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.
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
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
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
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
they will not assign without his consent there the Wife is bound if the husband die 18 Hen. 8. Dyer 13. pl. 66. Shelsey for else the Lessee is without remedy Heir shall be bound by covenant of his Ancestor Heir if be named Regist orig 165. B. else not And although it be broken by his Ancestor 4 Edw. 3.130 pl. 71. as well as if broken by himself But not if he be not named 28 Hen. 8. Dyer 14. pl. 69. 32 Hen. 6.32 p. 27. for then the Law will intend only that the Executor or Administrator shall be bound Infant cannot be bound by his Covenant to be an Apprentice per the Common Law Infant but by Custome of London he may 21 Edw. 4.6 pl. 17. But then he shall be of the age of 14 years 21 Hen. 6.31 which are accounted years of discretion to distinguish what may be for his benefit and what not But an Infant of 12 years shall be bound by his Covenant to serve in husbandry Nat. br 168. D. 7 Hen. 4.5 pl. 29. 9 Hen. 6.10 pl. 28. 21 Hen. 6.31 Newton for husbandry is for the good of the Commonwealth and the knowledge and maintenance of it are much favoured in Law But if he be within 12 years he shall not be bound 2 Hen. 4.18 pl. 7. 29 Edw. 3.27 pl. 29. 41 Edw. 3.17 pl. 1. for under those years he is indeed incapable of learning the Art by reason of disability of body and understanding also Lessee covenants to leave the house in good case Lessee it lies not against him till the end of the Term Nat. br 145. K. 12 Edw. 2. Covenant 2. But if he covenant sustentare reparare it lies presently 45 Eliz. Dyer 324. pl. 34. and whensoever it shall be out of repair during the term So if he covenants to leave the Timber in good plight this is void for the impossibility Coke 5. part 21. A. Mains case 7 part 15. A. Englefields case Fitzberbert covenant 29. Nemo tenetur ad impossibile For if the Trees are thrown down by Tempest it lies not 40 Edw. 3.6 A. Coke 1. part 98. A. Shelleys case for this could not be prevented But if the house be wasted by Enemies or Tempest he ought to repair by reason of the Covenant or build it 40 Edw. 3.6 A. Moris Doct. Stud. 66. B. 29 Hen. 8. Dyer 33. pl. 10. if there be an express Covenant to do it Lessor is bound by express Covenant or Covenants in Law Lessor It lies against a Lessor if he outs his Termor Nat. br 145. L. 21 Edw. 4.30 pl. 25. Coke 9. part 80. A. 32 Hen. 6.32 pl. 27. without cause and during the term A Parson leases his Glebe Parson and resigns during the term covenant lies against him because it is his own act and wrong 12 Hen. 4.3 and the Successor may avoid the Lease Where a Parcener upon partition covenants to sue a Writ of Partition Parcener the other assigns his estate to B which covenants against the Covenanter and good Coke 5. part 17. B. 42 Edw. 3.3 If one become pledge for another to perform such a Covenant the Action lies against the pledge Pledge Nat. br 146. B. for he is in the place of the Principal But then he ought to charge him as principal 39 Edw. 3.9 pl. 14. Or shew that the Principal is not sufficient 40 Edw. 3.5 Covenant 16. It lies against a Successor Successor Lib. Intra 136. B. Sect. 2. quaere what or whether against all It lies against him that should make a Deed Deed. Nat. br 146. F. that covenants to do it and does it not For what things Covenant lies 1. Personal 2. Real Guardian in Soccage Guardian in Soccage grants the custody of the Ward to A who covenants to render an Accouâ—â— to the Heir at full age Covenant lieth for not doing of it Regist orig 165. B. Nat. br 145. H. so the Guardian Q. whether an Account lies noâ— for the heir Covenant lies against him that doth not according to his Covenant by deed Nat. br 145. A. thâ— is doth not perform the whole covenant But if it be not by deed it lies not Regist orig 165. B. Nat. br 145. A G. 7 Rich. 2. deeds 16. Nat br 168. F. 14 Hen. 4.26 but an Action upâ—â— the Case upon the Assumpsit Unless it be in London by Custome Nat. br 146. A. 22 Edw. 4.2 pl. 6. Vavisor 27 Hen. 6.10 Câ—venant 11. Doctor Hector had a Patent Patent that none shoâ—â—â— bring over Spanish Wool but himself c. he by his Indenture grants this to another which by the same Indenture covenants to pay yearly 100 l with this Proviso that if he pay it not the Iâ—denture to be void yet covenant lies for the money that was due before the avoiding of the Iâ—denture Mich. 9 Eliz. Ban. Regis Dr. Hectors caâ—â— A gives a Mill to B Mill. c. and that with a Proviso quod nec ego nec haeredes mei construâ—â—â— molendinum in c. Covenant lies againâ—â— the Heir if he or his Father erect a Mill there 〈◊〉 Edw. 3.130 pl. 71. for the Heir is bound by his Fathers covenant A Termor deviseth the term by will to his wifâ— Termoâ— during her Widowhood the remainder to C and dies the Lessor sells the Fee to the wise and covenants that he would discharge all former Titles c. she marries C in the mean time Covenant lies against the Bargainor by the Baron and Feme if C do oust them during the term for it was his own folly to make such a Sale and Covenant Coke 10. part 51. Lampets case A leases to B for years if C lives so long Lease and covenants that he had power to do it C being dead at the time Covenant lies if A had not a good estate in it Coke 9. part 60. Bradshaws case though C was dead for if he had no good estate he had no power to lett and so his Covenant implied in Law is broken A leases to B for years Lands in which C had a Copyhold estate and covenants that the Lessor shall suffer him quietly to hold the same without trouble either of the Lessor or any other B enters C outs him Covenant lies not because all the sequel depends upon this word suffer the which extends only to the Lessor and his Executors and Assigns 9 Eliz. Dyer 255. pl. 4. and not to the Copy-holder who hath a distinct interest from the Lessor A leases to B for years and covenants quod pacifice gauderet c. sine interruptione alicujus Covenant lies if any interrupt him 16 Eliz. Dyer 328. pl. 8. for the word alicujus is a general word and includes all persons Lessor covenants that the Lessee shall quietly and peaceably have c. without the disturbance or hindrance of the Lessor the Lessor sues the Lessee in Chancery and supposes that the Lease
accord with satisfaction is no Bar Obligation simple accord because the duty being certain ought to be avoided by matter of as high a nature as it was created which cannot be by parol Coke 6. part 44. A. Blakes case But if the duty accrue not until some subsequent act be performed there accord with satisfaction a good plea Coke 6. part 44. A. For there the duty was not certain but depended upon a matter ex postfacto A. obliged to B. in 100 l. shews 3 Acquittances Acquittance 1 of 10 l. 2 of 20 l. and 3 of 20 l. which amount to a receipt of 50 l. parcel of the 100 l. in which he was bound to pay 50 l. this is a good Bar because it appears that it was but 50 l. principal debt for which the Bond was made though the penalty was 100 l. 43 Edw. 3.31 pl. 26. Foreign Attachment in London is a good Bar Attachment as it seems No. Lib. intra 139. C. sect 20. 22 Hen. 6.47 pl. 2. By the Custom there Q. tamen for it may be unduly attached and no Judgment upon it But a Legacy cannot be attached because it may not be due in respect of payment of the Testators debts Mich. 14. Jac. Ban. Regis Vaughans case and so it is a thing uncertain Attainder of Felony no plea Attainder Mich. 38 39. Eliz. com Ban. Banister versus Trusselle in debt for the Attainder doth not discharge the debt Nil debet Nil debet in debt upon a Obligation is no plea because an Obligation shall not be avoided by a nude Averment but by matter of as high a nature Doct. Stud. 22. Non compos mentis Non compos mentis pleaded by the party is no good Bar. Trin. 37. Eliz. ban Regis Strode versus Marshal vide 5 Edw. 3.70 For the party shall not plead in his own disability Payment without acquittance no plea Payment in debt without a specialty 33 Hen. 8. Dyer 51. pl. 10. Coke 5. part 43. Doct. Stud. 22. 20 Hen. 6.3 A. Paston 26 Hen. 8. Dyer 6. pl. 3. 28 Hen. 8. Dyer 25. pl. 160. 41 Edw. 3.7 pl. 15. because it must be avoided by a matter of as high a nature A. by indenture sold Land for 20 l. and there were Covenants in the Deed for the performing of which he bound himself in 40 l. Debt was brought for the 40 l. Payment without Acquittance is no plea 26 Hen. 8. Dyer 6. pl. 3. fol. 25. because the Action is grounded upon the Indenture and the Bond. A Defeazance upon a Statute-Merchant to pay 20 l. thereof without an Acquittance is a good plea for the Defeazance is instead of an Acquittance and this is without bringing an audita querela when the party is not in execution 17 Edw. 3.3 pl. 10. For if he be in execution there he must have an audita querela Obligation conditional A. is bound by obligation to pay his Rent there payment without an Acquittance is a good bar 46 Edw. 3.1 pl. 1. because the obligation was but conditional and made no present duty When the original contract is for money Accord an accord with satisfaction is a good bar Coke 9. part 79. A. Petoyes case 22 Edw. 4.25 A. For thereby the contract is discharged But an accord made with a general receiver is no bar to his Master if he had not a special authority Doct. Stud. 137. B. But when the condition of the agreement is for a collateral thing there an accord is no bar Coke 9. part 79. A. 12 Hen. 4.23 9 Hen. 7.4 4 Hen. 8. Dyer 1. For such a thing cannot be accorded for And if it be before the day of doing the thing then part of the sum received is a good bar Coke 5. part 117. Pinnels case 27 Edw. 3.84 to the Action because the Action is brought upon the whole Contract part whereof was discharged before the time agreed on for performing it But at the day or after it is no bar unless it be in another place Coke 5. part 117. Pinnels case Because then the whole duty was due upon the entire contract part received is a good bar in another Country else the party shall be without remedy for so much as he paid The Defendant pleads he paid so much in full satisfaction the which the Plaintiff received and not that he paid so much the which the Plaintiff received in satisfaction Coke 5. part 117. A. Pinnels case and good for he must receive the money as it was paid and not as he will receive it Conditions performed Conditions performed is a good barr 41 Edw. 3. 10. pl. 7. fol. 25. pl. 19. Thorpe in an action of Debt upon a Bond for performance of Conditions One pleads part of the Arbitrement Arbitrement it shall be intended all that was arbitrated until the contrary be shewed by the other party 2. The other may shew the remnant and traverse absque hoc that they arbitrated that only as he pleaded it 3. The other needs not to rejoyn to more but joyn issue because else it shall be a departure from his Plea which must not be in pleading Pasch 12 Jac. Ban. Regis Linsey versus Ashton Condition to levy a Fine Upon an Obligation with a Condition to levy a fine upon Garnishment the Sheriff returns him garnished in debt he pleads that he was not by the Law 28 Edw. 3.100 pl. 42. 29 Edw 3.44 pl. 4. and good because it is penal unto him and the Bond is but conditional and no present duty and therefore the Sheriffs return shall not bind him Deed poll A enfeoffs B by Deed poll provided that if he pay 20 l. to B he may re-enter and is bound to perform all Covenants and Payments contained in the Deed poll he is not bound to pay the 20 l. for it is at his election to pay it or lose the Land Trin. 9 Jac. Ban. Regis Briscoe versus Knight Rott 271. for if the Proviso be not performed the Feoffment is absolute and the Bond is but to strengthen the Feoffment A is bound to B to pay a sum granted by C by Indenture to B and to levy it of his goods and Chattels viz. of C this is void and therefore no barr in Debt brought by C 41 Edw. 3.7 pl. 15. Belknap 46 Edw. 3.18 pl. 17. Belknap Quaere A thing void in Law cannot be pleaded in barr A Conditions that B shall lease to C the Land in his occupation Condition except the Trees this exception is not good unless they were excepted in the Original Lease and then B ought to shew it Mich. 15 Jac. Ban. Regis Dores case for he letts him not the land in his occupation if he had the Trees and excepted them A Conditions that Lessee for life shall make a Lease for 10 years and he makes one for ten years if he live so long this is good
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
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
tempore quo custodes illi habuerunt ratione minoris aetatis haeredis praedictae idem B. praefato A. rationabilem computum suum de exitibus provenient de terris tenementis suis in N. quae tenentur in Soccagio quorum custodiam idem B. habuit dum praedictus A. infra aetatem fuit reddere contradicit ut dicitur Et ideo c. This Writ is founded per le Stat. de Marlebr cap. 17. Nat. br 118. A. Regist orig 136. Note this Writ lies against any one that occupies the Land during the nonage of the Ward whether it be the parents of the Heir or not Regist origin 136. b. for it makes no mention of the blood but only of taking the profits The Writ was Receptor denariorum A good plea to the Writ because he was Guardian in Soccage for otherwise he would be twice charged 18 Edw. 4.3 pl. 17. viz. as a Receiver of his rents or profits of the Lands and also as a Guardian in Soccage by the Statute The Process against a Guardian in Soccage 1. Before appearance 2. After appearance The Process at Common Law before appearance was but a Distress infinite Coke 3. part 12. A. Herberts Case But per Marlebridge cap. 23. a Capias was given against a Baily and per Westm 2. cap. 11. exigend given against a Servant Baily Chamberlain or any other Receiver Coke 3. part 12. A. Herberts Case And in Account against a Guardian there shall be a Capias 29 Edw. 3.5 pl. 13. But no exigend because this was given against a Receiver only 17 Edw. 2. Process 203. 17 Edw. 3.59 pl. 55. Shard 2. After appearance If he comes in by Capias or distress he shall be committed to the Fleet 29 Edw. 3.35 pl. 63. If the Account be adjudged to lie c. and he be not present in Court a Capias ad computandum shall issue forth 1 Edw. 3.2 pl. 10. 1 Hen. 7.1 pl. per Townshend Lib. Intra 18. c. Sect. 1 2 3. In Judgment quod computet the Plaintiff dies his Executors shall have a Scire facias upon the Judgment and if the Defendant come not in upon the garnishment or warning an exigend shall issue forth 14 Hen. 4.1 The Barr by a Guardian in Soccage 1. To the Action of Account 2. Before Auditors in discharge That he had the Custody till such a day from such a day and accounted till the full age of the Plaintiff without that that he was Guardian before or after Lib. Intr. 21. cap. Sect. 2. It is a good Barr in discharge of the Account that he expended so much for necessaries for the Plaintiff ultraque c. Littleton No Barr to say he was not next of Kin for the occupation is the substance and not the Kindred Littleton 29 Edw. 3.5 pl. 13. 22 Edw. 3.11 pl. 8. 4 Hen. 7.6 b. 10 H. 6.7 pl. 21. 13 Edw. 3. Account 77. That he was never Guardian in Soccage a good Barr Lib. Intra 21. b. Sect. 1. The Judgment against a Guardian in Soccage 1. Of Account 2. To recover the thing 1. To Account The Judgment is quod computet ideo in misericord i quia prius non computavit Coke 11. par 38. A. Metcalfs Case Lib. Intr. 19. D. Sect. 1. The Judgment is Ideo consideratum est quod praedictus W. recuperet versus praefatum M. to recover as much as he is found in Arrearages dampna occasione implacitationis Coke 11 part 40. A. Execution against Guardian in Soccage 1. per Common Law 2. per Statute Law By the Common Law it was but a Levari facias or Fieri facias Coke 3. part 12. A. Herberts Case And this only within the year for if the year passed he was put to his Action of debt If the Process were not continued 33 Hen. 6.49 pl. 33. Per Westm 2. cap. 45. Scire facias is given after the year Per Westm cap. 2.18 Elegit is given Coke 3. part 12. a. Per Marlebridge cap. 23. Westm 2. cap. 11. Capias was given in Process and by consequence Capias ad satisfaciendum Coke 3. part 12. a. Per Westm 2. cap. 11. If an Accountant before Auditors be found in Arrearages he shall be by them committed to the next Goal in execution but then they ought to commit him forthwith Coke 8. part 119 b. Bonhams Case 27 Hen. 6.8 Com. 17. But if an Account be before the Plaintiff he ought not to commit him to prison because the Statute saith before Auditors 45 Edw. 3.14 pl. 13. Ex parte talis Westm 2. cap. 11. If Auditors are assigned by the party which will not allow to the Guardian his reasonable allowances and they charge him with the thing he never received and him commit to prison he shall have an Ex parte talis Nat. br 129. F. 4. Hen. 6.18 A. pl. 3. Regist orig 137. b. The Writ is returnable before the Treasurer and Barons of the Exchequer at a certain day and a Scire facias is in the Writ to warn the Plaintiff and also the Defendant to be there Nat. br 129. G H. Regist orig 137. Account against a Baily 1. of a Court or Hundred 2. of a Mannor-house c. In what Court it lies against a Baily IN the County Court Regist origin 135. A. Nat. br 117. b. In London before the Sheriffs Regist orig 135. A B. In the five Ports Rigist origin 135. A. In Communi Banco Nat. br 117. b. Regist orig 135. B. But Ancient demesn is a good plea to the jurisdiction Coke 5. part 105. A. Aldens Case because the Account is of the issues and profits of the Mannor 8 H. 6.34 pl 36. 2 Ed. 4.3 pl. 3. And the reality by presumption may come in debate Hobart Chief Justice Hill 11 Jac. Com. Ban. Rot. 254. Cox Barnesley Who shall have an Account against a Baily 1. of a Court 2. of a Mannor If A. make B. his Baily of his Court or of a Hundred he shall have an Account against him Nat. br 118. E. Vnder-Baily A. having a Bailywick makes B. his Under-Baily he shall have Account against B. 3 Edw. 3.54 pl. 24. A. makes B. his Baily Depâ—ty which makes G. his Deputy A. shall have Account against B. but not against C. because C. receives this to the use of B. Nat. br 119. B. 14 Edw. 3. 100. pl. 8. An Infant purchases Lands he shall have an Account if any take the profits Nat. br 117. B. For the profits that the Guardian in Soccage takes after the Heirs age of 14 years the Heir shall have an Account during his nonage against him as his Baily but for the profits taken before such age he shall have Account as Guardian in Soccage but not before his full age Nat. br 118. B. because he cannot be Guardian after the age of 14 years Account for the Major and Aldermen of London Major and Aldermen of London grant the Wardship of an
Regis Bolds case Q. as the Law is now taken whether it lies against B. When a man prescribes in an I le in a Church Vicar and the Vicar will not suffer him to make a Sepulchre there No. Lib. Intra 8. B. sect 7. for he disturbs his Inheritance Against a Sheriff upon a false return Sheriff Lib. Intra 11. A. sect 1. Upon returning nichil where the party had sufficient Lib. Intra 11. C. sect 2. for this is a false return For what things this Action lies Against a Tenant by elegit Trees that holds the Lands after his money tendered him and cuts the Trees 21 Edw. 3.16 vid. supra So if Tenant at will cuts the Trees Littleton 15. A. Coke 8. part 13. B. Salops case 48 Edw. 3.25 for that is voluntary waste for which he is punishable If a Baily cuts Trees without cause 18 Edw. 4.27 Chappel For disturbing of men to come to my Chappel with offerings 19 Rich. 2. Action upon the Case 52. This is now out of doors since the Reformation temps Edw. 6. Against the Owner of the Land in which I have a Way Way 1. Estreite and he straitens it for I am thereby abridged of my easement 33 Hen. 6.26 For trenching of it 2. Trench for the former reason Lib. Intra 616. C. Sect. 1. For any manner of disturbance in my passage or part of my way 3. Disturb so that I cannot pass so commodiously as I did before 14 Hen. 8.31 21 Hen. 7.35 22 Hen. 6.15 10 Hen. 7.21 4. Stopping of it If the whole way be stopped by one that is not owner of the Soil it lies 22 Hen. 5. 33 Hen. 6.26 10 Hen. 7.21 For I am wholly deprived of my easement and no other Action lies against him So if Tertenant and others stop it 34 Hen. 6.4 tamen quaere as to the Tertenant For against Tertenant that stops all the way an assize of Nusance doth lie and not this Action 22 Hen. 6.14 3 Eliz. Dyer 250. pl. 88. 19 Hen. 6 29. pl. 49. Paston 2 Hen. 4.11 pl. 48. No. Lib. Intra 12.6 Sect. 10. Q. whether two Actions may not be brought in the former case But if I have it but for years an Action on the Case lies 33 Hen. 6.26 Nat. br 176 184. L. eodem For he can claim no inheritance in the Land where the way lies If A stops my way and leases the Land to B it lies against B if he do not open it for continuing of the wrong but if A build a House and leases it to B there B cannot pull it down for to lay open my way for this is waste in B. Trin. 13 Jac. Regis Bolds case and Rutlandshiers case and therefore an Action lies not against B for not pulling down the house for that were unreasonable But by 11 Hen. 4. an Action upon the case lies for stopping of a way in gross only and an assize of Nusance for a way appendant 21 Edw. 3.2.6 34 Hen. 6.4 pl. 11. Note the difference one savours of the realty the other is but personal But for stopping of a way in my own Land Trespass vi armis lies and not this Action 31 Edw. 3. Action upon the Case 38. 13 Hen. 7.26 For there is a plain breach of the Peace by disturbing my possession But for stopping of a Highway the Desendant shall be punished in the Leet and not by this Action unless the party had a special loss for a special loss admits of a special remedy 27 Hen. 8.26 5 Edw. 4.2 b. 7 Edw. 4 8. 33 Hen. 6.26 Coke 5. part 73. A. Williams case 21 Hen. 7.35 Coke 9. part 113. Mayrs case For a Court Leet is to redress such publick grievances Slander of my Title If A says that B hath right in my Land for years an Action lies Coke 1. part 177. Mildmays case No. Lib. Intr. 30. A. sect 27. but I ought to shew how I am prejudiced by his saying so or else it lies not for his lye were it a trespass only the Law will not punish it A brought an Action upon the Case against B because that B published and declared falsly that he had the Lease of the Land of A and that he intended to sell his Land and was thereby hindred B said that he had an Indent of Lease as in the Count is mentioned and traverseth that he forged it not 1. when B claims a right though he had none yet the Action lies not for it appears not whether he had a right or not 2. the Count is good because it is that it was against the knowledge of B that it was forged 3. Sciens is not traversable Coke 4. part 18. A. case 14. See the Case at large For stopping a Ditch by which my land is surrounded with water Nat. br 88. E 89 M 39 Hen. 6.32 11 Hen. 4.82 14 Hen. 8.31 Q. whether it lies for suffering it to be stopped by negligence Land viz. by another For not scouring a Ditch by which my land is overflown Regist orig 100. A. Q. if I be not thereby damnified For breaking of a Seabank by which my land is surrounded Nat. br 86. F. 89. B C. Reg. orig 95. A. It lies not for erecting of Coney-burroughs by which I lose part of the profits of my land because the party that erected them had no property in the Coneys for they are ferae naturae Coke 5. part 104. Boulstons case and it is lawful for me to kill them if they come upon my ground Q. tamen in regard of the trouble If one hath a Bakehouse by Prescription Trade and I set up another by him to his prejudice for the Law favours and protects ancient Rights presuming they had lawful commencements 1. For disturbing my Baily to distrain for an amercement Distress 18 Hen. 6.9 pl. 20. for the wrong is done to me for the Baily is my Servant and acts for my benefit 2. For disturbing me to distrain or to attach Nat. br 102. F. This is stronger than the former case and the injury more apparent 3. For distraining more Suitors to come to my Leet than ought to be Nat. br 94. G. Coke 4.94 B. Regist orig 103. B. for the Law hates needless troubles and vexations 4. For distraining Parsons or Vicars in their Spiritual possessions Nat. br 94. E. and the Writ is contra legem consuetudinem regni nostri contra formam articulorum contra pacem nostram ibidem For the Common Law protects the Clergy and takes care for their estates to preserve them from violence Fair and Market 1. Against him that sets up a new Fair or Market against my Fair or Market 22 Hen. 6.14 11 Hen. 4.74 for I am prejudiced thereby in my ancient right But 41 Edw. 3.24 per Belknap Quod permitt at lies and not this Action Q. tamen car semble nemy 2. For disturbing Customers to come to the
poysons my water by reason where of my Fish dies Piscary Coke 9. part 59. A. Aldreds case and so is it for infecting the Air thereby vid. antea Procurement 1. For releasing to me with warranty and procuring another to sue me 34 Edw. 3.20 for this is fraudulent dealing 1. Against Tenant in a Precipe Protection which hath protection allowed to Westm for one year and within the year he stays at Gloucester 15 Edw. 4. Q. If I sue a Schoolmaster for erecting a School in the same Town the Action lies not School for it is no Nusance 11 Hen. 4.47 pl. 21. 22 Hen. 6.14 prisott and it is for the good of the weal publick which is to be preferred before any ones private profit Sâ—ander of my Title If A says that B hath right in my Land for years an Action lies Coke 1. part 177. Mildmayâ— case No. Lib. Intra 30. A. Sect. 27. but I ought to shew how I am prejudiced particularly else there appears no cause of Action A brought an Action upon the case against B because that he published that he had the lease of the Land of A and that he intended to sell it and was hindred B said that he had an Indenture as in the Count is mentioned and traverseth that he forged it 1. when B claims a right though he had none yet the Action lies not for it may be he thought he had a right and so there cannot be said any malice 2. The Count is good because it is that it was against the knowledge of B that it was forged 3. Sciens is not traversable Coke 4. part 18. A. case 14. 1. For stopping a Ditch Land by which my Land is surrounded Nat. br 88. E 89. M. 39 Hen. 6.32 11 Hen. 4.82 14 Hen. 8.31 for the Land is thereby made worse else it will not lie For not scouring a Ditch by which my Land is overflown Regist orig 100. A. Non-feasance is punishable as well as a Misfeasance For breaking of a Seabank by which my land is surrounded Nat. br 86. F 89. B C. Regist orig 95. A. vid. antea It lies not for erecting of Coney-burroughs by which I lose the profits of my Land because the party had no property in them Coke 5. part 104. Boulstons case and I may take them upon my land and justifie it vid. antea 1. If one hath the trade of a Bakehouse by prescription for the whole Town Trade and another erects another and sells and Action lies Coke 8. part 125. case of London 19 Rich. 2. Action sur Case 52. The Law favours Ancient rights for it tends much to peace 2. For using the trade of a Dyer in R without License of the Archbishop of York Regist orig 105 106. Coke ibidem for the priviledge of the Bishop is thereby impaired 3. The King grants to A the sole faisance of play-cards yet A shall not have an Action upon the case against others that use the trade because the grant is void Coke 11. part 86. A. Monopolies for it is a Monopoly which is against the publick good and the liberty of the Subject Tenant at will makes voluntary waste Waste an Action of waste lies against him Littleton 15. A. 14. Hen. 8.12 Brown Coke 15 part B. Salops case 48 Edw. 3.25 Dyer 121. pl. 17. 11 Hen. 6.38 and not an Action on the Case For diverting of part of the stream by the owner of the Land by which the stream flows over Water-course 12 Hen. 4.47 21 Hen. 7.30 Dyer 248. pl. 80. Coke 4. part 86. Lutterels case the Count there 3 Eliz. Dyer 195. pl. 37. But for diverting majoris partis Assize lies 8 Eliz Dyer 248. pl. 80. but this is intended when the Mill cannot go for that is prejudicial to the Freehold For stopping a Pit that one hath for water although it is not a common watering-place Watering-places 21 Hen. 7.35 No. Lib. Intra 18. D. sect 15. for thereby I that digged it lost my labour and easement The Writ Ought to be certain as the Count except in the place and time 22 Hen. 7.91 which in this actioâ— are not traversable It ought to have the same certainty as the Count and to have the effect of all the Count except the year and day the quantity and certainty of the Land 38 Hen. 6.9 pl. 20. Prisott for the Land comes not in question Q. The Writ shall not be vi armis Nat. br 92. E. for it supposeth not the breach of the publick Peace but only a particular dammage When there are two causes of Actions 1. causâ— causans 2. causa causata the former may be alledged vi armis Coke 9. part 50. B. Salop case For that is but as an inducement to the cause of action upon which the Action is brought The Process 1. before appearance 2. after At Common Law a Capias lieth not 43 Edw. 3.11 Coke 10. part 72. A. Marshalsey for liberty was preferred before private wrongs which concerned the estate only But 10 Hen. 7. cap. 9. such process is given in an Action sur le Case in Ban. Regis Com. Ban. as for Trespass or debt Br. exigend 29. vid. the Statute The Judgment For not repairing of a Bridge per quod c. the judgment shall be to recover dammages to the party damnified and a Distress to the Sheriff to compel the Defendant to repair to prevent further dammage to any For what things it lies Chasing Sheep 1. For chasing Sheep into the water 2 Hen. 7.11 B. Q. if the Sheep be not hurt by it if it do not lie It seems not 2. For taking of Sheep delivered to me for a year to dung my Land Nat. 26. B D. Q. for I thereby am damnified 1. Against him that I give money to give to my Attorney and he gives it to my adversary 20 Hen. 7.9 for here is breach of trust by which I am damnified For goods lent and are wasted 2. If I lend my Plate or other goods to one and he wastes them or misuseth them or converts them to his own use 27 Hen. 8.25 28 Hen. 8. Dyer 22. pl. 137. 20 Hen. 7.4 2 Hen. 7.11 2 Edw. 4.5 18 Edw. 4.23 21 Edw. 4.19 Crook 2 Hen. 8.160 pl. 2. For here the Law creates a trust and Covenant which is broken 3. If against a Baily that cuts my Trees or kills my Cows 18 Edw. 4.23 Q. 4. If a Baily lend them to B. and he wastes them it lies against B. 12 Edw. 4.13 for the Bally might lend them 5. Against my Butler that breaks my Hanaper 18 Edw. 4.27 Now it is Felony by the Statute Q. 6. Upon bailment of a Bag in which was 20 l. and he breaks the Seal 21 Edw. 4.30 pl. 25. 7. So for an obligation 39 Hen. 6.46 for I may be damnified thereby 8. Against a Baily of Beasts which kills them Littleton 15. A. Dyer
Law for they have a joynt trust and interest The Process in Covenant 1. Before appearance 2. After Covenant Personal 1. By the Common Law the Process before appearance was but a distress infinite 22 Hen. 6.13 Br. exigend 29. 48 Edw. 3.29 pl. 15. and no Capias 2. After appearance the parties appear and day is given over salvis partibus c. the Defendant makes default at the day a distress was awarded against him Lib. Intra 134. B. Sect. 1. and not a Capias Quia non fit breve de Attachiamento Covenant Real quia oporteat quod partes compareant personaliter in Curia Regist orig 165. A. and here was day given over salvis partibus which was no personal appearance The Bar in Covenant 1. Personal 2. Real 1. When a certain duty accrues by the Covenant at the time of the making of it Accord an Accord with satisfaction is no plea Coke 6. part 44. A. Blakes case for such an Accord cannot discharge the duty But a release may be pleaded in bar But where no certain duty accrues until the subsequent act or wrong there Accord with satisfaction is a good plea Coke 6. part 44. A. Blakes case for he may make satisfaction for the wrong by the agreement of the Covenantee Covenant to a Parson for the enjoying his Benefice and the Parson deserts the Cure is void if he deny it after such desertion 14 Eliz. cap. 11. Rastall Leases 244. D. 23 Eliz. Dyer 372. pl. 11. This is after the Parson is absent forty days in the year and not otherwise for that is a desertion in Law whereby he may be deprived A covenants to gather the Rents in D Disturbance and he pleads that he was interrupted by the Plaintiff and so could not do it this is a good bar Crooke 13. Hen. 7.34 pl. 2. for the Plaintiff shall not take advantage of his own wrong Lessee covenants to surrender before the term ends and a Stranger that hath right enters upon the Lessee this is a discharge because the Lessee is disabled by an act in Law Hill 41 Eliz. Com. Ban. Andrews versus Nedham 45 Edw. 3.48 Performance generally a good plea Performance 6 Hen. 4.8 pl. 34. In a Covenant upon a demise by Indenture and an eviction by a Stranger by a higher Title it is no Bar to traverse the possession of the Plaintiff without particular causes shewing how the other had title because it is by Indenture Trin. 3 Jac. Ban. Regis Stile versus Hearing which is a general estoppel without shewing of special matter to avoid it A covenants to make a good estate in Copy-hold land to B before Easter during the life of Cox it is no plea to say that it was surrendred to the Lord by his procurement to the use of C if he shews not that he was admitted for nothing vests in him to whose use it is till admittance Mich. 15 Jac. Ban. Regis Stiles versus Smith and so the Lord was not disabled to perform the Covenant Release is no Bar before the Covenant is broken Release viz. generally Coke 4. part 71. Hors case 5 Eliz. Dyer 217. pl. 2. Coke 1. part 99. A. Shelley◠case If it be not by express words Coke 5. part 71. A. 35 Hen. 8. Dyer 57. pl. 24. Bramly for so the Covenant may be released Judgment in Covenant 1. Personal 2. Real Judgment against an Executor for a Covenant broken after the death of the Testator is of the Testators goods 15 Eliz. Dyer 324. pl. 34. for he is in the Testators stead and trusted with his estate If a Lessee recovers being outed by the Lessor he shall recover his term viz. the remainder unexpired Nat. br 145. M. 47 Edw. 3.24 pl. 61. 20 Edw. 3. Judgment 177. and also Dammages Nat. br 145. M. Execution in Covenant 1. Personal 2. Real 1. Per Common Law 2. Per Statute Law By the Common Law it is but a Levari facias Personal Lib. Intra 133. D. sect 2. fieri facias Lib. Intra 138. A. sect 1. extending but to goods and Chattels But no other Execution Coke 3. part 12. A. Harberts case And this only within the year for if the year be past it was an Action of debt upon the Judgment Coke 3.12 A. Unless the Process were continued 33 Hen. 6.49 pl. 33. for the continuance of it made it as if no time were passed but continued a present Judgment By the Stat. by Westm 2. cap. 45. a Scire facias was given after the year Coke 3. part 12. A. to revive the Judgment and so the party is not now forced to bring an Action of debt upon it And per Westm 2. cap. 18. Elegit is given Coke 3. part 12. A. which extends to lands as well as goods By the Stat. of 23 Hen. 8. cap. 14. Capias ad exigend fuit given in Process and by consequence a Cap. ad satisfaciond in execution against the person By the Common Law it was but a Writ de fine facto 2. Real or to pay a fine as it seems which was but a Writ of Covenant in its nature 43 Edw. 3.12 B. Belknap Glanvil lib. 8. cap. 4. vide the Writ there But entry was congeable to execute it 8 Edw. 3.277 24 Edw. 3.40 pl. 49. Coke 7. part 32. and to hold till satisfaction made as it seems If Land be tailed to one by fine Fine he shall have a Formedon in Remainder 6 Edw. 3.185 pl. 9. Herle to execute the Fine But when the King levies a find he ought to make Letters Patents to the Conusee to enter Coke 7. part 32. for the King passeth nothing but by Record A Fine levied of an Advowson this may be executed by a Quare Impedit 24 Edw. 3.69 pl. 78. But if an usurpation be no Scire facias lies 33 Edw. 3. Quare Impedit 193. Knivet against the Usurper Fine levied of Services there shall be a per que servitio 29 Edw. 3.46 pl. 9. to execute the Fine If a Fine be levied of Rent there may be 〈◊〉 Writ of Covenant 22 Edw. 4.2 pl. 6. to execute the Fine Tenant grants to do his services there shall be but a Distress 10 Edw. 3.371 pl. 3. for that is the proper remedy to recover them and there needed no Covenant Tamen quaere Fine levied of a Reversion there shall be a quid juris clamat to execute this And if the Tenant alien yet the Writ shall be against him and his Assignee shall be bound by his Attornment 8 Hen. 6.17 B. 18 Hen. 6.3 B. pl. 2. by the Judgment given against the Assignor and himself Conusor of a Fine dies there shall be no quid juris clamat against him that claims but if the Conusee only die quaere if his Heir shall have the Writ 34 Hen. 6.7 B. Moyle against the party that hath the particular estate Fine levied before memory there shall be no Execution 1 Edw. 4.6 pl. 13.
deed An Estranger shall not have a Detinue for deed unless he makes title to the Land Estranger but upon request to deliver them and a refusal he shall havâ— an Action upon the Case 33 Hen. 6.26 pl. 1â— Prisot if the Deeds do concern him If one have Deeds and some concern warrantâ— some not Feosâ—ee and enfeoff B with warranty B shaâ—â— not have a Detinue for the deeds which servâ—â— to deraigne the warranty per amount Coke 1. part 2. Buckhursts case 44 Edw. 3.11 B. because they do not wholly concern him Neither is it material for to maintain the title Coke 1. part 1. Buckhursts case But they shall have them which concern the possession only ibidem viz. of the Land and the Feoffor is to have the Deeds to maintain his warranty But if a Feoffment be made without warranty the Feoffee shall have a Detinue for all Coke 1 part 1. Buckhursts case viz. all the Deeds that do any ways concern the title that he may be able to defend it Unless it be per dedi then it is express warranty during the life of the Feoffor per statutum de Bigamis cap. 6. Coke 1. part Buckhursts case 1. for the word Deed implies so much But note that in all these Cases the Feoffee shall have Detinue for them against a Stranger that cannot intitle himself by the Feoffor Nat. br 138. G. Coke 1. part 2. A. 7 Edw. 4.26 because a Stranger cannot pretend any colour And note if the thing which lies in grant as a Lordship Rent Advowson c. be granted to A with warranty which grants it to B with warranty B shall have a Detinue for the Ancient deed because he cannot make a title without the Ancient deed Coke 1. part 1. B. Buckhursts case quaere So in all other Cases the Feoffee shall have a Detinue for every deed which concerns the making of his estate good Nat. br 138. K. for the Law favours Titles to Land and loves the maintenance of them Note Note if A bail deeds of Land to B to re-bail them to him and his Heirs and afterwards enfeoff C in fee yet C shall not have a Detinue against B for it is a charge to A per cause of Bailment Crooke 18 Hen. 7.48 pl. 3. If one enfeoff another with warranty the Feoffor shall have the ancient deeds Feoffor which contain the warranty or which are material for the maintenance of the Title Coke 1. part 1. B. Buckhursts case If A grant a thing that lies in grant to B with warranty B shall have a Detinue for the Ancient deed because this makes his title Coke 1. part 1. B. A enfeoffs B per dedi A shall have the Ancient deed which comprehends the warranty because dedi makes an express warranty Coke 1. part 2. B. and therefore it is good reason he should have the deed to make out the warranty by A makes a deed of Feoffment and delivers this upon condition if the Condition be not performed he shall have a Detinue 37 Hen. 6.37 B. for the deed for the property was not absolute out of him Heir general The Heir general shall have the Ancient deeds comprehending warranty or necessary for the maintenance of the title where the Feoffor obliges him and his heirs to warranty for he is bound by his Fathers act and its reason he should have the deed to maintain it Coke part 1. B. Buckhursts case Nat. br 138. L. Feoffment per dedi the heir of the Feoffee shall not have the Ancient deeds because he is not bound to warranty Coke 1. part 2. B. Buckhursts case but the heir of the Feoffor Q. The heir of the disseisee shall have a Detinue for the deeds Nat. br 138. L. for he is in by deceit and the Law will judge his title good till it be evicted Heir special The Heir in tail shall have a Detinue against the Discontinuee for the deed of entail Nat. br 138. H. 9 Edw. 4.52 pl. 15. for it belongs to him to make out his Title by virtue of the entail And although there be a warranty to the Feoffee by his Father 9 Hen. 6.15 pl. 5. 4 Hen. 7.10 pl. 4. for the heir in tail comes in paramount the Father One Joytenant sole delivers the deed to redeliver to him Joyntenant he alone shall have a Detinue per cause of this special Bailment 13 Rich. 2. bre 648. though the deed doth belong unto both for the bailment is the cause of the Action Joyntenant survivor A enfeoffs B and C and the heirs of B and delivers all the deeds to B which dies C shall have a Detinue for the deed of Feoffment but not for the other deeds 34 Hen. 6.1 A. Coke 1. part 2. A. Nat. br 138. F. viz. which concern the Inheritance but the deed of Feoffment concerns the estate for life as well as the Inheritance If A makes a Release to B and C and this delivers to B which dies C shall not have it ibidem for the Parchment and the Wax do belong to him to whom it was delivered But if A and B Joyntenants per defeasible title and S. J. makes a Release to them the Survivor shall have it 34 Hen. 6.1 per the Report Coke 1. part 2. A. for this concerns the Land and shall survive with the estate Feoffment to two in Fee the survivor shall have all the deeds Coke 1. part 2. B. Buckhursts case because the estate survives which the deeds concern If deeds concern more Lands if the Ter-tenant of any part happen upon the deed he may detain it because he hath an interest 4 Hen. 7.10 pl. 4. 2 Eliz. Dyer 183. pl. 57. and it is reason he should have the deeds to maintain it as well as any other Recusant shall not have an Action for any thing seised into the hands of the King Recusant 3 Jac. cap. 5. By Stat. vid. 22 Hen. 6.1 A Tenant for life dies Remainder he in the Remainder shall have Detinue for the deed 9 Hen. 6.54 pl. 39. for now his title is come in possession and so the deed that created it belongs to him But if the Donor release to the Tenant for life he in the Remainder shall not have a Detinue 9 Hen. 5.54 pl. 39. Q. If Tenant for life die he in the Remainder of a Copyhold shall have it Coke 4. part 22. B. for Copyholds are in many things governed by the rules of the Common Law and so no difference betwixt them and other estates Land is given to A for the life of B the Remainder to C in Fee B dies C shall have a Detinue against A without request because he had interest in the deed during the life of B 33 Hen. 6.30 B. 35 Hen. 6.9 A. Moyle in respect of his Remainder But there quaere whether it lies against the Husband when the wife is dead without issue without request and possession because he
that he was robbed Robbery Coke 4. part 84. Southcots case 〈◊〉 Hen. 7.11 B. Townsend but they must take their remedy against the Thieves and they are by Law answerable to the owners of the goods So if goods are delivered to keep Coke 4. part 83. B. for such an acceptance implies a warranty to keep them safe and to redeliver them But it is a good plea if they are taken to keep as my own Coke 4. part 83. for there is no such warranty implied Vid. antea Recovery in Trespass a good barr in Detinue Recovery 20 Hen. 7.58 B. Crooke for there shall not be a double recovery for one thing The bailment is not traversable where he may wage his Law Travers 8 Edw. 4.3 pl. 7. for there his Oath that he detains not is sufficient for if he detains not there could be no bailment No barr that the Horse was sold in a Market overt unless it were tolled Vendee according to the Statute 1 2 Phil. Mariae cap. 7. for no property is altered by such a sale Vid. antea Detinue for Deeds as Heir Bastardy Bastardy is a good plea 35 Hen. 6.9 pl. 12. for if a Bastard he is no Heir A bailed to B to rebail and dies Feostment having two Sons which makes partition he which had the Land comprehended in the deed delivered enfeoffs B this is a good barr 17 Edw. 3.12 pl. 45. for by the purchase the deed belongs to B. Warranty and Assets is no barr against the issue in Tail in Detinue Warrant 9 Hen. 6.15 pl. 5. 4 Hen. 7.10 pl. 4. for he comes in by the Donor Rebailment in another County a good barr Rebailment because he cannot wage his Law 22 Hen. 6.15 pl. 27. because the bailment was in one County and the Action is brought in another County Release per the Plaintiff a good barr Release Lib. Intra 290. B. Sect. 1. for by the Release the property was altered The Defendant pleads bailment of deeds by the Plaintiff Retainer upon condition that if his wife the Plaintess survive the Plaintiff that the Defendant should retain it and that his wise is alive a good barr but then he ought to shew what Lands they concern 18 Edw. 4.18 that it may be known unto whom the deed belongs Infancy is no plea Infancy because he may avoid an obligation in debt 14 Hen. 6.11 pl. 41. by pleading deins age A good bar that the Garnishee brought a Detinue against the Defendant Recovery and prays Garnishment against the Plaintiff which makes default and he had judgment 34 Hen. 6.47 pl. 13. 21 Hen. 6.35 pl. 2. per Newton Garnishee pleads release between the time of this Action brought Release and the delivery quaere 20 Hen. 6.28 pl. 23. 49 Edw. 3.13 But 39 Edw. 3.13 adjudged that it is a good barr and so it seems the Law to be The Judgment in Detinue 1. Of Chattels 2. Of Deeds Against the Defendant 1. Quod praedictus W. recuperet versus praefat J. praedicta octo quarteria frumenti vel valorem eorundem No. Lib. Intra 169. C. Sect. 1. Lib. Intra 218. B. Sect. 4. dampua sua c. and upon the return of the Writ if it appears that W. did not deliver the Corn then the judgment shall be for the value with dammages and costs So see the difference where the Plaintiff himself delivers the thing and where another The Plaintiff shall have judgment to recover the thing named Plaintiff 17 Edw. 3.45 1 Rich. 3.1 2. or the value of it and dammages for detaining of it as appears above The judgment was that he should recover his Chattels and his dammages 21 Hen 6.36 A. Bracton Lib. 3. fol. 102. B. non tenetur precise ad rem restituend sed sub disjunct vel ad rem vel ad pretium either the thing or the value of it indammages Against the Defendant The judgment was that he should recover the deeds if they are found and also dâ—mmages for the detainer and if not found then all in dammages 7 Hen. 6.31 pl. 25. 22 Hen. 6.41 pl. 17. as well for the deeds as for the detainer of them And this shall be although it be proved that the Defendant burnt the deed 17 Edw. 3.45 pl. 1. for that shall not excuse Ideo confideratum est quod praedictus A. recuperet versus praefat B. pyxidem praedictam cum chartis c. Lib. Intra 218. A. Sect. 1. the box with the writings The Heir in Detinue had judgment to recover one box with as much as was in it contained that belongs to him 5 Edw. 3.159 B. intended to be of writings Against the Defendant and the Garnishee The judgment was that he should recover the deeds against the Defendant haberet liberationem versus the Garnishee 21 Hen. 6.36 A. Lib. Intra 219. D. sect 17. 9 Hen. 6.38 pl. 13.7 Hen. 6.45 pl. 27. This is a double judgment viz. of the right and of the possession But if Judgment be given upon default of the Garnishee before appearance no dammages shall be given 20 Hen. 6.4 pl. 27. for this is not the Defendants fault If the Plaintiff and Defendant make default the Garnishee shall have Judgment and the Plaintiff and Defendant in misericordia 40 Edw. 3.39 pl. 15. for his unjust vexation Execution in Detinue 1. Of Defendant 2. Against the Garnishee 3. Of what Lands 4. Of what Goods Execution against the Defendant by distress for the thing detained and recovered Chattels Nat. Lib. Intrâ— 169. C. sect 1. 20 Edw. 4.3 pl. 12. No. Lib. Intrâ— 170. D. 17. A. 6 Rich. â— Execution But if the thing be not delivered to the Plaintiff then he shall have execution for the dammages by Capias Lib. Intra 216. B. sect 6. 20 Edw. 4.3 pl. 12. against the person of the Defendant For a Capias was given in the main Process per 25 Edw. 3. cap. 17. and by consequence a Capiâ—â— ad satisfaciend in execution by the equity of that Statute At the Common Law execution was for dammages by fieri facias and also for the goods Lib. Intra 216. B. sect 8. to be levied upon the goods of the Defendant For dammages by fieri facias and for the thing by distress of the Goods and Chattels 6 Rich. 2. Execution 45. The Plaintiff and Defendant make default Garnishee had Judgment and distress against the Defendant 40 Edw. 3.39 pl. 15. Vid. antea Distress issued forth in execution Lib. Intra 215. C. sect 1. 20 Edw. 4.3 pl. 12. 22 Hen. 6.41 pl. 17. But Capias lies not 5 Eliz. Dyer 223. pl. 24. 21 Hen. 6.42 vid. antea If the deeds concern Lands 8 Hen. 6.29 pl. 24. 14 Hen. 6.1 pl. 1. But for the dammages if they will not deliver them a Capias lies 22 Hen. 6.41 pl. 17. 20 Edw. 43. pl. 12. If deeds are in a box
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
tamen For it may be more certain It lies not of a piece of ground called Michels piece Trin. 38 Eliz. Ban. Regis Rot. 450. Palmer Humphreys for that is incertain both in the quantity and quality and other Lands may be called of the same name and so that makes no certainty in it It lies not of a virge of Land 38 Eliz. Rot. 453. Mell versus Moor for that may be incertain and may differ in respect of the place The Count Generally If it be of a Lease made by a Bishop Bishop it ought to count upon the Deed No. Lib. Intr. 186. D. Sect. 2. and set it forth because it is not an ordinary Lease whereof the Law takes notice But if it be of a Lease made by the husband and wife Husband and wife he needs not count that it was by Indenture Lib. Intra 252. C. Sect. 8. Coke 2. part 61. B. Wiscots case but it sufficeth to say that they lett and the Law will supply the rest If it be of a Lease made by a Person tunc adâ—uc seized of the Reversion Person it is good without averring of the life of the person 13 14 Eliz. Dyer 304. pl. 52. for the Lease is good whether he be alive or not If the Account be of a Lease made by three where two have nothing in it it is not good although they all joyned in the Lease for they could not all lett but contrary if he count by him only that hath right per Williams Crooke Mich. 10 Jac. Ban. Regis Longs case for he did only in truth lett though the others joyned A Lease to commence at Michaelmas next after the death of A Lease the Count ought to shew that A is dead 1 Mariae Dyer 97. pl. 46. fol. 89. 19 Eliz. Dyer 357. pl. 46. for else the Plaintiff shews no title but shews matter against himself The Plaintiff Counts that A demised to him per Indenture dated 27 Martii Demise 11 Jac. primum delibat 10. decimo Aprilis eodem anno for 21 years from Michaelmas next before and the Ejectment 12 Aprilis this is good though the year be mistaken or he may Count that by Indenture dated 27 Martii primum delibat 10 Aprilis Mich. 11 Jac. Ban. Regis Michels case which is more plain and certain The Count upon the Imparlance Roll was upon a Lease made 10. of December 10 Jac. and upon the Plea-roll it was upon a Lease made 30 Januarii 10 Jac. babendum from the 20. of Decomber before this is not good Hill 14 Jac. Milward Wats Ban. Regis for it cannot be the same Lease upon which he counted so there is no certainty in the pleading to which the Defendant may answer The Count was that J. S. was seized and so seised leased to the Plaintiff 9 Eliz. Dyer 258. pl. 16. Com. 416. A. Bracebridges case Com. 187. A. Adams case Com. 223. B. Barkleys case Com. 530. B. Howel Crosts case here is a good colour of a Title to his Lessor and to his own Lease But 14 Eliz. Dyer 340. pl. 57. he doth not count of the seisin Coke 11. part 3. B. Coke 3. part 16. A. Borastons case Coke 3. part 45. Browns case Coke 4. part 96. A. Lamberts case Com. 459. B. Studs case Com. 504. B. Snowes case but only declares upon a Lease made unto him by the Lessâ—r and it seems good enough The Writ In Wales it may be by plaint without an original Writ for this action is out of the Statute 26 Hen. 8. cap. 6. Hill 36 Eliz. Ban. Regis 610. Griffin â—â—â—sus Eliot Wilkins and is there still as it was 〈◊〉 the Common Law It is Vi armis 1 Hen. 5.3 Coke 9. part 78. 1. Petoes case 21 Edw. 4. pl. 1. Choke which alâ—â—ys supposeth breach of the publick Peace But Hill 36 Eliz. Ban. Regis Rott 610. Griffin â—â—â—sus Eliot Wilkins in Error that it may be without Vi armis 7 Hen. 6.4 17 Edw. 3.1 It â—â—â—ms it was so held because the Defendant might â—â—â—er by colour of title to the Land Fuit ad terminum qui nondum praeteriit 2 Marie Dyer 116. pl. 71. but there 's not the certainty of the time for that is not material Et est pone per vad salvos pleg 21 Edw. 4.10 〈◊〉 1. 31. pl. 25. Brian that is the taking of bail It may be bonis catallis Com. 228. B. Lib. Intra 252. B. Sect. 7 8. Although Regist orig 227. B. says to the contrary Quaere ergo But it may be without it Com. 229. A. 199. A. Adams case The Process 1. before 2. after appearance The Process is Attach and Distress and Process of Outlawry Nat. br 220. H. 35 Hen. 6.6 per Wangford Moyl Com. 228. B. Coke 9. part 78 A. Peytoes case Attachment against the person Distress against the goods Outlawry against person and goods and lands The last Process in Law is the strictest and most severe The Barr. Accord with satisfaction a good barr Accord Coke 〈◊〉 part 78. A. Petoyes case because it is but in the nature of a Trespass for here is no land in question but only a possession Duress a good barr Duress Lib. Intra 253. B. sect 10. viz. that the Plaintiff gained the Lease by distess for the Law hates fraud and force and will protect no person in them Non ejecit a good barr Ejecit si bona catalla are not in the Writ 7 Edw. 6.89 pl. 111. 19 Hen. 6.56 for that is a barr only as to the Land for a man cannot be properly said to be ejected out of goods Quaere But if such words be in quaere whether it be good It is a good barr Entry that the Lessor had it but in right of his wife and he entered after the death of the Lessor in right of his wife Lib. Intra 252. D. sect 8. That he surrendred before the Action brought Surrender quod non ejecit a good barr 21 Edw. 4.10 pl. 1.30 pl. 25. Q. if there should not be a traverler it seems it needs not The Judgment The judgment shall be quod recuperet against â—â—e Defendant terminum suum praedictum venturum 〈◊〉 in c. ac dampua sua occasione c. quod â—â—â—end capiatur this supposeth a Vi armis 〈◊〉 â—liz Dyer 258. pl. 16. 7 Edw. 6. Dyer 89. pl. 109. 〈◊〉 420. A. Bracebridges case 5â—5 Snowes case 〈◊〉 Intra 253. A. sect 8.256 C. sect 13.259 C. 〈◊〉 15. No. Lib. Intr. 188. A. pl. 7. â—03 A. Sect. 8. 〈◊〉 D. Sect. 11.216 B. Sect. 13. Com. 526. A. â—â—â—nthams case But note this is when the term is not ended Note 〈◊〉 9. part 80. A. Peytoes case 4. part 104. Lamâ—â—s case Nat. br 220. H. 7 Edw. 4.6 13 Hen 7. 〈◊〉 B. Wood for if the term be ended then there 〈◊〉 to term to come to
Parish and a Distress taken for it and good Doct. Stud. 74. B. by prescript Suit to a Mill. A man may distrain for suit to a Mill 22 Hen. 6. 14. 9 Edw. 3.356 Nat. br 122. M. For it is a profit and valuable Rent service A man may distrain for Rent service and all manner of services Doct. Stud. 74. A. For it is a Duty issuing out of the Land held A. gives Land to B for him to serve in such a place when he shall be requested he may distrain 22 Hen. 6.33 A. Q. if he were never seised of the Service Herriot Difference between seising and disseising For Herriot-service a man may distrain 44 Edw. 3.13 pl. 24.27 Assize pl. 24. Com. 96. Mantels case Doct. Stud. 75. A. But for Herriot-custom he can but only seize 2 Edw. 2. Herriot 7. 8 Hen. 7.10 Doct. Stud. 75. A. And if he cannot seize he hath no remedy And for Herriot-service a man may seize 18 Edw. 3.22 pl. 4. 38 Edw. 3.7 pl. 27. 16 Ed. 3. Herriot 2. 6 Edw. 3.227 pl. 10. And Distress for Herriot-service is more worthy than Heriot-custom For a certain Leet A man cannot distrain for a certain Leet without prescription because it is against common right Coke 11. part 44. Godfreyes case vide 6 Edw. 3.10 so that a prescription binds common right And the Tything-man that prescribes to have it of the Resiants ought to prescribe to distrain 6 Edw. 3.189 pl. 26. Coke 11. part 44. B. else he cannot Ayd A man may distrain for Ayd for marrying his Daughter or making his Son Knight Glanvil Lib. 9. cap. 8. 5 Edw. 3.138 pl. 38. 39 Edw. 3.34 pl. 40. 40 Edw. 3.22 pl. 21. This by tenure is due to the Lord. Suit to the Hundred For suit to his Hundred Court by reason of tenure there shall be a distress of common right Lib. intra 608. B. 5 Edw. 3.152 pl. 32. 9 Edw. 3.356 pl. 39. to compel it to be done or â—ecompence for not doing it The Lord may distrain for relief Relief and hath no other remedy but his Executor shall have debt and shall not distrain Coke 4. part 49. B. 7 Hen. 6.13 as for a duty vested in the Lord to whom it was a personal service A man cannot distrain for money due for Agistment but shall have trespass Agistment if that they chase the Cattel out of the Land before the Agistment be paid Regist Orig. 92. A. 30 Edw. 3.11 pl. 6. Q. whether debt lies not for it against him that agisted his Cattel Inholder An Inn-holder cannot distrain for his Victuals provided for his guests 3 Edw. 3. Distress 19. but may have an action of debt for the value of them He that takes Cattel as Estrays Estray may distrain them until he be saisfied for the Meat 44 Edw. 3.13 pl. 25. by the owner of them if they be claimed within the year and the day Pledge A. indebted to B for tabling delivers Goods to him until he be satisfied B. may distrain them until he be paid 46 Edw. 3.30 pl. 39. that is he may keep them but this is upon the special agreement Toll For Toll a man may distrain 30 Edw. 3.15 B. 11 Hen. 6.39 9 Hen. 6.45 20 Hen. 7.1 Marrowe viz. Toll of a Market or Fair this seems not to be of common right But Trin. 28 Eliz. Ban. Regis Rot. 963. the Village of Northampton distrained for Toll and alledged not a special Title or prescription to have Toll and for this it was adjudged against them Dammage feasant A Commoner may distrain the Cattel of a stranger dammage feasant upon the common of common right Coke 9. part 112. B. 7 Edw. 3.266 pl. 39. 24 Edw. 3.42 46 Edw. 3.23 15 Hen. 7.2 12. 13 Hen. 8.15 B. in respect of his interest in the Common Forfeitures The Officers may distrain for the Forfeitures of Inn-keepers and sell the Distress 1 Jac. cap. 9. by Statute vid. The Lord may distrain for the Forfeitures of Inmates or for erection of Cottages Stat. 31 Eliz. cap. 7. vid. Distress may be taken by Surveyors of High ways 18 Eliz. cap. 10. from those that make default in labouring By the Stat. Arrerages Tenant in Dower cannot distrain for Arrerages of Rent due before the Recovery of her Dower 40 Edw. 3.22 pl. 19. For the Tenants were not bound to pay her A Lease of Tithes rendring Rent Rent there shall be no distress because the Tithes are the very thing leased 11 Hen. 4.40 and therefore cannot be distrained no more than Land lett and the rent issues not out of the Tithes Rent by prescription A person claims rent by prescription and distrains for it Lib. intra 557. Charge 1. and good A. grants a Rent-charge to B in Tayl Rent-charge and grants that if the Bayliff of the King distrained the party might distrain 46 Edw. 3.18 and good by the contract Rent granted by Fine and Distress appointed to the Justices of the Com. Ban. or Barons of the Exchequer they may distrain 38 Edw. 3.33 So if the Distress had been appointed to any others they might distrain by vertue of the Fine Of what things a man may distrain Money cannot be distrained Money unless it be in a Bag sealed or a Chest locked 22 Edw. 4.50 B. pl. 17. 41 Edw. 3. Distress 14. For then it may be known and replevied else it cannot Cattel in a Wagon Cattel in a Wagon viz. fastned to it may be distrained but out of a Wagon they cannot 2 Hen. 4.15 pl. 17. 41 Edw. 3. Distress 14. 22 Edw. 4.50 11 Hen. 7.14 pl. 8. 21 Hen. 7. 39. pl. 55. because there can be no Return neither doth a Replevin lie of them Q. It seems because Cattel of the Plough are not distrainable so they shall be adjudged if they be loose but when they are in the Wagon it is known they are for other uses Q. The Lord cannot seize the Cattel Lord. and put them in a Wagon and then distrain them 18 Edw. 3.4 For by this means no Cattel of the Plough would be priviledged from distraining A Horse at the Smiths Shop Horse or a Garment in a Taylors Shop or an Horse in an Hostrey shall not be distrained for this would hinder publick commerce and dealing But if the Saddle be on the back of the Horse when he is at the Shop he may be destrained 22 Edw. 4.40 pl. 15. 15 Rich. 2. Avowry 19. because it seems he is then as it were in the Owners custody Q. tamen A Horse upon which I ride over my ground the Lord cannot pursue and take him as a Distress 6 Rich. 2. Rescous 14. So if I have him bridled in my hand as it seems for that is to distrain the man as well as the Horse A Horse of any man through the whole Village shall be distrained for the Fees of the
Chase Pond Tithes Trees Incorporate Village Way Common Fishing Warren Game of Swans Toll Waife Stray Bona felonum Fair or Market Frank-foldage Returna Brevium upon the doing of wrong to Chattels Reals Son Daughter Neece Ward Woman Servant Prentice Tenants Prisoner Captive Personal Living Abducta Capta fugata Capta fugata imparcata Capta interfecta Districta Fugata Imparcata Interfecta Percussa Tonsa Dead Arrestata Capta arrestata Capta asportata Combusta Consumpta Depasta Districta Extracta Extracta aspertata Faleata asportata Fracta Impedita Submersa Succisa asportatâ— Upon the doing of wrong to the Body Menace Siege Assault Battery Wounding Imprisonment Imprisonment till they make Fine Acquittance Statute Obligation Find Pledges Release Oath Against a Goaler for putting Irons upon one Statute Law Marlebridge cap. 2. For distraining to come to his Leet Cap. 4. Averia ad loca incognita fugata de com in com Westm 1. cap. 16. 1 2 Mar. cap. 12. excessive distress Cap. 5. Distress extra foedum Westm 1. cap. 16. In via Regia In com strato Cap. 28. For a Successor of a thing taken in the time of his Predecessor Westm 1. cap. 17. Distress by a Baily not sworn 21 Edw. 1. De malefactoribus in pareis vivariu c. 4 Edw. 3. cap 6. For Executors De bonis asportatis in vita Testatoris 5 Rich. 2. cap. 7. Entrie ubi non datur per Legem 8 Hen. 6. cap. 9. Forcible entry 1 2 Mariae For severing a Distress taken at one time Trespass In what Court Trespass lies County Court IN the County Court but then it shall not say vi armis Nat. br 85. G. neither against the peace because the Sheriff cannot determine it Regist 92. A. for that Court is not to meddle with criminal matters Note Regist orig 111. B. Trespass vi armis Note shall not be sued in any Court but the Kings or before his Justices if otherways a Supersedeas shall be awarded Coke 8. part 120. A. for he is the proper Judge of such matters as the chief conservator of the Peace In the Marshalsey Marshalsey if the party be of the Houshold Trespass lies but then it shall say vi armis for battery or carrying away of goods and no other causes Coke 10. part 72. A. which indeed are rather civil than criminal causes For it shall not be Quare clausum fregit Coke 10. part 76. A. which is of a higher nature and may concern title of Land It lies in Chancery for one priviledged there Chancery Regist orig 104. A. No. Lib. Intra 678. B. sect 20. in respect of his attendance required there And there shall be an Alias c. Regist 104. A. It lies in Com. Ban. or Ban. Regis Nat. br 86. G. for these are high Courts of Record Com. Ban. Regis Ancient Demean If Trespass be brought in the Court of the King where the reality shall come in debate Ancient Demean is a good plea because the Title ought to be tried there Coke 5. part 105. as in trespass for Trees where the Defendant claims Franktenement in the land where the Trees grew 6 Hen. 4.1 pl. 6. otherwise it is no plea 46 Edw. 3.1 pl. 2. because the Action is personal which may be any where sued In Trespass for a Pigeon-house with Pigeons it is no plea 47 Edw. 3.22 pl. 54. viz. Ancient demesn because the Action is chiefly in respect of the Pigeons So in Trespass upon the Case 5 Rich. 2. cap. 7. because dammages are only to be recovered 21 Edw. 4.3 2 Hen. 7.17 pl. 1. 47 Edw. 3.22 pl. 54. 46 Edw. 3.1 pl. 2. which are personal And note Note none may plead this but the Ter-tenant of the Land in Ancient demâ—â—n 2 Hen. 7.17 pl. 1. and that in respect of his service to be done to the Lord there Trespass in the Five Ports the Writ is Dilecto fideli suo W. Constabular Castri sui de D. Custodi quinque Portuum suor salutem Mandamus vobis quod Audita quaerela A. de quadam transgr eidem A. per B. qui est de libertate Portuum praedict illat ut dicitur auditisque hine inde earum rationibus eidem A. facias exhiberi celeris justitiae complementum prout de jure secundum legem consuetudinem portuum praedict fuerit faoiend ne clamor ad nos inde perveniat iteratus c. Who shall have Trespass Note that he that taketh only the profit of the soil of anothers Land shall not have a Trespass Quare clausum fregit 15 Hen. 7. 14 Hen. 8. because he hath no interest in the soil He that hath certain Acres of land annuatim shall have Trespass for he hath a term in those Acres of land An Administrator shall have Trespass for goods of the Intestates taken out of the possession of the Administrator Administrator Regist orig 94. A. 22 Edw. 4.120 pl. 32. the Count Lib. Intra 649. D. Sect. 1. for he hath a property in them ratione Administrationis An Administrator shall have Trespass for goods taken out of the possession of the Intestate in respect of his interest in them Nat. br 92. A. 14 Hen. 7.13 Tremaile the Count Lib. Intra 640. A. Sect. 1. An Executor shall have it Executor per the Stat. of 4 Edw. 3. cap. 6. and the Statute of 31 Edw. 3. gives the same remedy to an Administrator but this is by the equity of the Statute 4 Edw. 3. cap. 7. Crooke 24 Hen. 7.101 B. pl. 2. An Administrator shall have an Action of Trespass before the Administration committed to him Administrator but not against him that justifies under the Ordinary for he was Administrator pro tempore 18 Hen. 6.22 pl. 7. 36 Hen. 6.8 A Prisot Register Original 102. B. that is for goods taken before the Administration granted But if the Administration be committed by word to A who sells goods to B and dies and the Administration is committed to C quaere if C shall have Trespass for the goods sold It seems not for A had authority as it seems to sell An alien Friend shall have all Actions personals Alien 6 Hen. 8. Dyer pl. 8. Coke 7. part 17. A. ratione commorantiae by the Law of Nations which the Common Law maintains But an alien Enemy shall have no Action 6 Hen. 8. Dyer 2. pl. 8. Coke 7. part 17. A. 14 Hen. 8.4 for it is not reason that he that wishes ill to the Nation where he lives should have the protection of their Laws Husband and wife Husband and wife Executrix to B joyn in Trespass for taking the Goods during coverture 21 Edw. 4.5 per Littleton and good in respect of the Husbands interest in right of his wife viz. in taking her goods In a Trespass done to the wife sole who takes a Husband they shall have Trespass in both their names Nat.
per Haukeford Thirning Doct. Stud. 150. A. Q. So if he come to make a Repleg and breaks the hedges and gates 20 Hen. 6.28 pl. 19. for he ought not to do such violence So if he attach the Horse of the Master in possession of the Servant for the debt of the Servant Doct. Stud. 138. B. for the property is in the Master So if he breaks the house to Arrest for Debt or Trespass 13 Edw. 4.9 A. 18 Edw. 4.4 A. Coke 5. part Semayns case for this is against Law So if he makes a good return in Law but a false in deed upon a Habeas corpus Coke 9. part 99. B. Bags case 9 Hen. 6.44 for he ought to return the matter of fact truly If he takes Felons goods where another hath them within his Hundred Nat. br 91. F. for this is without warrant Difference betwixt seising taking One appears for receiving Felons the Sheriff takes his Goods and after he is acquitted Trespass lies against the Sheriff for he ought to have seized them only and the other shall find Sureties and if he can find none they shall be in the custody of his Neighbours 43 Edw. 3.24 pl. 1. which is in custody of the Law but where they are taken they are not so It lies against one outlawed Outlaw Digest br 72. A. Mich. 38 39 Eliz. Com. Ban. Banister against Trussel No. Lib. Intra 248. A. for though an Out lawed person is not protected by the Law yet he may be punished by the Law for wronging another else it might be mischievous For what matters Trespass lies viz. for doing of wrong to the dammage of another 1. touching Inheritance 2. touching Chattels 3. touching the Body The Plaintiff ought to shew the Town where the Inheritance corporate lies Of Inheritance concerning which the Trespass is brought for otherwise there can be no venue to try the Issue Note Trin. 9 Jac. Ban. Luke versus Sampter Of a Castle Quare vi armis castrum ipsius E apud D fregit c. Regist orig 106. B. Of a Messuage Trespass for the breaking of a house Nat. br 87. D. 88. A. Regist Orig. 94. A. the Count No. Lib. Intr. 653. G. sect 7. Of breaking a house and the Count was of a Church by a person and good for the Church is a House viz. Domus Dei 8 Hen. 6.9 Of breaking a House and burning the Timber Regist orig 94. B. Of the burning of a House Regist orig 110. A. Nat br 88. N. the Count Lib. Intra 607. C B. This is Felony by the Law and punishable by death Ergo quaere whether Trespass lies For breaking the Door and Windows of the house Regist orig 99. A. Nat. br 92. D. For breaking the Head of a Mill Mill. Regist 96. A. Nat. br 88. M. viz. of the Mill-pond For breaking a Pigeon-house Pigeon-house Regist orig 104. B. 10 Hen. 6.19 A. This is also Felony if it be with intent to take the Pigeons For breaking my Close the Writ may be with a continuando Nat. br 91. L. the Count Land Lib. Intra 647. D. sect 1.642 A. Sect. 6. Lib. Intra 619. A. sect 1. viz. of a Trespass committed such a day and continued diversis vicibus till such a time afterwards For breaking a Close the count was of a Church-yard for that is a Close because inclosed 8 Hen. 6.9 pl. 20. and for digging in it Regist orig 94. A. 2 Rich. 2. Barr 237. Nat. br 87. B. 90. K. Q. who shall bring it whether the Parishioners or Churchwardens or the Parson or Vicar The Count No. Lib. Intra 661. D. Sect. 12. Lib. Intra 622. B. Sect. 1.646 C. For digging my Gravel the Count Lib. Intra 646. C. Sect. 2. For digging in my Land Coke 9. part 12. A. 7 Hen. 4.11 For digging in my Mine and carrying it away Regist orig 104. B. 43 Edw. 3.35 pl. 53. For digging in my Quarrey Regist orig 105. A. and carrying the Stones away For hindring working in my Mine Regist orig 104. A. in the digging of Lead Coles c. For breaking my Bridge Regist orig 106. A. or a Bridge which I am bound to maintain ratione tenurae or otherwise Upon 8 Hen. 6. cap. 9. the Writ may be vi armis without shewing the entry of the Defendant congealable 34 Hen. 6.26 pl. 14. because the Action is grounded on the Statute It was brought upon a Disseisin and Detainer with force although that the Statute is within the disjunctive 6 Hen. 7.12 10 Edw. 4.11 pl. 35. viz. of a Disseisin or Detainer by force for the word Or is sometime used copulative as well as disjunctive It lies upon an entry with force although the entry be congealable 9 Hen. 6.19 because force is forbidden by that Statute Upon 5 Rich. 2. cap. 7. the Writ needs not mention what Lands certain 4 Edw. 4.18 pl. 35. 5 Edw. 4.26 A. for the Statute doth not direct it It shall not be vi armis without shewing that the entry was congealable 34 Hen. 6.26 pl. 4. for if it were not congealable it is supposed to be vi armis If the entry be supposed in A and B where B is a Hamlet of A yet good because dammages is only to be recovered 5 Edw. 4.8 and not the Land and so the place is not much material For breaking of my Bank Meadow by which my Meadow is drowned Regist 106. B. Coke 9. part 50. B. Nat. br 88. L. For digging my Meadow Coke 9. part 12. A. 7 Hen. 4.11 for thereby the grass is spoiled For entring his Wood Wood. and taking away an Airy of Hawks Regist orig 96. B. 110. B. Nat. br 86. L. 22 Hen. 6.59 Nat. br 89. K. for the Owner of the Wood hath a property in the Airy For cutting his Trees Regist orig 110. A. Nat. br 98. K. 10 Edw. 4.2 pl. 5. For pulling up his Trees by the Roots Regist orig 95. B. for that is utter destruction of them For pulling up of young Trees Regist orig 95. A. br in time they might amount to profit For eating up his blades of Grass and springs of his young Wood Nat. br 87. K. for this spoils the Copice For breaking his Park Park Regist orig 96. A. 109. l. 110. A. Nat. br 87. A. 46 Edw. 3.12 18 Edw. â—14 pl. 12. Nat. br 98. B. 6 Edw. 6. Dyer 7. pl. 7. for thereby he is endangered to lose his Deer and is put to charge to repair his Fence For entring his Park 20 Hen. 6.37 pl. 7. Trespass upon the Statute De malefactoribus in Parcis upon the Statute 1 Edw. 1. Regist orig 111. B. The Count Lib. Intra 650. D. Sect. 4. Upon the Statute of Westm 2. cap. 28. 7 Eliz. â—yer 238. pl. 34. for the King The Count Lib. Intra 652. A. Sect. 9. Upon Westm 1. cap. 20. within the year Nat. â—67 D. The Grantee of
that he lost his Service Battery Mayheme and Imprisonment per quod c. Trespass lies Crooke 7 Hen. 8.80 pl. 4. If the Count be not per quod Servitium amisit although that Verdict pass for the Plaintiff yet he shall never have Judgment 21 Hen. 7.71 pl. 15. Crooke for there appears no dammages by the Plaintiffs shewing For enticing my Servant to depart Trespass lies not but an Action upon the Case 11 Hen. 4.3 pl. 46. for here is no vi armis in the case as all Trespasses do imply For taking away his Apprentice Apprentice Regist orig 109. A. per quod c. Q. whether he need to count so for it seems it must be so intended For a Goaler for taking away his Prisoner Prisoner Regist orig 104. A. 4 Edw. 4.6 pl. 7 antea For taking his Captive from him Captive Regist orig 95 A. 102. B. Nat. br 88. A. Q. what Captive whether one taken in the Wars Chattels personals Living Si quis distringit ordine non observato facit transgressionem Bracton Lib. 4. fol. 217. A. for the Law requires regularity and order in doing of things Trespass quare Averia cepit abduxit Regist orig 97. B. The Count Lib. Intra 628. B. Sect. 1. 670. B. sect 1. Note for live Cattel the Writ shall be cepit abduxit Nat. br 88. B. 21 Hen. 6.39 pl. 5.12 Hen. 8.9 B. if dead cepit asportavit And the Writ for live Cattel shall be Averia sua or shew the thing in certain 21 Hen. 6.39 pl. 5. And if the thing be dead or alive it is not material whether the Writ be pretii seu ad valentiam Nat. br 88. L. Q. for if alive it seems it should be pretii if dead ad valentiam For taking away his Boar Regist orig 110. B. Boar. For taking away his Oxen Regist orig 110. B. Oxen. For taking away his Mastiff Coke 7. part 18. Mastiff A. 12 Hen. 8.3 Regist orig 109. A. but he shall not say pretii or ad valentiam because a Dog is not a Marketable creature though valuable to the Owner 12 Hen. 8.5 A. Elliot Regist orig 109. A. For taking away his Capons Capons the Writ was bona catalla and good 17 Edw. 3.41 pl. 19. for they are general words and extend to all manner of goods proprietory whatsoever For taking away his Conies out of his Close Conies the Writ shall be suos Nat. br 87. A. Regist orig 93. B. 102. A. for the Owner of the Close hath a property in them Quaere if not tame Conies So if it be in a Park Regist 110. B. because he hath a property in the game in respect of the enclosure But if it be for entring into his Warren and taking his Conies he shall not say suos for he hath them but ratione privilegii viz. of hunting them 3 Hen. 6.55 pl. 34. Regist orig 110. A. Coke 7. part neither shall he declare of the value 8 Edw. 4.5 pl. 16. Lakin Quaere differentiam The Writ was Quare Warrennam intravit cuniculos cepit asportavit without saying ibidem and yet good 43 Edw. 3.13 pl. 7. for it shall be intended that he took them there where he entred for the Conjunction Et couples all together If Conies go out of a Warren any may kill them in his own Land and no Action lies Coke 5. part 104. 43 Edw. 3.13 pl. 7. For they cannot be said to have animum revertendi and so the property is gone Deer if they be tame Deer he shall say suas but then he ought to shew that they were tame 43 Edw. 3.24 pl. 2. For if he declare generally it shall not be intended that they were tame for tame Deer is but a rarity and not usual But if it be in a Park or Chase he shall not say suas because he hath them but ratione privilegii viz. of the place where they are so long as he can keep them there which is uncertain For taking away young Hawks he shall say suos Hawks because he hath a property possessory in them for he might have taken them when he pleased Coke 7. part Regist orig 93. B. 96. B. 110. B. Nat. br 89. K. So if they be reclaimed Hawks that is Hawks made tame or managed which were wild before For taking away a Horse Regist orig 95. A. Nat. br 87. M. the Count No. Lib. intra 666. B. sect 15. Lib. intra 682. D. For his Sheep taken away Regist orig 110. B. For taking his Fish Fish this is good although the Count be of a hundred Fishes because this word Piscis est nomen collectivum 4 Hen. 6.11 Coke 5. part 35.21 Hen 6.39 and comprehends any number as well as one Fish But the Count ought to shew the nature and number of the Fishes particularly Coke 5. part 35.31 Hen. 6.39 though the Writ be general that the dammage may be known De tauro suo libero Bull. Oves captae fugatae Regist orig 109. A. Oves fugatas per quod morierunt Lib. intra 616. B. sect 1. Nat. br 89. L. Regist orig 97. A. Porcos fugatos per quod interierunt Hogs Regist orig 97. A. Nat. br 89. L. Capta fugata imparcata There he shall say the price where he declares of a taking because Cepit implies that he had gained a property but it is otherwise if this word be put out 1 Hen. 5.3 4. But Regist orig 97. B. fuit Cepit abduxit without shewing the price of them and good because it may be he was seised of the Cattel Cepit in S. interfecit at W contra pacem Capta interfecta c. is nought because Cepit implies a property and then contra pacem is not good for he might kill them if they were his own 27 Assize 64. Averia ad loca incognita fugata upon the Stat. Districta of Marlebridge cap. 4. Regist orig 97. A. 102. A. 30 Assize 38. Nat. br 89. N. De Com. in com ibidem imparcata upon the Stat. of Marlebridge cap. 4. Westm 1. cap. 16. 1 2 Mariae cap. 12. Regist orig 97. B. 1 Eliz. Dyer 168. pl. 20. 2 Eliz. Dyer 177. pl. 32. Nat. br 89. P. And there are two causes of bringing this Action 1. He cannot give them Meat 2. They cannot be replevied 22 Edw. 4.11 Q. For he might lose his Cattel and have no remedy if he might not have this Action of Trespass Note Note upon these cases upon the Statute the Writ shall not be general but special upon the Statute 43 Edw. 3.30 pl. 16. as it is usual in all other such like cases The Action was of a Cow the Count Lib. intra 464. C. Pound For Marlebridge cap 4. saith districtiones but not upon 1 2 Mariae cap. 12. for the Statute saith Cattel and upon the second branch it lies well
3. Judgment in another Court Error brought upon a Judgment given in Ban. Regis in Ireland Ireland there shall be a Scire facias in the Writ of Error against him that had the judgment for by Sharde this is the usage and in no other manner 34 Assize pl. 7. and it is dangerous to alter the ancient practice of proceedings in Law In Error upon a Bill sealed Bill sealed there shall be a Scire facias against the Justices which sealed it ad cognoscend Sigilla c. per Westm 2. cap. 31. Lib. Intra 293. C. Sect. 1. 11 Hen. 4.92 This is where Error is brought upon a Bill of exceptions But the Justices may deliver it in Court by their own hands 11 Hen. 4.52.92 and then there shall be no Scire facias for thereby they acknowledge their hands The Process in a writ of Error against the Judges to whom the Writ is directed is Alias Process Pluries and Attachment Nat. br 22. G. if they do not certifie the Record which is before them Errors â—ssigned When the Record is removed after Errors assigned the Plaintiff shall have a Scire facias against the Defendant ad audiend Errores Nat. br 22 E. 10 Edw. 4.13 3 Eliz. Dyer 195. pl. 38. 201. pl. 63. 17 Edw. 3.5 This is to give him notice that the Record is removed and of his proceeding thereupon And upon two Nihils a Non est inventus returned the Court shall come to examination of the errors 3 Eliz. 201. pl. 63. without the Defendants in the writ of Errors appearance But until Error assigned the party shall not have a Scire facias 24 Edw. 3.31 pl. 8. for it is to no purpose for his appearance is to hear the cause And if he assign that for Error which the Court takes clearly to be no error he shall not have a Scire facias 18 Hen. 6.17 for that would be to trouble the Court to no purpose but if it be colourable it is otherwise But in Error brought against the King there shall be no Scire facias because the King is intended to be always in Court Nat. br 21. H. either himself or his Counsel for the Judges are of his Counsel The Writ needs not mention the names of the Tertenants Against whom a Sci. fac in Error shall be sued because it is of common form used otherwise 8 Hen. 4.17 pl. 3. and the naming of them is not material If the Sheriff return that the Heir is not in his Bailywick Other County and the Tertenant shews that he is in another County there shall go a Scire facias into that other County 8 Hen. 4.18 pl. 3. Q. if he remove out of that into another if another Scire facias shall issue and so till he is found If a Recoverer make a Feoffment Tertenant and die without Heir it seems there that a Scire facias lies against the Tertenant only and a Writ of Error 8 Hen. 4.17 pl. 3. 9 Hen. 6.49 B. pl. 30. Q. whether not against the Lord by Escheat also because he comes in by virtue of the Judgment Former Judgment But the 9 Hen. 6.46 B. pl. 30. a Writ of Error lies against none but the party or them that are privy to the former Judgment Q. if not against privities in Law as well as in fact Gardein in right Gardein in right of the ward recovers in a Quare Impedit and dies the Defendant brought Error and a Scire facias against the Heir of the Recoverer and against the Heir of him from whose right he took his title and against the Incumbent without naming the Executor yet good because he recovers as Gardein in right but the contrary as Gardein in deed 8 Hen. 6.35 pl. 1. for there it seems the Executor is concerned for the wardship is a Chattel False Judgment Error upon false Judgment in Oxford viz. for Land the party being dead that hath the Judgment there shall go a Scire facias as well against the Heir of the Recoverer as against the Ter-tenant 8 Hen. 4.18 pl. 3. A Scire facias needs not be sued against the Tertenant before the Judgment be reversed 47 Edw. 3.7 for before that the Tertenants estate is not stirred But before that he enter he shall have a Scire facias against the Tertenant for otherwise he shall be a Disseisor 4 Hen. 7.10 47 Edw. 3.7 but by the Scire facias it appears that he enters not as a Disseisor But if the Recoverer make a Feoffment to his own use and then the Judgment be reversed Feoffment there needs no Scire facias against the Feoffâ—e for this is aided per the Stat. of 1 Rich. 3. 26 Hen. 8.2 Scire facias in Felony Error upon an Outlawry in Felony the Plaintiff ought to have a Scire facias to all the Lords mediate or immediate 7 Hen. 7.5.53 4 Edw. 4.10 11 Hen. 4. because they are intitled by the Outlawry And also against the party at whose Suit and the Tertenants Lib. Intra 308 B. Sect. 3. And in a writ of Error Delay if the Plaintiff hasten not his Suit the Defendant shall have a Scire facias against the Plaintiff to shew cause why he should not have Execution 24 Edw 3.24 9 Hen. 6.13 or else he may proceed in Court to have the Judgment affirmed And in such case upon two Nichils returned the Defendant shall have execution but after this the Plaintiff shall have a Scire facias 9 Hen. 6.13 Q. for then it seems to be too late Diminution in Error 1. by whom 2. in what cases 3. at what time 1. The Plaintiff in Error may alledge Diminution Nat. br 25 A. that is alledge that a whole Record is not removed The Defendant may do it also 28 Hen. 6.11 15 Eliz. Dyer 321. pl. 21. for if the Record be not wholly removed the Court cannot judge of it nor can the parties tell how to assign Errors But this alledging of Diminution is now used mostly for delay Error in London 2. Error upon a Judgment in London the Recorder certifies the Record yet he is held to do according to the custome Quaere if Diminution shall be alledged 34 Hen. 6.42 it seems it should When all the Record is not removed Diminution may be alledged Nat. br 25. A. vide the Writ there Diminution may be alledged in 1. The Essoin Lib. Intra 290. C. Sect. 1. 1 Hen. 7.2 2. Continuance of the Jury Lib. Intra 290. D. Sect. 2. 3. Words in title in Assize Lib. intra 290. D. sect 3. or any thing material in the body of the Record Diminution shall not be alledged upon a Bill sealed because the bill is not of Record 11 Hen. 4.52 Hull 65. but is given in to the Court by him that takes the exceptions 3. After in nullo est erratum pleaded in another Term the Plaintiff may not alledge Diminution Diminution 28 Hen. 6.11
the Crown or in any proceedings upon them Antea Statutes penal Or to the Writ Bill or Action Informations upon popular or penal Statutes 10. Law Judgment Error in Law by misprision of the Judges in the judgment entred in another term Coke 5. part 57. B. Specots case but in the same term it may because all that term the judgment is in the breast of the Judges Action upon the Case in Cur. Wallingford the judgment was quod defend capiatur this is Error being but an Action upon the case Trin. 9 Jac. Ban. Regis Northcot versus Heywood for the Judge ought to be defendens in misericordia for it is capiatur only where the Action is vi armis in respect of the fine to the King Concessum est pro Consideratum est Concessum est where it should be Consideratum est this is Error although there are 21. Presidents in my Lord Cokes Reports to the contrary for by Man Secondary the Books are false printed Mich. 8. Jac. Ban. Regis Rot. 641. and by Williams if it be videbitur Curiae this is erroneous for the Court is not to vary from their forms in such high matters as Judgment are If it be Capiatur against the Defendant in an Ejectione firmae Mich. 8 Jac. Ban. Regis Rot. 232. Dolby versus Holbrook it is error for it should be ideo in misericordia JurisdictioÌ„ of Court It is ordained per 27 Eliz. cap. 8. that if Error be brought in the Chequer upon a judgment in Ban. Regis they shall not assign it in the Jurisdiction of the Court or in form of the Writ Return Plaint Bill Declaration Pleading Process Verdict or Proceedings but only insist upon the matter in Law And also there is a Proviso that it shall be in Debt Detinue Account Covenant Ejectione firmae Traverse Action upon the Case and not in other Actions of a higher nature In process The party cannot shew Error in Process in delay of the Defendant unless he shew that it is for his disadvantage and that he is injured thereby 7 Edw. 3.25 Coke 8. part 59. A. Beechers case Nothing that is done contrary to the Office of a Judge shall be assigned for Error Judge Nat. br 21. B. 7 Hen. 7.4 for their Authority shall not be questioned this way Granting of Aid where it should not be is not Error so of Receipt 7 Edw. 4.12 21 Edw. 4.65 B. 5 Hen. 7.8 8 Hen. 7.9 11. 14 Hen. 6.5 pl. 25. but if it be denied where it ought to be granted it is Error for none is prejudiced by the former but by the latter the Defendant is prejudiced So of Garnishment 14 Edw. 4.1 pl. 3. So of making of an Attorney Nat. br 22. D. 21 Edw. 4.77 But denial of Aid or Receipt Visne where it ought to be is Error Edw. 4.65 B. 5 Hen. 7.8 8 Hen. 7.9 vid. antea When the Visne is mistaken Visne it is error for there is no right trial In Replevin Replevin the Defendant prescribes to have all the Pasture of such a place in W. except Common for the Inhabitants of D. and the Prescription being traversed the Jury was of the Visne of W. only and this was ruled good in Error brought because the words of exception to the Inhabitants of D. was void therefore this was not put in issue Trin. 11 Jac. Ban. Regis Wicker versus Stockeman and so nothing in Dale was put in issue In waste In Waste brought the Issue was for certain Oaks cut for repairing of the Castle of Burrum the Visne was of the Village of Burrum where it should have been of the Castle of Burrum this is Erâ—or Hill 12 Jac. Com. Ban. the Countess of Cumberlands case for a Castle and a Village are two different places Trover Conversion Trover and Conversion brought in Coventry upon not guilty pleaded the Visne was De Vicineto Civitatis Coventriae and this shewed in arrest of judgment sed non allocatur and error upon in brought and it seems that by Williams and Yelverton Justices that it is error for it should be of Coventry for Vicinetum is of the Neighborhood of Coventry and excludes the City and the Sheriff of the Country ought to make it out 7 Hen. 6.36 B. 4 Edw. 4.39 7 Hen. 4.12.80 Inquest 36. Quare tamen for the Court did advise about bringing of a new Action and did not determine the Question Pasch 9. Jac. Ban. Regis Procter versus Clifton Trespass for lopping of Wood in Hurslay Trespass the Defendant pleads that the place is parcel of the Mannor of Mamden in the Parish of Hurslay and the Custom is that the Copy-holder may cut c. and found for the Plaintiff and the Visne was of Hurslay and it was moved that it was not good for the Parish is not certain because it may comprehend more Villages but it was good per Curiam because Hurslay shall be taken to be a Village and Parish and shall not be intended that there are more Villages in one Parish except it be shewed 5 Edw. 3.20 Mich. 9. Jac. Ban. Regis Brocke versus Spencer Condition to pay money Hill 9. Jac. Ban. Regis Savil Cavendish Condition to pay money in the Church porch of the Parish of H. and pleads performance the Visne was of H. and yet good for as it seems the Village and Parish shall be intended all one and the Parish shall not be intended to comprehend more Villages Debt upon an Obligation to perform Covenants Obligation and declares of the breaking of the Condition because a stranger recovered the Land at Westminster upon a good title where the Land lies in Com. Berks the Defendant said that it was by Covin without this that it was upon a good Title the Plaintiff said that it was upon a good Title the Visne shall be of the County of Berks where the Issue is joined upon the good Title and where the Land lies but contrary if the issue be joined upon the Covin for that is alledged at Westminster but it was said if it were a personal Action it shall be where the Recovery is alledged Mich. 9. Jac. Ban. Regis Hansaker versus Kirby Ejectione firmae of Land in S T the Defendant pleads a Feoffment of the Land by Deed at S. the Plaintiff said non feoffavit Ejectment c. the Visne was of S. and T. and good for the alledging of the Feoffment at S is idle for it cannot be but upon the Land which is alledged to be in S. and T. Mich. 9. Jac. Ban. Regis and so the Venue is rightly laid there Debt for 20 l. the Defendant pleads that at another time the Plaintiff sued him in London Debt in such a Parish for the same debt and shews the Record certain c. and that he had execution in another Parish c. the Plaintiff said that it was in debt for another
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