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.
20 l. for the which execution was awarded absq hoc that the plaint and the execution was for the same 20 l. yet the Visne shall be in both Parishes because the issue is as well of the execution as of the plaint 5 Edw. 4.110 A vouches B who vouches C and after issue tried the former Vouchee viz. B. dies this shall not be pleaded in arrest of judgment against A but it is error if judgment be given 21 Hen. 7.80 pl. 1. Crooke but if A die it shall abate the Writ in facto ibidem because he is Defendant and so no judgment can be given In detinue against A he prays garnishment against B which comes and pleads and they are at issue A dies the Writ abates ibidem Bar in Error No bar to say that the former Writ depending Feofment the Plaintiff did infeoff another for he remains Tenant notwithstanding the Feoffment 21 Edw. 3.53 20 Assize 2. 12 Assize 41. Coke 1. part 111. Albanyes case because the Feoffment was made pendente lite In nullo est erratum In nullo est erratum a good Bar 28 Hen. 6.10 9 Edw. 4.32 15 Eliz. Dyer 321. pl. 21. For it destroys the very supposal of the Writ But note upon Error in Deed this is no plea. 7 Edw. 4.16 9 Edw. 4.32 3 Edw. 6. Dyer 65.2 Mariae Dyer 104. pl. 10. Lib. intra 288. D. sect 1.289 D. sect 1. No. Lib. intra 233. B. because that doth not appear upon the Record Release of Errors is a good Bar Release 20 Edw. 3. Error 2. Littleton 116 B. Coke 8. part 152. Althams case 6 Hen. 4.8 pl. 36. 5 Edw. 4.96 B. For the release of Errors makes the judgment good were it never so vicious But a release of Actions reals and personals it is no Bar in error of an Outlawry Coke S. part 152. Littleton 116. B. For the Outlawry concerns the Commonwealth which interest cannot be released by a private person If the Defendant be outlawed in Redisseisin a release of all demands is no Bar because the Original and the Judgment are the process upon the Outlawry 11 Hen. 4.6 The Release of the Vouchee shall bar the Tenant 17 Edw. 2. Error 90. for the Tenant recovers in value against him Release of Errors by Tenant in Tail is no bar to the issue although it be tried against the Tenant in Tail 3 Eliz. Dyer 188. pl. 9. For the issue in Tail is not bound by the judgment for the issues derives paramount the tenant in Tail viz. performam doni But if he in reversion in Tail disseises Tenant in Dower and suffers an erroneous Recovery and Tenant in Dower releases with warranty and dies this is a good Bar Coke 3. part 60 61. Lincolne Colledge case because the recovery cut off the entail A Release of one bars another when two are to recover a personal thing in respect of their joint-interest but when they are to dischage themselves it is otherwise Coke 6. part 25. Ruddocks case As where an Action is brought against two jointly to one thing it seems if one confess the Action this shall not bind the other If an Action be brought against two jointy and a judgment is thereupon had against them and one of them releaseth errors this shall not hinder the other to bring a Writ of Error because he is to be charged by the judgment The King brought Error Scisune it is no plea that his Ministers have seized the Land unless the King agree to it 39 Assize pl. 18. For the King shall not be bound by the Act of his Officers without his consent Yet Q. if it be done by an Officer of Record The Judgment in Error 1. For the Plaintiff 2. For the Defendant 3. For both In Error two things are to be done 1. To reverse the judgment 2. That the party be restored to all that he lost by reason of the judgment 9 Hen. 6.47 B. Martin Coke 5. part 39. B. Tayes case Q. Whether he shall be satisfied for all his dammages It seems he shall The judgment was that the Plaintiff should not be restored to the Land Assise with the mean profits 11 Hen. 4 93. pl. 49. Q. For a several Action lies for the mean profits And 8 Hen. 6.2 A. Rolfe that he shall recover the Land and the Issues of the Land that is the profits Information upon Intrusion The judgment was Quod judicium reversetur adunlletur quod Defendens de intrasione intrusione transgressione contemptu convincatur à possessione amoveatur capiatur c. quodque recordum mittatur in Scaccarium pro executione habenda c. Coke 1. part 40. A. Altonwoods case The Action and judgment were in the Exchequer In a Quare Impedit that former judgment should be void Quare impedit and the Plaintiff restored to all that he lost 18 19 Eliz. Dyer 353. pl. 30. Gardein recovers in a Quare Impedit in right of the Ward the Defendant at full age of the Ward brought error and a Scire facias against the Ward the Ward entitles himself by his ancient right and found for him 1. The judgment shall be reversed against the Gardein and yet the Defendant shall not be restored because he is barred by the plea of the Ward 9 Hen. 6.47 B. Newton The judgment was that the judgment shall be reversed Redisseisin and that the Plaintiff be restored to the Land and to the issues taken in the mean time 9 Hen. 4.6 pl. 19. that is to the mean profits of the Land taken pendente lite The judgment was upon an Utlawry in felony Utlawry that the Utlawry should be reversed and he restored at the common Law to all that he had lost by this cause 11 Hen. 4.53 pl. 32. 7 Hen. 4.40 B. And that he should be restored at the Common Law to that he had lost 3 Eliz. Dyer 196. pl. 39. viz. by reason of the Owtlawry Error by Executors of the Testators being utlawed was that the Utlawry be reversed and that they shall be restored to the goods of their Testator seized by reason of it 11 Hen. 4.65 pl. 22. It shall be Quod judicium redditum staret in omni robore per Coke Chief Justice Pasc 12. Jac. Ban. Regis Sir John Heydons case and yet 21 Edw. 4.44 A. was quod judicium redditum remanebit stabile in perpetuum nor the form is let judgment be affirmed Et ulterius concessum est quod praedictus A recuperet versus praefat This is the Judgment for dâ—mnâ—ges B. 10. l. eidem A. per Curiam Domini Regis hic adjudicat juxta formam Statuti inde nuper edit c. promisis costagiis dampnis suis quae sustinuit occasione dilatationis executionis praedict praetextu prosecutionis dicti brevis Domini Regis de errore c. Lib. intra 244. B. sect 8. 292. B By the Statute of 3 Hen 7. cap. 10. if error be sued before execution and afterwards be discontinued by default of the party that brings it or he be nonsuited or judgment affirmed the other shall recover his costs and dammages by the discretion of the Judges An Infant and another levie a Fine this may be reversed to the Infant by a Writ of Error but it shall be good against the other Coke 1. part 76. B. Bredons case No. Lib. intra 255. C. sect 11. For the Fine shall stand good as far as by Law it may But if the Husband and Wife levy a Fine of the Land of the Wife and they reverse it for Error they shall be restored forthwith because the Husband is joyned with his Wife but for conformity Coke 2. part 77. B. Cromwels case For the Estate passeth only from the Wife Though Execution be reversed the judgment is yet good Coke 5. part 32. Pettifers case and a new Execution may be taken out A Fine reversed for fault in the Proclamations only remains a good Fine at the common Law for the other is but a Discontinuance 4 Eliz. Dyer pl. 54. and is nothing to vitiate the Fine Execution in Error Lib. intra 307. C. sect 1. FINIS
Fol. 469 Diminution in Error 1. by whom 2. in what cases 3. at what time Fol. 472 The assignments of Errors 1. by whom 2. at what time 3. upon what Record 4. of what things Fol. 474 Barr in Error Fol. 491 Iudgement in Error 1. for the Plaintiff 2. for the Defendant 3. for both Fol. 493 Execution in Error Fol. 495 ACCOUNT Account is by Common Law By Act of Law Guardian in Soccage Next of Kin. A Stranger Baily of a Court or Hundred in Law in case of a Subject of a Mannor-house c. in deed in case of the King By his own act Receiver By other hands in law in case of a Subject By his own hands in deed in case of the King Statute Law Marlebridge cap. 17. Against a Guardian in Soccage Marlebridge cap. 23. Against a Baily vagarant Westm 2. cap. 23. For Executors 25 Edw. 3. cap. 5. For Executors of Executors 3 Edw. 3. cap. 11. For Administrators 23 Hen. 8. cap. 8. Collectors for repairing of Goals shall account to Justices of Peace 2 3 Maria cap. 8. Against Head-Constables or Church-wardens 43 Eliz. cap. 2. Overseers of the Poor shall Account to Justices of Peace 1 Jacobi cap. 9. Against Churchwardens and Constables for Forfeitures of Alehouse-keepers by them received Account against a Guardian in Soccage In what Court Account lieth against a Guardian in Soccage IT lies in the County Court or Common Bank Nat. br 117. b. It lies not before the Sheriff 43 Edw. 3. fol. 21. pl. 11. Thorpe For Brook Account 14. saith the Sheriff cannot assign Auditors and therefore it is in vain to bring the Action before him A good plea to say the Land is ancient demesn because the reality may come in question Coke 5. part fol. 105. A. Aldens case It lies not in the Marshalsey Coke 10. part 74. b. Marshalsey Who shall have a Writ against Guardian in Soccage The Heir in ward shall maintain an Action against him after the age of 14 years or at his full age at his election Littleton S. 123. But Nat. br 118. b. he shall not have it till the age of 21 years Crook fol. 131. pl. 106. by reason of the words of the Statute of Marlebridge cap. 17. scil cum ad aetatem pervenerit 3 4 Mariae Dyer 137. pl. 25. New tenures 3. b. 18 Edw. 3.55 pl. 76. 29 Edw. 3. fol. 5. pl. 13. Vide Regist origin 136. Lib. Intra 21. D. 8 R. 2. Gard. 166. 10 Rich. 2. Account 132. Doct. Stud. fol. 14. b. Old Nat. br 91. A. If the Heir in such case die before his full age his Executor shall maintain an Action of Account Crook 131. pl. 106. because it concerns a Chattel Yet note the Heir in Gavel-kind at 15 years brought an Account against a Guardian in Soccage and shews by the Custome he may alien at such age and for this cause he was awarded to Account per Welby 29 Edw. 3. fol. 5. pl. 13. For if he may do the greater he may do the less to fell is more than to take an Account The Executor of an Heir shall have an Account per West 2. cap. 23. Littleton 27. A. Crook 131. pl. 106. Executor of an Executor shall have an Account by 25 Edw. 3. cap. 23. Com. 290. Filius Haeres Domini defuncti non habebit breve de computo quia pertinet ad executionem administrationis bonorum defuncti Regist Orig. 135. b A Recusant shall not have an action for any thing that is seized into the hands of the King 3 Jac. cap. 5. for the King is accountablle to no body Against what person an Account lieth as Guardian in Soccage Account lieth against any that taketh the profits before the Ward be of the age of 14 years Littleton Nat. br 118. D. 4. Hen. 7.6 10 Hen. 6.7 13 Edw. 3. Account 77. 29 Ed. 3.5 pl. 13. But if one occupy and after Guardian in Soccage recover in right of the Ward the party shall not render an Account to the Heir for the Guardian ought to account for this 27 Edw. 3.79 Gard. 22. and therefore the Account shall be made to the Guardian The reason is as it seems that the Writ doth not make mention of the blood Regist orig 136. b. neither the Count Lib. Intra Account lieth not against an Executor of a Guardian Littleton Nam non jacet versus Executores quia merè pertinet ad Curam Christianam cognoscere de computo reddendo versus Executores Regist orig 135. b. 28 Hen. 8. Dyer 23. pl. 145. But if Executors account an Action of Debt lieth for the Arrearages 2 Hen. 4.13 pl. 2. And if the Testator covenants to account to the Heir and doth not Covenant lieth against his Executor Regist origin 165. b. Nat. br 145. H. It lies against a Woman 19 H. 6. b. Newton It lies against the Husband and Wife 18 Ed. 3.55 pl. 76. For what things Account lieth It lies for Woods and Under-woods sold for Lands Tenements Meadow Pasture also for Rents and Services perquisites of a Court ad valentiam Lib. Intra 21. B C. Marlebridge cap. 17. Respondeant de exitibus per aequalem computationem salvis ipsius custodibus rationabilibus misis suis For Fines of Copyhold Land granted by one Trin. 1 Jac. Com. Banc. Shopland versus Rider Rot. 853. For the issues and profits of the Lands Littleton For the Marriage of the Heir if he marry before the Age of fourteen years Littleton 27. a. If the Marriage be not as great in value as the marriage of the Heir Littleton 27. A. No Account for the presentation of a Church therefore the Guardian cannot present thereunto Nat. br 33. T. 28 Edw. 3.89 29 Edw. 3.5 8 Ed. 2. Presentment 10. But by Daniel Justice Trin. 1. Jac. Com. Ban. Rot. 853. Shopland against Rider the Guardian shall present if the Heir be not of the age of discretion It lies for Writings 32 Edw. 3. Account 60. The Account against a Guardian in Soccage The Heir counts that it was ordained by the Common Council of the Land that the Guardian in Soccage should Account c. and shews the tenure specially and that the Defendant had the custody of the Lands c. from such a day for 12 years ensuing and hath not accounted for the issues and profits c. and that at such a day the Heir was at full age Lib. Intra 21. b. Sect. 1 2.29 Ed. 3.4 pl. 13. No. Lib. Intra 47 E. Sect. 3. The Writ against a Guardian in Soccage Rex c. si A. fecerit c. tunc summon c. B. quod sit coram Justic nostris c. ostensum quare cum de Comm. Concilio Regni nostri provisum sit quod custodes terrarum tenementorum quae tenentur in Soccagio haeredibus terrarum tenementorum cum ad aetatem pervenerint reddant rationabilem computum suum de exitibus terris tenementis illis provenient de
not material whether he had the Mannor-house c. for the Receipt charges him 9 Edw. 3.356 pl. 38. Stoner 27 Edw. 3.29 pl. 25. He need not count the things particularly because it may be shewed before the Auditors Crook 1 Hen. 8.153 pl. 2. where he is to charge him particularly But the Book of 49 Edw. 3.13 14 Hen. 4.14 says that it is material Q. inde If Account be brought against one that by Custome ought to gather the Rents the Count must be special 21 Hen. 7.76 pl. 23. because the Custome makes the case to be special The Count was against one as Baily of a house and merchandise occupied by Joynt-tenants ex quacunque causa seu contractu Lib. Intra 18. A. sect 6. The Count was that he was Baily at the Feast of St. Michael and good because it shall be intended th'Archangel Coke 11. part 39. A. Metcalfes Case 20 Hen. 6.23 The Count was against a Tenant per Elegit that he had made waste to the value c. Old Nat. br 34. Conusor counts that the Conusee had levied the sum or that he had levied part and tendred the remnant 47 Edw. 3.11 pl. 9. and fol. 25. pl. 63. And so of the Assignee of a Conusor 25. Ed. 3.53 pl. 17. The King is not held to Count against one as Baily but may alledge generally in his information quod ille ad computand Domino Regi tenetur and if it be against Executors quod is tempore mortis suae tenebatur Coke 11. part 90. Devoushers Case The Writs against a Baily 1. of a Court or Hundred 2. of a Mannor c. Rex In Comitasu c. Praecipimus tibi quod Justicies I. B. quod justè sine dilatione reddat B. rationabilem computum suum de tempore quo fuit Ballivus suus in M. sicut rationabiliter monstrare poterit quod sibi reddere debeat ne amplius inde clamorem audiamus pro defectu justitiae Teste c. Regist orig 135 A. In London Regist orig 135. A. For Executors Regist orig 135. A. For Merchants Regist orig ibid. Rex c. Praecipe A. quod justè In Banco c. reddat B. rationabilem Computum suum de tempore quo fuit Ballivus suus in N. nisi fecerit praedictus B. fecerit te securum de clamore suo prosequendo tune summ per bonos summonitores praedictum A. quod sit coram Justie nostris apud Westm à die Paschae in quindecim dies ostensur quare non fecerit habeas ibi summ hoc breve Teste c. Regist orig 135. b. Nat. br 117. E. It lies for a man and his Wise Regist orig 135. b. For a Master of a house Regist orig 135. b. For a Prior in the time of his Predecessor Regist orig 135. b. For an Executor and an Abbot Co-executor Regist orig 135. b. But there is another form of a Writ founded upon the Statute of Marlebridge cap. 23. Nat. 117. H. orig Regist 135. b. Account against B. as Baily and Receiver in K. a good bar to the Writ that he was not Baily nor Receiver in K. 21 Hen. 6.21 pl. 42. Vide 44 Edw. 3.1 pl. 2. The Writ ought to comprehend the County 10 Edw. 3.365 pl. 19. Shard If it be brought against one as Receiver where he was Baily it shall abate 3 Edw. 3.70 pl. 28. 18 Edw. 4. pl. 17. For the Law takes notice of them as distinct and different employments But one Writ may comprehend Baily and Receiver 9 Edw. 3.356 pl. 38. Nat. br 116. P. 21 Hen. 6.21 pl. 42. Regist orig 135 b. For a man may be charged in a double capacity and if he rightly charged either way it is gone The process against a Baily 1. before appearance 2. after appearance At the Common Law the Process was but a distress infinite Coke 3. part 12. A. Harberts case But by Marlebridge cap. 23. a Capias was given Coke 3. part 12. A. And per Westm 2. cap. 11. process of Outlawry is given Coke 3. part 12. A. 17 Ed. 2 process 203. 17 Edw. 3.59 pl. 55. Shard 29 Ed. 3.5 pl. 13. But against Tenant by Elegit is but a Scire facias 21 Edw. 3.2 pl. 6. 5 Edw. 3.159 pl. 20. Regist judicial 73. b. Old Nat. br 34. And if they appear not being summoned judgment shall be given against them 5 Edw. 3.159 21 Edw. 3.1 Conusor shall have a Scire facias against the Conusee Coke 4. part 67. b. 47 Edw. 3.11 pl. 9. fol. 25. pl. 63. So the Assignee of a Conusor 25 Edw. 3.53 pl. 17. If a Baily come in by Capias or Exigend he shall be forthwith committed to the Fleet 29 Edw. 3.35 pl. 63. for his contempt in not appearing before So if he come in by Distress and the Account be adjudged 29 Edw. 3.35 pl. 63. But if the Account be adjudged and he be not present in Court a Capias ad Computandum shall issue out against him 1 Edw. 3.2 pl. 10. 1 Hen. 7.1 pl. 1. Townsend Lib. Intra 18. c. Sect. 1 2 3. The Bar for a Baily 1. to an action of Account 2. before Auditors A good Bar Account before Auditors that he did account before Auditors 25 Edw. 3.39 pl. 1. 2 Edw. 3.45 pl. 13. Lib. Intra 17. A. Sect. 1. he shall shew the time and the Auditors But in pleading he ought to say that the Auditors were assigned by the Plaintiff only and not by his assent 29 Edw. 3.40 pl. 21. A good Bar that he did account with the Plaintiff himself Lib. Intr. 18. A B. Sect. 6.11 Rich. 2. Stath Account 46. 45 Edw. 3.14 pl. 13. But it is no Bar to say No bar he did account with the Plaintiff after that he had imprisoned him 22 Edw. 3.13 pl. 32. Account per Executors a good Plea that he did account to the Testator and shews an Acquittance of the Testator 1 Edw. 3.2 pl. 10. Heir Frank-tenant a good bar 28 Edw. 3.90 An Abbot brought an account against B. as Baily of his Predecessor and the Defendant pleads Property that he had a Lease of his Predecessor for 3 years and entered after the end and found certain things there this is a good Bar 16 Edw. 3.368 pl. 30. The Defendant said that it was debated between the Plaintiff and his Wife and it was agreed that the Wife should have the Land for her maintenance and she leased to the Defendant rendring Rent this is a good bar 47 Edw. 3.18 pl. 34. An account for the delivery of three Tuns of Wine a good bar for the Defendants to say that the Wife was a common Taverner and that they were Bailies for the sale thereof without the assent of him and that she fold and paid the Plaintiff without that that they were his Bailies in any other manner 13 Rich. 2. Account 50. Defendant pleads a Lease to him of the Mannor a good bar 49 Edw.
be shewed in the Count or Declaration 3 Hen. 6.36 11 Hen. 4.33 A Consideration of a thing past is not good Doct. Stud. 104. B. except it be a continuing consideration and benefit to the party An Assumpsit may be made in the absence of another if he will agree to it afterward 27 Hen. 8.24 and it shall be all one as if it were made to the party Quaere whether he that assumed may not refuse before the other consent General Bar. 1. Concord pleaded viz. after the Assumpsit made Lib. Intr. 6. C. sect 6. 2. Non assumpsit and this a man may plead although there is no consideration Pasch 26 Eliz. Ban. Regis for if there was no consideration for the promise it is all one as if there had been no such promise made But if the former were upon an entire sum upon two Assumpsits then no bar Trin. 14 Jac. Ban. Regis Paine and Selley A good Bar that he promised upon Condition which is not performed Lib. Intr. 5. D. sect 1. and so he is not bound to perform his promise for the Condition is to be precedent Non emisses the Land of him a good bar Lib. Intra 6. B. sect 5. viz. an Action brought for moneys promised to be paid upon a purchase of lives That the Plaintiff discharged him of the bargain a good bar Lib. Intr. 685. C. sect and so there could be no money due upon it To make an estate The Action lies 1. against him that sells Land to me and promises to make an estate and doth it not 3 Hen. 7.14 14 Hen. 8.15 21 Hen. 7.41 2 Hen. 7.11 12. 20 Hen. 7.9 22 Hen. 6.44 20 Hen. 6.34 Lib. Intra 5. D. Sect. 1. and 685. B. sect 1. the Writ Lib. Intra 6. A. Sect. 2. for I am thereby prejudiced in my title to the Land 2. Against him that sells Land to me and promises to give me seisin of it and does not Regist 112. A. for he hath consented to pass the Land by that kind of Conveyance 3. A promises to convey Land to such a person as B shall name and the Defendant shews that he conveyed it to B this is good for it shall be intended a nomination in B insomuch that he did accept of it Mich. 13 Jac. Com. Ban. Huligo and Wilde for he might nominate himself as well as another 4. Against him that first sells Land to me and afterwards sells it to another Lib. Intra 685. B. sect 1. Nat. br 98. F. 20 Hen. 6.34 for I may be thereby troubled in my possession 5. The same Law is if he grant a Rent and afterwards infeoff me not giving me notice of the Rent 20 Hen. 6.34 for thereby my Land is charged Against one that promises to scour his Ditch Ditch and doth not by which my Land is drowned 3 Hen. 6.36 and I damnified Against an Alien that brought Salt to London Cranage and promises to the Major to pay so much as shall be due for Cranage 18 Eliz. Dyer 352. pl. 27 and doth it not for here is damage by the loss of the profit Against the Lessor that promises Lessor that the Lessee shall enjoy pacifice quiete and is expulsed by a Trespassor 16 Eliz. Dyer 328. pl. 8. Q. 1. Against him that promises to amend his house House 19 Hen. 6.49 and doth it not Q. whose House 2. For not building a House according to his promise 2 Hen. 6.55 21 Hen. 7.41 20 Hen. 7.9 14 Hen. 6.18 Nat. br 145. G. 3. Against him that promises to cover a house and doth it not 3 Hen. 6.36 14 Hen. 6.18 4. A Leases a House to B at will and in consideration that he will permit him to enjoy it till such a day he promiseth to keep A harmless from all damage ratione inhabitationis occupationis Messuagii praedicti and for every farthing hurt he will satisfie 2 d. upon request The Servant of B suffers the house to be burnt 1. the Assumpsit extends to negligent waste because it is a damage to the Lessor 2. the Plaintiff ought to shew how many farthings he is damaged or else he cannot recover two pence for every farthing 3. he ought to request so many farthings due to him and to demand two pence for every one in a gross sum 4. upon the promise to the Tenant at will 5. he needs not to averr that he did there inhabit at the time c. for if he occupied it it is sufficient 6. by the assumpsit that B should have it until c. And it being a Lease for years ergo the Action lies not Mich. 9 Jac. Ban. Regis Coventry Woody Q. Against him that promises to purchase Land for me of B and doth not do it Purchase he is not excused though B will not sell it 11 Hen. 6.18 3 Hen. 7.14 for by his promise he is bound to do it at his peril But if he be retained and do his endeavour he is excused 16 Hen. 6. Action upon the Case 44. Against him that promises to make B. to release to me Release and doth not 14 Hen. 6.18 pl. 58. For not doing of a thing which ought to be done by the agreement of the parties touching Chattels Assumpsit 1. Against him that puts in Cattel without paying for the Agistment Agistment Nat. br 86. B. Regist orig 92. A. the Writ there for here is not quid pro quo in recompence Annual payment Against him that promises to pay 10 l. a year for Land for four years and fails of the first payment Action lies presently Coke 3. part 22. A. Walkers case 3 Mariae Dyer 113. pl. 54. pro tanto Trees cutting Against him that promises to cut Trees and carry them to my house Regist 109. B. Against him that promises an agreement Arbitrement and doth it not Coke 5. part 77. B. Sammons casee Ne. Lib. Intra 3. B. sect 4. for the other thereby is delaied in his right A grants his term to B if C agree B promises 20 l. to C for his assent Assent this is a good assumpsit Trin. 12 Jac. Com. Ban. in the case of Griesly and Louther for the assent shall be intended to be for his benefit 1. Against one that promises to re-deliver money and doth not Lib. Intr. 10. sect 1. 2. Against a Baily that takes upon him to keep Cattel safe and doth not Lib. Intra 9. A. sect 1. fol. 3. B. sect 1. but they are lost by his negligence 3. But if he promise to guard the goods and after refuses no Action lies Doct. Student 102. B. if there were no consideration taken to do it 1. Against a Carrier that undertakes to carry goods safe and doth not Carrior 2 Hen. 7.11 Lib. Intra 2. D. sect 1. the Carrier is chargeable without such a promise per legem terrae 2. Against him that promises to carry Wine and breaks
cap 5. Gâ—kâ—â— part Grâ—gories case for those Courts are fine to interpret Statutes and not inferiour Courss Who shall have Debt If a Baily account for his Master Accountant and surplusage be found due to his Master he shall have debt for it Nat. br 121. I. the Count Lib. Intra 150. D. sect 1. quaere if it be not meant where the Baily accounts with his Master But a Receiver shall not Nat. br 121. I. 38 Hen. 6.5 pl. 14. Mich. 12 Jac. Ban. Regis Countess of Suffolke Floyde for the Law takes not so much notice of a Receiver as of a Baily Administrator shall not have debt until Administrator 31 Edw. 3. cap. 11. Nat. br 120. D. Coke 9. part 39. A. Hensloes case for the Common Law takes no notice of an Administrator 1. An Administrator ought to count that he which committed the Administration was the Ordinary of the place where the intestate died 31 Hen. 6.23 pl. 5. Com. 277. A. per Dyer If it be a particular Jurisdiction he must say cui administratio pertinuit 2. he ought to name the place where the Administration was to him committed 35 Hen. 6.31 pl. 39. Danby Moyle because it is traversable 3. He needs not name the Ordinary by his Christian name 7 Hen 4.10 pl. 18. for the place where makes it certain enough who it is But in a Writ de Colligend he shall be named Q. de ceo brief An Administrator shall have debt upon 1 Edw. 2. cap. 14. for money given to Chantery If the Ordinary release a debt to a Debtor of the Intestate and afterwards grants Administration to A yet A shall have debt against the Debtor for the Release is void in Law 18 Hen. 6.23 Coke 9. part 39. A. vide Crooke 127. pl. 90. for the Debt is not the Ordinaries Attorney shall have Debt for his Fees Attorney and Fees of Counsel and costs of Suits Nat. br 121. L. 21 Hen. 6.4 Quaere of Counsells Fees if not expended by his Clients direction If J. deliver money to bail over Bailor or to a Merchant to trade with for me or to be given is Alms or upon a condition to rebail if he break the trust J. shall have debt against him 28 Hen. 8. Dyer 22. pl. 135. 11 Hen. 6.39 pl. 3. 42 Edw. 3 9. pl. 7. Crooke 21 Hen. 7.69 pl. 2. per Froâ—icke for if the trust be not performed the money belongs to the Bailor A is bound to the Husband and Wife Husband the Husband alone shall have the Action 3 Hen. 6.37 pl. 35. 12 Rich. 2. bre 637. in his own name only if he will Or in both their names 39 Edw. 3.5 pl. 19. 43 Edw. 3.10 pl. 31. 3 Hen. 6.37 pl. 35. 12 Rich 2. bre 639. 16 Edw. 4.8 for the Husband may interest his Wife in the debt Husband and wife Husband and Wife assign Auditors to receive 〈◊〉 debt due to the Wife dum sola fuit and brought debt for the Arrearages in both their names and good because the wife was the cause of the Action 16 Edw. 4 8. pl. 4. because the debt was due to her dum sola Husband and wife lease for years Lands of the wife rendering Rent the Husband dies and the second Husband brought debt and good 28 Edw. 3.90 pl. 4. for the Law creates a privity in him A Woman leases at will rendering rent and takes a husband the Rent is behind they joyn in debt and good Coke 5. part 10. Hensteads case for the marriage shall not determine her will so as to extinguish the debt A Woman shall not have an Action against her husband although she is Executrix 8 Edw. 3. 330. pl. 48. for she cannot sue her self and the husband and wife are but one person in Law A is bound to the husband and wife and they are divorced causa prae-contractus and they brought debt in both their names No. Lib. Intra 121. sect 5. for the divorce makes the marriage void ab initio and so the obligation is void and therefore the Action not well brought as it seems B had a Rectory in right of his wife for years and they both joyned in debt upon the Statute of 2 Edw. 6. for not setting forth of Tithes Hill 39 Eliz. Ban. Regis Rot. 699. and good for the Action is grounded by reason of the wife Lease for years rendering Rent by the husband and wife husband may have debt in his own name 7 Edw. 4 5. pl. 16. for the Rent belongs to him The same Law is if the Reversion be assigned to the husband and wife although that the husband count as Assignee Trin. 12 Jac. Ban. Regis Wyats case Quaere whether in both cases the Action may not be brought in both their names Husband and wife sold the Land of the wife the husband alone shall have debt 48 Edw. 3.18 pl. 4. for the money belongs only to him Husband and wife recover dammages the husband alone shall have debt for them 16 Hen. 6. bre 939. for the husband shall have them A woman Tenant in dower of Rent takes a husband and dies the husband shall have debt for the Arrearages during the Coverture Nat br 121. C. 14 Hen. 6.26 A. 10 Hen. 6.11 22. Hen. 6.25 26 Edw. 3.64 for the Rent was due to him And by 32 Hen. 8. Ca. 37. the husband shall have debt for the Arrearages before the Coverture Coke 5. part 51. A. Ognels case else the Rent would be lost Annuity to the wife that takes a husband Arrearages incurr the wife dies the husband shall have debt because it is more than a thing in Action Hill 29. Eliz. Com. Ban. St. Legers for it is a duty incurred But if it be but for a thing in action before the Coverture as an Obligation the husband shall not have it Nat. br 121. C. 39. Hen. 6.26 pl. 38. because of the incertainty whether it were due to the wife or not But during the Coverture the husband may release it 17 Edw. 3.66 pl. 78. Hill for that passeth nothing but by way of extinguishment of his right if he have any Husband makes his wife Executrix which takes a husband and makes him Executor and dies the husband brought debt for the debt to the former husband and good 4 Hen. 6.31 for now it is become due to him as Executor of an Executor Clerk of the Peace It lies in the name of the Clerk of the Peace for the Hundred against the Village where default is made in Hue and Cry by the Statute of 27 Eliz. cap. 13. and reason because thereby the Hundred becomes liable to pay the money robbed Colledge in Oxon. A Colledge shall have debt for Commons of any Student Pasch 9 Jac. Ban. Regis Colledge of St. Johns in Oxford versus Brickeden Q. if the Student be of the Foundation Colledge of Physicians Colledge of Physicians for practising without License shall have debt upon the
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
Knights of the Parliament 11 Hen. 4.2 For the Law looks upon the Village in general and every one is liable for the whole if he be able If a man be taxed to Fifteens having Cattel levant in another Village when they come within the Parish they shall be distrained 18 Edw. 3. 11. pl. 39. For the Parish is liable with the Tax If a Horse of a Stranger escapes into the Land of him that hath lost Issues he shall be distrained as it seems 5 Hen. 7.1 Q. For it seems hard If the best Beast be estrayed the Lord may distrain any Cattel in the Land 27 Assize pl. 24. viz. where the Lord is to have the best Beast but it seems they must be levant and couchant A Goshawk distrained Goshawk and the Distress justified 16 Edw. 4. pl. 9. viz. a reclaimed Goshawk for in that one may have a property and it is valuable Fishes in a Pond cannot be distrained Fishes Crookes Reports 188. because they cannot be known what they are nor can be replevied A Hive of Bees shall be distrained as it seems Hive of Bees for a Replevin lies of them Nat. br 68. D. Q. if it be in the day-time how it can be Door or window A Door or Window is not distrainable 11 Edw. 3. Cessavit 21. 21 Hen. 7.26 14 Hen. 8.25 Brudenel For it is part of the Freehold A Milstone that is severed for picking shall not be distrained 14 Hen. 8.25 Milstone For it is part of the Mill. An Anvil shall not be distrained Anvil 14 Hen. 8.25 For it is part of the Smiths Tools he gains his Livelihood by A Barge was distrained by prescription Barge 3 Mar Dyer 117. pl. 73. and held good for that may alter the Law The Lord distrained Cattel for services before they were Levant and Couchant Lord. 4 Edw. 3.37 Issue joined 8. 22 Hen. 6.37 15 Hen. 7.17 Doct. Stud. 15 A. and well as it seems Sheep shall be distrained Sheep if other distress cannot be found at the day of the distraining 29 Edw. 3.16 else not in respect of the hindrance of clothing Cattel of the Plough shall not be distrained Plough if there be other distress sufficient 14 Eliz. Dyer 312. pl. 86. else they may for otherwise the party may be without remedy Cattel in Dower Cattel delivered by the Sheriff to the Tenant in Dower for seisin of Rent shall not be distrained for Arrerages of the Rent 40 Edw. 3.22 pl. 19. For she shall not take such advantage Yarn brought upon a Horse to a Neighbour to weigh Yarn this the Lord cannot distrain for Rent because it was brought for a special intent Mich. 39 40 Eliz. com Ban. Burleigh versus Read and it would hinder publick commerce and dealing If Cattel put into Black Acre Cattel and they stray into White Acre through default of enclosure they shall not be distrained 22 Eliz. Dyer 365. pl. 33. For the Owner is in no fault Default of Inclosure A. ought to inclose against B and leases to C for 21 years which leases to D for 10 years rendring Rent the Cattel of B for default of enclosure escape into the Lands of A. and he pursues them C cannot distrain for no default was in the owner of the Cattel 15 Eliz. Dyer 317. pl. 9. vide 39 Edw. 3.3 pl. 12. and the Law doth not punish the innocent What Person shall distrain Dammage feasant A Commoner shall distrain for dammage sesant and is not tied to shew per quod amisit Communiam No. Lib. intra 573. D. sect 4. 24 Edw. 3.42 pl. 23. Coke 9. part 112. B. 46 Edw. 3.23 15 Hen. 7.2 7 Edw. 3.266 pl. 39.13 Hen. 8.15 For the Distress there taken implies it Tenant at sufferance distrains dammages feasant 4 Hen. 7.3 and good for he hath title against a stranger He to whose use before 27 Hen. 8. could not distrain because he had nothing in the Land 15 Hen. 7.2 pl. 4. but the Feoffee of the Land but now it is otherwise Sheep bailed to a woman sole to dung her Land Sheep who takes a Husband who commands the Owner to take them again who refuseth the Husband may distrain them dammage feasant 43 Edw. 3.32 pl. 3. For now they are dammage feasant unto him in respect of his interest in the Land The Lord distrains Cattel because the Tenant puts in more than he ought into the Common Lord. 46 Edw. 3.12 pl. 13. and good for he ought not to surcharge the Common A. sold 50 Acres of Moor which lay common Common to B yet every one of them ought to inclose against the other and if the Cattel of the one go into the Land of the other they shall be distrained dammage feasant 23 Eliz. Dyer 372. pl. 10. For by the sale the Lands are severed At what time a man may distrain Services and Amerciaments For Rent-services he shall not distrain in the night 11 Hen. 7.5 pl. 8. 12 Edw 3. Distress 17. 10 Edw. 3.21 Coke 9. part 66. A. For the night is for rest and all things ought to be then in peace After the Term ended no distress 14 Hen. 4.31 For then the privity betwixt the Lessor and the Lessee is gone Q. But 22 Hen. 7.96 pl. 5. by all if a Lease for years be ended and the Lessee keeps in the Lessor shall distrain for the arrerages For that continues the privity as it seems Q. A Lease till Mich. for one year rendring rent at Mich. he cannot distrain because the Lease is ended at the instant Doct. Stud. 74. A. That is at the day and the Law admits not of Fractions of time Husband and wife Husband leases the Wifes Lands rendring Rent th Wife dies without Issue the Husband cannot distrain because the reversion goes to the Heir 9 Hen. 6.45 28 Hen. 8. Dyer 28. pl. 191. And the rent go with the Reversion A Lease for years Reversion grants the reversion to B yet if the Cattel of B comes upon the Land A shall distrain during the Term 10 Edw. 4.4 tamen quaere because he hath nothing in the Land Dammage feasant For Dammage feasant in the night one may distrain and good enough Coke 9. part 66. A. Mackally's case 11 Hen. 7.5 pl. 8. 12 Edw. 3. Distress 17. 10 Edw. 3.21 For else it might be mischievous in respect of the dammages which might be done before the morning A. enters upon a condition broken and takes the Cattel of the Lessee dammage feasant Quaere 5 Eliz. Dyer 322. It seems he may for he comes in upon a good Title A man may distrain dammage feasant although the owner make fresh suit in respect of his satisfaction for the dammage done 7 Hâ—n 7.1 pl. 11. 11 Hen. 7.4 pl. 11. 10 Hen. 7.21 Doct. Stud. 15. è contra In what place a man may distrain A man fined in a Leet being
one of the Deziners Leet shall be distrained through all the jurisdiction of the Leet although that he be of another dezin Coke 11. part 45. A. 11 Hen. 4.89 13 Hen. 4.9 For he may it seems be liable in both places Tourne of the Sheriff A man shall distrain in any place within the precinct of the Court 19 Edw. 3.2 Avowry 225. 8 Rich. 2. Avowry 194. 47 Edw. 3. pl. 12. where the Amerciament is set but not without for there is no jurisdiction For Amerciament in the Sheriffs Tourne he may distrain throughout the County 12 Hen. 4.24 pl. 17. 13 Hen. 4.9 8. Rich. 2. Avowry 194. because all the County is within the jurisdiction of the Sheriffs turn for it is the County-Court If a man had a Leet within his Mannor he cannot distrain out of his Mannor 4 Edw. 3 96. pl. 26. For that is not within his jurisdiction For a tax by the Parliament For a Tax by the Parliament a distress may be justified throughout all the Village 11 Hen. 4.2 18 Edw. 3.11 pl. 39. upon which the Tax is set This was according to the old way but now the Law is altered A Fishing lying within tenure a man may distrain in it For Service for it seems that the Soil passeth 40 Edw. 3.45 as well as the water viz. terra aqua cooperta Q. For a Fishing seems but a Liberty or Priviledge Herriot-service A man may seize his Herriot-service in any place that he shall find him although not within his Fee 6 Edw. 3.208 pl. 3. For it is a personal service and not local or fixt The Lord may enter the House of his Tenant to distrain if the Door be open House 38 Hen. 6. 26 pl. 4. But he cannot open the Door to do it Q. If the Lord find the House fast with a Bar and he break it open and distrain this is wrongfully done 8 Edw. 2. Distress 21. For a mans House is his Castle of defence If the Beasts of a stranger escape into anothers Land Estranger and the Owner chases them out before and the Lord comes and distrains them here the Lord cannot distrain them yet it is otherwise if they go out of their own accord without chasing 11 Hen. 7.4 pl. 11 Com. 38. A. Plats case 2 Edw. 4.6 B. Littleton 33 Hen. 6.52 pl. 39. 34 Hen. 6.18 B. For in the former case he may take notice of the Owner but in the latter case he cannot The Lord distrains the Cattel of the Patron within the Glebe belonging to the Advowson Glebe 33 Hen. 6.35 Littleton This is a good distress held A man cannot distrain for Rent but in the place leasâ—d Lessee unless the Lessee grant a distress in other Land 9 Hen. 6.9 which he may well do by special agreement Lords Ecc. The Lord distrains in his Fee the Tenant chases them out of his Fee he may take them again 44 Edw. 3.20 pl. 18. for by the distress he had a property Fresh suit A Baily attaches a Horse which is rescued and brought into another County he shall make fresh sâ—it and take him again 33 Hen. 6.52 pl. 39. 33 Hen. 6.550 pl. 46. else not for the gaining him upon the fresh suit re-continues the Attachment A distrains and puts them in the pound Pound the Owner takes them out A may take them again in any place 34 Hen. 6.18 pl. 33. because they were once in custody of the Law and he may place them there again wherever he finds them If one put his Cattel in Land charged with a Rent-charge Rent-charge they shall be distrained for the Rent-charge although they are neither Levant nor Couchant otherwise if they escape upon the Land 15 Hen. 7.17 pl. 13. for it shall be prefumed he took notice of the Rent but not so where the Beasts escape there for that is against his will and he could not help it Quaere by the 18 Edw. 2. Avowry 219. if the Cattel that escape shall not be distrained for dammage feasant It seems they shall in respect of the dammage to be recompenced which come by his negligence River of Thames 2 3 Mariae Dyer 117. pl 73. Distress for an annual sum upon the River of Thames Q. of what nature What Distress shall be sold A Distress taken in a Court-Leet shall be sold Court-Leet although that a common person be Lord of the Leet 3 Hen. 7.4 pl. 15. Fairsax Distress taken by a Baily of a Lord of a Leet for forfeiture of Inmates Inmate and sold by force of a grant of the Steward in nature of a Scire faciâ—s No. Lib. Intra 666. A. Sect. 14. Q. whether by the Common Law A Distress taken for a Fine touching High-ways shall be sold Highways per 18 Eliz. cap. 10. What shall not be said a Distress excessive No Distress shall be said excessive for Homage 42 Edw. 3.26 pl. 11. Belknap Excessive 27. Assize pl. 51. Coke 4. Part. 8. B. Bevils case 28. Assize pl. 50. this is in respect of the great consequence of the thing distrained for and the easiness for the Tenant to perform it So likewise for fealty 27. Assize pl. 51. 28 Assira pl. 50. Coke 4. part 8. Bevils case for the same reason and in respect of the contempt done to the Lord. A man distrains four Horses and a Cart for two shillings rent this is not excessive because they are fixed to the Cart otherwise if not fixed so of a fold of Sheep 20 Edw. 4.3 otherwise if not in the fold Quaere rationem differentia It seems to be because in the former cases the intent of the party appears but only to have his due and not to take advantage of the Distress But not 〈◊〉 in the latter for then he might have distrained 〈◊〉 Horse or one Sheep 1. The Barr. 2. Justification 3. Conusance 4. Avowry No Barr that the Plantiff is possessed of the â—â—tel Nat. br 69. H. for he ought to have damâ—ages for the wrongful distraining of them That he took them not a good barr Lib. Intra â—1 B. Sect. 1.565 C. Sect. 1 2. 19 Edw. 3. Aid 28. 〈◊〉 that disaffirms the Replevin viz. the supposal 〈◊〉 the Writ Claim of Property 26 Hen. 8.6 pl. 27. 31 〈◊〉 6.12 for then it was lawful to take them as â—â—own This may not be by way of Avowry 31 Hen. â— 12 In Replevin of grain it is a good Barr to say Grain 〈◊〉 was his Wises dum sola and that the Plaintiff â—â—â—endred it to her 30 Edw. 3.9 pl. 3. for by the â—arriage the interest is his 2. Justification Difference between a Justification and an Avowry When a man cannot have the thing for which 〈◊〉 distrains then he may justifie the taking in lieu 〈◊〉 the thing and not avow to keep it till he have 〈◊〉 thing it self per Curiam 19 Hen. 6.41 â—83 But 22 Edw 4.36 B. è
contra Collow Q. If a man distrain for Services and the Tenant 〈◊〉 in Repleg brought by the Executors he shall â—â—fie but not avow 17 Edw. 3. Executors 106. the can make no title against them but he may â—â—ifie the taking Because he cannot have a return for the same thing against the Executors 22 Edw. 4.36 B. Collow If a man distrain for Services he may justifie or avow at his Election 15 Edw. 4.29 In every case where he may avow he may justifie for he hath done no wrong sed non è contra 5 Edw. 4.6 Young for he may have done no wrong in taking and yet may not be able to maintain an Avowry A man may justifie for Rent determined but not avow viz. for Rent arrear before it was determined Mich. 33 34 Eliz. Com. Ban. Goddards case because he cannot make a Title Tenant at sufferance may justifie a distress for dammage fâ—asant 4 Hen. 7.3 pl. 6. for he hath a Title against a Stranger One makes Conusance of the distress for dammage feasaâ—t in the Frank-tenant of his Master 10 11 Eliz. Dyer 280. pl. 15.21 Eliz. Dyer 365. pl. 32. and good in the behalf of his Master Conusance as Baily of A and that he took them dammage feasant in the Land that his Master had for years 2 3 Mariae Dyer 117. pl. 76. and good Conusance as Baily to the Parson of D which claims a Rent by prescription and a distress for it and good Lib. Intra 557. Charge 1. He cannot avow for Rent determined but may justifie Mich. 33 34 Eliz. Com. Ban. Goddards case antea because his Title to the Rent is gone 1. Avowries for Rent-services are twosold Quotuplex â— peâ— Common Law and 2. by Statute Law â—â—â—e 9. part 134. B. Ascoughs case 2. One may avow upon one as upon his veray â—â—mant by the manner scil when the Tenant â—â—sed it for life or made a gift in Tail the reâ—ainder over in Fee 20 Hen. 6.9 B. for he is 〈◊〉 bound to take notice of such a lease or gift But then the Lord ought to shew this special â—â—tter in his Avowry 15 Edw. 4.12 A. Catesby â—â—e 4 Hen. 6.14 pl. 11. Quaere 3. Upon one as his Tenant by the manner when â—e Lord hath but an estate in Tail or a lesser â—â—te in the Lordship or when the Tenant hath â—â—â—sser estate than Fee-simple for neither of these â—â—ders him from being Tenant 21 Hen. 6.22 〈◊〉 2. 2 Hen 4.24 pl. 13. Hankâ—ford 4. Upon the matter in the Land generally as â—ing within his see and Signory 38 Hen. 6.23 〈◊〉 7. 5. Upon the Land by any Lord generally per 〈◊〉 Hen. 8. cap. 19. as in Land within his Fee and â—â—gnory without making Avowry upon any person certain Coke 9. part 136. Ascoughs case 〈◊〉 the Avowry is in respect of the Lands held â—ed not of the person Who shall avow An Administrator shall avow for Rent due in the life of the Intestate Administrator per 32. Hen. 8. for he comes in the place of the Intestate in respect of interest Husband and Wife Husband and Wife in right of the wise for Rent-services due for Land held of the wife Lib. Intra 555. D. Sect. 6. for the Husband hath the present interest and by his death the wifes interest returns Or for Rent due to the wife afore Coverture 4 Hen. 6.13 for by the Coverture the Rent belongs to the husband But one cannot make Conusance as Baily to the husband and wise because a Feme covert cannot make a Baily 13 Hen. 4. Avowry 198. Q. how the Baily of Lands held by the husband in right of the wife shall avow It seems as Baily to the husband only He to whose use He to whose use before 27 Hen. 8. cannot avow for dammage fesant in his own name because he hath nothing in the Land at Common Law but occupation at sufferance of the Feoffees 15 Hen. 7.2 pl. 4. fol. 12. pl. 23. fol. 13. pl. 1. Crooke 17 Hen. 7.41 pl. 2. antea But may justifie in the names of the Feoffees Crooke 17 Hen. 4. pl. 7. by their leave as it seems A Commoner may avow for dammage feasâ—nt Commoner Coke 9. part 112. B. 24 Edw. 3.42 pl. 23.40 Edw. 3.23 15 Hen. 7.8 13 Hen. 8.15 7 Edw. 3.266 pl. 39. Coke 8. part 78. B. Welds case Crooke 17 Hen. 7.41 pl. 2. antea in respect of his interest Although he be Copyholder or Tenant for years Coke 9. part 112. B. for he hath interest in the Common in respect of such estate And needs not shew per quod amisit communiam for it shall be intended so No. Lib. Intr. 573. D. Sect. 4. but vide Coke 9. part 113. A. who ought to shew it for in some cases it must be so specially pleaded For Rent reserved by the Testator upon a Lease for years in the avowry by the Executor he shall not be put to shew the Testament 12 Rich. 2.163 for the other may traverse that he is not Executor if it be so An Executor may avow for Rent due in vita Testatoris Executor by the Statute of 32 Hen. 8. cap. 37. If a Rent be granted to husband and wife Woman Arrearages incurr the husband dies the wife shall distrain for the Arrearages 29 Edw. 3.40 pl. 19. for the Rent is now due to her by Survivorship Gardein in Soccage Gardein in Soccage may avow for dammage feasant in his own name for he hath the Governance of the Land Crooke 17 Hen. 7.46 B. Frowick and so the wrong is as it were done to him and he is to account for the profits of the Land A Parson may avow for a Rent-charge by prescription Parson Lib. Intra 557. B. sect 1. Antea The King having the profits of Land by Outlawry in a personal action may avow for the Rent King 15 Hen. 7.2 pl. 4. for it belongs to him in right of the outlawed person Tenant at will Tenant at will for dammage feasant Lib. Intra 561. B. Sect. 1. 15 Hen. 7.2 pl. 4. may avow for the dammage done to him Tenant at sufferance Tenant at sufferance cannot avow for dammage feasant for he can make no Title Crooke 17 Hen. 7.47 A. But vide 4 Hen. 7.3 pl. 6. in Trespass he justifies for dammage feasant and good for he ought to have the profits till he that hath right enter upon him and the distress is to recover amends for the profits taken from him For what things a man may avow For an Amerciament in a Leet 1. Amerciament No. Lib. Intra 572. A. sect 2. Crooke 20 Hen. 7.66 pl. 8. In the Tourn of the Sheriff 2. 28 Edw. 3.95 In a Court Baron it was by custome alledged 3. 15 Eliz. Dyer 322. pl. 23. Crooke 20 Hen. 7.66 pl. 8. for Amerclament for the Tenants not coming to the Court he may distrain if it be assâ—ssed
by Afferrors otherwise not viz. the Lord. For a Corrody granted with a distress if not paid Corrody he may avow for a distress for it 27 Edw. 3.81 pl. 13. Dammage feasant For dammage feasant Lib. Intra 554. D. Sect. 3.556 A. Sect. 7.559 A. Sect. 1 2. No. Lib. Intra 575. B. Sect. 6.577 C. Coke 8. part 89. B. Franceâ— case Antea If the Cattel be chased out of the Land before he distrain he cannot avow the distress Coke 9. part 22. Avowry 16 Edw. 4.10 2 Edw. 3.2 Avowry 182. for they must be taken in the ground or Land A man pleads it is his Franktenant and avows for dammage feasant and it was sound that it was his Franktenant and his wifes the Judgment shall be against him for both were seized and so the plea false Trin. 38 Eliz. Com. Ban. Walker versus Bonner The Plaintiff shews that A was seized and the Land descended to him and that he was seized in Fee and avows for dammage feasant and good Trin. 9 Jac. Newton versus Arsley for here is a good Title derived For a Moiety of the value of the Land Forfeiture upon 4 Hen. 7. forfeited For maintenance of Husbandry Lib. Intra 575. D. Sect. 1. For a Herriot custome No. Lib. 613. B. Sect. 22. Herriot But he ought to shew the certainty of the Land holden for to say that he held two Tenements is not sufficient but if he claims it of the Lessee for life he ought to shew which Lease he holds by 21 Hen. 7.79 pl. 27. Crooke For Relief Lib. Intra 555. C. Sect. 4. Relief But the Avowry shall not be for the double rent but only the quantity of the single rent 16 Hen. 7.4 pl. 2. 1. For a Rent-charge Rent No. Lib. Intra 585. A. Sect. 7 8 9. by deed 2. For a Rent-charge by prescription Lib. Intra 557. B. Sect. 1 2. C. 3. For Rent-service but if be avow for two rents where one Rent-day is not come the Avowry shall abate for that only which is not come Coke 8. part 45 B. Godfreys case but for the other it is good because due 1. For Fealty Lib. Intra 555. C. Sect. 4. Services 2. For Homage Lib. Intra 555. C. Sect. 4. Coke 4. part 6. A B. Bevils case For Rent-service Lib. Intra 554. C. Sect. 2.556 Sect. 8. But if it be to render one thing or other as a Rose or a pair of Spurs and shew for what he avows he shall avow accordingly For Bracton lib. 2. fol. 35. B. in hoc casu tenens â—abeâ— electionem unum solvendo liberatur ab â—lâ—ero For Rent-service when the Cattel are chased out Lib. Intr. 557. A. Sect. 10. antea Seisin in Avowry in whom it may be alledged It may be alledged in the Ancestor of the Avowant Ancesâ—or 34 Hen. 6.21 3 Edw. 2. Avowry 187. 20 Hen. 6 7. com 140. A. 16 Hen. 7.4 pl. 10. 2 Edw. 3.27 pl. 4. because he derives his Title â—rom him In the Father of the Feoffor Feoffor Lib. Intra 556. B. sect 8. and so the Feoffor had a good Title by presumption In the Predecessor good Predecessor 6 Edw. 3.277 Com. 96. A. under whom he claims By what hands Seisin of the Rent or Services shall be alledged By the Ancestor of the Plaintiff Ancestor 34 Edw. 3. Avowry 258. 34 Hen. 6.8 who was possâ—ssed of the Land By a Disscisor Disscisor good Coke 2. part 67. A. Tookers case Coke 6. part 57. B. Bredimans case for he was owner protempore Unless it be by Covin Coke 6. part 58. A. Bredimans case betwixt him and he that distrains for the Law protects not â—raud By the hands of an Infant Infant good 34 Edw. 3. Disclaimer 30. Coke 9. part 33. B. Bucknals caâ—e Quaere Feoffor of the Tenant In the Feoffor of the Tenant Com. 95. A. Manâ—eâ—s case for the Tenant derives under hiâ— By the hands of one Joyntenant only it is good Joynt-tenant Coke 2. part 67. A. Tookers case Prescription to have rent of a Village Resiantâ— Seisin by the Resiants is good because all the Village is chargeable 4 Hen. 6.29 30. Coke 6. part 59. Bredimans case By Tenant for years not good Tenant because he hath not an estate out of which seisin may be gained Coke 6. part 57. A. Bredimans case in respect of the feebleness of it By the hands of the Tenant for life good when the remainder is over to another Coke 6. part 58. A. Bredimans case for he hath a Freehold By the hands of the Tenant by the Courtesie not good to charge the Heir with a Herriot-service because none may have his estate 21 Hen. 7.84 pl. 8. Crooke nor derive a Title from him for his estate determines with his life A Tenant to a Lord makes a Feoffment and after notice to the Lord gives seisin to the Lord this is good because he remains Tenant to the Lord until notice be given Coke 6. part 58. A. Bredimans case for the Lord cannot take notice of the Feoffment By the hands of the Tenant and needs not say Tenant of the land 34 Hen. 6.8 for it shall be so intended By the hands of the Tenant peravail good Coke 6. part 58. A. Bredimans case or Under-tenant The Sheriff claims a rent by prescription and seisin 42 Edw. 3 4. Within what time seisin ought to be alledged The Advowant is not bound to alledge seisin within 40 years but may alledge it generally and then the other may plead that he was not seised within 40 years Coke 8. part 65. A. Fosters case 9. part 36. A. Bucknalls case 14 Eliz. Dyer 315. pl. 10. and that will destroy the seisin if it be so When it is not requisite to alledge Seisin In an Avowry for an amerciament it is not requisite to alledge it Avowry 11 Hen. 4.89 13 Hen. 4.9 In an Avowry for a Rent-charge 44 Edw. 3. Avowry 75. Coke 8. part 56. A. Fosters case it is necessary for if he were never seised the rent was not executed In an Avowry for rent upon a seoffment by deed Seisin is not necessary to be alledged because the deed is the Title and the commencement of it appears by it 2 Edw. 2. Avowry 185. Coke 8. part 65. A. Fosters case So for Rent or Service upon a gift in Tail or other particular estate Coke 8. part 65. A. Fosters case created by deed What Seisin shall be good Seisin of the superiour Service is seisin of all inferiours Superiour because they are incident to it Coke 4. part 8. Bevils case and included as it were in it For Example seisin of Esâ—uage is seisin of Homage Coke 4. part 8. Seisin of Homage is seisin of Fealty Coke 4. part 8. Seisin of Homage is seisin of the Superiour or inferiour Inferiour For Example seisin of Homage is seisin of Escuage the superiour 13 Edw.
4.5 and is seisin of Relief the inferiour service 13 Edw. 4.5 Seisin of Fealty is seisin of all because he takes an Oath to do all Coke 4. part 8. A. Bevills case 44 Edw. 3.11 8 Hen. 6.16 Seisin of Annual service is seisin of every Casual service Coke 4. part 8 9. Bevills case 20 Edw. 3. Avowry 121.76 B. Avowry 69. for the certain comprehends the incertain Seisin of rent is seisin of fealty 29 Edw. 3.21 A. 3 Edw. 2. Avowry 188. for fealty is incident unto it Seisin of one Annual service is not seisin of another Annual service because it is the folly of the Lord that he did not obtain that which is annual Coke 4. part 9. A. Bevills case 16 Eliz. Dyer 330. Q Reservation the former year one Rose and afterwards 20 s. per annum the seisin of the one gives the seisin of the other Coke 4. part 9. Bevills case for they depend one upon another and hang together like links of a Chain The Lord recovers dammage for Suit this is a good seisin of the Suit Coke 4. part A. Bevills case for the dammage comes in room of the suit and shew it was due Note that a seisin in Law is sufficient seisin within the Statute of 35 Hen. 8. cap. 2.1 because the intent of the makers was to limit the time and not to exclude any seisin that was at Common Law 2. the words being possession or seisin in the disjunctive make an actual seisin which referrs to the three former branches and seisin this is either actual or in Law which referrs to the fourth branch Coke 4. part 10. Bevils case Measnalty extinct by purchase of the Tenant the old seisin doth suffice for a Rent-seck Ancient seisin Coke 4. part 9. A. 2. Edw. 2. Extinguish 6. A Signory granted upon condition which is broken the ancient seisin sufficeth for the distress is in lieu of the entry Coke 4. part 9. B. Bevills case for he cannot distrain except he enter Barr to an Avowry Tender of amends for dammage feasant before distress Amends or impounding is good but not afterward Coke 5. part 76. A. 8. part 147. A. Doct. Stud. 112. B. Nat. br 69. G. because then the party is put to more loss and trouble If there be tender of amends after distress and afore impounding the detainer is wrongful and not the distress Coke 8. part 147. A. Carpenters case Q. for it seems the detainer is not wrongful except he tender amends as well for his trouble and expences as for the dammage done by the Cattel The tender of amends to the Baily is not good Coke 5. part 76 A. Pilkingtons case 1 Hen. 4.15 pl. 17. for he hath not power to take it for this belongs not to him as a Baily A claims Common appurtenant to such a house pro omnibus averiis magnis Common and a verdict given for him and it was resolved after verdict that although he doth not say suis it is good 〈◊〉 although he said not Common appurtenant Pasch 15. Jac. Ban. Regis for both shall be so intended Disclaimer is a good bar Disclaimer Coke 9. part 34. Buckâ—â—ls case 15 Rich. 2. Avowry 214. viz. that the party who distrained dâ—d disclaim Grant by Tenant in tail Avowry because A seised in see granted a tent to the Avowant for which he distrains the other pleads that A was seised in tâ—â— this is not good if he traverse not the seisin in see 11 Eliz. Dyer 280. pl. 16. for he might be seised also in see in remainder Out of his Fee Out of his see is a good Barr and every Stranger to the Avowry shall plead it Coke 9. part 20. A. 34. 15 Rich. 2. Avowry for then the party cannot distrain there Note Feodum dum homagium servitium Note non tenementum in dominico Bracton lib. 2. fol. 46. B. Q. I suppose the meaning is that there is see wheresoever homage or services are due If one avow the other need not say he took them in the high Street but is put to his Action upon the Statute 11 Rich 2. Avowry 87. which hinders the taking of such distresses Injuria sua propria In an Avowry for an Amerciament affered in Court Baron de injuria sua propria is a good barr for the Custome is traversed by that plea Mich. 13 Jac. Com. Ban. Baker Banks Ought to in lose and did not The Plaintiff says that the Defendant ought to have inclosed and did not do it sufficiently ride the pleadings 22 Eliz. Dyer 365. pl. 32. and that which is not sufficiently done is as if it were not done at all Coparcener Conusance for dammage feasant the other said that they are Coparceners this is good 10 11 Eliz. Dyer 280. pl. 15. for he is seized per my per tout in all the Land and therefore cannot be a Trespasser Nothing in arrear Nothing in arrear a good barr but no Stranger shall plead it Coke 9. part 20. A. viz. upon a distress for rent or services A release of Actions personals and reals pleaded in barr of the Avowry for a corrody granted with a distress Release a good barr 27 Edw. 3.81 pl. 13. for the distress is in the nature of an Action When the Lord varies from the truth of the quantity of his services by reason of seisin Seisin there the Defendant cannot traverse the seisin Coke 9. part 33. A. Com. 94. B. Mantels case for the variance destroys not the seisin But if they differ of the quantity by reason of seisin had there the seisin is traversable Coke 9. part 33. A. Bucknals case Com. 94. B. Mantels case 18 Edw. 2. Avowry 217. for the seisin is the chief thing in question Not seised generally is a good barr for by this he shall have no remedy of the Lord Not seised Coke 9. part 34. B. Bucknals case 22 Hen. 6.3 A. 30 Hen. 6. Avowry 15. but he shall only retain the distress Q. for he shall have dammages But if the Lord avow and alledge seisin by the hands of the Plaintiff or other person the Plaintiff shall say never seised by his hands Coke 9. part 35. A. Bucknals case 22 Hen. 6.3 A. and this is a good barr for here is a good issue tendered The seisin is not traversable but for that only for which the Avowry is made Coke 9 part 35. A. Bucknals case 26 Hen. 8.1 pl. 1. unless seisin be alledged of a superiour service as if tenure be alledged per Homage fealty and rent and the Avowry is for rent and seisin is alledged in all the seisin of the rent is only traversable Coke 9. part 34. A. because the Avowry is only for the rent But if it be of Homage Fealty Rent and Escuage and the Avowry is for Homage and he alledgeth seisin in all there the seisin of Escuage is traversable because this is seisin
of all Coke 9. part 34. A. Bucknals case 21 Edw. 3.52 13 Edw. 3. Avowry 103.19 Edw. 2. Avowry 224.16 Edw. 4.11 pl. 11. for Escuage includes all the rest Tenure by Homage Fealty or Escuage or Suit of Court and other services and seisin is alledged of all he may traverse the seisin of Homage and Escuage 2 Edw. 3.21 pl. 4. because they include the rest Not seised within 40 years Not seised within 40 years is a good barr 32 Hen. 8. cap. 2. Coke 9. part 36. Bucknals case 14 Eliz. Dyer 315. pl. 101. for it is not likely if he had any right there would have been no seisin in so long time But he that pleads this ought first to confess a tenure to the intent that the Lord may have a Writ of Customes and Services 15 Rich. 2. Avowry 214. Coke 9. part 34. B. Bucknals case It seems the pleading so doth impliedly confess a tenure or at least doth not deny it But this is no plea in an Avowry for rent upon a grant or reservation by deed because the deed makes the Title Coke 8. part 65. A. Fosters case and not the seisin Or upon a gift in Tail because the commencement of the Estate is within the time of memory Coke 8. part 64. A. Fosters case 4. part 11. A. Bevills case Or if it be for casual services as homage fealty or to go to war because perchance it may not happen within 40 years Coke 4. part 10.11 Bevills case and so there could be no seisin of it So if the Lord release to the Tenant so long as A hath heirs of his body because A may have heirs a long time after Coke 4. part 11. A. Bevilis case So if Land be conveyed to a Major and Commonality which was held by homage and fealty which conveys this over this is no plea because the Major and Commonalty cannot do homage or fealty Coke 4. part 11. A. Bevills case for that must be done by one single person and not by a body politick consisting of multitudes Note 1. The Issue in tail shall avoid seisin by the hands of the Tenant in tail Seisin avoided in Avowry Coke 9. part 34. A. Bucknalls case 34 Edw. 3. Avowry 131. for he comes in by the Donor But this is intended when the Tenant of the Lord makes a gift in Tail the remainder in Fee for the Tenant in tail shall himself avoid the encroachment and seisin made between by the Donor because he ought to shew the commencement of the reservation Coke 8. part 65. A. Fosters case 10. part 108. Lofields case 2. Successor of a Bishop shall avoid seisin beâ—â—en by the hands of the predecessor Coke 9. 〈◊〉 34. A. for the predecessors act shall not bind â—im 3. Veray Tenant of the land if he have deed â—od shew the contrary Coke 9. part 34. A. 10 Hen. â— 11 Nat. br 163. C. 22 Hen. 6.5 4 Edw. 2. â—â—vry 201 202. shall avoid seisin 4. Encroachment of seisin is not material there is no tenure Coke 9. part 34. B. Bucknalls â—se for the tenure is the ground of the seisin 5. Such seisin shall be avoided because it was 〈◊〉 coercion of distress Coke 9. part 34. B. Buckâ—nllâ— case 12 Edw. 4.7 pl. 18. 8 Hen. 6.18 pl. 1. â—â— Edw. 3.4 pl. 8. and not voluntarily rendred 〈◊〉 is in the nature of a thing obtained by Duress 6. If rent be payable at one day in a year and the Lord encroacheth seisin upon two days of the year this being involuntary yet shall be avoided is an Avowry for this that they agree in the â—â—â—ual sum Coke 9. part 34. B. Bucknalls case â—ide 21 Edw. 4.64 pl. 36 fol. 84. pl. 39. and the â—â—me is only in question and the Lord is not lessened in the rent Tenure In an Avowry the seisin is traversable and not the tenure Crooke 13 Hen. 7.31 B. for without seisin the Avowry is not issuable 1. When the Lord varies in avowing of the â—erity of the quantity of the services by colour of seisin the tenure shall be traversed Coke 9. part 33. A. Bucknals case 10 Hen. 7.11 pl. 31. Com 94. Mantels case Crooke 13 Hen. 7.31 B. â—iz he may say that he holds not by so much â—â—nt or so many services But then the Tenant ought to confess the Tenure in part for he needs not traverse all the tenure as to say that he holds not of him but he may disclaim or plead out of his fee Coke 9. part 35. A. Bucknals case 10 Hen. 6.6 7. pl. 20. 37 Hen. 6.25 pl. 13. 15 Rich. 2. Avowry 214. as to part But note 11 Hen. 4.10 pl. 22. the Tenant said that the Avowant did give the Lordship to A in tail the remainder to B in tail and that A died without issue B yet living there he needs not suffer a Disclaimer or plead out of his fee but there fol. 7. pl. 40. he had judgment of the Avowry and admitted good 2. When they agree in the quantity of the Services and vary in the quantity of the Land there the Plaintiff may traverse absque hoc that he held modo forma or say that he held one Acre only Coke 9. part 35. B. Bucknals case 20 Hen. 6.20 21. And so one may avow severally where it is a joynt Tenure or to the contrary Coke 9. part 35. B. Bucknals case 9 Hen. 6.26 pl. 24. 2. Edw. 3.34 pl. 19. But if he vary in the quantity of the Land and of the Services he may not confess the Tenure according to the verity of the case but may traverse mode forma or say he held one only Coke 9. part 35. A B. Bucknals case 5 Hen 5.4 3. When one distrains for fealty rent and suit of Court and alledges seisin in all and avows for rent the Tenant may confess that he held by fealty and rent and plead as to the rent nothing arrear without that that he held by fealty rent â—nd suit modo forma as is alledged and good â—â—d if upon Issue joyned it be found that he â—eld by fealty and rent and not suit although that â—he Avowry be for rent yet insomuch that the tenure alledged by the Avowant was traversed and found against him Judgment shall be given against the Avowant for in vain shall he make this traversable and yet that he should have the return when it is found against him Coke 9. part 35 36. Bucknals case Tender of Homage ought to be to the person of the Lord Tender ubicunque fuerit infra regnum proper reverentiam Bracton lib. 2. fol. 80. A. quaere for this may be prejudicial to the Tenant Judgment If the Plaintiff counts upon a Detainer and the Defendant appears and makes default the other shall have Judgment for dammages and costs and also for the value of the Cattel Nat. br 69. L. No. Lib. Intra 610. C. Sect. 20. for by the default he confesseth the tort
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