that he was robbed Robbery Coke 4. part 84. Southcots case 〈◊〉 Hen. 7.11 B. Townsend but they must take their remedy against the Thieves and they are by Law answerable to the owners of the goods So if goods are delivered to keep Coke 4. part 83. B. for such an acceptance implies a warranty to keep them safe and to redeliver them But it is a good plea if they are taken to keep as my own Coke 4. part 83. for there is no such warranty implied Vid. antea Recovery in Trespass a good barr in Detinue Recovery 20 Hen. 7.58 B. Crooke for there shall not be a double recovery for one thing The bailment is not traversable where he may wage his Law Travers 8 Edw. 4.3 pl. 7. for there his Oath that he detains not is sufficient for if he detains not there could be no bailment No barr that the Horse was sold in a Market overt unless it were tolled Vendee according to the Statute 1 2 Phil. Mariae cap. 7. for no property is altered by such a sale Vid. antea Detinue for Deeds as Heir Bastardy Bastardy is a good plea 35 Hen. 6.9 pl. 12. for if a Bastard he is no Heir A bailed to B to rebail and dies Feostment having two Sons which makes partition he which had the Land comprehended in the deed delivered enfeoffs B this is a good barr 17 Edw. 3.12 pl. 45. for by the purchase the deed belongs to B. Warranty and Assets is no barr against the issue in Tail in Detinue Warrant 9 Hen. 6.15 pl. 5. 4 Hen. 7.10 pl. 4. for he comes in by the Donor Rebailment in another County a good barr Rebailment because he cannot wage his Law 22 Hen. 6.15 pl. 27. because the bailment was in one County and the Action is brought in another County Release per the Plaintiff a good barr Release Lib. Intra 290. B. Sect. 1. for by the Release the property was altered The Defendant pleads bailment of deeds by the Plaintiff Retainer upon condition that if his wife the Plaintess survive the Plaintiff that the Defendant should retain it and that his wise is alive a good barr but then he ought to shew what Lands they concern 18 Edw. 4.18 that it may be known unto whom the deed belongs Infancy is no plea Infancy because he may avoid an obligation in debt 14 Hen. 6.11 pl. 41. by pleading deins age A good bar that the Garnishee brought a Detinue against the Defendant Recovery and prays Garnishment against the Plaintiff which makes default and he had judgment 34 Hen. 6.47 pl. 13. 21 Hen. 6.35 pl. 2. per Newton Garnishee pleads release between the time of this Action brought Release and the delivery quaere 20 Hen. 6.28 pl. 23. 49 Edw. 3.13 But 39 Edw. 3.13 adjudged that it is a good barr and so it seems the Law to be The Judgment in Detinue 1. Of Chattels 2. Of Deeds Against the Defendant 1. Quod praedictus W. recuperet versus praefat J. praedicta octo quarteria frumenti vel valorem eorundem No. Lib. Intra 169. C. Sect. 1. Lib. Intra 218. B. Sect. 4. dampua sua c. and upon the return of the Writ if it appears that W. did not deliver the Corn then the judgment shall be for the value with dammages and costs So see the difference where the Plaintiff himself delivers the thing and where another The Plaintiff shall have judgment to recover the thing named Plaintiff 17 Edw. 3.45 1 Rich. 3.1 2. or the value of it and dammages for detaining of it as appears above The judgment was that he should recover his Chattels and his dammages 21 Hen 6.36 A. Bracton Lib. 3. fol. 102. B. non tenetur precise ad rem restituend sed sub disjunct vel ad rem vel ad pretium either the thing or the value of it indammages Against the Defendant The judgment was that he should recover the deeds if they are found and also dâ—mmages for the detainer and if not found then all in dammages 7 Hen. 6.31 pl. 25. 22 Hen. 6.41 pl. 17. as well for the deeds as for the detainer of them And this shall be although it be proved that the Defendant burnt the deed 17 Edw. 3.45 pl. 1. for that shall not excuse Ideo confideratum est quod praedictus A. recuperet versus praefat B. pyxidem praedictam cum chartis c. Lib. Intra 218. A. Sect. 1. the box with the writings The Heir in Detinue had judgment to recover one box with as much as was in it contained that belongs to him 5 Edw. 3.159 B. intended to be of writings Against the Defendant and the Garnishee The judgment was that he should recover the deeds against the Defendant haberet liberationem versus the Garnishee 21 Hen. 6.36 A. Lib. Intra 219. D. sect 17. 9 Hen. 6.38 pl. 13.7 Hen. 6.45 pl. 27. This is a double judgment viz. of the right and of the possession But if Judgment be given upon default of the Garnishee before appearance no dammages shall be given 20 Hen. 6.4 pl. 27. for this is not the Defendants fault If the Plaintiff and Defendant make default the Garnishee shall have Judgment and the Plaintiff and Defendant in misericordia 40 Edw. 3.39 pl. 15. for his unjust vexation Execution in Detinue 1. Of Defendant 2. Against the Garnishee 3. Of what Lands 4. Of what Goods Execution against the Defendant by distress for the thing detained and recovered Chattels Nat. Lib. Intrâ— 169. C. sect 1. 20 Edw. 4.3 pl. 12. No. Lib. Intrâ— 170. D. 17. A. 6 Rich. â— Execution But if the thing be not delivered to the Plaintiff then he shall have execution for the dammages by Capias Lib. Intra 216. B. sect 6. 20 Edw. 4.3 pl. 12. against the person of the Defendant For a Capias was given in the main Process per 25 Edw. 3. cap. 17. and by consequence a Capiâ—â— ad satisfaciend in execution by the equity of that Statute At the Common Law execution was for dammages by fieri facias and also for the goods Lib. Intra 216. B. sect 8. to be levied upon the goods of the Defendant For dammages by fieri facias and for the thing by distress of the Goods and Chattels 6 Rich. 2. Execution 45. The Plaintiff and Defendant make default Garnishee had Judgment and distress against the Defendant 40 Edw. 3.39 pl. 15. Vid. antea Distress issued forth in execution Lib. Intra 215. C. sect 1. 20 Edw. 4.3 pl. 12. 22 Hen. 6.41 pl. 17. But Capias lies not 5 Eliz. Dyer 223. pl. 24. 21 Hen. 6.42 vid. antea If the deeds concern Lands 8 Hen. 6.29 pl. 24. 14 Hen. 6.1 pl. 1. But for the dammages if they will not deliver them a Capias lies 22 Hen. 6.41 pl. 17. 20 Edw. 43. pl. 12. If deeds are in a box
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
Littleton so that the bale be not broken But otherwise it lies not Nat. br 138. A. 22 Hen. 8. Dyer 22. pl. 137. for then the money cannot be known Note a Detinue was brought for one piece of Dornex of the value of 22 s. and tried at Gloucester Assizes 5 Martii 15 Jac. Q. what Judgment Vide tamen 21 Hen. 7.82 pl. 3. Detinue brought of a piece of silver Quaere what piece It lies of Rationabile parte bonorum Rationabile parte bonorum Heir 17 Edw. 3.9 pl. 29. by custome See before Custome that the Heir shall have the principal goods Detinue lies for them 30 Edw. 3.2 pl. 9. 39 Edw. 3.6 pl. 24. fol. 9. pl. 15. See before Land leased with implements Implements at the end of the term Detinue lies for them although wasted 20 Hen. 6.16 pl. 2. See before Goods lost If goods are lost Detinue lies Nat. br 138. E. against him that finds them or a Trover Goods bail Goods bailed to deliver over Detinue lies Nat. br 138. A. 18 Hen. 6.9 A. against the bailee by the party to whom they should have been bailed over See before A. bails goods to B. which are stole Detinue lies against B. for them Coke 4 part 84. Southcots case Vid. antea But if he receive them to keep as he doth his own goods and they are stole it lies not Coke 4. part 83. Southcots case 9 Edw. 4.40 pl. 22. Danby Antea Carrier loseth goods Carrier loseth goods or is robbed yet Detinue lies against him Coke 4 part 84. 2 Hen. 7.11 B. Townsend Antea A. contracts for Corn to be delivered at a day to come Corn. he shall have a Detinue at the day for this No. Lib. Intra 169. B. sect 1. for by the contract he had a property in the Corn. After divorce it lies for goods given in marriage Divorce Nat. br 139. A. 26 Hen. 8.7 pl. 1. 28 Hen. 8. Dyer 13. pl. 61. Vid. antea It lies of a Horse Cow c. or more Cows oâ— Horses Nat. br 138. A. be the number what it will It lies for the Plaintiff in Replevin Replevin for goods taken in Withernam because he from whom they were so taken had not the property in them 2 Hen. 4. br debt 51. 6 Hen. 7.8 B. Quaere if the Avowant shall have a Detinue for his goods taken in Withernam after appearance and claim of the property 11 Hen. 4.10 pl. 21. for he claim makes not the property Tender amends in Replevin The Plaintiff in a Replegiare after return irreplevisable upon tender of amends shall have a Detinue for the goods Coke 8. part 147. A. for he had the property in them 10 Eliz. Dyer 280. pl. 14. notwithstanding such Writ Vid. antea Corn. Wine A delivered B Corn and Wine c. and they perish yet Detinue lies for them Doct. Stud. 129. A. Q. what shall be recovered dammages â—t videtur But if it be a thing that be to be redelivered Horse as a Horse c. if it be used in other manner than was agreed and if it perish in default of the party to whom it was delivered and Action lies Doct. Stud. 129. A. Vid. antea But if it be used but in such manner as it was agreed and it perish but not by default of the party to whom it was delivered Action lies not Doct. Stud. 129. A. Vid. antea Note Note in brevi de chartis reddendis semper debet poni cerius numerus chartarum vel scriptorum Regist orig 159. B. Nat. br 138. B. Et sic ut videtur est de aliis bonis catallis The Count in Detinue 1. Of Chattels 2. Of Deeds The Count ought to name all things certain Count. and the value 1 Rich. 3.20 A. 3 Hen. 6. viz. time and place The Count was Bailment that such a year day and place A bailed to B bona catalla c. scilicet one Cup of Silver c. ad valentiam c. salvo custodiend eidem querenti cum inde requisitus fuisset redeliber and. c. Lib. Intr. 212. B. A counts de bailment of Spoons Spoons c. ad valentiam c. Lib. Intr. 211. D. sect 2. naming the number The Count was Devenerunt Ag. Executors quod cum ipse the year day and place deliberasset W. in vita sua catalla c. posteaque praedictus W. obiit c. post ejus mortem praedictam c. devenerunt such a day year and place to the hands of the aforesaid Executors praedictus W. nec praedicti Executores c. Lib. Intra 212. C. Sect. 4. This against an Executor Per Executor Count per Executor Com. 275. A. Foxes case vid. the Count there Count upon bailment to B Trover which loses it and that the Defendant found it and yet detinet lies Lib. Intra 212. B. sect 3. for neither by the bailment nor by the losing and finding it is the property altered or divested out of the Bailor Count of a Horse found No. Lib. Intr. 169. D. Sect. 2. A counts upon a bargain for Corn to be delivered at a day to come Contract that such a day year and place he bargained for eight quarters of Corn ad valentiam to be delivered c. No. Lib. Intra 169. B. sect 1. Vid. antea by the contract the property was divested out of A. For two Obligations Obligation Lib. Intra 220. A. Sect. 1. Husband and Wife for box with deeds The Husband and Wife count that they were possessed of a Box sealed with Deeds concerning Lands of the Wife c. and lost them and they came to the hands of the Defendant such a year day and place per Trover c. Lib. Intra 209. B. Sect. 3. Count of a box with Deeds Lib. Intra 202. B. Sect. 7. Though unsealed yet it lies Q. whether he must not shew what deeds particularly Heir against husband and wife Counts that his Brother whose Heir he is was seized of Land in Fee and of a box sealed with Writings touching the Land and he lost the box and it came to the hands of the wife dum sola fâ—it and that his brother dies without issue and the Lands descended to him and that the woman takes a Husband per quod c. Lib. Intra 209. D. sect 4. the Action lay against them for the marriage gains no property where the wife had none before Heir against Executors Heir Lib. Intra 210. A. sect 5. of the Ancestor for things touching the Lands he inherits The heir in a Detinue for a box with deeds ought to count that it was sealed for otherwise it belongs to the Executors 36 Hen. 6.27 pl. 26. 39 Edw. 3.7 8. 41 Edw. 3.2 11 Hen. 49. A. Paston Q. how the sealing should make a difference And yet the sealing is not traversable 41
Hen. 4.18 Nat. br 118. H. for here is a privity betwixt their several Interests The Sheriff levies Money upon a fieri facias and does not deliver it to the plt neither brings it into Court the plt shall have an account against him 11 H. 4.58 pl. 8.20 Hen. 6.24 A. 21 Hen. 6.5 A. Or the party may move the Court against him If one testifie by his deed that he received 20 l. to bestow for me I shall have an Account Hen. 8. Dyer 20. pl. 118.11 Hen. 6.39 pl. 31. for the privity appears by the deed So if one receive Money to my use Nat. br 117. Q. 6 Hen. 4.7 pl. 33. But here I must prove the Receipt though I need not in the former case So if A. deliver Money to B. to deliver to me Nat. br 117. Q. 13 Hen. 4. pl. 1. Hankeford Nat. br 138. A. I shall have an Account upon the privity in Law and A. may have an Account upon the privity in Fact Q. A. indebted to B. in 200 l. prays C. to receive this for him A. prays C. to borrow this to pay B. C. borrows it of D. to pay to B. but pays it not at the day A. was bound to D. for re-payment B. shall have an Account against C. for this Money belongs to B. insomuch that C. had his warrant to receive it Hill 12 Jac. Com. Bon. Harringdon versus Dean and so there is a trust and privity betwixt them A. delivers Money to B. to deliver to C. and he pays it not A. shall have an Account against him Crooke 21 Hen. 7.69 pl. 2. per Frowicke Q. if C. may not have an Account The King shall have an Account King if goods be devised to him against the Possessour in whose hands soever they be Coke 11. part 90. A. Devoushers case 40 Assi pl. 35. per Praerogativam suam For wheresoever the King hath equity the Law will not be deficient to him If one takes goods which appertain to the King claiming them to his own use yet the King shall have an account Coke 11. part 90. A. 33 Hen. 6.2 35 Hen. 6.27 B. Nottingham 8. Eliz. Dyer 249. pl. 83. For the right being disputable the Law will judge the Kings claim to be true rather than the others for the King can do no wrong in the eye of the Law Two offer to be bound for A that he shall serve the King truly in such an Office and they present him to the King and he doth not perform his Office they shall account to the King though they are not bound Coke 11. part 92. B. Devoushers case 30 Edw. 3. Rott 6. For the King reposed trust in them and he shall not be prejudiced by them If one be entituled to an action of Account and be outlawed the King shall have an Account for it 28 Edw. 3.92 pl. 10. for he comes in the stead of the party outlawed If one be indebted to the King and dies the King shall have an account against his Executors or Tertenant 5 Eliz. Dyer 225. pl. 33. At his Election Q. whether against both Against whom Account lieth as Receiver It lies not against a Prentice Nat. br 119. D. 7 Hen. 4.14 8 Edw. 3.310 pl. 26. for there is no Writ in the Register against a Prentice Coke 11. part 89. B. Devoushers case for a Prentice is not sui juris Per a. Marlebridge cap. 8. Churchwardens shall have an account against a Baily or head Constable for amerciaments for Highways not repaired It lies against the Husband for the receipt of the Wife Nat. br 118. F. for her Receipt is his Receipt Q. If the Receipt was dum sola fuit it seems it doth It lies against a Deputy of a Receiver for he receives this to the use of his Master Nat. br 119. B. 4 Edw. 3.100 pl. 8. therefore the Master shall have account It lies not against an Executor Executor Nat. br 117. C. Littleton Regist orig 135. B. quia mere pertinet ad curam Christianam cognoscere de computo reddendo versus executores 48 Edw. 3.2 4. Edw. 4.25 Q. But if an Executor will account he shall be charged afterward 2 Hen. 4.13 pl. 2.19 Hen. 6.5 A. Fortescue for he hath waved the Spiritual Court Note in the case of the King he shall have account against Executors Littleton For he may recover his right by what Law he pleaseth It lieth not against an Infant Nat. br 118. D. because he hath not discretion to account and so may wrong himself in his Account and per. 21 Edw. 3.8 pl. 21. Regist orig 135. A. 26 Edw. 3.63 he cannot wage his Law because he must perform his Law by taking his Oath It lies against a Woman or Chaplin Nat. br 118. D. viz. a Feme sole Churchwardens shall have an account against their Predecessors 8 Edw. 4.6 pl. 5. for they are persons intrusted by the Parish Two being bound both of them to Account and each of them of the whole quaere if Account lies against one only 5 Edw. 3.141 pl. 8. It lies not against a Parish-Priest that hath the Offerings for the Clark holds the vessel in which they are put Nat. br 119. E. 25 Edw. 3.46 pl. 32. vide 11 Rich. 2. Jurisdiction 18. and he is not tied to be responsable for his Clark The King grants the Toll of a Village to the Inhabitants and in the said Village there were certain Collectors to receive it the Village shall have a Commission out of the Chancery against him that receives this Toll to hear and determine it and to hear their Accounts c. Nat. br 119. F. If any takes the goods of the Kings Debtors which dies the King shall have an Account against him Coke 11. part 93. A. For the Law creates a privity in case of the King for the preservation of his Revenue It lies for the King against a Debtor or his Executors or Tertenents 5 Eliz. Dyer 225. pl. 33. Com. 321. Mynes But if one purchase to him and his Wife and he become indebted to the King and die his Wise shall not be charged 5 Eliz. Dyer 215. pl. 33. Contra if he be first in debt and purchase but a Chattel 5 Assiz pl. 5. For the Feme had an interest in the Land made by the Husband and she shall not be charged with her Husbands debt but the Executor of the Husband If one be an Accountant to the King and become indebted to the King and afterward sell a Lease for years the Vendee shall not be charged because it is but a Chattel Coke 8. par 171. A. and it was lawful for him to buy it and might not know the Vendor to be an Accountant One in debt to the King purchases Lands with the Kings money to the use of some Friends in Fee per covin and yet takes the profits the King shall have the Lands in execution 5 Mariae Dyer 160. pl. 41.24 Edw. 3. Rot. 4. Coke 11. part
was only made to try a Title an Action of Covenant lies not for such breach Trin. 11 Jac. Com. Ban. Rot. 384. Selby versus Shute for this was but a Lease in trust only for the benefit of the Lessor and not of the Lessee Lessee by deed Poll shall have a Covenant against the Lessor Lessee if he out him Nat. br 145. l. 35 Hen. 8. Dyer 57. pl. 24. Shelley for the Action ariseth upon the covenant of the Lessor which may be by deed Poll. But not upon outing by a stranger without Title Nat. br 145. L. 22 Hen. 6.52 pl. 26. Hill 12 Jac. Com. Ban. Tisdale Essex yet quaere if he had a colourable Title Although it be by Recovery by Verdict Coke 4. part 80. B. Nokes case vid. antea But if a Stranger hath Title then it lies Nat. br 145. L. 32 Hen. 6.32 pl. 27. Nedham for theâ— the Lessor could not lett But Tenant for life shall not have Covenant for such ousting Nat. br 145. M. 26 Hen. 6. Covenant so for ousting is intended of a term and not of a Freehold for such ousting is a disseisin If it be not exprest Nat. br 145. M. for that declares what ousting was meant by the parties Lessee for years shall have Covenant upon a demise and grant Coke 4. part 80. B. Nokes case 5. part A. Spencers case viz. upon the words demise and grant in the Lease for they imply a Covenant Lease for years with warranty the Lessee outed shall have Covenant 26 Hen. 8.3 pl. 13. by all 9 Eliz. Dyer 257. pl. 13. for the warranty implieth a Covenant for quiet enjoying Tenant for anothers life leases for years with warranty he for whose life the Lease was dies the first Lessor enters Covenant lies 32 Hen. 6.32 pl. 27.9 Eliz. Dyer 257. pl. 13. against the Lessee for life upon his warranty because his estate was but a contingent estate and the warranty supposed t absolute But if it be without warranty it lies not 9 Eliz Dyer 257. pl. 13. for he letts no greater estate than he hath A Covenants to serve B for years and dies no Action lies quia mors omnia solvit 48 Edw. 3.2 B. pl. 4. Finchden Hill 33 Eliz. Ban. Regis Wilson Mapes A Parson leases his Rectory and covenants to save harmless the Lessee concerning the lands and profits for one year against Blunt Blunt enters within the year Covenant lies because it is expressed against a certain person Quaere if it had been generally Lessee covenants that he will not assign his Term over by which it may come to D the Lessee assigns it to K per Curiam Covenant lies for he hath put the power out of him Trin. 13 Jac. Com. Ban. Guines case and it may come to D whether he will or no. Of a Fine levied of Rent a Writ of Covenant lies 22 Edw. 4.2 pl. 6. The Count in Covenant 1. Personal 2. Real The Count was that per Indenturam suam testat existit that the Defendant covenanted so and so this is good but such plea in bar is not good Mich. 7 Jac. Ban. Regis Wyrdnam versus Fankner 2 Mariae 117. pl. 78. but he must plead Covenants performed and tender an issue Prior and Covent leases to two for years with warranty Count. per Indenture rendring Rent one dies after possession the other survives and was sole possest the Prior dies the Defendant fuit electâ—â— praefectus Prior tali die expulsus ejectus est the Survivor by the new Prior and so the Defendant did not hold Covenant made between the late Prior and the said Survivor Lib. Intr. 135. D. sect 2. this is a good Count for the Covenant lies by the Survivor against the Successor Count upon covenants to make a new Lease Com. 2. Chapmans case and good A leases to B for 6 years if C live so long and covenants that he had power to demise it c. B in covenant needs not count that C was in life for if he were dead at the time of the demise yet Covenant lies 2. he need not shew that he had the better right because he did pursue the words of the Covenant negative Coke 9. part 60. Bradshawes case or else it cannot appear it is the Covenant upon which the Action is brought Count by the Lessor against the Lessee that Covenants to pay all charges and pays not the tenths granted per Parliament Lib. Intr. 136. C. sect 4. for the word Charges includes the Tenths for they are charges issuing out of the Land or payable ratione terrae The Count shall be general that he hath broken covenants between them to the dammage c. the other shall say that they are performed the Plaintiff may reply that they are not because he shall have several dammages for every Covenant broken but upon an Obligation he ought to shew in what he hath made a breach because he shall have the forfeiture for one breach 6 Hen. 4.8 pl. 34. if but one breach Tenant for life leases for years rendring Rent the Lessee covenants and is expulsed by him in remainder 1. he ought to count that he was possess'd 2. he ought to shew the estate for life and the remainder certain 9 Eliz. Dyer 257. pl. 13. because it is a special ouster and not by the Lessor and for the first if he were not in possession he cannot be said to be ousted Writ in Covenant 1. Personal 2. Real Rex In Comitat. c. justicies A. quod teneat B. conventionem inter eos factam de quibusdam defectibus in Manerio ipsius B. de N. existentibus sumptibus ipsius A. competenter emendand sicut c. ne amplius c. Regist orig 167. A. This is in the County Court as it seems Rex In Banco c. praecipe A. de B. quod juste c. teneat W. conventionem inter eos factam de viginti acris terrae in K. frumento alio blado competenti seminandis de bladis terris praedict crescentibus metend ad domus ipsius W. sumptibus ejusdem A. in eadem villa cariandis nisi fecerit c. Regist orig 166. A. This in the Common Pleas. The Writ shall be brought where the Covenant was made Nat. br 146. E. 11 Rich. 2. viz. in that County where it is a real Covenant But it is no plea to abate the Writ unless the Deed bears date in another County Nat. br 146. E. than where the Covenant is brought and it may be a Covenant by parol The Writ for outing the Lessee shall be de dampuis de perditis occasione expulsionis c. 9 Eliz. Dyer 257. pl. 13. for if he be not damnified no Action lies The Writ ought to mention all the Executors which did administer 47 Edw. 3.22 pl. 20.48 Edw. 3.2 pl. 4. where an Action of Covenant is brought against Executors for all the Executors are but one Executor in
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
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
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
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
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
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