed Pledge Nat. br 122. K. 18 Edw. 3.13 pl. 7. Finchden if the principle pay it not A borrowed of B 20 l. to pay it at Michaelmas at which day D prays B to take him for his Debtor and he gives him day over and D obliges him to pay it by one Tally ensealed Debt lies not against D because A was not by this discharged 44 Edw. 3.21 pl. 23. and so he may recover one Debt twice if D should be chargeable A
contra Collow Q. If a man distrain for Services and the Tenant 〈◊〉 in Repleg brought by the Executors he shall â—â—fie but not avow 17 Edw. 3. Executors 106. the can make no title against them but he may â—â—ifie the taking Because he cannot have a return for the same thing against the Executors 22 Edw. 4.36 B. Collow If a man distrain for Services he may justifie or avow at his Election 15 Edw. 4.29 In every case where he may avow he may justifie for he hath done no wrong sed non è contra 5 Edw. 4.6 Young for he may have done no wrong in taking and yet may not be able to maintain an Avowry A man may justifie for Rent determined but not avow viz. for Rent arrear before it was determined Mich. 33 34 Eliz. Com. Ban. Goddards case because he cannot make a Title Tenant at sufferance may justifie a distress for dammage fâ—asant 4 Hen. 7.3 pl. 6. for he hath a Title against a Stranger One makes Conusance of the distress for dammage feasaâ—t in the Frank-tenant of his Master 10 11 Eliz. Dyer 280. pl. 15.21 Eliz. Dyer 365. pl. 32. and good in the behalf of his Master Conusance as Baily of A and that he took them dammage feasant in the Land that his Master had for years 2 3 Mariae Dyer 117. pl. 76. and good Conusance as Baily to the Parson of D which claims a Rent by prescription and a distress for it and good Lib. Intra 557. Charge 1. He cannot avow for Rent determined but may justifie Mich. 33 34 Eliz. Com. Ban. Goddards case antea because his Title to the Rent is gone 1. Avowries for Rent-services are twosold Quotuplex â— peâ— Common Law and 2. by Statute Law â—â—â—e 9. part 134. B. Ascoughs case 2. One may avow upon one as upon his veray â—â—mant by the manner scil when the Tenant â—â—sed it for life or made a gift in Tail the reâ—ainder over in Fee 20 Hen. 6.9 B. for he is 〈◊〉 bound to take notice of such a lease or gift But then the Lord ought to shew this special â—â—tter in his Avowry 15 Edw. 4.12 A. Catesby â—â—e 4 Hen. 6.14 pl. 11. Quaere 3. Upon one as his Tenant by the manner when â—e Lord hath but an estate in Tail or a lesser â—â—te in the Lordship or when the Tenant hath â—â—â—sser estate than Fee-simple for neither of these â—â—ders him from being Tenant 21 Hen. 6.22 〈◊〉 2. 2 Hen 4.24 pl. 13. Hankâ—ford 4. Upon the matter in the Land generally as â—ing within his see and Signory 38 Hen. 6.23 〈◊〉 7. 5. Upon the Land by any Lord generally per 〈◊〉 Hen. 8. cap. 19. as in Land within his Fee and â—â—gnory without making Avowry upon any person certain Coke 9. part 136. Ascoughs case 〈◊〉 the Avowry is in respect of the Lands held â—ed not of the person Who shall avow An Administrator shall avow for Rent due in the life of the Intestate Administrator per 32. Hen. 8. for he comes in the place of the Intestate in respect of interest Husband and Wife Husband and Wife in right of the wise for Rent-services due for Land held of the wife Lib. Intra 555. D. Sect. 6. for the Husband hath the present interest and by his death the wifes interest returns Or for Rent due to the wife afore Coverture 4 Hen. 6.13 for by the Coverture the Rent belongs to the husband But one cannot make Conusance as Baily to the husband and wise because a Feme covert cannot make a Baily 13 Hen. 4. Avowry 198. Q. how the Baily of Lands held by the husband in right of the wife shall avow It seems as Baily to the husband only He to whose use He to whose use before 27 Hen. 8. cannot avow for dammage fesant in his own name because he hath nothing in the Land at Common Law but occupation at sufferance of the Feoffees 15 Hen. 7.2 pl. 4. fol. 12. pl. 23. fol. 13. pl. 1. Crooke 17 Hen. 7.41 pl. 2. antea But may justifie in the names of the Feoffees Crooke 17 Hen. 4. pl. 7. by their leave as it seems A Commoner may avow for dammage feasâ—nt Commoner Coke 9. part 112. B. 24 Edw. 3.42 pl. 23.40 Edw. 3.23 15 Hen. 7.8 13 Hen. 8.15 7 Edw. 3.266 pl. 39. Coke 8. part 78. B. Welds case Crooke 17 Hen. 7.41 pl. 2. antea in respect of his interest Although he be Copyholder or Tenant for years Coke 9. part 112. B. for he hath interest in the Common in respect of such estate And needs not shew per quod amisit communiam for it shall be intended so No. Lib. Intr. 573. D. Sect. 4. but vide Coke 9. part 113. A. who ought to shew it for in some cases it must be so specially pleaded For Rent reserved by the Testator upon a Lease for years in the avowry by the Executor he shall not be put to shew the Testament 12 Rich. 2.163 for the other may traverse that he is not Executor if it be so An Executor may avow for Rent due in vita Testatoris Executor by the Statute of 32 Hen. 8. cap. 37. If a Rent be granted to husband and wife Woman Arrearages incurr the husband dies the wife shall distrain for the Arrearages 29 Edw. 3.40 pl. 19. for the Rent is now due to her by Survivorship Gardein in Soccage Gardein in Soccage may avow for dammage feasant in his own name for he hath the Governance of the Land Crooke 17 Hen. 7.46 B. Frowick and so the wrong is as it were done to him and he is to account for the profits of the Land A Parson may avow for a Rent-charge by prescription Parson Lib. Intra 557. B. sect 1. Antea The King having the profits of Land by Outlawry in a personal action may avow for the Rent King 15 Hen. 7.2 pl. 4. for it belongs to him in right of the outlawed person Tenant at will Tenant at will for dammage feasant Lib. Intra 561. B. Sect. 1. 15 Hen. 7.2 pl. 4. may avow for the dammage done to him Tenant at sufferance Tenant at sufferance cannot avow for dammage feasant for he can make no Title Crooke 17 Hen. 7.47 A. But vide 4 Hen. 7.3 pl. 6. in Trespass he justifies for dammage feasant and good for he ought to have the profits till he that hath right enter upon him and the distress is to recover amends for the profits taken from him For what things a man may avow For an Amerciament in a Leet 1. Amerciament No. Lib. Intra 572. A. sect 2. Crooke 20 Hen. 7.66 pl. 8. In the Tourn of the Sheriff 2. 28 Edw. 3.95 In a Court Baron it was by custome alledged 3. 15 Eliz. Dyer 322. pl. 23. Crooke 20 Hen. 7.66 pl. 8. for Amerclament for the Tenants not coming to the Court he may distrain if it be assâ—ssed
by Afferrors otherwise not viz. the Lord. For a Corrody granted with a distress if not paid Corrody he may avow for a distress for it 27 Edw. 3.81 pl. 13. Dammage feasant For dammage feasant Lib. Intra 554. D. Sect. 3.556 A. Sect. 7.559 A. Sect. 1 2. No. Lib. Intra 575. B. Sect. 6.577 C. Coke 8. part 89. B. Franceâ— case Antea If the Cattel be chased out of the Land before he distrain he cannot avow the distress Coke 9. part 22. Avowry 16 Edw. 4.10 2 Edw. 3.2 Avowry 182. for they must be taken in the ground or Land A man pleads it is his Franktenant and avows for dammage feasant and it was sound that it was his Franktenant and his wifes the Judgment shall be against him for both were seized and so the plea false Trin. 38 Eliz. Com. Ban. Walker versus Bonner The Plaintiff shews that A was seized and the Land descended to him and that he was seized in Fee and avows for dammage feasant and good Trin. 9 Jac. Newton versus Arsley for here is a good Title derived For a Moiety of the value of the Land Forfeiture upon 4 Hen. 7. forfeited For maintenance of Husbandry Lib. Intra 575. D. Sect. 1. For a Herriot custome No. Lib. 613. B. Sect. 22. Herriot But he ought to shew the certainty of the Land holden for to say that he held two Tenements is not sufficient but if he claims it of the Lessee for life he ought to shew which Lease he holds by 21 Hen. 7.79 pl. 27. Crooke For Relief Lib. Intra 555. C. Sect. 4. Relief But the Avowry shall not be for the double rent but only the quantity of the single rent 16 Hen. 7.4 pl. 2. 1. For a Rent-charge Rent No. Lib. Intra 585. A. Sect. 7 8 9. by deed 2. For a Rent-charge by prescription Lib. Intra 557. B. Sect. 1 2. C. 3. For Rent-service but if be avow for two rents where one Rent-day is not come the Avowry shall abate for that only which is not come Coke 8. part 45 B. Godfreys case but for the other it is good because due 1. For Fealty Lib. Intra 555. C. Sect. 4. Services 2. For Homage Lib. Intra 555. C. Sect. 4. Coke 4. part 6. A B. Bevils case For Rent-service Lib. Intra 554. C. Sect. 2.556 Sect. 8. But if it be to render one thing or other as a Rose or a pair of Spurs and shew for what he avows he shall avow accordingly For Bracton lib. 2. fol. 35. B. in hoc casu tenens â—abeâ— electionem unum solvendo liberatur ab â—lâ—ero For Rent-service when the Cattel are chased out Lib. Intr. 557. A. Sect. 10. antea Seisin in Avowry in whom it may be alledged It may be alledged in the Ancestor of the Avowant Ancesâ—or 34 Hen. 6.21 3 Edw. 2. Avowry 187. 20 Hen. 6 7. com 140. A. 16 Hen. 7.4 pl. 10. 2 Edw. 3.27 pl. 4. because he derives his Title â—rom him In the Father of the Feoffor Feoffor Lib. Intra 556. B. sect 8. and so the Feoffor had a good Title by presumption In the Predecessor good Predecessor 6 Edw. 3.277 Com. 96. A. under whom he claims By what hands Seisin of the Rent or Services shall be alledged By the Ancestor of the Plaintiff Ancestor 34 Edw. 3. Avowry 258. 34 Hen. 6.8 who was possâ—ssed of the Land By a Disscisor Disscisor good Coke 2. part 67. A. Tookers case Coke 6. part 57. B. Bredimans case for he was owner protempore Unless it be by Covin Coke 6. part 58. A. Bredimans case betwixt him and he that distrains for the Law protects not â—raud By the hands of an Infant Infant good 34 Edw. 3. Disclaimer 30. Coke 9. part 33. B. Bucknals caâ—e Quaere Feoffor of the Tenant In the Feoffor of the Tenant Com. 95. A. Manâ—eâ—s case for the Tenant derives under hiâ— By the hands of one Joyntenant only it is good Joynt-tenant Coke 2. part 67. A. Tookers case Prescription to have rent of a Village Resiantâ— Seisin by the Resiants is good because all the Village is chargeable 4 Hen. 6.29 30. Coke 6. part 59. Bredimans case By Tenant for years not good Tenant because he hath not an estate out of which seisin may be gained Coke 6. part 57. A. Bredimans case in respect of the feebleness of it By the hands of the Tenant for life good when the remainder is over to another Coke 6. part 58. A. Bredimans case for he hath a Freehold By the hands of the Tenant by the Courtesie not good to charge the Heir with a Herriot-service because none may have his estate 21 Hen. 7.84 pl. 8. Crooke nor derive a Title from him for his estate determines with his life A Tenant to a Lord makes a Feoffment and after notice to the Lord gives seisin to the Lord this is good because he remains Tenant to the Lord until notice be given Coke 6. part 58. A. Bredimans case for the Lord cannot take notice of the Feoffment By the hands of the Tenant and needs not say Tenant of the land 34 Hen. 6.8 for it shall be so intended By the hands of the Tenant peravail good Coke 6. part 58. A. Bredimans case or Under-tenant The Sheriff claims a rent by prescription and seisin 42 Edw. 3 4. Within what time seisin ought to be alledged The Advowant is not bound to alledge seisin within 40 years but may alledge it generally and then the other may plead that he was not seised within 40 years Coke 8. part 65. A. Fosters case 9. part 36. A. Bucknalls case 14 Eliz. Dyer 315. pl. 10. and that will destroy the seisin if it be so When it is not requisite to alledge Seisin In an Avowry for an amerciament it is not requisite to alledge it Avowry 11 Hen. 4.89 13 Hen. 4.9 In an Avowry for a Rent-charge 44 Edw. 3. Avowry 75. Coke 8. part 56. A. Fosters case it is necessary for if he were never seised the rent was not executed In an Avowry for rent upon a seoffment by deed Seisin is not necessary to be alledged because the deed is the Title and the commencement of it appears by it 2 Edw. 2. Avowry 185. Coke 8. part 65. A. Fosters case So for Rent or Service upon a gift in Tail or other particular estate Coke 8. part 65. A. Fosters case created by deed What Seisin shall be good Seisin of the superiour Service is seisin of all inferiours Superiour because they are incident to it Coke 4. part 8. Bevils case and included as it were in it For Example seisin of Esâ—uage is seisin of Homage Coke 4. part 8. Seisin of Homage is seisin of Fealty Coke 4. part 8. Seisin of Homage is seisin of the Superiour or inferiour Inferiour For Example seisin of Homage is seisin of Escuage the superiour 13 Edw.
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
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-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
one of the Deziners Leet shall be distrained through all the jurisdiction of the Leet although that he be of another dezin Coke 11. part 45. A. 11 Hen. 4.89 13 Hen. 4.9 For he may it seems be liable in both places Tourne of the Sheriff A man shall distrain in any place within the precinct of the Court 19 Edw. 3.2 Avowry 225. 8 Rich. 2. Avowry 194. 47 Edw. 3. pl. 12. where the Amerciament is set but not without for there is no jurisdiction For Amerciament in the Sheriffs Tourne he may distrain throughout the County 12 Hen. 4.24 pl. 17. 13 Hen. 4.9 8. Rich. 2. Avowry 194. because all the County is within the jurisdiction of the Sheriffs turn for it is the County-Court If a man had a Leet within his Mannor he cannot distrain out of his Mannor 4 Edw. 3 96. pl. 26. For that is not within his jurisdiction For a tax by the Parliament For a Tax by the Parliament a distress may be justified throughout all the Village 11 Hen. 4.2 18 Edw. 3.11 pl. 39. upon which the Tax is set This was according to the old way but now the Law is altered A Fishing lying within tenure a man may distrain in it For Service for it seems that the Soil passeth 40 Edw. 3.45 as well as the water viz. terra aqua cooperta Q. For a Fishing seems but a Liberty or Priviledge Herriot-service A man may seize his Herriot-service in any place that he shall find him although not within his Fee 6 Edw. 3.208 pl. 3. For it is a personal service and not local or fixt The Lord may enter the House of his Tenant to distrain if the Door be open House 38 Hen. 6. 26 pl. 4. But he cannot open the Door to do it Q. If the Lord find the House fast with a Bar and he break it open and distrain this is wrongfully done 8 Edw. 2. Distress 21. For a mans House is his Castle of defence If the Beasts of a stranger escape into anothers Land Estranger and the Owner chases them out before and the Lord comes and distrains them here the Lord cannot distrain them yet it is otherwise if they go out of their own accord without chasing 11 Hen. 7.4 pl. 11 Com. 38. A. Plats case 2 Edw. 4.6 B. Littleton 33 Hen. 6.52 pl. 39. 34 Hen. 6.18 B. For in the former case he may take notice of the Owner but in the latter case he cannot The Lord distrains the Cattel of the Patron within the Glebe belonging to the Advowson Glebe 33 Hen. 6.35 Littleton This is a good distress held A man cannot distrain for Rent but in the place leasâ—d Lessee unless the Lessee grant a distress in other Land 9 Hen. 6.9 which he may well do by special agreement Lords Ecc. The Lord distrains in his Fee the Tenant chases them out of his Fee he may take them again 44 Edw. 3.20 pl. 18. for by the distress he had a property Fresh suit A Baily attaches a Horse which is rescued and brought into another County he shall make fresh sâ—it and take him again 33 Hen. 6.52 pl. 39. 33 Hen. 6.550 pl. 46. else not for the gaining him upon the fresh suit re-continues the Attachment A distrains and puts them in the pound Pound the Owner takes them out A may take them again in any place 34 Hen. 6.18 pl. 33. because they were once in custody of the Law and he may place them there again wherever he finds them If one put his Cattel in Land charged with a Rent-charge Rent-charge they shall be distrained for the Rent-charge although they are neither Levant nor Couchant otherwise if they escape upon the Land 15 Hen. 7.17 pl. 13. for it shall be prefumed he took notice of the Rent but not so where the Beasts escape there for that is against his will and he could not help it Quaere by the 18 Edw. 2. Avowry 219. if the Cattel that escape shall not be distrained for dammage feasant It seems they shall in respect of the dammage to be recompenced which come by his negligence River of Thames 2 3 Mariae Dyer 117. pl 73. Distress for an annual sum upon the River of Thames Q. of what nature What Distress shall be sold A Distress taken in a Court-Leet shall be sold Court-Leet although that a common person be Lord of the Leet 3 Hen. 7.4 pl. 15. Fairsax Distress taken by a Baily of a Lord of a Leet for forfeiture of Inmates Inmate and sold by force of a grant of the Steward in nature of a Scire faciâ—s No. Lib. Intra 666. A. Sect. 14. Q. whether by the Common Law A Distress taken for a Fine touching High-ways shall be sold Highways per 18 Eliz. cap. 10. What shall not be said a Distress excessive No Distress shall be said excessive for Homage 42 Edw. 3.26 pl. 11. Belknap Excessive 27. Assize pl. 51. Coke 4. Part. 8. B. Bevils case 28. Assize pl. 50. this is in respect of the great consequence of the thing distrained for and the easiness for the Tenant to perform it So likewise for fealty 27. Assize pl. 51. 28 Assira pl. 50. Coke 4. part 8. Bevils case for the same reason and in respect of the contempt done to the Lord. A man distrains four Horses and a Cart for two shillings rent this is not excessive because they are fixed to the Cart otherwise if not fixed so of a fold of Sheep 20 Edw. 4.3 otherwise if not in the fold Quaere rationem differentia It seems to be because in the former cases the intent of the party appears but only to have his due and not to take advantage of the Distress But not 〈◊〉 in the latter for then he might have distrained 〈◊〉 Horse or one Sheep 1. The Barr. 2. Justification 3. Conusance 4. Avowry No Barr that the Plantiff is possessed of the â—â—tel Nat. br 69. H. for he ought to have damâ—ages for the wrongful distraining of them That he took them not a good barr Lib. Intra â—1 B. Sect. 1.565 C. Sect. 1 2. 19 Edw. 3. Aid 28. 〈◊〉 that disaffirms the Replevin viz. the supposal 〈◊〉 the Writ Claim of Property 26 Hen. 8.6 pl. 27. 31 〈◊〉 6.12 for then it was lawful to take them as â—â—own This may not be by way of Avowry 31 Hen. â— 12 In Replevin of grain it is a good Barr to say Grain 〈◊〉 was his Wises dum sola and that the Plaintiff â—â—â—endred it to her 30 Edw. 3.9 pl. 3. for by the â—arriage the interest is his 2. Justification Difference between a Justification and an Avowry When a man cannot have the thing for which 〈◊〉 distrains then he may justifie the taking in lieu 〈◊〉 the thing and not avow to keep it till he have 〈◊〉 thing it self per Curiam 19 Hen. 6.41 â—83 But 22 Edw 4.36 B. è
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
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
not material whether he had the Mannor-house c. for the Receipt charges him 9 Edw. 3.356 pl. 38. Stoner 27 Edw. 3.29 pl. 25. He need not count the things particularly because it may be shewed before the Auditors Crook 1 Hen. 8.153 pl. 2. where he is to charge him particularly But the Book of 49 Edw. 3.13 14 Hen. 4.14 says that it is material Q. inde If Account be brought against one that by Custome ought to gather the Rents the Count must be special 21 Hen. 7.76 pl. 23. because the Custome makes the case to be special The Count was against one as Baily of a house and merchandise occupied by Joynt-tenants ex quacunque causa seu contractu Lib. Intra 18. A. sect 6. The Count was that he was Baily at the Feast of St. Michael and good because it shall be intended th'Archangel Coke 11. part 39. A. Metcalfes Case 20 Hen. 6.23 The Count was against a Tenant per Elegit that he had made waste to the value c. Old Nat. br 34. Conusor counts that the Conusee had levied the sum or that he had levied part and tendred the remnant 47 Edw. 3.11 pl. 9. and fol. 25. pl. 63. And so of the Assignee of a Conusor 25. Ed. 3.53 pl. 17. The King is not held to Count against one as Baily but may alledge generally in his information quod ille ad computand Domino Regi tenetur and if it be against Executors quod is tempore mortis suae tenebatur Coke 11. part 90. Devoushers Case The Writs against a Baily 1. of a Court or Hundred 2. of a Mannor c. Rex In Comitasu c. Praecipimus tibi quod Justicies I. B. quod justè sine dilatione reddat B. rationabilem computum suum de tempore quo fuit Ballivus suus in M. sicut rationabiliter monstrare poterit quod sibi reddere debeat ne amplius inde clamorem audiamus pro defectu justitiae Teste c. Regist orig 135 A. In London Regist orig 135. A. For Executors Regist orig 135. A. For Merchants Regist orig ibid. Rex c. Praecipe A. quod justè In Banco c. reddat B. rationabilem Computum suum de tempore quo fuit Ballivus suus in N. nisi fecerit praedictus B. fecerit te securum de clamore suo prosequendo tune summ per bonos summonitores praedictum A. quod sit coram Justie nostris apud Westm à die Paschae in quindecim dies ostensur quare non fecerit habeas ibi summ hoc breve Teste c. Regist orig 135. b. Nat. br 117. E. It lies for a man and his Wise Regist orig 135. b. For a Master of a house Regist orig 135. b. For a Prior in the time of his Predecessor Regist orig 135. b. For an Executor and an Abbot Co-executor Regist orig 135. b. But there is another form of a Writ founded upon the Statute of Marlebridge cap. 23. Nat. 117. H. orig Regist 135. b. Account against B. as Baily and Receiver in K. a good bar to the Writ that he was not Baily nor Receiver in K. 21 Hen. 6.21 pl. 42. Vide 44 Edw. 3.1 pl. 2. The Writ ought to comprehend the County 10 Edw. 3.365 pl. 19. Shard If it be brought against one as Receiver where he was Baily it shall abate 3 Edw. 3.70 pl. 28. 18 Edw. 4. pl. 17. For the Law takes notice of them as distinct and different employments But one Writ may comprehend Baily and Receiver 9 Edw. 3.356 pl. 38. Nat. br 116. P. 21 Hen. 6.21 pl. 42. Regist orig 135 b. For a man may be charged in a double capacity and if he rightly charged either way it is gone The process against a Baily 1. before appearance 2. after appearance At the Common Law the Process was but a distress infinite Coke 3. part 12. A. Harberts case But by Marlebridge cap. 23. a Capias was given Coke 3. part 12. A. And per Westm 2. cap. 11. process of Outlawry is given Coke 3. part 12. A. 17 Ed. 2 process 203. 17 Edw. 3.59 pl. 55. Shard 29 Ed. 3.5 pl. 13. But against Tenant by Elegit is but a Scire facias 21 Edw. 3.2 pl. 6. 5 Edw. 3.159 pl. 20. Regist judicial 73. b. Old Nat. br 34. And if they appear not being summoned judgment shall be given against them 5 Edw. 3.159 21 Edw. 3.1 Conusor shall have a Scire facias against the Conusee Coke 4. part 67. b. 47 Edw. 3.11 pl. 9. fol. 25. pl. 63. So the Assignee of a Conusor 25 Edw. 3.53 pl. 17. If a Baily come in by Capias or Exigend he shall be forthwith committed to the Fleet 29 Edw. 3.35 pl. 63. for his contempt in not appearing before So if he come in by Distress and the Account be adjudged 29 Edw. 3.35 pl. 63. But if the Account be adjudged and he be not present in Court a Capias ad Computandum shall issue out against him 1 Edw. 3.2 pl. 10. 1 Hen. 7.1 pl. 1. Townsend Lib. Intra 18. c. Sect. 1 2 3. The Bar for a Baily 1. to an action of Account 2. before Auditors A good Bar Account before Auditors that he did account before Auditors 25 Edw. 3.39 pl. 1. 2 Edw. 3.45 pl. 13. Lib. Intra 17. A. Sect. 1. he shall shew the time and the Auditors But in pleading he ought to say that the Auditors were assigned by the Plaintiff only and not by his assent 29 Edw. 3.40 pl. 21. A good Bar that he did account with the Plaintiff himself Lib. Intr. 18. A B. Sect. 6.11 Rich. 2. Stath Account 46. 45 Edw. 3.14 pl. 13. But it is no Bar to say No bar he did account with the Plaintiff after that he had imprisoned him 22 Edw. 3.13 pl. 32. Account per Executors a good Plea that he did account to the Testator and shews an Acquittance of the Testator 1 Edw. 3.2 pl. 10. Heir Frank-tenant a good bar 28 Edw. 3.90 An Abbot brought an account against B. as Baily of his Predecessor and the Defendant pleads Property that he had a Lease of his Predecessor for 3 years and entered after the end and found certain things there this is a good Bar 16 Edw. 3.368 pl. 30. The Defendant said that it was debated between the Plaintiff and his Wife and it was agreed that the Wife should have the Land for her maintenance and she leased to the Defendant rendring Rent this is a good bar 47 Edw. 3.18 pl. 34. An account for the delivery of three Tuns of Wine a good bar for the Defendants to say that the Wife was a common Taverner and that they were Bailies for the sale thereof without the assent of him and that she fold and paid the Plaintiff without that that they were his Bailies in any other manner 13 Rich. 2. Account 50. Defendant pleads a Lease to him of the Mannor a good bar 49 Edw.
3.7 pl. 11. Account of a House and Goods it is no Plea to say he bought the goods of the Plaintiff but must say without that that he was his Baily for Account-render 49 Edw. 3.7 pl. 11. Payment by command of the Plaintiff Payment a good bar in discharge Coke 11. part 38. B. Metcalfs case 1 Edw. 5. 42 Edw. 3.6 pl. 21. But this is before Auditors and not in bar of the Action The Defendant said Servant that he was Servant to the Plaintiff and he did chase the Cattel out of the field without that that he was Baily in any other manner for if the Cattel are hurt he shall have an action of the Case 7 Hen. 4.14 pl. 18. He was his Surveyor without that that he was his Baily 4 Edw. 3. Account 34. The Defendant said Statute-Merchant that the Plaintiff granted by Deed and shews that when he came to C. he was to acknowledge a Statute Merchant that the Account should not be and shews likewise that he did it this is nothing without saying he delivered it to the Plaintiff 20 Edw. 3. Account 79. Q. Account for the delivering of Tyn Vendee c. the Defendant said that he delivered this and took an obligation in the name of the Plaintiff this is no bar 28 Hen. 8. Dyer 29. pl. 193. for he had no authority to take the Bond. Baily of Woods to sell it is no Plea to say he had not sold them because this comes in debate before Auditors 14 Edw. 3. Account 131. The plt after judgment for him quod Comput dies his Executors shall have a Scire facias the which being served if he appear not an Exigend shall issue out against him 14 Hen. 4.1 The Judgment against a Baily 1. of Account 2. to Recover the things The Judgment is Quod Computet ideo in miscricordia quia prius inde non Computavit Coke 11. part 38. A. Metcalfs case Lib. Intra 19. b. sect 1. 20. D. sect 1. Quod computet for parcel and Bar for the remnant Lib. Intra 22. A. sect 12. The Judgment is Ideo consideratum est quod praedictus W. recuperet versus praefat M. as much as he shall be found in Arrearages dampna occasione implacitationis c. Coke 11. part 40. A. Metcalfs case Scire facias against Tenant per Elegit to Account and not appearing upon garnishment the Judgment was that the Plaintiff shall recover his Lands without any more process upon the cause of the Account c. 5 Edw. 3.159 pl. 20. Execution against a Baily 1. per Common Law 2. per Statute Law By the Common Law he shall have but a Levari facias or Fieri facias Coke 3. part 12. A. Harberts case And this within the year only for if the year pass he was put to his Action of debt if the process were not continued 33 Hen. 6.49 pl. 33. Per Westm 2. cap. 45. a Scire facias is given after the year And per Westm 2. cap. 18. Elegit is given Coke 3. part 12. A. And per Marlebridge cap. 23. and Westm 2. cap. 11. Capias is given in process And per consequence a Capias ad satisfaciendum after Judgment Coke 3. part A. 12. And by the Statute of Westm 2. cap. 11. if an Accountant be found in arrearages before Auditors he shall be Committed by the Auditors to the next Goal in execution But then the Auditors ought to Commit him to prison forthwith Coke 8. part 119. b. Bonhams case 27 Hen. 6.8 Com. 1.7 But if he Account before the plt he cannot Commit him to prison 45 Edw. 3.14 because he shall not be Judge in his own cause Ex parte Talis by a Baily Per Westm 2. cap. 11. if Auditors be assigned by the party which will not allow to the Accountant reasonable allowances or charge him with a thing he never received and Commit him to prison he shall have a Writ ex parte talis Nat. br 129. F. 4. Hen. 6.18 A. pl. 3. Regist orig 137. b. But if Auditors be assigned by the Court and they do not allow reasonable allowances he shall not have this Writ but shall shew it to the Court and they shall make allowances Nat. br 129. F. 3 Edw. 3.56 pl. 30. If it be sued in London and Auditors be assigned by the Court which will not allow c. there this Writ lieth Nat. br 129. F. But note in Regist orig 137. b. is against it go Q. But if the Plaintiff assign Auditors there then such Writ lieth Nat. br 129. I. Regist orig 137. b. The Writ shall be returnable before the Treasurer and Barons of the Chequer at a day certain and a Scire facias in the Writ to warn the Plaintiff and Defendant to be there Nat. br 129. Regist orig 137. Account against a Receiver 1. in Law 2. in Deed. The Court where it is to be brought IN the County Court Regist orig 135. A. In London Regist orig 135. A. In the 5 Ports Regist orig 135. A. Before Justice of Peace per 2. Marlebridge cap. 8. Before Auditors per Westm 2. cap. 11. In the Com. Ban. Regist 135. Nat. br 117. E. Who shall have an Account against a Receiver Husband and Wise shall have an Account upon a Receipt dum sola fuit 22 Hen. 6.39 pl. 10. Executor shall have an Account but this is per Westm 2. cap. 23. Nat. br 117. C. 3 Ed. 3.66.7 Edw. 3.209.5 Edw. 3.141 pl. 7.11 Hen. 4.479 But one Executor shall not have an Account against his Companion 11 Hen. 4.79 pl. 20. for there is no privity betwixt them and they have interest in the goods of Testator in his right and not their own If one have Judgment against a Receiver and dies his Executors shall have a Scire facias 14 H. 4.1 If two Merchants occupy in Common and one die his Executors shall have an Account against the other Nat. br 117. D. for the two Merchants had several Interests An Executor of an Executor shall not have an Account but only by the Statute of 25 Edw. 3. cap. 5. Com. 190.17 Edw. 3.270 pl. 5. Filius haeres non habebit breve de Computo versus Receptorem quia pertinet ad executionem Administrationis bonorum defuncti Regist orig 135. B. and therefore it belongs to the Excecutor Guardians of a Church against their Predecessors 8 Edw. 4.6 P. 5. shall have an account in right of the Parish And per 2. Marlebridge cap. 8. they shall have an Account against a Baily or head Constable of an Hundred c. for amerciaments or not repairing High-ways Guardians and Parishioners shall have an Account against Constables and Churchwardens for Forfeitures of Alehouse-keepers in the same manner as for other things by the Common Law 1 Jac. cap. 9. Two Joynt-tenants of goods one of them delivers the goods to the other to render Account one shall have an Account against the other 43 Edw. 3.21.12
time that he hath fully accounted and to the remainder that he was not his Receiver there he ought to shew of what he had accounted 30 Edw. 3.1 pl. 4. for otherwise his plea is too general incertain and captious which the Law will not permit That he accounted to the Plaintiff from three months to three months and so to the time of the action a good Bar 39 Edw. 3.5 pl. 22. A good bar that he did Account 1º April but then he ought to say without that that he wâ—â— his Receiver after 21 Edw. 4.66 pl. 47. 7 Hen. 4.14 pl. 17. 45 Edw. 3.14 pl. 13. 34. Hen. 6.44 Counts that he was Receiver for seven years iâ— is no bar that he accounted 1º Maii Anno 5º with out answering for the two other years becauâ—â— he is to answer for the whole time as well soâ— the increase as principal 7 Hen. 6 5. pl. 8. As to 20 s. received 1º Jun. fully accountâ— for and to the Receipt afterward or before thâ—â— he never was Receiver 27 Hen. 6.1 pl. 8. a gooâ—â— plea. A good bar quod 21. Januarii Anno c. 〈◊〉 D in the County of W he fully accounted wiâ—â— the Plaintiff Lib. Intra 20. B. Sect. 8 9 10 11. Before the Writ brought he did account with thâ— Plaintiff a good bar 4 Hen. 6.43 pl. 4. But he ought to account to the Plaintiff beforâ— he is imprisoned or else no bar because it is peâ—â— dente lite and it appears the Plaintiff had cause 〈◊〉 action else he not not been committed 22 Edw. â— 3. pl. 32. 7 Hen. 4.14.34 Hen. 6.44 pl. 4. For the Plaintiff cannot commit him to prison for Westm 2. cap. 11. gives this power only to the Auditors 45 Edw. 3.14 pl. 13. who are the Judges To an Account brought by Executors it is a good bar that the Defendant did account to the Testator and shew his Acquittances 1 Edw. 3.2 pl. 10. for then the Executors have no colour of action The Defendant pleads an award made by Arbitrators that he should re-deliver the goods this is nought but if he had been charged only with the safe custody of them then good 2 Hen. 5.2 pl. 6. For the Defendant is chargeable to Account for the provent of the goods as well as for the goods themselves Account upon a Receipt by other hands Arbitrement is a good bar 22 H. 6.39 pl. 10. For the submission to the Arbitrement creates a new Contract Execution against a Receiver 1. per Common Law 2. per Statute Law 1. By the Common Law it was but a Levari facias or Fieri facias Coke 3. part 12. A. Harberts case to levy the arrears upon his Lands or Goods and Chattels Q. And this only within the year for if the year was past then an Action of debt only lay upon the Judgment Unless the Process be continued 33 Hen. 6.49 pl. 33. For the Court will not grant out Executions upon sleeping Judgments for this may prove dangerous 2. Per Westm 2. cap. 45. a Scire facias is given after the year Coke 3. part 12. A. upon the Judgment against the Defendant to shew why he should not pay the Arrears due to the Plaintiff by the Judgment Per Marlebridge cap. 23. Westm 2. cap. 11. a Capias was given in Process and by consequence a Capias ad satisfaciendum in execution Coke 3. part 12. A. Lib. Intra 18. C. Sect. 1 2 3. which are both to lay hold on the person of the Defendant Per Westm 2. cap. 11. if the Accountant before Auditors be found in Arrearages he shall be committed by them to the next Goal in execution the same law is if he will not account before the Auditors 10 Edw. 3.387 pl. 28. when he is adjudged by the Court to do it But this shall be forthwith Coke 8. part 119. B. Bonhams case 27 Hen. 6.8 Com. 17. for the Statute being penal must be strictly pursued But if he account before the Plaintiff he cannot commit him to Prison for the Statute saith before Auditors 45 Edw. 3.14 pl. and no imprisonment lay before the Statute But an Accountant to the King shall be imprisoned and his goods and lands in execution per the Common Law Coke 3. part 12. B. 5 Eliz. Dyer 224. Com. 32. which is tender of the King as well in his Revenue as his Person Ex parte talis Per Westm 2. cap. 11. if Auditors be assigned by the party Plaintiff who will not allow reasonable charges to the Receiver or charge him with a thing he never received and then commit him to prison he shall have this Writ Nat. br 129. F. 4 Hen. 6.18 A. pl. 3. Regist orig 137. B. which is in the nature of an Audita querela But if Auditors be assigned by the Court which do not make allowance yet the Defendant shall not have this Writ but may complain to the Court and they shall order them Nat. br 129. E. 3 Edw. 3.56 pl. 30. to do justice for they are Ministers of the Court and to be answerable for their actions If one be sued in London and the Court assign Auditors who make not allowance c. the Defendant shall have this Writ Nat. br 129. F. But note Regist orig 137. contra Q. The Writ shall be returnable before the Treasurers and Barons in the Exchequer at a certain day and a Scire facias in the Writ to warn the Plaintiff in the Account and also the Defendant to be there Nat. br 129. G H. Regist orig 137. vid. Westm 2. cap. 11. Note that an account lieth in one Writ against a Baily and Receiver Nat. br 116. P. 21 Hen. 6.21 pl. 42. 9 Edw. 3.356 pl. 38 pl. 40. 14 Hen. 4.20 pl. 25. vide the Writ Nat. 117. C. Regist orig 135. For one and the same person may be Baily and also Receiver at one time to one and the same person Vide the Count Lib. Intra 17. B. Sect. 1. And for all the other parts they are in the same manner as is described before in Baily and Receiver Action upon the Case 1. Quid. 2. Quotuplex Action upon the Case is either by 1. Doing of wrong to another 1. Inheritance Real 2. Chattels Personal 3. Body 4. Name 5. Suits in Law 2. Not doing of a thing ought to be done by Law to the wrong of Inheritance Reaâ— Chattels Person Corps Suits in Law Assumpsit touching Inheritance Reaâ—â— Chartels Person Body Suits in Law 3. Misdoing 4. Negligence 5. Deceit in bargains With warranty Without warranty 6. Trover and Conversion in Deed. Law as to persons discoâ— continued Wasting Denial to re-deliver In what Court it lieth IN Ban. Regis In Com. Ban. It lieth not in the Marshalsey Coke 10. part 7â— A. 76. A. Marshalsey For that Court is limited 〈◊〉 hold plea but in particular cases But this learniâ—â— was now out of doors in respect that that Court was wholly taken away but now again revived For
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
121. pl. 17. 14 Hen. 8.12 for he hath no such Authority quatenus a Baily Goods not delivered The Executor comes to the Heir 31 days after the death of the Testator and demands the goods that are in the house and he refuses to deliver them 1. this is a convenient time 2. this wrong is punishable Mich. 7. Jac. Ban. Regis Steedmans case for thereby the execution of the will is retarded Wood and Estovers 1. A sold 20 cords of Wood to B to have by assignment and afterward sold 4000 to C to have at his election and assigns to B which he shall cut and C takes them B shall have an Action against C for the first bargain was made with him Coke 5. part 24. Palmers case 2. Tenant for years shall have Estovers in the Wood of B which shall be cut or have an Action Coke 9. part 112. B. Mayers case if he be hindred 1. Against a Carrier that breaks Pots and Glasses 2 Hen. 7.2 Carrier for this is a misfeasance in the Carriage which the Law implies ought to be safely 2. If the things be delivered to the Servant of the Carrier yet an Action lies against the Master Pasch 9 Jac. Ban. Regis Wornhall Bradshaw For the Master must answer for the misfeasance of his Servant A Horse 1. For delivering a Horse to B for saseguard who delivers him to C to the use of A who spoils him A shall have an Action against C. 12 Edw. 4.13 pl 9. Q. for the Horse was delivered for the benefit of A. 2. Against a Smith that pricks my Horse Nat. br 94. D. vide the Writ there 17 Edw. 4.43 11 Edw. 4.6 46 Edw. 3.19 3 Hen. 6.36 14 Hen. 6.18 Regist orig 106. A. 48 Edw. 3.6 pl. 11. For misfeasance for the Law implies he ought to be skilful and careful And if the Smith lends the Horse to another who pricks him Action lies against the second 12 Edw. 4.13 Q. if it lies not also against the Smith A Servant brought a Horse to the Smith who pricked him by which the service of the Master is neglected the Master shall have an Action Hill Jac. Ban. Regis for the dammage comes only to the Master For taking my Pigeons with engines Pigeons 16 Edw. 4.7 or shooting of them Q. Dice and Cards For playing with false Dice Nat. br 95. D. Regist orig 240. No. Lib. Intr. 8. sect 8. or for cheating with true The same law of false Cards Coke 11. part 87. B. Monopolies for the Law punishes fraud in all things 1. For distraining of a Horse of a Prelate Distress when he had other things distrainable Nat. br 93. I. Regist orig 100. B. Coke 4. part 95. A. Slades case in respect of usefulness of him above other goods and his damage for want of him Q. tamen 2. For distraining in a High-way or in any Spiritual Land belonging to a Church against the Articles of the Clerks 94 E. Regist 100. B. 3. For distraining one to come to my Leet when he owed no suit to my Leet Nat. br 94. G. for the distraining was unlawful For distraining Cows and then impounding them till they cast their Calves Nat. br 86. E. Q. if the distress was not abused if it lie For distraining Cattel of the plough or Lambs where there was other sufficient distress Lib. Intra 226. D. Distress the Writ there Nat. br 90. B. for a mans lively hood is favoured in Law and also tillage Q. if the Lambs be weaned The Count shall not shew that there was other sufficient distress but it shall be contra forman Statuti which provides against such distraining 14 Eliz. Dyer 312. pl. 86. And it lies when the Tenant hath made agreement for the Rent and yet is distrained 18 Edw. 2. quaere For distraining in a Liberty where the Contract was not made Regist orig A. per le Stat. Westm 1. cap. 34. which directs where Distresses ought to be taken Escape from a Goaler By a Goaler against a Prisoner that escapes being committed per Auditors Nat. br 95. C. 130. B. the Writ there for the Goaler is liable and therefore it is reason he should have remedy against the party For tearing an Obligation delivered to be kept Deeds 30 Hen. 6.44 Lib. Intra 7. B. sect 1. for this is breach of trust The Defendant pleads it was delivered in the nature of an Acquittance absque hoc that it was c. Lib. Intra 7. B. sect 2. Against a Ferry-man that surcharges his Boat Ferryman by which my Horse is drowned 22 Assize 41. for I am damnified by his misfeasance Forgery Counterfeiting 1. For forging of an Obligation that is put in suit against me 5 Edw. 4.126 pl. 44. Coke 4. part 18. B. case 14. 42 Assize 8. for the private dammage done me thereby 2. For forging of a Resignation Regist orig 114. B. 3. For forging of a Will 5 Edw. 4 120. B. 4. For counterfeiting a Letter in the name of his Master that the Plaintiff would send his Master 20 l. upon which the Plaintiff delivered 20 l. to the Defendant 33 Hen. 8. cap. 1. Pasch 7. Jac. Ban. Regis Tracy versus Veale alias Smith In all these cases an Indictment doth also lie because it is contra pacem For taking away a ward Guard he shall have a value of the marriage 29 Assize 35. and not this Action by a Writ de valore maritagii For putting something in my Ditch whereby my grain is drowned Regist orig 95. B. 97. A. Grain drowned and thereby made worse else Q. whether it lie or no. For menacing to take my goods Menace if I do not give him 20 l. 7 Edw. 42. Q. For taking away my Pales Pales quaere whether Trespass vi armis doth not lie 15 Edw. 4.4 Choke For putting in a common River piles Piles by which my Oxen perish Nat. br 92. F. otherwise it seems it lies not For taking my goods after protection to me granted Protection Regist orig 12. A. Q. for I may plead my Protection upon a Replevin By a Sheriff against one that rescued one in Execution Rescous Dyer 24. 1. pl. 47. for the Sheriff is thereby in hazard to pay the debt 1. For taking my Servant out of my service Servants 19 Rich. 2. Action upon the Case 52. for it is to my prejudice in the intendment of the Law Not his Servant is a good plea in bar Bar. 20 Hen. 7.4 pl. 13. Fineux of the Action for the Defendant to plead viz. tempore Captionis 2. For inticing my Servant to depart Servant and him to retain 11 Hen. 4.23 for this is fraudulent and unconscionable 3. For beating my Servant though he serve me but for pleasure 21 Hen. 6.9 for I receive profit by his service and do lose it by beating of him But he ought to count per quod he lost
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
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
A. 22 Hen. 6.21 42 Assize 17. for the Law of the Land binds him to keep them safe at his peril 1. But note 1. this ought to be a common Inne and it shall be shewed in the Count but not in the Writ 11 Hen. 4.45 22 Hen. 6.21 pl. 38. Coke 8. part 32. Calyes case Dyer 206. pl. 9.2 Hen. 4. Not in the Writ because that is more short ren breviter enarrat but the Count ought to express things more fully 2. It ought to be a Traveller that lodges there otherwise the Action lies not Coke 8. part 32. Calyes case for the Law looks upon an Inn only in respect of Travellers for in respect of others it is no more than a private house 4. He shall declare of nothing but what was within his Inn for if he bid the Inn-keeper put his Horse to pasture or put him to pasture of his own accord unless the Inn-keeper request him to do it it lies not Coke 8. part 32. A. Calyes case for he is an Inn-keeper in respect of his House and not of his Land 4. He ought safely to keep the goods within his Inn at his peril 42 Assize 17. for it is no excuse that he delivered the Key to the Guest 42 Edw. 3.11 pl. 13. 11 Hen. 4.45 22 Hen. 6.38 or that the Guest did not acquaint him with his goods 42 Edw. 3.11 except the Guest will not trust the Inn-keeper but will have the Key Quaere Or that he knew not the Felons 22 Hen. 6.38 A for he must keep them safe against all persons except forein Enemies But if the Companion or Servant or any other that the Guest desires to lie with him rob him the Inn-keeper shall not be accountable Coke 8. part 33. A. Calyes case 22 Hen. 6.38 B. 22 Hen. 6.22 A. for that was his own fault to admit of such Company Or if he say his house is full and the other says he will make a shift and be robbed 5 Mariae Dyer 158. pl. 32. for in such case he is not properly his Guest nor takes any charge of him or his goods Or if he command him to put his goods in such a place and he will not but suffer them to lie in the open Court 10 Eliz. Dyer 266. pl. 9. for if he cannot be Master to order his house as he desires it is no reason he should be punished for the disorder committed in it And although the Writ is but bona catalla yet Evidences and all other Deeds are included the Writ in this case shall be general but the Count special Coke 8. part 33. Calyes case Deeds and Evidences are bona catalla though not valuable to any person but the owner of them But an Inn-keeper shall not be accountable for wrong done to the person of his Guest Coke 8. part 33. A B. Calyes case for this is a criminal matter and hath no relation to him as an Inn-keeper 1. Servant Against a Shepherd that suffers my sheep to be drowned 2 Hen. 7.11 pl. 9. Coke 5 part 13. B. Salops case 12 Edw. 3.4.13 Dyer 121. pl. 17. B. Salops case 12 Edw. 3.4.13 Dyer 121. pl. 17. by negligence 2. Against a Ploughman that suffers my Corn to be spoiled 7 Hen. 4.14 by negligence or ignorance as it seems Q. For Deceit in bargains and agreements with Warranty Deceit in Bargains 1. The Warranty of a thing sold is the cause of an Action in case of vendition as well as of corruption 19 Hen. 6.9 2. And the Warranty ought to be at the time of the sale 15 Hen. 7.41 Nat. br 98. L. and not afterwards 6 Edw. 6. Dyer 75. pl. 28. else not good 3. It ought to be by the owner of the thing and not by a Stranger and upon the sale by the owner and not by a Servant 11 Edw. 4.6 for Warranty relates immediately to him that warrants It is not material whether the price be paid or not for debt lies for it 9 Hen. 7.21 pl. 2. Against the Seller of a Horse that is sick Horse and is warranted sound Nat. br 94. C. 7 Rich. 2.42 Regist orig 108. A. Lib. Intr. 9. B. sect 1. for this is deceit Or a lame Horse warranting sound 31 Hen. 6.11 Statham A strained Horse it lies not because the buyer hath the view 13 Hen. 4.1 pl. 4. Hank ford Q. if he warrant him sound Against a Seller of Cloth Cloth that warrants it well sulled when it is raw 11 Hen. 6.221 Against him that warrants it of such a length and this upon sale and warranty of the Servant it lies against the Master 11 Edw. 4 6. for it lies not against the Servant ibidem for the Cloth was the Masters Against him that sells grain Grain and warrants it to be good Lib. Intra 9. B. sect 1. Regist orig 111. A. whereas it is musty or corrupted Against him that warrants Herrings Herring Regist orig 96. A. in the number and the goodness Against him that sells a Saphire instead of a Diamond Saphire Kitchin 174. Against a Seller of wood Wood. and shews part and warrants the rest to be good 14 Hen. 6.22 pl. 66. Against a Seller of corrupt Wine with warranty Wine Nat. br 94. C. 9 Hen. 6.35 7 Hen. 4.14 pl. 19. that it is sound and wholsom If the Servant sold it by covin of the Master Action lies against the Master 9 Hen. 6.53 pl. 37. for it is the Masters act For deceits in Bargains and Agreements without Warranty Deceit in bargain 1. Against him that sells a Horse not sound knowing him to be so without warranty 20 Hen. 6.34 13 Hen. 4.2 Kitchin 174. Q. for it seems it lies not yet if it doth it is because the Law hates deceit in Contracts for it hinders Commerce which is beneficial to the Commonwealth For selling an Horse to another that was not his own Horse 42 Assize 8. Coke 4. part 18. B. for this is fraud For selling Cloth that is nought Cloth knowing it to be so without warranty 21 Hen. 7.91 pl. 16. Crooke Against him that promises to deliver good Gum Gum. and doth not Mich. 7 Jac. Ban. Regis Weston Deighton Against him that sells Wine mixed with water Wine Nat. br 88. F. for this is but part Wine and so the buyer hath not what he paid for For uttering Corrupt victual Victual knowing it to be so 19 Hen. 6.53 22 Hen. 7.91 pl. 16. Crooke 11 Edw. 4.6 B. Brian Neal. Against him that sells good Wax and delivers ill Wax 6 Edw. 6. Dyer 75. pl. 18. Q. whether in all these cases an Indictment at the Common Law will not lie It seems it will Trover and Conversion In Law In Deed. 1. Delivery as to persons unknown 33 Hen. Trover Quid Quotuplex 8. Br. Action upon the Case 109. Trover for a Hawk with bells reclaimed and sold knowing it
5. Count. 6. The Writ 7. Process 8. Barr. 9. Judgment 10. Execution In what Court Covenant lies 1. Personal 2. Real 1. IT lies in the County or Hundred Court Nat. br 145. E. 2. It lies in any Court of the Lord of a Mannor Nat. br 145. E. 3. In London Nat. br 146. A. and other Corporations 1. Marshalsey between two of the Houshold of the King Coke 10. part 74. A. otherwise not 2. In the Court of the Lord of a Mannor by special grant 44 Edw. 3.28 pl. 18. fol. 37. pl. 30. Lib. Intr. 296. A. sect 1. 50 Assize pl. 9. A Fine levied in the County Palatine of Lancaster good 37 Hen. 8. cap. 19. which is in nature of a Covenant In Banco Regis 36 Hen. 6.34 A. Forteseue but it shall be avoided by Writ of Error Q. except it be meant of a fine In Ancient demesn quaere per 6 Edw. 3.207 pl. 20. it seems it should lie But 44 Edw. 3.37 50 Assize 9. Knivet it is not good Q. But 22 Hen. 7.90 B. pl. 14. Crooke a fine may be levied in Ancient demesn per petty Writ of Right close In Eire good 1 Edw. 3.10 pl. 34. 8 Edw. 3.27 18 Edw. 3.40 pl. 33. that is before Justices in Eire or Itinerantes In Communi Banco Before the Justices of the grand Sessions in Wales 34 Hen. 8. cap. 26. Who shall have Covenant 1. Personal 2. Real If a man Covenant with another to enfeoff him or to serve him c. the other shall have covenant although he do not agree Nat. br 145. A. But then it ought to be by deed Regist orig 165. B. Nat. br 145. A G. 7 Rich. 2. deeds 160. which is an estoppel to say the other did not agree Yet in London a man shall have covenant to levy a fine without deed per custome Nat. br 146. A. 22 Edw. 4.2 pl. 6. Vavisor 21 Hen. 6.10 Covenant 11. Administrator shall have Covenant by the equity of the Stat. Administrator de 31 Edw. 3. cap. 11. Coke 9. part 40. A. Hensloes case made for Executors But not before 19 Edw. 3. Covenant 24. Assignee shall have Covenant Assignee where it is made to one and his Assigns Nat. br 145. C. Regist orig 165. B. for the Assignee is in place of the Assignor Assignee shall have Covenant without shewing the deed of covenant Assignee for he may not have it Trin. 36 Eliz. Banco Regis Noke versus Ander But there if the Lessee for years by estoppel grant over his term the Assignee shall not have Covenant because the Assignor had nothing in the land but only an estoppel against the Lessor not to out him A Prior with the assent of his Covent by deed covenants for him and his successors with B and his heirs that he and his Covent shall sing in the Chappel of B which is parcel of the Mannor of B for the Lords of the said Mannor The Assignee of B shall have covenant because it is a service annexed to the Mannor 42 Edw. 3.3 pl. 14. Coke 5. part 17. B. Spencers case 45 Edw. 3.3 28 Hen. 8. Dyer 24. pl. 149. 2 Hen. 4.6 pl. 25. and who so hath the Mannor or is interessed in the Covenant But if the service is to be made in the Chappel of another then the Assignee shall not have covenant because it is not annexed to the Mannor 2 Hen. 46. pl. 25. And so if one covenant with a Tenant by the Courtesie to sing in his house although that he surrender and take for years he shall have Covenant because it was annexed to his estate 6 Hen. 4.1 pl. 5. viz. for life Q. Assignee by word shall have covenant Coke 3. part 63. A. Lincoln Colledges case for such an assignment is good Assignee of Assignee shall have covenant Coke 5. part 71. B. and so in infinitum as it seems so long as the estate assigned continues if the Covenant go with the estate Assignee of one Coparcener shall have covenant against the other coparcener to acquit him of the suit because the covenant goes with the land Coke 5. part 18. A. Spencers case 42 Edw. 3.3 Lessor covenants to repair the house lett the Assignee shall have covenant against him because this is annexed to the estate so the husband of the wife that is a Termor and a Tenant per Statute Merchant staple and every one that comes to the land Coke 5. part 17. Spencers case to which the Covenant is annexed So in all cases where it is annexed to the estate Nat. br 146. C. 48 Edw. 3. and not to the person otherwise than in relation to the Land Assignee of a reversion shall have covenant as well as the Lessor shall have it per 32 Hen. 8. cap. 34. but this is when it concerns the things demised and not collateral Covenants Coke 5. part 18. A. Spencers case for in respect of Reversion of the thing lett he comes in room of the Lessor in privity of estate Assignee of a Reversion for years when the Tenant for years hath a greater Term his Assignee shall have Covenant within 32 Hen. 8. although the Lessor grant over his Term Trin. 40 Eliz. Ban. Regis Rot. 123. Natures versus Westwood quaere Assignee shall have covenant upon covenant in Law Coke 4. part 80. B. 9 Eliz. Dyer 257. pl. 13. where it goes with the estate Lessee covenants with the Lessor and his heirs to repair the house the Assignee of the Lessor shall have covenant Mich. 9 Jac. Ban. Regis Bestwicke Wilborne for it goes with the house Husband and Wise Lease for years to the Husband and Wife the Lessor outs them they may joyn in covenant because after the death of the husband she shall have a term if he grant it not over 47 Edw. 3.12 pl. 11. and so she hath a possibility of interest The Commonalty of D Covenants with the Major and Commonalty of L Corporation that they shall be quit of Toll c. in D and after one Burgess in D takes toll of one in L Covenant lies for one Corporation against another 48 Edw. 3.17 pl. 2. It may be brought by the Major and Commonalty of one Corporation against the Major and Commonalty of the other Corporation Executor shall have Covenant for Covenant made to his Testator for a personal thing Executor for the personal estate is his to the use of the Testators will Nat. br 145. D. and orig Regist 165. B. Note de conventione pro executoribus non invenitur breve in Registr sed pro assignatis tamen potest fieri pro executoribus tam bene quam pro assignatis nam eadem est ratio de utrisque A leases to B for life for 12 years and B dies within the 12 years the Executors of B shall have it until 12 years c. B dies A outs the Executors within 12 years they shall have Covenant 19 Edw. 3. Covenant 24. Executor of an
Executor Executor of an Executor shall have Covenant by the Common Law 19 Edw. 3. Covenant 24. pol. Com. 290. Chapmans case Lib. Intr. 134. B. sect 1. and so forwards for the right dies not The Heir shall have covenant Heir if the deed be made to him and his heirs Nat. br 145. C. 16 Eliz Dyer 338. pl. 39. but this was to enfeoff him and his heirs so that this holds not generally but where the heir is interessed in the Covenant A enfeoffs B in see rendring for 8 years one Rose and afterwards 20 Roses B dies his heir within Age the Lord recovers the Land by reason of Collusion the Heir at full age shall have covenant 18 Edw. 3 Covenant 7. in respect of his privity to the Covenant A covenants with B and C and their heirs Joynt-tenant eorum utrique to make an estate to the heir of him which first dies being Parcener the heir of one shall have covenant sole 16 Eliz. Dyer 338. pl. viz. of him that first dies When any of the Covenantees shall have several interests or estates and the covenant is made with them cum quolibet eorum they shall have several covenants otherways not Coke 5. part 22. A. Matthewsons case in respect of their several interests Lessee for years by deed Poll is outed by the Lessor Lessee he shall have covenant Nat. br 145. L. 21 Edw. 4.30 pl. 25. for the lease implies a covenant to enjoy during the term But if a stranger outs him without title he shall not have Covenant Nat. br 145. L. 22 Hen. 9.52 pl. 26. But if he had a colourable title and ousts him quaere Although it be by verdict Coke 4. part 80. B. Nokes case for the verdict may not be according to Law Q. And although the Lessor warrant to him during the term 26 Hen. 8.3 pl. 11. for the warranty is not so general but if he warrant it against all men Q. But if a stranger that hath Title out him then it lies Nat. br 145. 32 Hen. 6.32 pl. 27. Nedham for that proves he had no power to lett But Lessee for life shall not have Covenant upon such outing for this cannot divests him of the Freehold 26 Hen. 16. Covenant 10. Nat. br 145. M. if in the covenant it be not exprest But 13 Edw. 3. sines 165. per Shard if a lease be to A without impeachment of waste and waste be brought against him A shall have Covenant for the lease implies a Covenant that he shall not be sued for waste Tenant for life shall not have the benefit of warranty if he be not in possession 26 Hen. 8.3 pl. 11. viz. at the time of the warranty Lessee for years shall have Covenant upon a demise and grant Coke 4. part 80. B. Nokes case 5. part 17. A. that is if the lease runs that Lessor doth demise and grant Q. If the land be evicted Pasch 7 Jac. Ban. Regis Winchombe Rigge A lease made to A. per dedi concessi the land is evict for years A shall have Covenant against the lessor for judgment was so entered Mich. 9 Jac. But Williams Yelverton said that it was without their privity and Williams said that it lied not quaere ergo Recusant shall not have an action of covenant for any thing seised into the Kings hands Recusant 1 Jac. cap. 5. by vertue of the Lessors recusancy for the Common Law takes no notice of Recusancy Successor shall have covenant upon a covenant made and broken in the time of his predecessor Successor 4 Edw. 3.130 pl. 71. quaere what Successor or whether any kind of Successor A covenants to levy a fine Fine the party to whom this covenant is made shall have covenant Nat. br 146. F. Against whom Covenant lies 1. Personal 2. Real Administrator is subject to it Administrator 13 Edw. 3. cap. 11. Coke 9. part 40. A. Hensloes case upon a Covenant made by the Intestate Assignee of a Termor shall be liable without naming how the condition of the thing extends Assignee to the things in esse parcel of the demise Coke 5. part 16. A. Spencers case fol. 24. Worcesters case This extends to him that comes to the demise any way Coke 5. part 17. B. Spencers case viz. any legal way but quaere if the Lessee be outed by one who hath no interest So if the Covenant extends to a thing to be newly made if it shall be made upon the demised land the Assignee shall be bound by express Covenant to the Lessor and his Assigns Coke 5. part 16. B. Spencers case 25 Hen. 8. br Covenant 32. Lessee covenants for him and his Assigns to repair a house Covenant lies against the Lessee and then against the Assignee also for the same breach and no remedy but an Audita querela per Brook Q. A leases for years to B and covenants to suffer him to enjoy there the Assignee of A of the Reversion is liable though not named 9 Eliz. Dyer 255. pl. 4. for he comes in interest of estate in the room of A who covenanted When the Covenant extends to a thing which had not essence at the time of the demise the Assignee is not liable without naming him Coke 5. part 16. B. as where the Lessee Covenants to build a new house upon Land lett Q. rationem When the demise is of a personal thing the Assignee is not liable by express name Coke 5. part 16.17 because the Covenant goes to the person and not the estate If the demise be of Land and a personal thing the Assignee is not bound by express name for the personality for there can be no privity between the Lessor and Assignee Coke 5. part 16 17. but for the realty he shall be bound The Statute of 32 Hen. 8. cap. 34. extends to Covenants which touch the thing demised and not to collateral Covenants which concern it not for the Statute looks at the estate It lies against Executors Executors Regist orig 165. B. Nat. br 145. H. and this is although they be not named 28 Hen. 8. Dyer 14. pl. 69. 45 Edw. 3.17 pl. 4. 47 Edw. 3.22 48 Edw. 3.2 pl. 4. 9 Eliz. Dyer 255. pl. 4. for they represent the person of the Testator and come in his stead But all the Executors ought to be named 47 Edw. 3.22 pl. 20. in the Writ and Declaration A Lease is made to A the Lessor covenants to pay the quit Rents c. divers dues likewise this is a personal thing and binds not the Executor 2 3 Mariae 114. pl. 6. of the Lessor Q. for it is paid ratione terrae A Lease is made to the Husband and Wife Feme the Husband covenants to make assurance for the Rent this binds not the wife because it is collateral 45 Edw. 3.11 pl. 7. for the Lessor hath remedy for the Rent without such assurance But if they covenant that
they will not assign without his consent there the Wife is bound if the husband die 18 Hen. 8. Dyer 13. pl. 66. Shelsey for else the Lessee is without remedy Heir shall be bound by covenant of his Ancestor Heir if be named Regist orig 165. B. else not And although it be broken by his Ancestor 4 Edw. 3.130 pl. 71. as well as if broken by himself But not if he be not named 28 Hen. 8. Dyer 14. pl. 69. 32 Hen. 6.32 p. 27. for then the Law will intend only that the Executor or Administrator shall be bound Infant cannot be bound by his Covenant to be an Apprentice per the Common Law Infant but by Custome of London he may 21 Edw. 4.6 pl. 17. But then he shall be of the age of 14 years 21 Hen. 6.31 which are accounted years of discretion to distinguish what may be for his benefit and what not But an Infant of 12 years shall be bound by his Covenant to serve in husbandry Nat. br 168. D. 7 Hen. 4.5 pl. 29. 9 Hen. 6.10 pl. 28. 21 Hen. 6.31 Newton for husbandry is for the good of the Commonwealth and the knowledge and maintenance of it are much favoured in Law But if he be within 12 years he shall not be bound 2 Hen. 4.18 pl. 7. 29 Edw. 3.27 pl. 29. 41 Edw. 3.17 pl. 1. for under those years he is indeed incapable of learning the Art by reason of disability of body and understanding also Lessee covenants to leave the house in good case Lessee it lies not against him till the end of the Term Nat. br 145. K. 12 Edw. 2. Covenant 2. But if he covenant sustentare reparare it lies presently 45 Eliz. Dyer 324. pl. 34. and whensoever it shall be out of repair during the term So if he covenants to leave the Timber in good plight this is void for the impossibility Coke 5. part 21. A. Mains case 7 part 15. A. Englefields case Fitzberbert covenant 29. Nemo tenetur ad impossibile For if the Trees are thrown down by Tempest it lies not 40 Edw. 3.6 A. Coke 1. part 98. A. Shelleys case for this could not be prevented But if the house be wasted by Enemies or Tempest he ought to repair by reason of the Covenant or build it 40 Edw. 3.6 A. Moris Doct. Stud. 66. B. 29 Hen. 8. Dyer 33. pl. 10. if there be an express Covenant to do it Lessor is bound by express Covenant or Covenants in Law Lessor It lies against a Lessor if he outs his Termor Nat. br 145. L. 21 Edw. 4.30 pl. 25. Coke 9. part 80. A. 32 Hen. 6.32 pl. 27. without cause and during the term A Parson leases his Glebe Parson and resigns during the term covenant lies against him because it is his own act and wrong 12 Hen. 4.3 and the Successor may avoid the Lease Where a Parcener upon partition covenants to sue a Writ of Partition Parcener the other assigns his estate to B which covenants against the Covenanter and good Coke 5. part 17. B. 42 Edw. 3.3 If one become pledge for another to perform such a Covenant the Action lies against the pledge Pledge Nat. br 146. B. for he is in the place of the Principal But then he ought to charge him as principal 39 Edw. 3.9 pl. 14. Or shew that the Principal is not sufficient 40 Edw. 3.5 Covenant 16. It lies against a Successor Successor Lib. Intra 136. B. Sect. 2. quaere what or whether against all It lies against him that should make a Deed Deed. Nat. br 146. F. that covenants to do it and does it not For what things Covenant lies 1. Personal 2. Real Guardian in Soccage Guardian in Soccage grants the custody of the Ward to A who covenants to render an Accouâ—â— to the Heir at full age Covenant lieth for not doing of it Regist orig 165. B. Nat. br 145. H. so the Guardian Q. whether an Account lies noâ— for the heir Covenant lies against him that doth not according to his Covenant by deed Nat. br 145. A. thâ— is doth not perform the whole covenant But if it be not by deed it lies not Regist orig 165. B. Nat. br 145. A G. 7 Rich. 2. deeds 16. Nat br 168. F. 14 Hen. 4.26 but an Action upâ—â— the Case upon the Assumpsit Unless it be in London by Custome Nat. br 146. A. 22 Edw. 4.2 pl. 6. Vavisor 27 Hen. 6.10 Câ—venant 11. Doctor Hector had a Patent Patent that none shoâ—â—â— bring over Spanish Wool but himself c. he by his Indenture grants this to another which by the same Indenture covenants to pay yearly 100 l with this Proviso that if he pay it not the Iâ—denture to be void yet covenant lies for the money that was due before the avoiding of the Iâ—denture Mich. 9 Eliz. Ban. Regis Dr. Hectors caâ—â— A gives a Mill to B Mill. c. and that with a Proviso quod nec ego nec haeredes mei construâ—â—â— molendinum in c. Covenant lies againâ—â— the Heir if he or his Father erect a Mill there 〈◊〉 Edw. 3.130 pl. 71. for the Heir is bound by his Fathers covenant A Termor deviseth the term by will to his wifâ— Termoâ— during her Widowhood the remainder to C and dies the Lessor sells the Fee to the wise and covenants that he would discharge all former Titles c. she marries C in the mean time Covenant lies against the Bargainor by the Baron and Feme if C do oust them during the term for it was his own folly to make such a Sale and Covenant Coke 10. part 51. Lampets case A leases to B for years if C lives so long Lease and covenants that he had power to do it C being dead at the time Covenant lies if A had not a good estate in it Coke 9. part 60. Bradshaws case though C was dead for if he had no good estate he had no power to lett and so his Covenant implied in Law is broken A leases to B for years Lands in which C had a Copyhold estate and covenants that the Lessor shall suffer him quietly to hold the same without trouble either of the Lessor or any other B enters C outs him Covenant lies not because all the sequel depends upon this word suffer the which extends only to the Lessor and his Executors and Assigns 9 Eliz. Dyer 255. pl. 4. and not to the Copy-holder who hath a distinct interest from the Lessor A leases to B for years and covenants quod pacifice gauderet c. sine interruptione alicujus Covenant lies if any interrupt him 16 Eliz. Dyer 328. pl. 8. for the word alicujus is a general word and includes all persons Lessor covenants that the Lessee shall quietly and peaceably have c. without the disturbance or hindrance of the Lessor the Lessor sues the Lessee in Chancery and supposes that the Lease
deed An Estranger shall not have a Detinue for deed unless he makes title to the Land Estranger but upon request to deliver them and a refusal he shall havâ— an Action upon the Case 33 Hen. 6.26 pl. 1â— Prisot if the Deeds do concern him If one have Deeds and some concern warrantâ— some not Feosâ—ee and enfeoff B with warranty B shaâ—â— not have a Detinue for the deeds which servâ—â— to deraigne the warranty per amount Coke 1. part 2. Buckhursts case 44 Edw. 3.11 B. because they do not wholly concern him Neither is it material for to maintain the title Coke 1. part 1. Buckhursts case But they shall have them which concern the possession only ibidem viz. of the Land and the Feoffor is to have the Deeds to maintain his warranty But if a Feoffment be made without warranty the Feoffee shall have a Detinue for all Coke 1 part 1. Buckhursts case viz. all the Deeds that do any ways concern the title that he may be able to defend it Unless it be per dedi then it is express warranty during the life of the Feoffor per statutum de Bigamis cap. 6. Coke 1. part Buckhursts case 1. for the word Deed implies so much But note that in all these Cases the Feoffee shall have Detinue for them against a Stranger that cannot intitle himself by the Feoffor Nat. br 138. G. Coke 1. part 2. A. 7 Edw. 4.26 because a Stranger cannot pretend any colour And note if the thing which lies in grant as a Lordship Rent Advowson c. be granted to A with warranty which grants it to B with warranty B shall have a Detinue for the Ancient deed because he cannot make a title without the Ancient deed Coke 1. part 1. B. Buckhursts case quaere So in all other Cases the Feoffee shall have a Detinue for every deed which concerns the making of his estate good Nat. br 138. K. for the Law favours Titles to Land and loves the maintenance of them Note Note if A bail deeds of Land to B to re-bail them to him and his Heirs and afterwards enfeoff C in fee yet C shall not have a Detinue against B for it is a charge to A per cause of Bailment Crooke 18 Hen. 7.48 pl. 3. If one enfeoff another with warranty the Feoffor shall have the ancient deeds Feoffor which contain the warranty or which are material for the maintenance of the Title Coke 1. part 1. B. Buckhursts case If A grant a thing that lies in grant to B with warranty B shall have a Detinue for the Ancient deed because this makes his title Coke 1. part 1. B. A enfeoffs B per dedi A shall have the Ancient deed which comprehends the warranty because dedi makes an express warranty Coke 1. part 2. B. and therefore it is good reason he should have the deed to make out the warranty by A makes a deed of Feoffment and delivers this upon condition if the Condition be not performed he shall have a Detinue 37 Hen. 6.37 B. for the deed for the property was not absolute out of him Heir general The Heir general shall have the Ancient deeds comprehending warranty or necessary for the maintenance of the title where the Feoffor obliges him and his heirs to warranty for he is bound by his Fathers act and its reason he should have the deed to maintain it Coke part 1. B. Buckhursts case Nat. br 138. L. Feoffment per dedi the heir of the Feoffee shall not have the Ancient deeds because he is not bound to warranty Coke 1. part 2. B. Buckhursts case but the heir of the Feoffor Q. The heir of the disseisee shall have a Detinue for the deeds Nat. br 138. L. for he is in by deceit and the Law will judge his title good till it be evicted Heir special The Heir in tail shall have a Detinue against the Discontinuee for the deed of entail Nat. br 138. H. 9 Edw. 4.52 pl. 15. for it belongs to him to make out his Title by virtue of the entail And although there be a warranty to the Feoffee by his Father 9 Hen. 6.15 pl. 5. 4 Hen. 7.10 pl. 4. for the heir in tail comes in paramount the Father One Joytenant sole delivers the deed to redeliver to him Joyntenant he alone shall have a Detinue per cause of this special Bailment 13 Rich. 2. bre 648. though the deed doth belong unto both for the bailment is the cause of the Action Joyntenant survivor A enfeoffs B and C and the heirs of B and delivers all the deeds to B which dies C shall have a Detinue for the deed of Feoffment but not for the other deeds 34 Hen. 6.1 A. Coke 1. part 2. A. Nat. br 138. F. viz. which concern the Inheritance but the deed of Feoffment concerns the estate for life as well as the Inheritance If A makes a Release to B and C and this delivers to B which dies C shall not have it ibidem for the Parchment and the Wax do belong to him to whom it was delivered But if A and B Joyntenants per defeasible title and S. J. makes a Release to them the Survivor shall have it 34 Hen. 6.1 per the Report Coke 1. part 2. A. for this concerns the Land and shall survive with the estate Feoffment to two in Fee the survivor shall have all the deeds Coke 1. part 2. B. Buckhursts case because the estate survives which the deeds concern If deeds concern more Lands if the Ter-tenant of any part happen upon the deed he may detain it because he hath an interest 4 Hen. 7.10 pl. 4. 2 Eliz. Dyer 183. pl. 57. and it is reason he should have the deeds to maintain it as well as any other Recusant shall not have an Action for any thing seised into the hands of the King Recusant 3 Jac. cap. 5. By Stat. vid. 22 Hen. 6.1 A Tenant for life dies Remainder he in the Remainder shall have Detinue for the deed 9 Hen. 6.54 pl. 39. for now his title is come in possession and so the deed that created it belongs to him But if the Donor release to the Tenant for life he in the Remainder shall not have a Detinue 9 Hen. 5.54 pl. 39. Q. If Tenant for life die he in the Remainder of a Copyhold shall have it Coke 4. part 22. B. for Copyholds are in many things governed by the rules of the Common Law and so no difference betwixt them and other estates Land is given to A for the life of B the Remainder to C in Fee B dies C shall have a Detinue against A without request because he had interest in the deed during the life of B 33 Hen. 6.30 B. 35 Hen. 6.9 A. Moyle in respect of his Remainder But there quaere whether it lies against the Husband when the wife is dead without issue without request and possession because he
Edw. 3.2 The heir ought to count of the certainty of the Land and also how it was conveyed to him 3 Hen. 6.19 pl. 31. 19 Hen. 11. pl. 29. or els it cannot appear the deeds belong unto him He ought to count as heir if he claims as heir 7 Hen. 6.31 pl. 25. for every one ought to make his case as it is But if he counts upon Bailment to rebail to him and his heirs he need not to set forth the Title to the Land 19 Hen. 6.41 pl. 84. for there the Action is meerly founded upon the bailment and detainer If a Feoffee with warranty make a Feoffment with warranty his Heir shall have a Detinue and count specially Coke 1. part 2. A. Buckbursts case as his case is The heir counts that his Father was seised in fee and demands the deed of the estate tail and good for his Father may discontinue and take it again in Fee 38 Hen. 6.24 pl. 11. and therefore his count shall be presumed to be good Count per Feoffee Feoffee Lib. Intra 210. sect 6. Note Note if the Writ be of bona catalla the Count cannot be of Charters 22 Edw. 4.12 pl. 32. for bona catalla are not proper words generally to express Charters by because they belong to the real and not personal estate and Goods and Chattels are usually intended personal things And needs not say in the Count how the Defendant came to them 9 Hen. 5.14 pl. 22. 4 Edw. 4.9 pl. 11. Lib. Intra 213. A. sect 2. If the Writ be of a box with Deeds the Count shall be accordingly and not of a deed certain 41 Edw. 3.2 pl. 5. 14 Hen. 6.4 A. Pleading ought to be plain and certain The Plaintiff in a Detinue for Deeds for Land ought to make title to the Land in the Count 33 Hen. 6.26 pl. 12. Prisot for otherwise he ought to make request for the deeds and then an Action upon the Case lies if they be detained from him The Writ in Detinue 1. Of Chattels 2. Of Deeds 1. In Comitatu dicitur injuste detinet Regist orig 139. B. that is in the County Court Si quis rem mobilem vendicaverit ex quacunque causa oblatam vel commodatam debet in actione sua definire pretium sic proponere actionem suam quia ille à quo res petitur non tenetur precitè ad rem restituendam sed sub disjunctione vel ad rem vel ad pretium Bracton Lib. 3. fol. 102. B. Where you may recover dammages for the thing detained the value of it must be set forth that the Jury may judge of them If it be against an Executor it needs not name him Executor because he is only charged with the Detainer 29 Edw. 3.38 pl. 12. quaere tamen for the Detainer is not in his own right Rex In Comitatu praecipimus tibi quod justicies L. quod juste c. reddat T. quandam chartam vel duas chartas vel quoddam scriptum obligatorium vel conventionale vel acquietantiae vel quiete clamantiae vel testamentarium vel quoddam Chirographum quod quas vel quae ei injuste detinet ut dicit sicut rationabiliter monstrare poterit ne amplius c. Regist orig 159. B. Nat. br 138. B. Rex In Banco praecipe F. quod reddat W. quandam chartam c. quam ei injuste detinet ut dicit nisi fecerit c. Regist orig 159. B. Nat. br 138. B. The Writ for Deeds in a Bag Box or Chest vid. Regist 159. B. Lib. Intra 209. C. Sect. 1. Note when a man demands Writings in a bag box or chest he needs not make mention in the Writ or Count what Writings they were Regist orig 160. A. because they were together and entire but if loose it is otherwise If one sue for Deeds in any Court without a Writ a Prohibition lies vide the Writ Regist orig 159. B. Nat br 139. C. for men must proceed as the Law directs and they are compellable so to do A bails Deeds to rebail to him and his Heirs there the Heir need not mention that he is Heir in the Writ 5 Edw 3.159 pl. 24. for the Action is grounded upon the bailment Yet quaere for here is a special bailment The Process in Detinue 1. Before appearance 2. After Detinue for Chattels By the Common Law it was but a distress infinite Nat. br 139. A. 14 Hen. 6.1 that is â—o distrain him by his goods and Chattels until he appear But per 25 Edw. 3. cap. 17. a Capias was given to arrest the body of the party to bring him in But lies not in a Detinue for deeds 5 Eliz. Dyer 223. pl. 24. viz. a Capias Q. rationem it may be because that may not be satisfactory to the party to have the person Detinue for deeds The Process at Common Law was a Summons Attachment and Distress Nat. br 139. A. 14. Hen. 6.1 viz. for deeds But if the Deeds are in a box a Capias lies 20 Edw. 4.3 pl. 12. 7 Hen. 4.2 pl. 8. 14. Hen. 6.1 pl. 1. 40 Edw. 3.25 pl. 28. Quaere rationem But then it ought to count of a Deed in certain 14 Hen. 6.1 pl. 12 and not generally The Garnishee may be summoned by word Garnishee â— Hen. 5.13 as well as by Writ The Garnishor may have a Soire facias to issue out against the Garnishee and if he make default judgment shall be given against him Lib. Ietra 217. B. sect 3. upon a nihil dicit The Garnishment in Detinue 1. Of Chattels 2. Of Deeds Garnishment is granted for saving the Condition Garnishment if it be not performed only upon this whether the Defendant did perform it or not and for no other cause 40 Edw. 3.11 pl. 24. The Defendant in Detinue pleads that the Plaintiff and B delivered this upon condition and prays Garnishment 〈…〉 and had it allowed for a good plea without shewing what the conditions were 3. Hen. 4.18 for that will appear upon the Interpleader of the parties And also the reason is said to be because the Conditions come not in debate between the Plaintiff and Defendant Garnishment was prayed of the Heir and Executor of B and accounted good because it did not appear whether the Deeds in the box were real or Chattels 14 Edw. 4.1 pl. 3. 21 Edw. 3.41 pl. 44. 48 Edw. 3.30 pl. 19. and so not certain whether the Heir or Executor was to be sued Garnishment granted against an Executor because it was supposed that the Testator was one that delivered the deeds 14 Hen. 6.11 pl. 42. The Defendant shall have Garnishment although the Garnishee was a stranger to the Delivery 14 Edw. 4.2 Q. If the the Garnishee be returned dead then his Heir or Executor shall be Garnie and if it be for a Chattel and it is returned that he is dead intestate the Ordinary shall be Garnie 48 Edw. 3.3 pl.
is an escape in the old Sheriff but not in the new for the new is not charged with him but if the old Sheriff die the other ought to take notice of the prisoners but if the escape be in the vacancy viz. before the new Sheriff is elected and sworn debt lies not Coke 3. part 71 72. Westbyes case 10 Edw. 3.375 pl. 28. for before he was not chargeable for he was no offender in Law If one be in execution yet debt lies against the Sheriff 7 Eliz. Dyer 241. pl. 47. 16 Edw. 4.3 pl. 7. Q. de hoc The Plaintiff and chief Justice assent for â—oe time that the prisoner shall go at large and after he suffers an escape debt lies 10 Eliz. Dyeâ— 275. pl. 46. for this was not a finall discharge dâ— the prisoner Q. A capias upon a recognizance in Chancery the party taken escapes debt lies Coke 8. part 142. Druries case for this is in nature of an execution The Writ was that 6 were in execution and escaped and the doubt was whether they might count for one only and by the better opinion 〈◊〉 was good Crooke 26 Hen. 7.67 pl. 11. Q. If one be Marshal of the prison whether it be by right or wrong Marshal debt lies against him 39 Heâ— 6.33 A. for the Plaintiff is not to examine his Title Count that he was in execution in C and removed to the upper Bench prison and committed to the Marshal which suffers him to escape debt lies 38 Hen. 6.28 pl. 10. for it is all one as I he had been originally committed thither Deputy of a Marshal suffers an cescape â—eputy debt lies against him 11 Eliz. Dyer 278. pl. 5. viZ. the Marshal himself Q. if not against the Deputy Debt lies against a Mayor of the Staple upon recognizance taken before him Mayor de Staple 5 Hen. 6.11 Heâ— 6.49 B. 12 Hen. 6.2 pl. 9. if he suffer 〈◊〉 Prisoner to escape The count Lib. intra 171. D. sect 6. Dean and Chapter of Pauls having return 〈◊〉 Writs Lord de Franchize and making a Bayliff that suffers an escape Action lies not against the Dean and Chapter because cause they are not Bayliffs Pasch 14 Eliz. Com. Ban. but against the Bayliff for he is the Officer the Law takes notice of Q tamen For a Nomine poenae granted this is casual yet debt lies for it Nat. br 120. M. 2 Hen. 8.8 Dyer Grant penalty 24. pl. 149 for it is a duty ab origine if forfeited And this is but hac vice if there be no other words to shew the continuance of it 32 Hen. 6.10 A. Billinge And so upon any grant hac vice certain or uncertain Q. 2. Annuity or Rent-charge granted for years Annuity debt lies not during the term But the 5 Edw. 4. 42 B. debt lies and it seems this is Law if it lie not it seems it is because the Grantee may distrain and charge the Land But against a customer it lies if it be to be paid out of the customs of London after delivery of a Liberate Nat. br 121. F. for then it is a duty vested It lies for Executors or administrators of the Grantee per Stat. 32 Hen. 8. cap. 37. viz. of an Annuity or Rent-charge And after the term ended it lies for the Grantee Lib. Intra 151. C. sect 1. for then there is no other remedy for it 3. Annuity for life For Life debt lies not for this during life 19 Hen. 6. 42 A. 37 Hen. 6.35 A. But a Distress or a Writ of Annuity and the Land is chargeable But against a customer it lies Nat. br 121. F. â—ntea for his person is chargeable ratione officii Also if a Parson or Prebend c. hath such annuity and resigne or be dispossessed it lies for the arrerages Coke 4. part 48. B. Ognels case For by his resignation it is meerly a personal thing and the Land is not chargeable So his Executors shall have debt by the common Law Coke 4. part 49. A 22 Eliz. Dyer 37. pl. 62. Coke 10. part 61. B. For it is accounted part of the Testators personal estate But if it be a Rent-charge seck or service debt lies not for any so long as the Estate continues Coke 4. part 49. A. Ognels case For there the person is not chargeable Although it have continuance but to a special intent Coke 7. part 39. B. For the Law takes not notice of such intents but looks on it as upon a continuing Estate But after it be determined debt lies for the party or his Executor Coke 4. part 49. Ognels case Nat. br 121. E. Coke 4. part 49. Ognels case 27 Hen. 6.1 pl. 4. because the realty is resolved into the personality and so the person chargeable 4. Annuity in Tayl general or special debt lies not during the annuity Coke 4. part 48. B. for the former reason So of a Rent-seck service or charge vid. antea But if the estate be determined quaere at the common Law But by the 32 Hen. 8. cap. 37. the Executor or Administrator shall have debt for the Arrerages Annuity in fee during the annuity debt lies not Annuity or Rent in Fee Coke 4. part 48. B. 6 Hen. 4.7 pl. 33. Unless it be in a special case as when a Parson or Prebend resignes Coke 4. part 49. A. Nat. br 121. D. 19 Hen. 6.41 42. Nat. br 121. Hâ—ntea For there the estate is determined as to him that resignes So if a Parson dies his Executors shall have debt Nat. br 120. L. Coke 4. part 49. A. 37 Hen. 6.8 pl. 18. For there is no other remedy for to recover it And by the 32 Hen 8. cap. 37. the Executors or Administrators of every one shall have debt But after the Annuity determined every one shall have debt by the common Law Coke 4. part 49. A. 45 Edw. 3.45 execution 71. Judgment given In Court of Record Superior Parliament Ban. Regis Chancery Com. Ban. Exchequer Prescription Inferior by Custom Patent Common-Right Not of Record Court Baron For principal County For dammages and losses Ancient Demesn in any Mannor For Fine or Amerciament Out of Court Statute Marchant Staple According to 23 Hen. 8. Recognizance Account at common Law Arbitrement By Law or Ordinance Judgment given in debt for the principal If a man brings debt upon a recovery in com Ban. he ought to bring it in Middlesex where the Record is because it is the Original upon the which the Action is brought but a scire facias to execute a Judgment shall be where the original Action was brought because it ought to follow it Hil. 9 Jac. Ban. Regis Musgrave versus Wharton for the scire facias is in pursuance of it and to have execution upon it Upon Arrerages recovered in a scire facias upon a Judgment in Annuity brought against the predecessors debt lies upon it Nat. br 122. E. 22 Edw. 4.1 pl. 6.
accord with satisfaction is no Bar Obligation simple accord because the duty being certain ought to be avoided by matter of as high a nature as it was created which cannot be by parol Coke 6. part 44. A. Blakes case But if the duty accrue not until some subsequent act be performed there accord with satisfaction a good plea Coke 6. part 44. A. For there the duty was not certain but depended upon a matter ex postfacto A. obliged to B. in 100 l. shews 3 Acquittances Acquittance 1 of 10 l. 2 of 20 l. and 3 of 20 l. which amount to a receipt of 50 l. parcel of the 100 l. in which he was bound to pay 50 l. this is a good Bar because it appears that it was but 50 l. principal debt for which the Bond was made though the penalty was 100 l. 43 Edw. 3.31 pl. 26. Foreign Attachment in London is a good Bar Attachment as it seems No. Lib. intra 139. C. sect 20. 22 Hen. 6.47 pl. 2. By the Custom there Q. tamen for it may be unduly attached and no Judgment upon it But a Legacy cannot be attached because it may not be due in respect of payment of the Testators debts Mich. 14. Jac. Ban. Regis Vaughans case and so it is a thing uncertain Attainder of Felony no plea Attainder Mich. 38 39. Eliz. com Ban. Banister versus Trusselle in debt for the Attainder doth not discharge the debt Nil debet Nil debet in debt upon a Obligation is no plea because an Obligation shall not be avoided by a nude Averment but by matter of as high a nature Doct. Stud. 22. Non compos mentis Non compos mentis pleaded by the party is no good Bar. Trin. 37. Eliz. ban Regis Strode versus Marshal vide 5 Edw. 3.70 For the party shall not plead in his own disability Payment without acquittance no plea Payment in debt without a specialty 33 Hen. 8. Dyer 51. pl. 10. Coke 5. part 43. Doct. Stud. 22. 20 Hen. 6.3 A. Paston 26 Hen. 8. Dyer 6. pl. 3. 28 Hen. 8. Dyer 25. pl. 160. 41 Edw. 3.7 pl. 15. because it must be avoided by a matter of as high a nature A. by indenture sold Land for 20 l. and there were Covenants in the Deed for the performing of which he bound himself in 40 l. Debt was brought for the 40 l. Payment without Acquittance is no plea 26 Hen. 8. Dyer 6. pl. 3. fol. 25. because the Action is grounded upon the Indenture and the Bond. A Defeazance upon a Statute-Merchant to pay 20 l. thereof without an Acquittance is a good plea for the Defeazance is instead of an Acquittance and this is without bringing an audita querela when the party is not in execution 17 Edw. 3.3 pl. 10. For if he be in execution there he must have an audita querela Obligation conditional A. is bound by obligation to pay his Rent there payment without an Acquittance is a good bar 46 Edw. 3.1 pl. 1. because the obligation was but conditional and made no present duty When the original contract is for money Accord an accord with satisfaction is a good bar Coke 9. part 79. A. Petoyes case 22 Edw. 4.25 A. For thereby the contract is discharged But an accord made with a general receiver is no bar to his Master if he had not a special authority Doct. Stud. 137. B. But when the condition of the agreement is for a collateral thing there an accord is no bar Coke 9. part 79. A. 12 Hen. 4.23 9 Hen. 7.4 4 Hen. 8. Dyer 1. For such a thing cannot be accorded for And if it be before the day of doing the thing then part of the sum received is a good bar Coke 5. part 117. Pinnels case 27 Edw. 3.84 to the Action because the Action is brought upon the whole Contract part whereof was discharged before the time agreed on for performing it But at the day or after it is no bar unless it be in another place Coke 5. part 117. Pinnels case Because then the whole duty was due upon the entire contract part received is a good bar in another Country else the party shall be without remedy for so much as he paid The Defendant pleads he paid so much in full satisfaction the which the Plaintiff received and not that he paid so much the which the Plaintiff received in satisfaction Coke 5. part 117. A. Pinnels case and good for he must receive the money as it was paid and not as he will receive it Conditions performed Conditions performed is a good barr 41 Edw. 3. 10. pl. 7. fol. 25. pl. 19. Thorpe in an action of Debt upon a Bond for performance of Conditions One pleads part of the Arbitrement Arbitrement it shall be intended all that was arbitrated until the contrary be shewed by the other party 2. The other may shew the remnant and traverse absque hoc that they arbitrated that only as he pleaded it 3. The other needs not to rejoyn to more but joyn issue because else it shall be a departure from his Plea which must not be in pleading Pasch 12 Jac. Ban. Regis Linsey versus Ashton Condition to levy a Fine Upon an Obligation with a Condition to levy a fine upon Garnishment the Sheriff returns him garnished in debt he pleads that he was not by the Law 28 Edw. 3.100 pl. 42. 29 Edw 3.44 pl. 4. and good because it is penal unto him and the Bond is but conditional and no present duty and therefore the Sheriffs return shall not bind him Deed poll A enfeoffs B by Deed poll provided that if he pay 20 l. to B he may re-enter and is bound to perform all Covenants and Payments contained in the Deed poll he is not bound to pay the 20 l. for it is at his election to pay it or lose the Land Trin. 9 Jac. Ban. Regis Briscoe versus Knight Rott 271. for if the Proviso be not performed the Feoffment is absolute and the Bond is but to strengthen the Feoffment A is bound to B to pay a sum granted by C by Indenture to B and to levy it of his goods and Chattels viz. of C this is void and therefore no barr in Debt brought by C 41 Edw. 3.7 pl. 15. Belknap 46 Edw. 3.18 pl. 17. Belknap Quaere A thing void in Law cannot be pleaded in barr A Conditions that B shall lease to C the Land in his occupation Condition except the Trees this exception is not good unless they were excepted in the Original Lease and then B ought to shew it Mich. 15 Jac. Ban. Regis Dores case for he letts him not the land in his occupation if he had the Trees and excepted them A Conditions that Lessee for life shall make a Lease for 10 years and he makes one for ten years if he live so long this is good
Fine and the Defendant had none because there was no Rent reserved and so had for the present nothing in the Land Pasch 32 Eliz. com ban Rot. 1017. Smye versus June and others Against whom Ejectment lies Husband and wife It lies against Husband and Wife Lib. intra 253. C. sect 11. Coke 9. part 77. B. Petoyes case Com. 187. Wortleyes case Where the Husband outs one by colour of his Wifes Title It lies against a stranger that wrongfully outs one Estranger 6 Rich. 2. Ejection firm 2. 21 Edw. 4.30 pl. 25. Brian Nat. br 220. F. Coke 9. part 80. A. 32 Hen. 6.32.27 S. to gain the possession and to recover dammages for the disturbance It lies not against a Feoffee of a Lessor Feoffee because he cannot do wrong Nat. br 198. A. 21 Edw. 4.10 pl. 1. Choke 21 Edw. 4.30 32 Hen 6.32 pl. 27. 38 Edw. 3.33 pl. 44. For he comes in lawfully as to the reversion Unless the Feoffee make a Deed presently upon the outing to pass the possession to another then it lies against him Nat. br 198. A. Or if he enter upon the Lessee afterwards that the Lessee had entred upon him to regain his possession Nat. br 198. A. Lessor grants a Reversion to A the Lessee attornes Grantor A outs him the Lessee shall have an ejectione firmae Nat. br 221. A. 1 Hen. 5.3 pl. 3. For by the Attornment only the Rent and the Reversion passed and not the possession It lies against the Heir of the Lessor Heir Nat. br 198. K. if he out the Lessee in case his Ancestor had power to lease It lies against the Lessor that outs the Lessee Lessor Nat. br 220. F. 21 Edw. 4.10 pl. 1. Choke 30. pl. 25. 38 Edw 3.33 pl. 44. Coke 9. part 80. A. Nat. br 198. K. without lawful cause and he shall make title by the Lessor Lessor suffers a Recovery Recoverer the Recoverer outs the Lessee he shall have an Ejectione firmae against the Recoverer by the equity of the Statute 21 Hen. 8. cap. 15. Nat. br 220. J. 198. E. For the Recovery shall not destroy the Lease except the Lessee be party to it It lies against the Lord per Escheat Lord. which outs one Nat. br 221. I. B. 198. K. For the Lessees Title was paraâ—â—ount the Lords It lies against the Lord of a Villain which enters upon the Termor Nat. br 221. C. 198. K. that had a Lease of the Land before the Villain purchased it Tenant in common It lies against Tenant in common per his companion Littleton 73. A. vid. antea Of what things an Ejectmont lies It lies upon a Lease for Cattel Cattel because it is a personal thing 1 Hen. 6.1 Cottesmore granted for a certain time It lies of a Wood leased for years Wood. Com. 223. B. Barkleyes case the count there It lies of a Chamber Chamber Mich. 30. Eliz. Ban. Regis Brand against Cage It lies of Tithes Tithes per 32 Hen. 8. cap. 7.2 3 Mariae Dyer 116 pl. 17. the count ought to shew the nature or quality of the Tithes Coke 11. part 24. B. Harpers case vid. antea It lies of a Garden Gardon c. Barn and Tithes 9 Eliz. Dyer 258. pl. 16. together for they are all personal things But if all the Tithing consists of a modus decimandi and a Lease be made thereof an ejectione firmae lies not Coke 11. part 25. B. Harpers case For there is no possession of any thing lett but things which lie in prender It lies of a Water-course Water-course Com. 288. B. Brown Regist orig 227. B. viz. of the soil where the water runs or for the water to pass through It lies of a Hundred Hundred because it is liberum tenementum 15 Hen. 7.8 pl. 1. and so it may be lett for years It lies of a Mannor Mannor and the Writ Regist orig 227. B. Nat. br 220. G. Com. 229. A. Barkleyes case which consists in demesnes and services Q. of a reputative Mannor The Count. Lib. intra 252. A. sect 4. Count of a Demise of 300 Acres by the name of a Mannor habendum Manerium cum c. and good 13 14 Eliz. Dyer 340. pl. 5.7 for this is a good description of the thing lett It lies of a Messuage Messuage Coke 11. part 55. A. Sauls case For that is a thing certain The Count No. Lib. intra 184. A. sect 1.3.197 C. sect Lib. intra 252. B. sect 5.6 Coke 1. part A. Pelhams case It lies of a House Goods and Chattels altogether The Count lib. intra 252. B. sect 7. For they are all personal things It lies de medietate Messuagii Lib. intra 256. D. sect 14. The Count Com. 459. B. Studs case For it is certain enough what it doth mean It lies de tribus partibus duorum Messuagiorum No. Lib. intra 195. D. sect 6. It is not formal to have it of a Chappel Chappel but it shall be called a House Coke 11. part 25. B. Harpers case For the Plaint in Assize shall not be of â—o Hospital but shall say Messuage 8. Assize 29. For the Law takes no notice of Leases of such things not what is meant by them as to lay use It lies of a Mill Mill. No. Lib. intra 192. A. sect 5. But it seems he must shew what kind of Mill it is It lies of 300 Acres of Pasture Pasture the Count Lib. intra 251. D. sect 2. It lies of a Lease of pasturing of an Oxe Oxe Com. 228 B. Brown Regist 227. B. It lies of 100 Acres of Meadow Medow Lib. Intra 252. A. sect 13. It lies of a Rectory Rectory 15 Hen. 8. pl. 1. 16 Hen. 7.8 pl. 6.13 14 Eliz. Dyer 304. pl. 25. The Count Lib. intra 253. A. sect 9 10. For it seems that is certainly known Q. It lies not of a Reversion Reversion Com. 159. B. Thracies Case per Dyer For of that there can be no possession recovered It lies of 100 Acres of Land Land The Count Lib. intra 251. C. sect 1. For it shall be intended arable Land terra dicitur à terendo because broken up by the Plough But it lies not of a Close containing three Acres but shall be of so many of the Acres by name Coke 11. part 55. Savels Case to wit 3 Acres called Crowlands or the like for the word Close is uncertain For by Crooke Justice Mich. 15 Jac. Wicks Sparrow the Land of every man is enclosed and therefore an Ejectione firmae cannot lie of it for the uncertainty of the word Close But Coke 11 part 55. Savels Case was it seems that if it be of a Close containing three acres of Pasture it is good because the quantity is shewed and also the quality which makes it more certain and so it was adjudged Mich. 15. Jac. Banc. Regis Q.
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
Parish and a Distress taken for it and good Doct. Stud. 74. B. by prescript Suit to a Mill. A man may distrain for suit to a Mill 22 Hen. 6. 14. 9 Edw. 3.356 Nat. br 122. M. For it is a profit and valuable Rent service A man may distrain for Rent service and all manner of services Doct. Stud. 74. A. For it is a Duty issuing out of the Land held A. gives Land to B for him to serve in such a place when he shall be requested he may distrain 22 Hen. 6.33 A. Q. if he were never seised of the Service Herriot Difference between seising and disseising For Herriot-service a man may distrain 44 Edw. 3.13 pl. 24.27 Assize pl. 24. Com. 96. Mantels case Doct. Stud. 75. A. But for Herriot-custom he can but only seize 2 Edw. 2. Herriot 7. 8 Hen. 7.10 Doct. Stud. 75. A. And if he cannot seize he hath no remedy And for Herriot-service a man may seize 18 Edw. 3.22 pl. 4. 38 Edw. 3.7 pl. 27. 16 Ed. 3. Herriot 2. 6 Edw. 3.227 pl. 10. And Distress for Herriot-service is more worthy than Heriot-custom For a certain Leet A man cannot distrain for a certain Leet without prescription because it is against common right Coke 11. part 44. Godfreyes case vide 6 Edw. 3.10 so that a prescription binds common right And the Tything-man that prescribes to have it of the Resiants ought to prescribe to distrain 6 Edw. 3.189 pl. 26. Coke 11. part 44. B. else he cannot Ayd A man may distrain for Ayd for marrying his Daughter or making his Son Knight Glanvil Lib. 9. cap. 8. 5 Edw. 3.138 pl. 38. 39 Edw. 3.34 pl. 40. 40 Edw. 3.22 pl. 21. This by tenure is due to the Lord. Suit to the Hundred For suit to his Hundred Court by reason of tenure there shall be a distress of common right Lib. intra 608. B. 5 Edw. 3.152 pl. 32. 9 Edw. 3.356 pl. 39. to compel it to be done or â—ecompence for not doing it The Lord may distrain for relief Relief and hath no other remedy but his Executor shall have debt and shall not distrain Coke 4. part 49. B. 7 Hen. 6.13 as for a duty vested in the Lord to whom it was a personal service A man cannot distrain for money due for Agistment but shall have trespass Agistment if that they chase the Cattel out of the Land before the Agistment be paid Regist Orig. 92. A. 30 Edw. 3.11 pl. 6. Q. whether debt lies not for it against him that agisted his Cattel Inholder An Inn-holder cannot distrain for his Victuals provided for his guests 3 Edw. 3. Distress 19. but may have an action of debt for the value of them He that takes Cattel as Estrays Estray may distrain them until he be saisfied for the Meat 44 Edw. 3.13 pl. 25. by the owner of them if they be claimed within the year and the day Pledge A. indebted to B for tabling delivers Goods to him until he be satisfied B. may distrain them until he be paid 46 Edw. 3.30 pl. 39. that is he may keep them but this is upon the special agreement Toll For Toll a man may distrain 30 Edw. 3.15 B. 11 Hen. 6.39 9 Hen. 6.45 20 Hen. 7.1 Marrowe viz. Toll of a Market or Fair this seems not to be of common right But Trin. 28 Eliz. Ban. Regis Rot. 963. the Village of Northampton distrained for Toll and alledged not a special Title or prescription to have Toll and for this it was adjudged against them Dammage feasant A Commoner may distrain the Cattel of a stranger dammage feasant upon the common of common right Coke 9. part 112. B. 7 Edw. 3.266 pl. 39. 24 Edw. 3.42 46 Edw. 3.23 15 Hen. 7.2 12. 13 Hen. 8.15 B. in respect of his interest in the Common Forfeitures The Officers may distrain for the Forfeitures of Inn-keepers and sell the Distress 1 Jac. cap. 9. by Statute vid. The Lord may distrain for the Forfeitures of Inmates or for erection of Cottages Stat. 31 Eliz. cap. 7. vid. Distress may be taken by Surveyors of High ways 18 Eliz. cap. 10. from those that make default in labouring By the Stat. Arrerages Tenant in Dower cannot distrain for Arrerages of Rent due before the Recovery of her Dower 40 Edw. 3.22 pl. 19. For the Tenants were not bound to pay her A Lease of Tithes rendring Rent Rent there shall be no distress because the Tithes are the very thing leased 11 Hen. 4.40 and therefore cannot be distrained no more than Land lett and the rent issues not out of the Tithes Rent by prescription A person claims rent by prescription and distrains for it Lib. intra 557. Charge 1. and good A. grants a Rent-charge to B in Tayl Rent-charge and grants that if the Bayliff of the King distrained the party might distrain 46 Edw. 3.18 and good by the contract Rent granted by Fine and Distress appointed to the Justices of the Com. Ban. or Barons of the Exchequer they may distrain 38 Edw. 3.33 So if the Distress had been appointed to any others they might distrain by vertue of the Fine Of what things a man may distrain Money cannot be distrained Money unless it be in a Bag sealed or a Chest locked 22 Edw. 4.50 B. pl. 17. 41 Edw. 3. Distress 14. For then it may be known and replevied else it cannot Cattel in a Wagon Cattel in a Wagon viz. fastned to it may be distrained but out of a Wagon they cannot 2 Hen. 4.15 pl. 17. 41 Edw. 3. Distress 14. 22 Edw. 4.50 11 Hen. 7.14 pl. 8. 21 Hen. 7. 39. pl. 55. because there can be no Return neither doth a Replevin lie of them Q. It seems because Cattel of the Plough are not distrainable so they shall be adjudged if they be loose but when they are in the Wagon it is known they are for other uses Q. The Lord cannot seize the Cattel Lord. and put them in a Wagon and then distrain them 18 Edw. 3.4 For by this means no Cattel of the Plough would be priviledged from distraining A Horse at the Smiths Shop Horse or a Garment in a Taylors Shop or an Horse in an Hostrey shall not be distrained for this would hinder publick commerce and dealing But if the Saddle be on the back of the Horse when he is at the Shop he may be destrained 22 Edw. 4.40 pl. 15. 15 Rich. 2. Avowry 19. because it seems he is then as it were in the Owners custody Q. tamen A Horse upon which I ride over my ground the Lord cannot pursue and take him as a Distress 6 Rich. 2. Rescous 14. So if I have him bridled in my hand as it seems for that is to distrain the man as well as the Horse A Horse of any man through the whole Village shall be distrained for the Fees of the
Knights of the Parliament 11 Hen. 4.2 For the Law looks upon the Village in general and every one is liable for the whole if he be able If a man be taxed to Fifteens having Cattel levant in another Village when they come within the Parish they shall be distrained 18 Edw. 3. 11. pl. 39. For the Parish is liable with the Tax If a Horse of a Stranger escapes into the Land of him that hath lost Issues he shall be distrained as it seems 5 Hen. 7.1 Q. For it seems hard If the best Beast be estrayed the Lord may distrain any Cattel in the Land 27 Assize pl. 24. viz. where the Lord is to have the best Beast but it seems they must be levant and couchant A Goshawk distrained Goshawk and the Distress justified 16 Edw. 4. pl. 9. viz. a reclaimed Goshawk for in that one may have a property and it is valuable Fishes in a Pond cannot be distrained Fishes Crookes Reports 188. because they cannot be known what they are nor can be replevied A Hive of Bees shall be distrained as it seems Hive of Bees for a Replevin lies of them Nat. br 68. D. Q. if it be in the day-time how it can be Door or window A Door or Window is not distrainable 11 Edw. 3. Cessavit 21. 21 Hen. 7.26 14 Hen. 8.25 Brudenel For it is part of the Freehold A Milstone that is severed for picking shall not be distrained 14 Hen. 8.25 Milstone For it is part of the Mill. An Anvil shall not be distrained Anvil 14 Hen. 8.25 For it is part of the Smiths Tools he gains his Livelihood by A Barge was distrained by prescription Barge 3 Mar Dyer 117. pl. 73. and held good for that may alter the Law The Lord distrained Cattel for services before they were Levant and Couchant Lord. 4 Edw. 3.37 Issue joined 8. 22 Hen. 6.37 15 Hen. 7.17 Doct. Stud. 15 A. and well as it seems Sheep shall be distrained Sheep if other distress cannot be found at the day of the distraining 29 Edw. 3.16 else not in respect of the hindrance of clothing Cattel of the Plough shall not be distrained Plough if there be other distress sufficient 14 Eliz. Dyer 312. pl. 86. else they may for otherwise the party may be without remedy Cattel in Dower Cattel delivered by the Sheriff to the Tenant in Dower for seisin of Rent shall not be distrained for Arrerages of the Rent 40 Edw. 3.22 pl. 19. For she shall not take such advantage Yarn brought upon a Horse to a Neighbour to weigh Yarn this the Lord cannot distrain for Rent because it was brought for a special intent Mich. 39 40 Eliz. com Ban. Burleigh versus Read and it would hinder publick commerce and dealing If Cattel put into Black Acre Cattel and they stray into White Acre through default of enclosure they shall not be distrained 22 Eliz. Dyer 365. pl. 33. For the Owner is in no fault Default of Inclosure A. ought to inclose against B and leases to C for 21 years which leases to D for 10 years rendring Rent the Cattel of B for default of enclosure escape into the Lands of A. and he pursues them C cannot distrain for no default was in the owner of the Cattel 15 Eliz. Dyer 317. pl. 9. vide 39 Edw. 3.3 pl. 12. and the Law doth not punish the innocent What Person shall distrain Dammage feasant A Commoner shall distrain for dammage sesant and is not tied to shew per quod amisit Communiam No. Lib. intra 573. D. sect 4. 24 Edw. 3.42 pl. 23. Coke 9. part 112. B. 46 Edw. 3.23 15 Hen. 7.2 7 Edw. 3.266 pl. 39.13 Hen. 8.15 For the Distress there taken implies it Tenant at sufferance distrains dammages feasant 4 Hen. 7.3 and good for he hath title against a stranger He to whose use before 27 Hen. 8. could not distrain because he had nothing in the Land 15 Hen. 7.2 pl. 4. but the Feoffee of the Land but now it is otherwise Sheep bailed to a woman sole to dung her Land Sheep who takes a Husband who commands the Owner to take them again who refuseth the Husband may distrain them dammage feasant 43 Edw. 3.32 pl. 3. For now they are dammage feasant unto him in respect of his interest in the Land The Lord distrains Cattel because the Tenant puts in more than he ought into the Common Lord. 46 Edw. 3.12 pl. 13. and good for he ought not to surcharge the Common A. sold 50 Acres of Moor which lay common Common to B yet every one of them ought to inclose against the other and if the Cattel of the one go into the Land of the other they shall be distrained dammage feasant 23 Eliz. Dyer 372. pl. 10. For by the sale the Lands are severed At what time a man may distrain Services and Amerciaments For Rent-services he shall not distrain in the night 11 Hen. 7.5 pl. 8. 12 Edw 3. Distress 17. 10 Edw. 3.21 Coke 9. part 66. A. For the night is for rest and all things ought to be then in peace After the Term ended no distress 14 Hen. 4.31 For then the privity betwixt the Lessor and the Lessee is gone Q. But 22 Hen. 7.96 pl. 5. by all if a Lease for years be ended and the Lessee keeps in the Lessor shall distrain for the arrerages For that continues the privity as it seems Q. A Lease till Mich. for one year rendring rent at Mich. he cannot distrain because the Lease is ended at the instant Doct. Stud. 74. A. That is at the day and the Law admits not of Fractions of time Husband and wife Husband leases the Wifes Lands rendring Rent th Wife dies without Issue the Husband cannot distrain because the reversion goes to the Heir 9 Hen. 6.45 28 Hen. 8. Dyer 28. pl. 191. And the rent go with the Reversion A Lease for years Reversion grants the reversion to B yet if the Cattel of B comes upon the Land A shall distrain during the Term 10 Edw. 4.4 tamen quaere because he hath nothing in the Land Dammage feasant For Dammage feasant in the night one may distrain and good enough Coke 9. part 66. A. Mackally's case 11 Hen. 7.5 pl. 8. 12 Edw. 3. Distress 17. 10 Edw. 3.21 For else it might be mischievous in respect of the dammages which might be done before the morning A. enters upon a condition broken and takes the Cattel of the Lessee dammage feasant Quaere 5 Eliz. Dyer 322. It seems he may for he comes in upon a good Title A man may distrain dammage feasant although the owner make fresh suit in respect of his satisfaction for the dammage done 7 Hâ—n 7.1 pl. 11. 11 Hen. 7.4 pl. 11. 10 Hen. 7.21 Doct. Stud. 15. è contra In what place a man may distrain A man fined in a Leet being
4.5 and is seisin of Relief the inferiour service 13 Edw. 4.5 Seisin of Fealty is seisin of all because he takes an Oath to do all Coke 4. part 8. A. Bevills case 44 Edw. 3.11 8 Hen. 6.16 Seisin of Annual service is seisin of every Casual service Coke 4. part 8 9. Bevills case 20 Edw. 3. Avowry 121.76 B. Avowry 69. for the certain comprehends the incertain Seisin of rent is seisin of fealty 29 Edw. 3.21 A. 3 Edw. 2. Avowry 188. for fealty is incident unto it Seisin of one Annual service is not seisin of another Annual service because it is the folly of the Lord that he did not obtain that which is annual Coke 4. part 9. A. Bevills case 16 Eliz. Dyer 330. Q Reservation the former year one Rose and afterwards 20 s. per annum the seisin of the one gives the seisin of the other Coke 4. part 9. Bevills case for they depend one upon another and hang together like links of a Chain The Lord recovers dammage for Suit this is a good seisin of the Suit Coke 4. part A. Bevills case for the dammage comes in room of the suit and shew it was due Note that a seisin in Law is sufficient seisin within the Statute of 35 Hen. 8. cap. 2.1 because the intent of the makers was to limit the time and not to exclude any seisin that was at Common Law 2. the words being possession or seisin in the disjunctive make an actual seisin which referrs to the three former branches and seisin this is either actual or in Law which referrs to the fourth branch Coke 4. part 10. Bevils case Measnalty extinct by purchase of the Tenant the old seisin doth suffice for a Rent-seck Ancient seisin Coke 4. part 9. A. 2. Edw. 2. Extinguish 6. A Signory granted upon condition which is broken the ancient seisin sufficeth for the distress is in lieu of the entry Coke 4. part 9. B. Bevills case for he cannot distrain except he enter Barr to an Avowry Tender of amends for dammage feasant before distress Amends or impounding is good but not afterward Coke 5. part 76. A. 8. part 147. A. Doct. Stud. 112. B. Nat. br 69. G. because then the party is put to more loss and trouble If there be tender of amends after distress and afore impounding the detainer is wrongful and not the distress Coke 8. part 147. A. Carpenters case Q. for it seems the detainer is not wrongful except he tender amends as well for his trouble and expences as for the dammage done by the Cattel The tender of amends to the Baily is not good Coke 5. part 76 A. Pilkingtons case 1 Hen. 4.15 pl. 17. for he hath not power to take it for this belongs not to him as a Baily A claims Common appurtenant to such a house pro omnibus averiis magnis Common and a verdict given for him and it was resolved after verdict that although he doth not say suis it is good 〈◊〉 although he said not Common appurtenant Pasch 15. Jac. Ban. Regis for both shall be so intended Disclaimer is a good bar Disclaimer Coke 9. part 34. Buckâ—â—ls case 15 Rich. 2. Avowry 214. viz. that the party who distrained dâ—d disclaim Grant by Tenant in tail Avowry because A seised in see granted a tent to the Avowant for which he distrains the other pleads that A was seised in tâ—â— this is not good if he traverse not the seisin in see 11 Eliz. Dyer 280. pl. 16. for he might be seised also in see in remainder Out of his Fee Out of his see is a good Barr and every Stranger to the Avowry shall plead it Coke 9. part 20. A. 34. 15 Rich. 2. Avowry for then the party cannot distrain there Note Feodum dum homagium servitium Note non tenementum in dominico Bracton lib. 2. fol. 46. B. Q. I suppose the meaning is that there is see wheresoever homage or services are due If one avow the other need not say he took them in the high Street but is put to his Action upon the Statute 11 Rich 2. Avowry 87. which hinders the taking of such distresses Injuria sua propria In an Avowry for an Amerciament affered in Court Baron de injuria sua propria is a good barr for the Custome is traversed by that plea Mich. 13 Jac. Com. Ban. Baker Banks Ought to in lose and did not The Plaintiff says that the Defendant ought to have inclosed and did not do it sufficiently ride the pleadings 22 Eliz. Dyer 365. pl. 32. and that which is not sufficiently done is as if it were not done at all Coparcener Conusance for dammage feasant the other said that they are Coparceners this is good 10 11 Eliz. Dyer 280. pl. 15. for he is seized per my per tout in all the Land and therefore cannot be a Trespasser Nothing in arrear Nothing in arrear a good barr but no Stranger shall plead it Coke 9. part 20. A. viz. upon a distress for rent or services A release of Actions personals and reals pleaded in barr of the Avowry for a corrody granted with a distress Release a good barr 27 Edw. 3.81 pl. 13. for the distress is in the nature of an Action When the Lord varies from the truth of the quantity of his services by reason of seisin Seisin there the Defendant cannot traverse the seisin Coke 9. part 33. A. Com. 94. B. Mantels case for the variance destroys not the seisin But if they differ of the quantity by reason of seisin had there the seisin is traversable Coke 9. part 33. A. Bucknals case Com. 94. B. Mantels case 18 Edw. 2. Avowry 217. for the seisin is the chief thing in question Not seised generally is a good barr for by this he shall have no remedy of the Lord Not seised Coke 9. part 34. B. Bucknals case 22 Hen. 6.3 A. 30 Hen. 6. Avowry 15. but he shall only retain the distress Q. for he shall have dammages But if the Lord avow and alledge seisin by the hands of the Plaintiff or other person the Plaintiff shall say never seised by his hands Coke 9. part 35. A. Bucknals case 22 Hen. 6.3 A. and this is a good barr for here is a good issue tendered The seisin is not traversable but for that only for which the Avowry is made Coke 9 part 35. A. Bucknals case 26 Hen. 8.1 pl. 1. unless seisin be alledged of a superiour service as if tenure be alledged per Homage fealty and rent and the Avowry is for rent and seisin is alledged in all the seisin of the rent is only traversable Coke 9. part 34. A. because the Avowry is only for the rent But if it be of Homage Fealty Rent and Escuage and the Avowry is for Homage and he alledgeth seisin in all there the seisin of Escuage is traversable because this is seisin
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
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
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
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
to enroll a Deed Clerk and doth it not 34 Hen. 6.4 Serjeant Counsellor Against a Serjeant or Counsellor that promises to plead for me and doth it not 14 Hen. 6.18 if I retain him and give him his fee else not For not doing of a thing where a man is bound to do it in one manner and he doth it in another Plough my land Against him that promises to plough my land and doth it in unseasonable time 14 Hen. 6.18 3 Hen. 6.36 for the Law implies he must do it for my best advantage Against an Attorney that takes an obligation in his own name Attorney when it should have been in mine 20 Hen. 6.25 Q. if an Action of Deceit do not lie Against a Carpenter that undertakes to build a house in such a form Carpenter and builds it in another Nat. br 145. G. 2. Hen. 4.9 21 Hen. 7.41 20 Hen. 6.35 Q. if he build it in a better form and more for the benefit of the Owner and to his own loss Against him that hath a Crane and spoils my Merchandize Cranage Lib. Intr. 3. C. sect 1. this is misfeasance Against a Farrier that takes upon him to cure my Horse Farrier and applies unwholsom Medicines c. 19 Hen. 6.49 whereby my Horse is made worse For pricking my Horse 46 Edw. 3.2 3.10 Nat br 94. D. 18 Edw. 3 6. pl. 11. for it is the duty of an Artificer to do his office well and truly and this is implied in Law upon his undertaking to use his art For misusing a License License 21 Edw. 4.76 quaere what Against a Serjeant at Law that is retained to plead and mispleads Mispleader 14 Hen. 6.18 for this is misfeasance and to his Clients prejudice it may be but if it be not tunc quaere To misplead is to plead otherwise than he is instructed by his Client For negligent suffering of a thing to be done to the damage of another A borrowed a Horse of me which dies suddenly Borrowed an Action lies not 40 Edw. 3.6 for the borrower was in no fault But if the thing be used in other manner than it was lent to be used and dies an Action lies Doct. Stud. 29. for this is misusing of it and contrary to the agreement But if it be but in the same manner that it was lent and dies no Action lies Doct. Stud. 29. for it was lent to be used though not misused A borrowed a Horse and a House fell upon him there if the house fell upon him being feeble Action lies otherwise not Doct. Stud. 128. for he might have foreseen the danger and prevented it Burning a House Against him that keeps not well his fire by which my house is burned being adjoyning 2 Hen. 4.18 8 Edw. 4.19 pl. 30. Choke for we must so use our own that we hurt not another Although his own house be burned 33 Hen. 6.1 Lib. Intr. 8. A. sect 1. for his own harm is no recompence to his Neighbour 3. It lies although his Servant do it but not if a stranger do it of malice 33 Hen. 6.1 2 Hen. 4.18 Doct. Stud. 137. for the Master must be answerable for the actions of his Servants in civil matters though not in criminal 4. If a Servant bring fire in the street and buro a house his Master is not chargeable for when the Servant is out of his house he is not under his government 5. It lies not if it be burned suddenly and the cause not known 42 Assize 8.2 Hen. 4.18 for the Law delights in certainties and doth things upon just and sure grounds and not upon probabilities and surmises Barr. That it was not burnt in default of good custody of the fire of the Defendant Lib. Intra 8. A. sect 1. But by 28 Hen. 6.7 this is but a negative pregnant for he might have pleaded non culp which the other plea doth but imply That he guarded his fire well absque hoc that he guarded it negligently Lab. Intra 8. B. sect 2. for here is a direct affirmative and a traversing of Plaintiffs declaration Against a Baily of Cloth that suffers it to be consumed with Moths Baily 27 Hen. 8.25.13 Hen. 7.1.18 Edw. 3.23 viz. by negligent keeping which the Law implies he ought not to do Against a Baily of a horse that suffers him to perish 12 Edw. 4.13.26 Hen. 8 br Action upon the Case 103. Lib. Intr. 3. B. sect 1. Regist orig 107. A. for the former reason For losing a Release 34 Hen. 6.4 for the Releasee may be prejudiced thereby So of a box Lib. Intra 9. A. sect 1. Against him that suffers his Dog to bite my sheep Dog 28 Hen. 8. Dyer 25. pl. 102. fol. 29. pl. 195. 28 Hen. 6.7 pl. 7. Lib. Intr. 616. B. sect 1. Regist orig 110. B. But then the Master ought to know that he would bite them ibidem for then he might have prevented it and so is punishable for not doing it But sciens is not traversable but may be given in evidence Coke 44. part 188. for if he did not know it he may plead Not guilty and the Plaintiff must prove he knew it If the owner of the Dog brings him to the Master of the sheep to do justice upon him it lies not 7 Edw. 3. bar 290. viz. upon the first notice or knowledge of it otherwise not The Plaintiff declares that the Defendant was possessed of a Dog 8. Octobris 7 Jac. using to bite c. and that the Dog 12. October in the same year did bite his Lambs c. this is not good for he ought to have shewn that he continued his Dog at the time of the biting for it shall not be presumed that he continued it without shewing it Pasch 9 Jac. Ban. Regis Louder versus Sounds 21 Edw. 4.22 15 Eliz. Dyer 320. for the Law will not presume any one will do an unlawful act except it be proved 4. For suffering his Dog to bite my Servant Regist orig 111. A. per quod servitium amisit else not as it seems 5. For hurting of an Ox Regist orig 111. A. whereby he loseth his work or is hindred in his fatting 6. For hurting of a Horse after warning given Regist orig 106. A. for the Master ought to have kept him up 1. Against a Warden of the Fleet Escape that suffers one to escape that was taken upon a Capias ad computandum 15 Edw. 4.19 Lib. Intra 8. C. Sect. 1. for thereby the Plaintiff is put to more trouble and charge and is delayed in his Suit 2. Against a Sheriff that suffers one to escape that was taken upon a Statute Merchant Regâ—â— orig 98. B. Nat. br 93. A. the Writ there upon the same reason Against an Inn-keeper Innkeeper that suffers the goods of his guests to be stole Coke 4. part 32. Calyes case Nat. 94. B. Regist orig 104. A 105.
for anothers Life shall have Trespass without re-entry because the Act of God shall not prejudice him 19 Hen. 6.28 B. Ascough Coke 5. part 41. Kniets case Tenant at sufferance Tenant at sufferance shall not have Trespass Crook 17 Hen. 7.47 A. for the feebleness and uncertainty of his Estate If a man be outlawed or attainted in Trespass or Felony Outlawed and pardoned he shall have Trespass for Trespass done to his person before the pardon 29 Assize pl. 63. No. Lib. intra 248. A. 30 Edw. 3.4 pl. 18. For by the pardon he is made rectus in curia and restored to the priviledge of the Law ab initio But for other Trespass quaere 5 Edw. 3.170 viz. concerning his Goods or Lands in respect of the forfeiture But before a Scire facias be brought upon the pardon he cannot without doubt because the pardon was conditional 21 Edw. 3.55 pl. 7. Q. Against whom Trespass lies Administrator takes the Goods Administrator B proves a Will by which he was made Executor and brought Trespass and it lies although the Administration were never repealed for the Administration was void ab initio and the Administrator a Trespasser Mich. 12. Jac. Ban. Regis Fisher Young A makes a Trespass Agreement B agrees to it afterwards and avows the doing of it yet B is no Trespasser 9 Edw 3.35 pl. 17 For the consenting is a matter ex post facto and cannot make him a Trespasser ab initio Trespass lies against an Alien Alien Digest br 72. A. For an Alien is subject to the Laws of the Land as much as concerns the peace and quiet of it Attainted person A person attainted shall be sued in Trespass Mich. 38 39 Eliz. Com. Ban. Banister Trussel No. Lib. intra 248. A. For he shall not take advantage of his own wrong to plead it in bar to the prejudice of another An Infant makes a Letter of Attorney to A Attorney to take Livery and Seisin for him A takes it the Infant shall not have Trespass against A because it is for his advantage to take the Livery for him 21 Hen. 6.31 B. Ascue Husband and wife Trespass De muliere abducta cum bonis viri c. lies against Husband and Wife because the Wife may assent at the time to the Ravishment and also to the carrying away of the Goods 43 Edw. 3. pl. 15.44 Assize 13. and this Assent makes her a joint Trespasser with her Husband Trespass against Husband and Wife the Wife is taken by Capias but not the Husband Dodderidge and Haughton Justices said that if the Declaration be against the Wife alone it is not good and if there be no Declaration the Wife shall be at large but afterwards Dodderidge said a Declaration shall be put in against the Husband and Wife and the Wife appearing shall be committed to prison to which Crooke agreed yet quaere what was done in it Mich. 15 Jac. Ban. Regis Ashwel against Opshard and his Wife if no Bail be put in for her So hath it been since held by Rolle Chief Justice If the Woman beat another the Husband must be named in the Writ Regist orig 105. B. Lib. intra 612. A. sect 11. for he must answer for his Wifes behaviour Trespass lies against him that commands another to do a Trespass Commander Doct. Stud. 19. A. tamen quaere For it seems otherwise Body politick It lies against a Master of an Hospital and his Brethren Regist orig 105. B. For they are one body in Law and so it is but one Trespass done by them all Dean and Chapter It lies against a Dean and Chapter 32 Hen. 6.8 pl. 13. for the same reason Mayor Commu nalty It lies against a Mayor and Communalty Quare vi armis 38 Edw. 3.18 8 Hen. 6.1 9 Hen. 6.36 20 Hen. 6.9 15 Edw. 4.2 4 Hen. 7.13 32 Hen. 6.10 for the same cause But no Capias lies against them because they cannot appear all in person for this would make confusion 45 Edw. 3.2 3. 22 Assize 67. 21 Edw. 3.59 pl. 1. But they must appear by an Attorney for them all Disseisee shall have Trespass against his Disseisor before his entry Disseisor for the former entry upon his Disseisin 32 Hen. 6.32 38 Hen. 6.28 A. Fortescue But after his entry he shall have Trespass against the Disseisor for all the mean profits taken during the Disseisin Coke 11. part 51. A. Liffords case 3 Hen. 4.13 pl. 18. Gascoigne 37 Hen. 6.7 pl. 12. But shall not have Trespass against the Disseisor of the Disseisor for then the last Disseisor should be twice charged Coke 11. part 51. once by the first Disseisor and a second time by the Disseisee which is unreasonable Neither against the Feoffee or Feoffor of the former Disseisor 34 Hen. 6.30 pl. 14. 13 Hen. 7.15 Coke 11. part 51. for the same reason Liffords case 2 Edw. 4.18 pl. 12. per 2 Justices Crooke 12 Hen. 7.1 pl. 2. But against a Co-adjutor of a Disseisor it lies 21 Edw. 4.5 19. for he is as the Disseisor himself It lies against an Infant Infant Digest br 72. Q. of what age It seems at the age of Discretion It lies not against an Executor Executor quia actio personalis moritur cum persona Doct. Stud. 75. viz. for a Trespass done by the Testator if personal Guardian shall have Trespass against his Ward Guardian 5 Hen. 4.2 pl. 7. Q. for what Trespass whether for a Trespass done to him as his Guardian It lies against an Ideot Ideot Digest br 72. A. Q. for it seems it lies not against one not compos mentis Trespass and Imprisonment lies not against any of the Judges at Westminster Judge although he commit him without cause 21 Hen. 6. pl. 9. in fine For this would be to affront Justice to call the Judges in question for doing things as Judges But they are questionable by the King But if Auditors commit not an Accomptant forthwith but at another time Auditors Trespass lies against them 27 Hen. 6.8 pl. 7. For their power is limited to time and place for they are Judges but hac vice It lies against a Miller that takes toll of them that are Toll-free Miller 41 Edw. 3.24 pl. 17. 44 Ed. 3.20 pl. 16. for it is dammage to them and wrong in the Miller It lies against the Queen sole without joyning the King Queen for the King cannot be a Trespasser to any Trespass lies not against the Lord Lord. per Marlebridge cap. 13. Q. for what Trespasses and by whom It seems for Trespasses done to his Villains most properly Non ideo puniatur dominus per redemptionem Coke 4. part 11. B. Bevills case But afore this Statute Trespass did lie against the Lord vi armis 48 Edw. 3.20 pl. 16 Thorp for there the peace of the Commonwealth
is concerned The reason that it lies not against the Lord is insomuch that he cannot come within his Tenants Land being within his Fee against the peace although he had not cause to distrain for it seems he may go any where within his own Fee 47 Edw. 3.7 pl. 3. Finchden Quaere tamen This Statute is intended as well to every Lessor as of the Lord 9 Hen. 6.43 pl. 21. this is in cases of Entries to distrain If the Lord distrain where nothing is in arrear yet Trespass lies not against him Coke 4. part 11. B. Bevils case 9. part 76. A. because he may do this as Lord. Q. for it seems unreasonable to vex his Tenants without cause yet they are not without remedy for they may replevy the distress But if the Lord distrain where there is nothing arrear and the Mesn will put his Cattel in the Pound for the Cattel of the Tenant and the Lord will not permit him Trespass lies against the Lord Coke 9. part 22. B. Case of Avowry because here the Lord is offered a legal way to come to his right if any thing be due to him And if the Lord incroach and afterwards distrain for the Services and for the Incroachment also the Tenant may tender the very Services and shall have Trespass for the other Coke 4. part 11. B. Bevils case 10 Hen. 6.3 pl. 11. for though the Law favour him as Lord yet it will not countenance his incroaching And if a Baily or Servant distrains where nothing is arrear Trespass lies because it is not within the Statute Coke 9. part 76. A. Combs case 9 Hen. 5.10 11 Hen. 4.78 B. 9 Hen. 7.4 48 Edw. 3.20 pl. 16. and they must take heed not to be too officious for their Master Against the Lord. When the Lord abuses his Authorty given him by the Law he shall be punished by Trespass Coke 8. part 146. the six Carpenters case for the Law will not countenance wrong but punish it in any person If he labour or kill the Distress 8 Edw. 4.15 22 Edw. 4 5. pl. 16. fol. 47. pl. 22. Coke 8. part 146. B. Trespass lies for he must use it only as the Law allows If he tie the Cattel in the pound 27 Assize 64. which he ought not to do Trespass lies against him If he break the hedges or gates or such like of the party where he distrains 20 Edw. 4.3 pl. 11. 48 Edw. 3.6 pl. 10. for though the Law allow him a way to come by his right yet in doing it it allows him not to do dammage to the other unnecessarily If he cut the Trees or stay all night 11 Hen. 4.75 upon the Land for this the Law warrants him not to do The Lessee cuts Trees to repair the Lessor carries them away and Trespass lies against him 44 Edw. 3.44 for the Lessor might cut them and therefore to take them away was a Trespass If the Lessor distrain dammage feasant 5 Hen. 7.10 pl. 2. upon the Land left for he hath no present interest and so there can be no such dammages So if he out the Termor 48 Edw. 3.6 pl. 11. Trespass and Ejectment lies Or the Executor of the Termor Regist orig 102. B. may have this Action for now the term is come unto him The Lessor excepts the Trees and roots them up it seems Trespass lies Coke 11. part 49. B. Lissords case in respect of the dammage done in the Soil by the rooting Quaere tamen for the whole Trees are reserved The Lord sells the Distress and buys it again Trespass lies 29 Hen. 8. Dyer 35. pl. 34. for he ought not to sell it and the buying of it again cannot salve the matter It lies by a Copyholder against the Lord that cuts him 21 Edw. 4.80 Coke 4. part 22. A. in respect of his interest in the Land by the Custome of the Mannor The Reason in all these Cases is when one hath authority license or entry by the Law given him by the misusing it or the not doing it as he ought he is a Trespasser ab initio Coke 8.146 Deaf and dumb It lies against one that is deaf and dumb Digest br 72. A. for he may see to do a Trespass Q. if it lies against a blind man it seems it doth Tenant at will If Tenant at will make voluntary waste Coke 5. part 13. B. Salops case Littleton 15. A. fo per 3 Mariae Dyer 122. B. This is a determination of the Will of the Lessee and Trespass lies by the Lessor without entry because the term is determined For cutting Underwood Trespass lies 2 Edw. 4.24 pl. 25. But quaere in what cases Tenant by sufferance It lies not against Tenant by sufferance because he comes lawfully to the possession 22 Edw. 4.13 pl. 3. viz. at the first and he holds not by tort because by sufferance Tenant in Common If there be two Tenants in common of a foldâ—ge by prescription one shall have a Trespass against the other for the breaking the fold Nat. br 91. A H. Q. For taking away the Meer-stones that bound Land Meer-stone 1 Hen. 5.1 pl. 1. for this is a great injury to the Owner of the Land bounded by them Note Sheriff when the Court hath not Jurisdiction of the cause commenced there the Officer that makes the Arrest shall be a Trespasser but where the Court hath Jurisdiction and proceeds â—â—ronice there it is not punishable Coke 10. part 76. A. for the Officer is not to judge of the proceedings but where there is no Jurisdiction the Officers have no warrant at all for what they do for they are accounted no Officers The Sheriff takes one not named in the Writ Trespass lies against the Sheriff 11 Hen. 4.91 A. Hankeford 13 Hen. 4.2 Hankeford Thirning for he hath no warrant for the Arrest It seems also a Writ of false Imprisonment lies But if the Plaintiff shew another person to him that was not to be Arrested the Action lies against them both for they are both Actors in the same Trespass A procures the Sheriff to Arrest B without a Writ and after purchased a Writ and the Sheriff arrests him afterwards being in his custody the Action lies 7 Eliz. Dyer 244. pl. 61. for the purchasing the Writ and Arresting of him afterwards cannot purge the first wrong The Sheriff takes B upon a Capias and returns not the Writ B shall have Trespass 20 Hen. 6.24 A. 21 Hen. 6.5 for if the Writ be not returned it is as if there were no Writ Otherwise upon a Capias ad satisfaciend for that is an Execution and needs no return Coke 4. part 67. A. Capias to the Sheriff of Middlesex and he takes him in London Trespass lies 16 Edw. 4.6 for it is out of his County and so done without warrant So if he makes a Repleg of Cattel distrained of an estranger he may have Trespass against him 14 Hen. 4 24. pl. 32.