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
Law for they have a joynt trust and interest The Process in Covenant 1. Before appearance 2. After Covenant Personal 1. By the Common Law the Process before appearance was but a distress infinite 22 Hen. 6.13 Br. exigend 29. 48 Edw. 3.29 pl. 15. and no Capias 2. After appearance the parties appear and day is given over salvis partibus c. the Defendant makes default at the day a distress was awarded against him Lib. Intra 134. B. Sect. 1. and not a Capias Quia non fit breve de Attachiamento Covenant Real quia oporteat quod partes compareant personaliter in Curia Regist orig 165. A. and here was day given over salvis partibus which was no personal appearance The Bar in Covenant 1. Personal 2. Real 1. When a certain duty accrues by the Covenant at the time of the making of it Accord an Accord with satisfaction is no plea Coke 6. part 44. A. Blakes case for such an Accord cannot discharge the duty But a release may be pleaded in bar But where no certain duty accrues until the subsequent act or wrong there Accord with satisfaction is a good plea Coke 6. part 44. A. Blakes case for he may make satisfaction for the wrong by the agreement of the Covenantee Covenant to a Parson for the enjoying his Benefice and the Parson deserts the Cure is void if he deny it after such desertion 14 Eliz. cap. 11. Rastall Leases 244. D. 23 Eliz. Dyer 372. pl. 11. This is after the Parson is absent forty days in the year and not otherwise for that is a desertion in Law whereby he may be deprived A covenants to gather the Rents in D Disturbance and he pleads that he was interrupted by the Plaintiff and so could not do it this is a good bar Crooke 13. Hen. 7.34 pl. 2. for the Plaintiff shall not take advantage of his own wrong Lessee covenants to surrender before the term ends and a Stranger that hath right enters upon the Lessee this is a discharge because the Lessee is disabled by an act in Law Hill 41 Eliz. Com. Ban. Andrews versus Nedham 45 Edw. 3.48 Performance generally a good plea Performance 6 Hen. 4.8 pl. 34. In a Covenant upon a demise by Indenture and an eviction by a Stranger by a higher Title it is no Bar to traverse the possession of the Plaintiff without particular causes shewing how the other had title because it is by Indenture Trin. 3 Jac. Ban. Regis Stile versus Hearing which is a general estoppel without shewing of special matter to avoid it A covenants to make a good estate in Copy-hold land to B before Easter during the life of Cox it is no plea to say that it was surrendred to the Lord by his procurement to the use of C if he shews not that he was admitted for nothing vests in him to whose use it is till admittance Mich. 15 Jac. Ban. Regis Stiles versus Smith and so the Lord was not disabled to perform the Covenant Release is no Bar before the Covenant is broken Release viz. generally Coke 4. part 71. Hors case 5 Eliz. Dyer 217. pl. 2. Coke 1. part 99. A. Shelley◠case If it be not by express words Coke 5. part 71. A. 35 Hen. 8. Dyer 57. pl. 24. Bramly for so the Covenant may be released Judgment in Covenant 1. Personal 2. Real Judgment against an Executor for a Covenant broken after the death of the Testator is of the Testators goods 15 Eliz. Dyer 324. pl. 34. for he is in the Testators stead and trusted with his estate If a Lessee recovers being outed by the Lessor he shall recover his term viz. the remainder unexpired Nat. br 145. M. 47 Edw. 3.24 pl. 61. 20 Edw. 3. Judgment 177. and also Dammages Nat. br 145. M. Execution in Covenant 1. Personal 2. Real 1. Per Common Law 2. Per Statute Law By the Common Law it is but a Levari facias Personal Lib. Intra 133. D. sect 2. fieri facias Lib. Intra 138. A. sect 1. extending but to goods and Chattels But no other Execution Coke 3. part 12. A. Harberts case And this only within the year for if the year be past it was an Action of debt upon the Judgment Coke 3.12 A. Unless the Process were continued 33 Hen. 6.49 pl. 33. for the continuance of it made it as if no time were passed but continued a present Judgment By the Stat. by Westm 2. cap. 45. a Scire facias was given after the year Coke 3. part 12. A. to revive the Judgment and so the party is not now forced to bring an Action of debt upon it And per Westm 2. cap. 18. Elegit is given Coke 3. part 12. A. which extends to lands as well as goods By the Stat. of 23 Hen. 8. cap. 14. Capias ad exigend fuit given in Process and by consequence a Cap. ad satisfaciond in execution against the person By the Common Law it was but a Writ de fine facto 2. Real or to pay a fine as it seems which was but a Writ of Covenant in its nature 43 Edw. 3.12 B. Belknap Glanvil lib. 8. cap. 4. vide the Writ there But entry was congeable to execute it 8 Edw. 3.277 24 Edw. 3.40 pl. 49. Coke 7. part 32. and to hold till satisfaction made as it seems If Land be tailed to one by fine Fine he shall have a Formedon in Remainder 6 Edw. 3.185 pl. 9. Herle to execute the Fine But when the King levies a find he ought to make Letters Patents to the Conusee to enter Coke 7. part 32. for the King passeth nothing but by Record A Fine levied of an Advowson this may be executed by a Quare Impedit 24 Edw. 3.69 pl. 78. But if an usurpation be no Scire facias lies 33 Edw. 3. Quare Impedit 193. Knivet against the Usurper Fine levied of Services there shall be a per que servitio 29 Edw. 3.46 pl. 9. to execute the Fine If a Fine be levied of Rent there may be 〈◊〉 Writ of Covenant 22 Edw. 4.2 pl. 6. to execute the Fine Tenant grants to do his services there shall be but a Distress 10 Edw. 3.371 pl. 3. for that is the proper remedy to recover them and there needed no Covenant Tamen quaere Fine levied of a Reversion there shall be a quid juris clamat to execute this And if the Tenant alien yet the Writ shall be against him and his Assignee shall be bound by his Attornment 8 Hen. 6.17 B. 18 Hen. 6.3 B. pl. 2. by the Judgment given against the Assignor and himself Conusor of a Fine dies there shall be no quid juris clamat against him that claims but if the Conusee only die quaere if his Heir shall have the Writ 34 Hen. 6.7 B. Moyle against the party that hath the particular estate Fine levied before memory there shall be no Execution 1 Edw. 4.6 pl. 13.
Law no barr because Auditors are Judges of Record 2. cap. 11. Coke 103. A. Denbounds case 4 Hen. 6.17 8 Hen. 6.5 14 Hen. 19. pl. 21. 9 Hen. 5.3 pl. 9. and they have adjudged him to owe. But the Plaintiff may be examined by the Auditors and if it be not found that the Defendant is in Arrearages the Defendant may wage his Law per the Statute 5 Hen. 4. cap. 8. Coke 10. part 103. A. 8 Hen. 6.10 15. 19 Hen. 6.43 pl. 90. 20 Hen. 6.32 Ashton for then he is not concluded by the Auditors And if the Plaintiff or his Attorney refuse to be examined the Defendant shall wage his Law 33 Hen. 6.24 pl. 5. for then the Defendant may be believed as well as the Plaintiff But if the Executor brings Debt for Arrearages of account in vita testatoris he shall not be examined but his Attorney shall but not upon Oath 3 Hen. 6.40 pl. 2. 19 Hen. 6.8 10 Hen. 6.20 34 Hen. 6.32 Ashton 20 Edw. 4.3 pl. 24. for the Executors shall not be intended to be privy to the contracts of the Testator But 21 Hen. 6.4 pl. 10. the Executor was examined but not precisely which signifies little for in generalibus non est certitudo So if another brought such Action against an Executor he shall not be examined 20 Edw. 4.3 pl. 14. viz. the Plaintiff So if it be found that they submit themselves to Arbitrement so that they were not Auditors but Arbitrators they shall wage their Law 22 Hen. 6.41 pl. 13. for Arbitrators are not Judges of Record The Lord shall say that he owes nothing Lord. and waged his Law Westm 2. cap. 11. doth not extend to the Lord 14 Hen. 6.24 22 Hen. 6.41 38 Hen. 6. A. 29 Edw. 3.26 pl. 20. Coke 9. part 87. A. Pinchons case Q. The Defendant alledges before Auditors that he delivered to the Plaintiff one Statute Merchant in lieu of the sum the Plaintiff wages his Law 30 Edw. 3.4 pl. 19. upon the delivery Quaere Lending to Predecessor Successor shall wage his Law upon a thing lent to his predecessor 13 Edw. 4.4 pl. 9. because not privy to the contract To the party That he owes nothing by the Law a good barr Lib. Intra 152. C. sect 5. although the thing lent be by others hands 29 Edw. 3.26 pl. 24. for the Law wager is upon the receipt and not the delivery Debt upon bailment Bailment the Defendant pleads that they were delivered to be redelivered to B the which he had done a good barr Nat. br 138. M. for the trust was performed and the contract thereby discharged Contract Real 1. for years 2. for life 3. at will Arbitrement of Rent Trespass and payment of the thing awarded a good barr without saying he owes nothing 10 Hen. 7.4 pl. 4. Q. for thereby the agreement is waved An Accord a good plea 10 Hen. 7.24 2 Rich. 3. Debt 100. Coke 9. part 97. A. Peytoes case for the same reason Acquittance of the last day shall discharge all Arrearages 11 Hen. 4.24 10 Eliz. Dyer 271. pl. 26. due before for it shall be intended there was nothing due when the Acquittance was given The Lessee pleads the command of the Lessor to repair the house with the rent because it was decayed this is no good plea because it is waste 34 Hen. 6.17 14 Hen. 4.27 pl. 35. 11 Rich. 2. Barr in the Lessee to suffer the house to decay if he was not Lessee at will But if the grand Timber be in decay perchance it may be a good barr ibidem because Lessee at years is not bound to repair them except he be tied by special Covenant as it seems Quaere The Lessee was Advocate in the Spiritual Court the Lessor promises that he shall keep the Rent for his Fees this is no barr for steppage is no plea but he hath a good ground to have an Assumpsit to recover his fees Mich. 9 Jac. Ban. Regis Jarvis versus Lea and here is no consideration for the promise for he was his Advocate upon another ground The Lessee pleads that the Lessor entred before the day of payment and ejected him a good barr 27 Hen. 6.10 pl. 6. 46 Edw. 3.1 pl. 1. Lib. Intra 175. D. sect 10 11 12. for then the Rent could not be due for it was payable for the whole term and cannot be apportioned for it is entire A good barr to say that the Lessor entred before his day without any more 34 Hen. 6.21 pl. 40. for the entry implies an ejectment for both cannot be in possession So if the Lessor enter but in part a good barr Coke 3. part 22. B. Walkers case for the Rent is payable for the whole thing lett and is entire But if the Lessee enter again before the day of payment no barr for then he regains the possession and hath elected to wave this advantage of the entry made upon him So if the Lessor cuts the Trees no barr because the Lessor ejects not the Lessee 33 Eliz. but is only a Trespasser Entry by a Stranger which hath a better title a good barr Perkins 163. Lib. Intra 176. A. Sect. 13. 45 Edw 3.8 pl. 10. for that makes void the Lease But not for Arrearages due before the entry 9 Hen. 6.17 B. Cottesmore 19 Hen 6.42 B. Paston 20 Hen. 6.20 pl. 15. for so long the Lease continues in being Debt for Rent in com M. where the Land is in com E. levied by distress is a good plea without saying more 4 Hen. 6.5 pl. 12. 22 Hen. 6.31 pl. 19. 28 Hen. 6.6 pl. 2. Although the Lease be by Indenture 4 Hen. 6.5 pl. 12. 18 Hen. 6.17 A. per 2 Justices 11 Hen. 7.4 pl. 16. for it shall be intended to be levied where the Land lies which cannot be tried where the Action is brought But if it be in the same County where the land is then it ought to conclude that he owed nothing because the Countrey may have notice whether he did or not 28 Hen. 6.6 pl. 2. 33 Hen. 6.4 pl. 12. and may try the issue But the 9 Edw. 3.33.4 pl. 16. Herle it is good without such conclusion Q. It seems he thought levied by distress doth imply that he owes nothing Debt upon a Lease for Tithes levied by distress is no barr because there is nothing subject to distress 22 Hen. 6.35 pl. 53. 11 Hen. 4.40 br debt 234. and so the plea is impossible A good barr that the Lessor distrained and sold the distress for the Rent by the assent of the Defendant 2 Rich. 2. Debt 235. for so he might do but not without his consent Payment in another County a good barr without saying more 22 Hen. 6.36 pl. 1.34 Hen. 6.17 B. Moyle 9 Hen. 5.2 pl. 6. 11 Hen. 7.4 pl. 16. 1 Hen. 5.6 7. 20 Hen. 6.16 B. 22 Hen. 6.35 pl. 53. for the payment is the substance and the place it not traversable For otherways it shall
Westminster for the judgment is well given The Goods that he had at the time of the execution shall be only liable to execution Coke part 171. A. Fleetwoods case 2. Hen. 4.14 9 Hen. 6.58 11 Hen. 4.7 34 Hen. 6.23 B. Prisot 21 Hen. 7.87 pl. 1. Crooke Unless it be in case of Executors 34 Hen. 6.23 B. Prisot For they may have other goods of the Testator come to their hands afterward But sale by covin after Judgment cannot hinder the execution 22 Assiz 72. 13 Hen 4.4 pl. 9. Q. if sale be made pending the Suit before Judgment by covin Hill 40. Eliz. Com. Ban. per Curiam if a Writ of execution be awarded for debt or dammages and between the Test of the Writ and Execution the party sold the goods bona fide yet these are liable to the execution Q. If so where the Vendee knows not of the Judgment for it seems hard and yet it seems as hard on the other side also Ejectment In what Court it lies IT lies not in the Marshalsey Coke 10. part 72. A. Marshalsey For no Title for Land could be tried there In Ban. Regis it lies In Com. Ban. it lies In the Exchequer it lies for a party priviledged Coke 1. part 3. A. Pelhams case and this was by Bill It seems it lies as well on the Pleas side and more properly than by Bill But if it be for ancient demesne-Land it lies not in the Court of the King Coke 5. part 105. A. Aldens case 9. part 77. B. but in the Court of the Mannor by their priviledge but by consent it may be as it seems tried elsewhere Because the possession is to be removed in such action per Hobart Chief Justice Hill 11. Jac. com Ban. Rot. 25.41 Cox versus Barnibee But none can plead this out ter-tenant of the Land in ancient demesne because the possession doth only concern him 2 Hen. 7.17 pl. 1. But if the Plaintiff do not put in his declaration until the end of the Term the Defendant cannot plead ancient demesne the next Term but must move the Court that the Plaintiff put in his declaration so late and pray no advantage may be taken against him and then the advantage shall be saved Trin. 12. Jac. Ban. Regis and he shall have liberty by rule of Court to plead ancient demesne the next Term. But he may plead this after view because by this he may confess if it be frank fee or not 50 Edw. 3.9 pl. 20. Q. Who shall have an Ejectione firmae Lessee for years only shall have it Possession Nat. br 120. F. because this action is only to recover the present possession and concerns not the Title but ex obliquo or collaterally And this only upon the possession in deed for he shall not have it upon a possession in Law 23 Hen. 8. br quia ejecit infra c. 5. For that is not an actual possession and so there is no present disturbance Nor upon a Lease to commence in futuro 37 Hen. 6.18 A. For the same reason and it may be it may never come in esse Note that Tenant for years needs not count that he entred Note but that a Lease was made to him by virtue of which he has possessed com 503. B. Grendons case For the Word Possessed supposeth an Entry or at least a taking of the Profits Tenant for years leases to B. at will who is outed by a stranger tenant for years shall not have an action because he had not the actual possession Pasch 11 Jac. in the Exchequer inter Sir Richard Grebham Stone Q. if Tenant at will may for the feebleness of his estate it seems he may Tenant for years Tenant for years leases for one year or a Lease is made for years the remainder for years a stranger enters none shall have an ejectment but the Tenant in possession Crooke 130. pl. 99. for none else is disturbed Lessee shall have an ejectment after the term ended Lessee and recover all in dammages 21 Edw. 4.30 pl. 25. Brian 7 Edw. 4.6 B. Fairfax For other remedy he hath not to recover them Lessee which may have a real Action cannot have an ejectione firmae Com. 419. B. Bracebridges case For real Actions are to be preferred before possessory and personal because of a higher nature and thereby justice is more speedily done Husband and wife Husband and Wife ought to to join if it be in right of the Wife 21 Edw. 4.10 pl. 1.30 pl. 25. 7 Edw. 4.6 B. Fairfax Com. 418. B. Bracebridges case For the Husband cannot declare of a Lease made to himself though he be interessed in it by reason of the Marriage and the Lease may come again to the Wife by his Death But if the term be ended the Husband alone shall have it because nothing shall be recovered but dammages 7 Edw. 4.6 B. Fairfax Which do only concern the Husband Lessee for one year of a Copy-holder shall have an ejection firm Coke 4. part 26 For he is a possessor for a term of years because the time is certain and of less term certain than for years the Law takes no notice Lessee of a Copy-hold for more years Copy-hold shall have an ejection firm although that such Lease be a forfeiture for it is a good Lease against all but the Lord Trin. 36 Eliz. Ban. Regis Downings case and it may be the Lord will take no advantage of it Executor of a Lessee shall have it Executors No. Lib. intra 195. D. sect 6. because the possession is come to him and he is damnified by the disturbance Executor Plaintiff Husband and Wife Co-executors Defendants and the Count. Lib. intra 252. B. sect 6. Executor shall have an ejection firm in vita Testatoris per the equity of the Statute 4 Edw. 3. cap. 6. Coke 9. part 78. B. Peytoes case else he should lose the term Churchwardens shall have it of Land leased to them 15 Hen. 7.8 in right of the Church Church-wardens for it is their possession pro tempore Q. If new be elected before the trial what shall be done Tenant by Elegit Tenant by Elegit shall not have an ejectione firmae Crooke 109. pl. 29. For he hath no certain term for the Owner may redeem the Land when he will Tenant in common Tenant in Common shall have it against his Companion Littleton 73. A. For they have distinct interests in Law Father and Son having several inheritances in divers Lands the Father levies a Fine of it all the Son being beyond sea at the time dies his Issue enters and leases it being within Age to A without rendring any Rent A. enters the Conusee of the Fine enters and leases it to B yet B. shall not have an ejectione firmae against A if he be outed without express outing of A because as to the moyery the Plantiff had not title for of that the Father might levie the
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.
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