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
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
may bring it alone But the 19 Hen. 6.65 to the contrary Q. Executor shall have Trespass de bonis Testatoris â—sportatis in custodia sua exten Regist orig 94. A. 2 Hen. 7.15 6 Edw. 4.1 and good for they are accounted the Testators though to be disposed of by the Executor in performance of the will A. takes Administration of the Goods of B C proves a Will by which he was made Executor and brought Trespass against A for the Goods it lies although the Administration was not repealed for the Administration was void from the beginning Mich. 12. Jac. Ban. Regis Fisher Young because there was a Will made An Executor shall have Trespass against the lessor which outs him during the Term Regist rig 102. B. if he have a Lease parol Q. if by Deeds whether he ought not to bring an Action of Recovery If the Lessor outs the Executor of the Lessee the Writ shall be Summon per bonos summonit c. but if he outs him and takes the Goods of the Lessor within the Land the Writ shall be pone per vad c. Regist orig 102. B. in the Note and this is in respect of the dammages he is to answer for taking the Goods Trespass lieth by a Goaler against one that takes 〈◊〉 prisoner from him Goaler for the Gaoler is liable for the person but a good bar that he is not Goaler because it is the ground of the Action 4 Edw. 4.6 pl. 7. fol. 44. pl. ult Church-wardens shall have Trespass for the Goods of the Church taken in their time Church-wardens or in the time of their Predecessors Nat. br 91. K. 8 Edw. 4.6 pl. 5. 12 Hen. 7.27 pl. 7. 11 Hen. 4.12 8 Hen. 5.4 37 Hen. 6.30 10 Hen. 7.9 pl. 5. For they are intrusted with them to the use of the Parishioners But they shall count ad damnum parocbianorum 8 Edw. 4.6 pl. 12 Hen. 7.27 pl. 7. For the Goods are the Parishioners and the Church-warden is interested in their right and is accountable unto them But a good plea that he is not Churchwarden 4 Edw. 4.7 A. For that destroys the supposal of the Writ But 19 Hen. 6.66 says that it is not good for Goods in the time of their Predecessors Q. yet the Law seems to be otherwise else the parishioners might be damnified Trespass for making a Grant of Rent in see taken to the use of the Parochians Lib. intra 7. D. Q. Heir Ravishment Every Ancestor male or female shall have Trespass for ravishing of his or her Heir apparent against a stranger but not against the Gardein in Chivalry unless the Father only Coke 3. part 38. B. Ratcliffs case Nat. br 143. R. 30. Edw. 6. pl. 7. fol. 16. pl. 19. Regist orig 98. B. 99. A. and the Mother for the education of the Heir doth properly belong to the Father and Mother A man shall have Trespass for his Son and Heir Daughter and Heir taken away Nat. br 98. H. 29 Assize 35. 21 Hen. 6.14 pl. 29.12 Hen. 4.16 pl. 9. 3 Edw. 4.12 B. Danby For it is an injury to the Parents to lose the comfort of the Child especially the eldest And this of what age soever his Son be 32 Edw. 3. Gard. 32. though the dammage may be greater or less in regard of the Age. A Grantee of Herbage of Land shall have Trespass Grantee quare clausum fregit for the Grass but not for the other profits of the Land as Fruit-trees and the like 11 Eliz. Dyer 285 pl. 40. 3 Hen. 16. 13. A. 5. Hen. 7.10 B. For he hath nothing but the Herbage granted unto him The Heir shall have Trespass for taking of a Deed concerning Land to him descended Heir and it is good although he doth not say scriptum suum because of necessity it must belong to him 1 Edw. 3.18 pl. 11. For it goes along with the inheritance But not against an Executor that taketh a Box with Deeds 1. Because the Box appertaineth to him 2. He had not knowledge what was in the Box. 3. The Heir hath other remedy against him scilicet a Detinue 43 Edw. 3.24 pl. 3. because the Box and Deeds come to him in a lawful way though he cannot justifie the detaining But it lies against an Executor for taking away a Furnace fixed or Fatts fixed to the Free-hold or Pales fastned Windows Doors Evidences loose 21 Hen. 7.26 pl. 4. because they all belong to the Free-hold as part of it It lies for an Heir against an Executor for taking Fishes out of a Pond Mich. 36 Eliz. Ban. Regis Rot. 25. Parlett versus Gray Crooke 118 pl. 60. For they belong to the soil viz. the Land covered with Water which makes the Pond So for Deer or Pigeons vide Assize 27. pl. 29. but not tame Deer or tame Pigeons the out is as it were an Inheritance the other a Chattel The Lessor excepts the Trees Lessor he shall have Trespass quare clausum fregit 14 Hen. 8.1 28 Hen. 8. Dyer 19. pl. 48. 46 Edw. 3.22 pl. 3. Coke 8. part 63. A. Swaynes case against the Lessor if he cut them down A Lessor at Will shall not have Trespass although he determines his Will until he enters Crooke 3. Hen. 8.163 pl. 4. For before he hath no Title A enters upon Tenant at Will and subverts the soil he shall have one Action and the Lessor another 19 Hen. 6.45 pl. 94. so of a Copy-holder and Lord 2 Hen. 4.12 Coke 4. part 31. A. For as they are both damnified so it is reason they should both have recompence Lessee cuts Trees to the intent to repair Lessee the Lessor takes them the Lessee shall have Trespass 44 Edw. 3.44 for the dammage done him in causing him to lose his labour in cutting of them A stranger cuts Trees the Lessee shall have Trespass and shall recover treble dammages Doct. Stud. 34. A. 23 Hen. 8. Br. wast 138. 44 Hen. 8.26 because the Lessor shall recover so much of the Lessee in respect of the Waste But if the Lessor dies the Lessee shall recover but single dammages 44 Edw. 3.26 Crooke 3 Hen. 8.163 pl. 4. because no more shall be recovered against him by the Heir 1. If the Servant be beat Master the Master shall have Trespass Nat. br 91. I. Regist orig 102. A. 8 Hen. 6.28 19 Hen. 6.35 pl. 73. although he be but a servant at will 21 Hen. 6.9 A. Newton vide 11 Hen. 4.2.2 For the beating of the Servant is a dammage to the Master and the Servant may also have this Action 2. For taking away his Apprentice Nat. br 91. I. 8 Hen. 6.28 21 Hen. 6.31 pl. 18. whereby he loseth his service 3. The Lord of a Villain shall have Trespass 22 Hen. 6.30.32 for taking away his Villain or beating him as it seems The Ordinary shall have it for a thing taken out of his possession Ordinary Nat. br 91. M. 18
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
5. Count. 6. The Writ 7. Process 8. Barr. 9. Judgment 10. Execution In what Court Covenant lies 1. Personal 2. Real 1. IT lies in the County or Hundred Court Nat. br 145. E. 2. It lies in any Court of the Lord of a Mannor Nat. br 145. E. 3. In London Nat. br 146. A. and other Corporations 1. Marshalsey between two of the Houshold of the King Coke 10. part 74. A. otherwise not 2. In the Court of the Lord of a Mannor by special grant 44 Edw. 3.28 pl. 18. fol. 37. pl. 30. Lib. Intr. 296. A. sect 1. 50 Assize pl. 9. A Fine levied in the County Palatine of Lancaster good 37 Hen. 8. cap. 19. which is in nature of a Covenant In Banco Regis 36 Hen. 6.34 A. Forteseue but it shall be avoided by Writ of Error Q. except it be meant of a fine In Ancient demesn quaere per 6 Edw. 3.207 pl. 20. it seems it should lie But 44 Edw. 3.37 50 Assize 9. Knivet it is not good Q. But 22 Hen. 7.90 B. pl. 14. Crooke a fine may be levied in Ancient demesn per petty Writ of Right close In Eire good 1 Edw. 3.10 pl. 34. 8 Edw. 3.27 18 Edw. 3.40 pl. 33. that is before Justices in Eire or Itinerantes In Communi Banco Before the Justices of the grand Sessions in Wales 34 Hen. 8. cap. 26. Who shall have Covenant 1. Personal 2. Real If a man Covenant with another to enfeoff him or to serve him c. the other shall have covenant although he do not agree Nat. br 145. A. But then it ought to be by deed Regist orig 165. B. Nat. br 145. A G. 7 Rich. 2. deeds 160. which is an estoppel to say the other did not agree Yet in London a man shall have covenant to levy a fine without deed per custome Nat. br 146. A. 22 Edw. 4.2 pl. 6. Vavisor 21 Hen. 6.10 Covenant 11. Administrator shall have Covenant by the equity of the Stat. Administrator de 31 Edw. 3. cap. 11. Coke 9. part 40. A. Hensloes case made for Executors But not before 19 Edw. 3. Covenant 24. Assignee shall have Covenant Assignee where it is made to one and his Assigns Nat. br 145. C. Regist orig 165. B. for the Assignee is in place of the Assignor Assignee shall have Covenant without shewing the deed of covenant Assignee for he may not have it Trin. 36 Eliz. Banco Regis Noke versus Ander But there if the Lessee for years by estoppel grant over his term the Assignee shall not have Covenant because the Assignor had nothing in the land but only an estoppel against the Lessor not to out him A Prior with the assent of his Covent by deed covenants for him and his successors with B and his heirs that he and his Covent shall sing in the Chappel of B which is parcel of the Mannor of B for the Lords of the said Mannor The Assignee of B shall have covenant because it is a service annexed to the Mannor 42 Edw. 3.3 pl. 14. Coke 5. part 17. B. Spencers case 45 Edw. 3.3 28 Hen. 8. Dyer 24. pl. 149. 2 Hen. 4.6 pl. 25. and who so hath the Mannor or is interessed in the Covenant But if the service is to be made in the Chappel of another then the Assignee shall not have covenant because it is not annexed to the Mannor 2 Hen. 46. pl. 25. And so if one covenant with a Tenant by the Courtesie to sing in his house although that he surrender and take for years he shall have Covenant because it was annexed to his estate 6 Hen. 4.1 pl. 5. viz. for life Q. Assignee by word shall have covenant Coke 3. part 63. A. Lincoln Colledges case for such an assignment is good Assignee of Assignee shall have covenant Coke 5. part 71. B. and so in infinitum as it seems so long as the estate assigned continues if the Covenant go with the estate Assignee of one Coparcener shall have covenant against the other coparcener to acquit him of the suit because the covenant goes with the land Coke 5. part 18. A. Spencers case 42 Edw. 3.3 Lessor covenants to repair the house lett the Assignee shall have covenant against him because this is annexed to the estate so the husband of the wife that is a Termor and a Tenant per Statute Merchant staple and every one that comes to the land Coke 5. part 17. Spencers case to which the Covenant is annexed So in all cases where it is annexed to the estate Nat. br 146. C. 48 Edw. 3. and not to the person otherwise than in relation to the Land Assignee of a reversion shall have covenant as well as the Lessor shall have it per 32 Hen. 8. cap. 34. but this is when it concerns the things demised and not collateral Covenants Coke 5. part 18. A. Spencers case for in respect of Reversion of the thing lett he comes in room of the Lessor in privity of estate Assignee of a Reversion for years when the Tenant for years hath a greater Term his Assignee shall have Covenant within 32 Hen. 8. although the Lessor grant over his Term Trin. 40 Eliz. Ban. Regis Rot. 123. Natures versus Westwood quaere Assignee shall have covenant upon covenant in Law Coke 4. part 80. B. 9 Eliz. Dyer 257. pl. 13. where it goes with the estate Lessee covenants with the Lessor and his heirs to repair the house the Assignee of the Lessor shall have covenant Mich. 9 Jac. Ban. Regis Bestwicke Wilborne for it goes with the house Husband and Wise Lease for years to the Husband and Wife the Lessor outs them they may joyn in covenant because after the death of the husband she shall have a term if he grant it not over 47 Edw. 3.12 pl. 11. and so she hath a possibility of interest The Commonalty of D Covenants with the Major and Commonalty of L Corporation that they shall be quit of Toll c. in D and after one Burgess in D takes toll of one in L Covenant lies for one Corporation against another 48 Edw. 3.17 pl. 2. It may be brought by the Major and Commonalty of one Corporation against the Major and Commonalty of the other Corporation Executor shall have Covenant for Covenant made to his Testator for a personal thing Executor for the personal estate is his to the use of the Testators will Nat. br 145. D. and orig Regist 165. B. Note de conventione pro executoribus non invenitur breve in Registr sed pro assignatis tamen potest fieri pro executoribus tam bene quam pro assignatis nam eadem est ratio de utrisque A leases to B for life for 12 years and B dies within the 12 years the Executors of B shall have it until 12 years c. B dies A outs the Executors within 12 years they shall have Covenant 19 Edw. 3. Covenant 24. Executor of an
was only made to try a Title an Action of Covenant lies not for such breach Trin. 11 Jac. Com. Ban. Rot. 384. Selby versus Shute for this was but a Lease in trust only for the benefit of the Lessor and not of the Lessee Lessee by deed Poll shall have a Covenant against the Lessor Lessee if he out him Nat. br 145. l. 35 Hen. 8. Dyer 57. pl. 24. Shelley for the Action ariseth upon the covenant of the Lessor which may be by deed Poll. But not upon outing by a stranger without Title Nat. br 145. L. 22 Hen. 6.52 pl. 26. Hill 12 Jac. Com. Ban. Tisdale Essex yet quaere if he had a colourable Title Although it be by Recovery by Verdict Coke 4. part 80. B. Nokes case vid. antea But if a Stranger hath Title then it lies Nat. br 145. L. 32 Hen. 6.32 pl. 27. Nedham for theâ— the Lessor could not lett But Tenant for life shall not have Covenant for such ousting Nat. br 145. M. 26 Hen. 6. Covenant so for ousting is intended of a term and not of a Freehold for such ousting is a disseisin If it be not exprest Nat. br 145. M. for that declares what ousting was meant by the parties Lessee for years shall have Covenant upon a demise and grant Coke 4. part 80. B. Nokes case 5. part A. Spencers case viz. upon the words demise and grant in the Lease for they imply a Covenant Lease for years with warranty the Lessee outed shall have Covenant 26 Hen. 8.3 pl. 13. by all 9 Eliz. Dyer 257. pl. 13. for the warranty implieth a Covenant for quiet enjoying Tenant for anothers life leases for years with warranty he for whose life the Lease was dies the first Lessor enters Covenant lies 32 Hen. 6.32 pl. 27.9 Eliz. Dyer 257. pl. 13. against the Lessee for life upon his warranty because his estate was but a contingent estate and the warranty supposed t absolute But if it be without warranty it lies not 9 Eliz Dyer 257. pl. 13. for he letts no greater estate than he hath A Covenants to serve B for years and dies no Action lies quia mors omnia solvit 48 Edw. 3.2 B. pl. 4. Finchden Hill 33 Eliz. Ban. Regis Wilson Mapes A Parson leases his Rectory and covenants to save harmless the Lessee concerning the lands and profits for one year against Blunt Blunt enters within the year Covenant lies because it is expressed against a certain person Quaere if it had been generally Lessee covenants that he will not assign his Term over by which it may come to D the Lessee assigns it to K per Curiam Covenant lies for he hath put the power out of him Trin. 13 Jac. Com. Ban. Guines case and it may come to D whether he will or no. Of a Fine levied of Rent a Writ of Covenant lies 22 Edw. 4.2 pl. 6. The Count in Covenant 1. Personal 2. Real The Count was that per Indenturam suam testat existit that the Defendant covenanted so and so this is good but such plea in bar is not good Mich. 7 Jac. Ban. Regis Wyrdnam versus Fankner 2 Mariae 117. pl. 78. but he must plead Covenants performed and tender an issue Prior and Covent leases to two for years with warranty Count. per Indenture rendring Rent one dies after possession the other survives and was sole possest the Prior dies the Defendant fuit electâ—â— praefectus Prior tali die expulsus ejectus est the Survivor by the new Prior and so the Defendant did not hold Covenant made between the late Prior and the said Survivor Lib. Intr. 135. D. sect 2. this is a good Count for the Covenant lies by the Survivor against the Successor Count upon covenants to make a new Lease Com. 2. Chapmans case and good A leases to B for 6 years if C live so long and covenants that he had power to demise it c. B in covenant needs not count that C was in life for if he were dead at the time of the demise yet Covenant lies 2. he need not shew that he had the better right because he did pursue the words of the Covenant negative Coke 9. part 60. Bradshawes case or else it cannot appear it is the Covenant upon which the Action is brought Count by the Lessor against the Lessee that Covenants to pay all charges and pays not the tenths granted per Parliament Lib. Intr. 136. C. sect 4. for the word Charges includes the Tenths for they are charges issuing out of the Land or payable ratione terrae The Count shall be general that he hath broken covenants between them to the dammage c. the other shall say that they are performed the Plaintiff may reply that they are not because he shall have several dammages for every Covenant broken but upon an Obligation he ought to shew in what he hath made a breach because he shall have the forfeiture for one breach 6 Hen. 4.8 pl. 34. if but one breach Tenant for life leases for years rendring Rent the Lessee covenants and is expulsed by him in remainder 1. he ought to count that he was possess'd 2. he ought to shew the estate for life and the remainder certain 9 Eliz. Dyer 257. pl. 13. because it is a special ouster and not by the Lessor and for the first if he were not in possession he cannot be said to be ousted Writ in Covenant 1. Personal 2. Real Rex In Comitat. c. justicies A. quod teneat B. conventionem inter eos factam de quibusdam defectibus in Manerio ipsius B. de N. existentibus sumptibus ipsius A. competenter emendand sicut c. ne amplius c. Regist orig 167. A. This is in the County Court as it seems Rex In Banco c. praecipe A. de B. quod juste c. teneat W. conventionem inter eos factam de viginti acris terrae in K. frumento alio blado competenti seminandis de bladis terris praedict crescentibus metend ad domus ipsius W. sumptibus ejusdem A. in eadem villa cariandis nisi fecerit c. Regist orig 166. A. This in the Common Pleas. The Writ shall be brought where the Covenant was made Nat. br 146. E. 11 Rich. 2. viz. in that County where it is a real Covenant But it is no plea to abate the Writ unless the Deed bears date in another County Nat. br 146. E. than where the Covenant is brought and it may be a Covenant by parol The Writ for outing the Lessee shall be de dampuis de perditis occasione expulsionis c. 9 Eliz. Dyer 257. pl. 13. for if he be not damnified no Action lies The Writ ought to mention all the Executors which did administer 47 Edw. 3.22 pl. 20.48 Edw. 3.2 pl. 4. where an Action of Covenant is brought against Executors for all the Executors are but one Executor in
Statute but the Master sole shall not Hill 11 Jac. Ban. Regis Colledge of Physicians versus Dr. Tenant Lib. Reports title Plaints Q. Debt lies by a Conusee of a Statute or Recognizance Stat. Merchant Staple Conusee According to 23 Hen. 8. Recogn Counsellor Nut br 122. D. 11 Hen. 6.49 pl. 7. 36 Hen. 6.2 pl. 2. 39 Hen. 6.3 pl. 5. 22 Eliz. Dyer 369. pl. 52. 13 Rich. 2. bre 649. upon the Statute or Recognizance Debt upon a retainer to be his Counsellor for 40 s. per annum but then he ought to count that he was of his counsel or was ready to be 37 Hen. 6.8 B. Prisott if required But if I retain a Sergeant at Law for A he shall not have debt for his salary against me 31 Hen. 6.9 B Fortescue for he is retained for his Client and it is reason he should pay him Executor Executor shall have debt for a debt due to the Testator 11 Hen. 6.7 for he is in place of the Testator Executor of an Executor shall have debt 25 Edw. 3. Ca. 5. sic in infinitum as it seems Executor shall not have debt before probat of the Testament 7 Hen. 4.18 Coke 5. part 28. A. Midletons case Com. 278. Foxes case Perkin 193. for before that he is not Executor in the eye of the Law But if pendente breve the Testament be proved it sufficeth Pasch 43 Eliz. Com. Ban. Walmesly for that relates to the death of the Testator and so includes the time of hanging the Action Feme Rent services granted to the husband and wife for life the husband dies the wife shall have the Arrearages that did accrue in the life of the husband and debt for them after the estate ended 29 Edw. 3.40 pl. 19. for here is a surviving estate in the wife Grantee of a Reversion Annuity Grantee of a Reversion shall not have debt for Rent upon a Lease for years before Attornment Nat. br 121. N. for before Attornment the Reversion passed not But a Devisee shall have it Nat. br 121. N. Mich. 14 Jac. Ban. Regis Bayliffs and Burgesses case of Ipswiche for there it passeth by the will So Bargainee shall have it Coke 3. part 24. A. Walkers case for it passeth by enrolment of the Deed. Heir A is bound to B and his heirs B dies his heirs shall not have debt Nat. br 120. I. but the Executor but contrary where A binds himself and his heirs to B. But if a penalty be granted to one and his heirs then the heir shall have debt Nat. br 120. M. 11 Hen. 4.84 28 Hen. 8. Dyer 24. pl. 149. for that is a present duty wherein the heir hath interest The heir shall have debt for the reasonable part of the goods where the custome gives it him Nat. br 122. L. for this is a customary duty for which the Law will give a remedy But if there be no such custome it lies not Regist orig 142. B. 40 Edw. 3.38 pl. 19. 7. Edw. 4.20 pl. 23. 30 Edw. 3.26 A. seton Regist orig 141. B. for the Common Law takes no such notice of the heir to have any goods as heir For the Statute of Magna Charta is but one forspris and for that an Action shall not be founded upon it vide Lib. Intra 541. by reason of the incertainty of the meaning of the Statute in that point But Nat. br 122. L. Glanvill Lib. 12. cap. 20. 17 Edw. 3.9 pl. 29. this is by the Common Law quaere Custome that the heir shall have the principal Chattels c. he shall have debt for them 30 Edw. 3.2 pl. 9. 39 Edw. 3.6 pl. 24. fol. 9. pl. 15. The Law takes notice and maintains ancient Customes Lessor Lessor shall have debt for Rent reserved upon a Lease at will Coke 5. part 10. Hensteads case Littleton 15. by reason of the privity of the Contract betwixt the Lessor and the Lessee And so for a Lease for years 7 Rich. 2. this seems a stronger case Tenants in Common make a Lease rendring Rent they ought to joyn Littleton 72. in the Action in respect of their joyning in the Lease and so a joynt interest passed Ordinary The Ordinary shall not have debt because he hath not absolute interest in the things of the Intestate Coke 9. part 33. Hensloes case Nat. br 120. D. but hath it only as a Conduit-pipe to derive it to others to whom the Law directs Parson A Parson shall have debt for not setting out of Tithes by the Stat. of 2 Edw. 6. cap. 13. and recover treble dammages Physician A Physician shall have debt for Physick and Diet Lib. Intra 187. B. Sect. 1. upon a quantum meruit if there be no special contract Recusant Recusancy shall be pleaded in disability for such Lands and Tenements which are not seized into the Kings hands 3 Jac. cap. 5. in disability of the person to sue Q. Robbery The party robbed shall have an Action against the Hundred per le Stat. 27 Eliz. cap. 13. But he ought to bring his Action within the year after the Robbery done 27 Eliz. cap. 13. And the day of the Robbery shall be accounted parcel of the time Pasch 15. Jac. Com Ban. per 2 Justices as it seems because the Law is penal Quaere tamen Steward Steward of a Court retained by word for such a sum per annum shall have debt for his salary 8 Eliz. Dyer 248. pl. 79. Coke 4. part 30. A. Servant Servant shall have debt for his salary 11 Hen. 6.10 pl. 20. upon the contract which created a duty One retained in England to do service beyond the Sea shall have debt in England where the retainder was Nat. br 120. E. and not where the service is done because it is beyond Sea aliter quaere Servant retained by a Corporation without deed shall not have debt for his salary 4 Hen. 7.6 Com. 91. B. for such Retainer is null in Law and the Servant could not have been compelled to serve Successor Sole Corporation consists of one person One sole Corporation shall not have a personal thing in Succession Coke 4. part 65. A. Fulwoods case 19 Hen. 6.44 pl. 94. 20 Edw. 4.2 vide 32 Hen. 8. Dyer 48. pl. 14. for personal things cease with the person Unless the Custome will warrant it Coke 4 part 65. A. Fulwoods case Custome if it be not unreasonable makes a Law But a Corporation aggregate that is consisting of many persons shall have an Action for a personal thing in succession Coke 4. part 65. A. 20 Edw. 4.2 Master of an Hospital recovers dammages the Successor shall have them 19 Hen. 6.44 pl. 94. for the benefit of the house Abbot recovers dammages in battery and is removed or created Bishop his Successor shall have them because he recovered them but to the use of his house 22 Hen. 6.4 B. for he could sue in no other
Purveyor contracts for fat wares for the King Purveyor and makes a Bill of receipt to the use of the King and for this obliges himself to pay it but seals it not he shall be charged by Assumpsit and the King by Debt and by no other way 8 Eliz. Dyer 230. pl. 56. in an Action upon the Case upon his promise only for it is the Kings Debt and not the Purveyors Debt lies against a Receiver Receiver which takes more than he ought per 7 Edw. 6. cap. 6. Lib. Intr. 191. B. sect 1. com 201. Stradlings case for that shall be accounted money borrowed only An Abbot shall be charged with the borrowing of his predecessor Successor if it come to the use of his house Nat. br 121. K. Lib. Intr. 152. A. sect 1. but not otherways The Count shall be general Coke 7. part 10. B. Vghtreds case and he needs not shew it for it shall be so intended Praecipe societati Lombardiorum London mercatorum de Florentia Society and this was good 19 Hen. 6.80 pl. 11. for they are in nature of body Politick Sheriff Under-Sheriff Debt upon an escape of one in execution upon an account it lies per Westm 2. cap. 11. and as of the Debtor per 1 Rich. 2. cap. 12. For not returning a Knight of the Parliament per 23 Hen. 6. cap. 15. the Count com 118. Buckleys case Lib. Intra 186. A. sect 1. antea for the penalty given by the Statute A Sheriff takes an obligation for Appearance of the Defendant which doth not appear yet debt lies not against the Sheriff by the Plaintiff Trin. 13 Jac. Com. Ban. if he return a Cepi but an Action on the Case lies and the Sheriff may bring his Action upon the Bond. Outlawed person It lies against a person Outlawed Mich 38 39 of Eliz. Com. Ban. Banister versus Trussel No. Lib. Intr. 248. A. 7 Hen. 6.10 for another debt or in another Action Q. For what things Debt lies It lies for money lent to another Lent Nat. br 119. G. this most properly For a Horse lent till such a day and then to give 10 l. for him or the Horse after the day debt lies for the one or the other Nat. br 121. B. at the election of the Plaintiff but before the day or at it it was in the Defendants election A borrowed money for the Servant Debt lies not against the Master unless it came to his use or was borrowed by his assent Doct. Stud. 137. A. antea Upon a delivery to redeliver debt lies Bailment if it be not redelivered 28 Hen. 8. Dyer 22. pl. 135. 11 Hen. 6.39 pl. 31. 4 Edw. 3.9 pl. 7. although the Receipt be not by deed Upon a delivery to redeliver over to another if it be not performed debt lies 28 Hen. 8. Dyer 22. pl. 135. 11 Hen. 6.39 pl. 31. 42 Edw. 3.9 pl. 7. Mich. 40. 41 Eliz. com Ban. Britons case for no property was altered But 6 Hen. 4.8 pl. 33. if A. ought to pay an Annuity in see to B. and deliver money to C. to pay it to B. yet B. shall not have debt against C. for there is no trust or privity between them Lease for life of another debt lies not for the Rent during the term Contract Coke 4. part 49. A. Ognels case vid antea it lies by cestuy que vie But by the 32 Hen. 8. cap. 37. the executors or administrators shall have debt during the estate for life Coke 4. part 49. A. antea But after the estate ended debt lies Coke 4. part 49. A. for then there is no other remedy So it is by the death of the Lessee Coke 4. part 49. A. antea Or by Limitation of the term Or by condition Antea in deed 39 Edw. 3.22 pl. 11. Nat. br 120. H. Coke 23. B. 6 Hen. 7.3.30 Edw. 3.7 in Law Statute Law 19 Hen. 42. A. waste Common Law Lease for years by a Bayliff the Master shall have debt for the Rent Lib. intra 174. D. sect 3. for it is accounted the Lease of the Master for no interest passeth from the Bayliff being but an instrument only A Corporation made a Lease for years rendring to P. 10 l. at Mich. or 20 days after after verdict it was moved in arrest of judgment that they shewed not the deed sed non allocatur because it was after verdict and so the Lease was sound 2 good although they had brought debt for the rent due for 6 years ended at Mich. to P. and not 20 days after for the rent was due at Mich. Mich 9 Jac. Ban. Regis Baldry defendant in debt by the Corporation of Brewers Bargainec of a reversion in debt for rent ought to shew in what court the Deed was enrolled Mich. 9 Jac. Ban. Regis Welby Putley by which the reversion was granted for the enrolment is traversable and must be punctually set forth and the enrolment may be in divers places for that the debt cannot take notice where Debt lies for the agistments for Cattel for so long time as they went in such Lands Agistment Lib. intra 150. A. sect 1. count Lib. intra 151. A. sect 1. but then he must shew the certainty of the time and sum A. promises 20 l. to B. to marry his Daughter Marriage-money B. shall have debt Nat. 120. K. count Lib. intra 178. A. sect 1.37 Hen. 6.8 pl. 18.16 Hen. 3. prohibition 22. for the consideration creates a duty if performed But if he promise 20 l. in marriage with his Daughter he shall not have debt but shall sue in court christian Nat. br 50. S. 16. Hen. 3. pro 22. vide Regist 46. B. Q. differentiam It seems because no Money is promised him But if it be by deed then it is otherwise see 45 Edw. 3.24 for the Deed is triable at the Law though the Marriage be not but in the Spiritual Court Bracton Lib. 5. cap. 16. Sic de rebus datis ul promissis ob causam matrimonii principaliter Regula se de rebus quae accidunt matrimonio ut si pecunia promissa fuerit ob causam matrimonii quia ejusdem juris id est jurisdictionis esse debet accessorum cujus est principale The Marriage is the principal and the Portion the accessory Upon Partition betwixt two Partition one promiseth the other 20 l. for equality of partition debt lies for it Nat. br 122. H. 14 Edw. 3. Debt 137. if it be not paid for the promise upon the partition made it a Duty Rent upon a personal thing If a personal thing be leased rendring rent debt lies for it Coke 3. part 22. A. Walkers case as a Horse Sheep or the like the loan implies a duty upon the contract An Attorney shall have debt for his fees Salary and for fees of counsel and costs of suit Nat. br 121. L. Count Lib. intra 202.
is an escape in the old Sheriff but not in the new for the new is not charged with him but if the old Sheriff die the other ought to take notice of the prisoners but if the escape be in the vacancy viz. before the new Sheriff is elected and sworn debt lies not Coke 3. part 71 72. Westbyes case 10 Edw. 3.375 pl. 28. for before he was not chargeable for he was no offender in Law If one be in execution yet debt lies against the Sheriff 7 Eliz. Dyer 241. pl. 47. 16 Edw. 4.3 pl. 7. Q. de hoc The Plaintiff and chief Justice assent for â—oe time that the prisoner shall go at large and after he suffers an escape debt lies 10 Eliz. Dyeâ— 275. pl. 46. for this was not a finall discharge dâ— the prisoner Q. A capias upon a recognizance in Chancery the party taken escapes debt lies Coke 8. part 142. Druries case for this is in nature of an execution The Writ was that 6 were in execution and escaped and the doubt was whether they might count for one only and by the better opinion 〈◊〉 was good Crooke 26 Hen. 7.67 pl. 11. Q. If one be Marshal of the prison whether it be by right or wrong Marshal debt lies against him 39 Heâ— 6.33 A. for the Plaintiff is not to examine his Title Count that he was in execution in C and removed to the upper Bench prison and committed to the Marshal which suffers him to escape debt lies 38 Hen. 6.28 pl. 10. for it is all one as I he had been originally committed thither Deputy of a Marshal suffers an cescape â—eputy debt lies against him 11 Eliz. Dyer 278. pl. 5. viZ. the Marshal himself Q. if not against the Deputy Debt lies against a Mayor of the Staple upon recognizance taken before him Mayor de Staple 5 Hen. 6.11 Heâ— 6.49 B. 12 Hen. 6.2 pl. 9. if he suffer 〈◊〉 Prisoner to escape The count Lib. intra 171. D. sect 6. Dean and Chapter of Pauls having return 〈◊〉 Writs Lord de Franchize and making a Bayliff that suffers an escape Action lies not against the Dean and Chapter because cause they are not Bayliffs Pasch 14 Eliz. Com. Ban. but against the Bayliff for he is the Officer the Law takes notice of Q tamen For a Nomine poenae granted this is casual yet debt lies for it Nat. br 120. M. 2 Hen. 8.8 Dyer Grant penalty 24. pl. 149 for it is a duty ab origine if forfeited And this is but hac vice if there be no other words to shew the continuance of it 32 Hen. 6.10 A. Billinge And so upon any grant hac vice certain or uncertain Q. 2. Annuity or Rent-charge granted for years Annuity debt lies not during the term But the 5 Edw. 4. 42 B. debt lies and it seems this is Law if it lie not it seems it is because the Grantee may distrain and charge the Land But against a customer it lies if it be to be paid out of the customs of London after delivery of a Liberate Nat. br 121. F. for then it is a duty vested It lies for Executors or administrators of the Grantee per Stat. 32 Hen. 8. cap. 37. viz. of an Annuity or Rent-charge And after the term ended it lies for the Grantee Lib. Intra 151. C. sect 1. for then there is no other remedy for it 3. Annuity for life For Life debt lies not for this during life 19 Hen. 6. 42 A. 37 Hen. 6.35 A. But a Distress or a Writ of Annuity and the Land is chargeable But against a customer it lies Nat. br 121. F. â—ntea for his person is chargeable ratione officii Also if a Parson or Prebend c. hath such annuity and resigne or be dispossessed it lies for the arrerages Coke 4. part 48. B. Ognels case For by his resignation it is meerly a personal thing and the Land is not chargeable So his Executors shall have debt by the common Law Coke 4. part 49. A 22 Eliz. Dyer 37. pl. 62. Coke 10. part 61. B. For it is accounted part of the Testators personal estate But if it be a Rent-charge seck or service debt lies not for any so long as the Estate continues Coke 4. part 49. A. Ognels case For there the person is not chargeable Although it have continuance but to a special intent Coke 7. part 39. B. For the Law takes not notice of such intents but looks on it as upon a continuing Estate But after it be determined debt lies for the party or his Executor Coke 4. part 49. Ognels case Nat. br 121. E. Coke 4. part 49. Ognels case 27 Hen. 6.1 pl. 4. because the realty is resolved into the personality and so the person chargeable 4. Annuity in Tayl general or special debt lies not during the annuity Coke 4. part 48. B. for the former reason So of a Rent-seck service or charge vid. antea But if the estate be determined quaere at the common Law But by the 32 Hen. 8. cap. 37. the Executor or Administrator shall have debt for the Arrerages Annuity in fee during the annuity debt lies not Annuity or Rent in Fee Coke 4. part 48. B. 6 Hen. 4.7 pl. 33. Unless it be in a special case as when a Parson or Prebend resignes Coke 4. part 49. A. Nat. br 121. D. 19 Hen. 6.41 42. Nat. br 121. Hâ—ntea For there the estate is determined as to him that resignes So if a Parson dies his Executors shall have debt Nat. br 120. L. Coke 4. part 49. A. 37 Hen. 6.8 pl. 18. For there is no other remedy for to recover it And by the 32 Hen 8. cap. 37. the Executors or Administrators of every one shall have debt But after the Annuity determined every one shall have debt by the common Law Coke 4. part 49. A. 45 Edw. 3.45 execution 71. Judgment given In Court of Record Superior Parliament Ban. Regis Chancery Com. Ban. Exchequer Prescription Inferior by Custom Patent Common-Right Not of Record Court Baron For principal County For dammages and losses Ancient Demesn in any Mannor For Fine or Amerciament Out of Court Statute Marchant Staple According to 23 Hen. 8. Recognizance Account at common Law Arbitrement By Law or Ordinance Judgment given in debt for the principal If a man brings debt upon a recovery in com Ban. he ought to bring it in Middlesex where the Record is because it is the Original upon the which the Action is brought but a scire facias to execute a Judgment shall be where the original Action was brought because it ought to follow it Hil. 9 Jac. Ban. Regis Musgrave versus Wharton for the scire facias is in pursuance of it and to have execution upon it Upon Arrerages recovered in a scire facias upon a Judgment in Annuity brought against the predecessors debt lies upon it Nat. br 122. E. 22 Edw. 4.1 pl. 6.
be recovered but only damâ—â—â—ges Note also he shall recover dammages but for 〈◊〉 Ejectment Coke 9. part 80. A. Peytoes case 〈◊〉 here is no detainer and so no possession to be divered by a habere facias possessionem If the term be ended he shall recover all in â—â—â—mages 7 Edw. 4.6 Fairfax No. Lib. Intra â—â—5 D. Sect. 9. Vid. antea Judgment upon demurrer First for the Plainâ—â—â— Com. 526. Granthams case Secondly for the Defendant No. Lib. Intra 197. C. Sect. 6. presidents 〈◊〉 both Judgment for the Defendant upon a Non-suit â—ther Evidence delivered to the Jury No. Lib. â—â—tra 189. B. Sect. 2. viz. for the costs Quare Impedit Ne admittas Quare non admisit Quare incumbravil IMpedire est pedem ponere in jus alienum Quid. quiâ— quis habet in jure praesentandi Bracton lib. 4. cap. 6. sol 247. A. Haee dictio Impedit componitur do in 〈◊〉 pes unde revera ille impedit qui nititur 〈◊〉 pedem ponere in jus alienum ubi nullum jas 〈◊〉 competit nec proprietatis nec possessionis Bractâ—â— lib. ibidem An Advowson is an interest to present an able man to a Benefice 5 Hen. 7.38 B. Brian and Townsend Advocation est incorporalis est jus praesent and ad Ecclesiam vacantem Bracton lib. 2. fol. 53. A. Jus Patronatus est Honorificum to be Patron 〈◊〉 Protector Vtile to advance his Friend Onerosum a burthen to his conscience if he present one not able Quart for he is not Judge of the Ability but the Ordinary In what Court it lies Bracton Lib. 3. fol. 160. A. Immediate in â—uria Domini Regis terminari debent placita de advocationibus Ecclesiarum quia si alius à Rege mandaret Episcopis de admittendo Clericum ipse non obumperabit alius à Rege coâ—rcionem non haberet quia Episcopus ad alterius mandatum quà m Regis Clerieum admittere non tenetur per consequens 〈◊〉 temporis Rex habebatur caput Ecclesiae Stat. de H. 8. factum fuit solummedo in affirmatione legit Quare Impedit of an Advowson in Wales ought to be in Com. Ban. in England and shall be tried 〈◊〉 the County next adjoyning to Wales and the reason is because the Lords there have not power to send to the Bishop 36 Hen. 6.33 B. Forteseue 35 Hen. 6.30 pl. 35. 3 Edw. 3.163 pl. 35. 8 Edw 3.319 pl. 15. 24 Edw. 3.3 pl. 26. for the King is Supream Head of the Church in all his Dominions No plea to the Jurisdiction to say that it is Ancient demean because they cannot in their Court award a Writ to the Bishop 7 Hen. 6.35 for the former reason no Liberty or Franchise can be endowed with this high prerogative In Ban. Regis it lies for the King for he may sue there if he pleases Nat. br 32. G. 47 Edw. 3.4 pl. 9. or in the Exchequer as it seemeth It seems also that it lies in Banco Regis for a common person The King grants Majori Ballivis juratis Quinque Portuum that they shall not be impleaded for no Land in no Court nor for other cause unless it be within the Five Ports scil at Shepway before the Warden of the Five Ports this extends not to a Quare Impedit 21 Hen. 7.88 pl. 7. Crooke for that is intended for Temporal matters only Who shall have a Quare Impedit He that is out of the possession of the Advowson shall not have a Quare Impedit Note which a man may be five ways 1. by Presentation 2. by discontinuance of the Land to which the Advowson was appendant c. 3. by Disseisin 4. by Descent 5. by Recovery in the Writ of Right of Advowsons or Quare Impedit He that is out of possession of an Advowson cannot Present and therefore cannot be hindred and so the Writ cannot lie for a Writ must suggest the truth else it is naught Husband and Wife having an Advowson in jure uxoris they shall joyn in a Quare Impedit Coke 5. part 57. Specots case 50 Edw. 3.13 pl. 4. 7 Hen. 7.2 B. 38 Hen. 6.3 pl. 9. 28 Hen. 6.8 pl. 3. for the Wife is interested in the jus Patronatus notwithstanding her marriage But the Husband may bring this without the Wife 14 Hen. 4.12 pl. 12. 22 Rich. 2. br 937. for the particular wrong done to the Husband in hindering him to present hac vice The Church is void the Wife dies the Husband shall have the Quare Impedit because the Presentation was a Chattel vested in the Husband 21 Hen. 6.56 because the Church became void during his wites life The Husband presents and after they are divorced the Husband shall have the Writ 31 Hen. 8. br Divorce 8. if he be hindred in this presentation for the Divorce shall not look back Cestui que use shall not have it Cestui que use but the Feoffees of the Land for the presentation is always firm to the Advowson which is in the Feoffees Crooke 17 Hen. 7. A. Frowick ibidem 2 Hen. 8.160 B. pl. 1. Q. if the Statute of Uses alter not the Law in this point The Lord Chancellor shall present to all Churches under 20 Marks per annum Chancellor which are belonging to the Crown but not if the King have them by other Title Nat. br 35. K. 38 Edw. 3.3 pl. 14. Com. 528. B. as by Purchase Attainder c. But vide Br. Praescript 86. that at this day the Chancellor presents to all under 20 l. per Annum Twenty Marks anciently was more than 20 l. in succeeding times and that may be the reason The Defendant shall have a Quare Impedit against the Plaintiff if his Clerk be not Instituted Defendant Nat. br 35. C. for without it he is not a perfect Incumbent The elder Brother presents and dies Half-blood the Brother by the half-blood shall not have the next Avoidance Nat. br 36. E. 3 Hen. 7.5 because as it seems he shall not be inheritable of the Advowson But the 19 Edw. 2. Quare Impedit 177. Contra Ergo quaere for he may come in by the Father or Grandfather as Heir to them Two Sisters by several venters make composition for the Presenting and one dies before Presentment the other shall have it Nat. br 36. E. for the Agreement lasts but during their lives and the Executor shall take no advantage of it Corporation Bishop Ratione Patronatus The Bishop shall have a Quare Impedit ratione Patronatus if he be disturbed Patronage of a Deanary belongs to him of common right 17 Edw. 3.40 pl. 17. yet the King used of late times to bestow them The Bishop shall have a Quare Impedit ratione Lapsus for by the Lapse a Title to present accrues to him hac vice and the Writ shall be general but the Count shall be of the Collation Nat. br 33. D. 17 Edw. 3.64 pl. 69. Lib. Intra
passed with the Mannor by the Feoffment But 33 Hen. 6.33 Prisot to the contrary for there it is said that until Recovery the Disseisee shall not have the Advowson Q. Disseisor dies seized of a Mannor to which the Advowson belongs the Disseisee shall not have a Quare Impedit 24 Hen. 8. Dyer 5. pl. 6. 33 Hen. 6.33 B. vide 19 Hen. 6.33 in respect of the descent which takes away his entry into the Mannor and so he must recover the Mannor before he can have the Advowson But if it void in the time of the Disseisor the Disseisee shall have it although the Disseisor died seized afterwards of the Mannor to which c. 24 Hen. 8. Dyer 5. pl. 6. for there was no descent barr when the Church became void and so it was a Chattel vested A Disseisor suffers a Usurpation Disseisee enters into the Mannor Disseisee shall have a Quare Impedit Nat. br 36. F. 14 Hen. 6.14 3 Hen. 4.7 for the usurpation is defeated by the entry of the Disseisee Executor of the King shall not have a Quare Impedit Executor but the Successor of the King for this is a Chattel Royal 7 Hen. 4.25 pl. 3. 1 Edw. 3.17 pl. 8. 5 Edw. 3.149 pl. 15. which shall not go to an Executor for it is vested in the Crown Executor of a Common person shall have a presentment to a Church which was void in the time of the Testator although the Testator were but Tenant in tail Nat. br 33. P V. because it was a Chattel vested in the Testator Although the Heir be in ward to the King Nat br 33. R. for the King in respect of the Wardship shall not be in a better condition than the Heir should have been if he had been at full age at the death of his Ancestor If one recover in a Quare Impedit and die the Heir shall not have execution but the Executors 9 Hen. 6.57 A. Rolfe for the recovery made it a Chattel vested in the Testator At the Common Law the Infant was bound by suffering an Usurpation Enfant 35 Hen. 6.6 that is to suffer one to present in his stead 31 Edw. 3. Quare Impedit 186. 10 Edw. 2. Quare Impedit 43. for the Common Law respects the Churches good before Infants Widows or Orphans although it be tender of all But at this day he is not per Westm 2. cap. 5. The Law before seemed too hard against Infants who may be presumed not conusant of the Law and ignorant of his title Unless he be a Purchaser 10 Edw. 2. Qu. Imped 43. 35 Hen. 6.60 Nat. br 31 34. It seems he is not within the Statute He may if a Purchaser be presumed not so well conusant of his title as if he had it by descent Or that the party that usurps be remitted to an eigne title Nat. br 35. M. for then the presentation did not belong to the Infant If he suffer Usurpation having it by descent he is bound till full age 16 Edw. 3.9 Quare Impedit 62. for he shall be judged better conusant of such estate than of a purchased estate and he might have presented himself And if in his minority he suffer Usurpation and at full age enfeoff B of the Mannor to which c. yet B shall not be in Nat. br 34. X. because it was out of the Feoffor at the time of the Feoffment and so it passeth not But by 16 Edw. 3. Quare Impedit 67. Coke 6. part Boswels case the Infant is also bound in all these cases Q. Feme Covert The Usurpation at the Common Law shall bind a Woman Covert 35 Hen. 6.6 Prisot 31 Edw. 3. Quare Impedit 180. 10 Edw. 2. Quare Imped 43. vid. antea The husband suffers an Usurpation where the Woman is the purchaser she shall not have a Quare Impedit but the husband but if she had it by descent she shall have the next turn per Westm 2. cap. 5. Nat. br 34 S. to present The husband discontinues one Acre of his wives Mannor to which an Advowson is appendant with the Advowson the wife may not present unless after the Alience sever the Advowson from the Acre Nat. br 32. 17 Edw. 3.5 pl. 12. for then the Advowson is not appendant to any thing Feoffee or Grantee 1. of the King 2. of another The King grants the Advowson in Fee the Church being void the Grantee presents Nat. br 33. N. for the grant shall be taken most beneficially for the Grantee But this is intended when the King hath but one Title to the Advowson 10 Eliz. Dyer 269. pl. 19. 9 Edw. 3.26 Stamford Praerogat 44. 16 Hen. 7.7 18 Edw. 3.22 A. Pole for if he have two the Grant shall not be taken to two intents For if he had two Titles the Grantee shall not present 13 Eliz. Dyer 300. pl. 36. 18 Eliz. Dyer 300. pl. 36 Eliz. Dyer 348. pl. 12. for it is incertain which Title was granted nor can be known with what Title he presents But 9 Edw. 3.348 pl. 24. the orders of the Templers were dissolved the Church belonging to them to present to voids and after the Advowsons c. appendant to their mannors were given to the Hospitallers per Parliament the King shall not have the presentation for here the King had but one Title and also acts of grace shall be construed largely against the King A Common person grants the Advowson in Fee when the Church was void the Grantee shall not have the presentation because it is a thing in action 11 Hen. 4.54 which lies not in grant but may pass by Act of Parliament So of a Feoffment of Land to which an Advowson is appendant 24 Eliz. Staffords case the Church being void at the time of making of the Feoffment But if the Feoffment be upon condition and the Church becomes void and afterwards the Feoffor enters for the Condition broken the Feoffee shall present because it is a Chattel vested in him 24 Edw. 3. before the entry of the Feoffor If there be a Feoffment of the third part of a Mannor the Feoffee shall not have the third presentment 6 Edw. 3.215 A. for the Advowson is not appendant to it for it cannot be appendant by parcels Unless it be with three presentments 9 Edw. 3.341 pl. 31. viz. where three present to the Advowson by turn Q. Grantee of the next Avoidance shall have a Quare Impedit 39 Hen. 6. Quare Imp. 95. for he hath a good Title to present hac vice The Count Lib. Intra 520. D. And if the Grantee of a Mannor to which an Advowson is appendant levies a Fine of the Advowson yet this puts him not out of possession of the Advowson 19 Edw. 3. Quare Imped 154. because it puts him not out of possession of the Mannor to which it appertains Grantee by Parliament suffers a usurpation this doth not put him out of possession 16 Hen. 7.8 Keble because he is in by
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
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.
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
Orphan to A. they shall have an Account against A. at the full age of the Orphan 8 Rich. 2. guard 166. A. devises to his Executors that they shall sell his Land and that his daughter shall have part of the money she shall have an Account at the Common Law 4 5 Mariae Dyer 151. pl. 5. A Lunatick shall have an Account against the Committee Lunatick when he comes to his sound memory for the Committee is but in the nature of a a Baily 28 Hen. 8. Dyer 26. pl. 164. Coke 4. part 127. b. Beverley's Case An Executor shall have an Account Executor Nat. br 117. C. 3 Edw. 3.66 7 Edw. 3.269 5 Edw. 3.141 pl. 7. But this was by Westm 2. cap. 23. And if one hath Judgment against a Baily upon an Account and dieth his Executors shall have a Scire facias 14 Hen. 4.1 upon the Judgment Executor of an Executor shall not have an Account per Westm 2. cap. 23. 7 Edw. 3.270 pl. 54. But this was given per 25 Edw. 3. cap. 5. pl. Com. 290. Filius haeres domini dofuncti non habebit Breve de Computo super Ballivum quia pertinet ad executionem administrationis bonorum defuncti Regist Orig. 135. b Husband receives the profits of the Lands of his wife and dies the wife shall not have an Account for the profits during the Coverture against the Executors of the husband Nat. br 119. A. Joynt-tenant makes his Companion his Baily he shall have Account against him 21 E. 3.60 pl. 5. Q. Two Joynt-tenants of a ward one takes all the profits the other shall have an Account Nat. br 118. J. 39 Edw. 3.28 pl. 25. 45 Edw. 3.1 Q. Two Joynt-occupiers of a house and Merchandise one shall have Account against the other as Baily of the house and Merchandise Lib. Intra 18. Sect. 6. Terre-tenant shall have an account against Tenant by Elegit but this is only by Scire facias Old Nat. br 24. 21 Edw. 3.26 pl. 21. fol. 10. pl. 13. 21 Edw. 3.2 pl. 60. 5 Edw. 3.159 pl. 20. Conusor shall have it in the same manner against the Conusee Coke 4. part 67. b. 47 Edw. 3.11 pl 9. 25. pl. 63. Prior Abbot or Master of an Hospital shall have an Account for the time of their Predecessor Nat. br 117. F. Regist orig 135. b. 4 Edw. 3.100 pl. 8. 25 Edw. 3.545 pl. 19. 28 Edw. 3.90 30 Edw. 3.1 If one make another Baily of his Mannor c. he shall have an Account against him as Baily Nat. br 116. D. Breve fuit quod reddat c. M. sociis suis mercatoribus de societate de D. in Flandria rationabilem computum this is naught 5 Edw. 3.138 pl. 39. for the generality of it The King may make a Bayliff of a Mannor and shall have an Account against him 33 Hen. 6.2 pl. 10. and fol. 29. b. pl. 2. Against whom an Account lieth as Baily 1. of a Court or Hundred 2. of a Mannor c. A. having a Bailywick makes B. his Under-Baily to gather the Amercements he shall have an Account against him 3 Edw. 3.54 pl. 24. If one enter into my land to my use 2. Baily in Law and take the profits I shall have an Account against him as Baily in Law Nat. br 117. A. An Infant purchases Lands his parents occupy this he shall have Account against them as Bailies in Law Nat. br 117. b. Non jacet versus Executores quia mere pertinet ad curam Christianam cognoscere de Computo reddendo versus Executores Regist origin 135. b. Nat. br â—â—7 C. Littleton 48 Edw. 3.2 4 Edw. 4.25 But if an Executor will account though not compellable debt lieth for the Arrearages due upon the Account 2 Hen. 4.13 P. 2. And if a Baily be found in Arrearages before Auditors his Executors shall be charged if they have Assets 11 Hen. 4.84 fol. 19. pl. 48. It lieth not against a Deputy-Baily Nat. br 119. B. 4 Edw. 3.100 pl. 8. because the Head-Baily is chargeable It lieth not against an Infant 118. D. Nat. br because he hath not discretion to Account 21 Edw. 3.8 pl. 21. Regist origin 135. A. Also he cannot wage his Law 26 Edw. 3.63 b. for he cannot take an Oath It lies against a Woman Nat. br 118. D. 19 Hen. 6 4 pl. 10. Two Joynt-tenants of wood one sells all and takes the money the other shall not have an Account against him Doct. Stud. 32. b. It lies not against a Surveyor or Controller Nat. br 119. C. The King shall have an Account against any person that takes the profits though he claim them to his own use per Prerogativam Coke part 11.90 Devoushers Case 35 Hen. 6.27 b. Nottingh 8 Eliz Dyer 249. pl. 83. The King shall have an Account against an Executor Littleton Coke 11. part 89. B. Devoushers Case per Prerogativum For what things Account lieth against a Baily 1. of a Court c. 2. of a Mannor c. Crook 21 Hen. 7.75 pl. 23. Account against one as Baily Burgi sui de B and good Account against one as Baily of a Mannor Nat. br 116. P. Account against a Steward of an House and of Goods in it 14 Hen. 4.20 9 Edw. 3.356 pl. 40. Account for the delivery of three Tuns of Wine sold 43 Edw. 3.2 pl. 11. 46 Edw. 3.3.3 pl. 6.13 Rich. 2. Account 50. For Herrings delivered and sold 46 Edw. 3.9 pl. 4. For four sacks of Wool delivered and sold 9 Edw. 3.359 pl. 38. Tenant per Elegit accounts for the overplus Old Nat. br 34. 21 Edw. 3.26 pl. 21. A man accounts for the profits de c. Nat. br 118. B. A Baily of Woods accounts for Herons and Hawks 14 Edw. 3. Account 131. Moubrey Arrearages of Rent upon a Lease for years or at will lies not in Account for nothing certain lies in an Account 19 H. 6.20 pl. 67. 20 H. 6.16 pl. 2. as the Rent is but an Action of Debt So of Goods leased with a House although they are wasted 20 H. 6.16 pl. 2. So for a Custome that one shall gather Rents and take the toll and pety Customes payable to the Lord 22 l. annuatim because he pays a certain sum 11 Hen. 6.14 pl. 4. The Count against a Baily 1. of a Court or Hundred 2. of a Mannor c. Counts that from such a day to such a day he had the administration de bladis foenis equis bobus vaccis porcis bidentibus carucis ac de omnibus aliis rebus c. de c. ad merchandizandum proficuum faciendum c. ad rationabilem Computum c. Lib. Intra 17. A. Sect. 1. vide more Lib. Intra 17. a b. sect 1 2 3 4 5. fol. 17. b c. sect 1 2 3 4 5 6. The Plaintiff ought to Count that the Defendant was Baily of the Mannor-house and Lands c. and yet it is