assets for it shall be intended unless the contrary be shewed 18 Eliz. Dyer 344. pl. 2. 11 Hen. 6.2 pl. 6. and if he have not he may plead riens per descent For nothing by descent in Fee-simple is a good bar by him Lib. Intra 172. B. Sect. 1. the day of the purchase of the Writ But debt lies not against an heir upon a Statute-Merchant Staple or Recognizance because he is not bound Coke 3. part 15. A. Harberts case but the Lands are bound and may be extended Goaler suffers an escape his heir shall not be charged 15 Eliz. Dyer 322. pl. 25. for this is a personal wrong and only dammages recoverable Grandfather Father and Son or Father and his two Sons or Grandfathers two Sons who have two Sons the heir mediate shall be sued in debt as well as if they were immediate heirs 22 Dyer 368. pl. 14.7 Eliz. Dyer 239. pl. 39. that is in case the heir immediate die for the heir mediate is bound by the word Heir A Right shall not be Assets for it is a disputable thing and no certainty of it to be reduced into possession What shall be Assets to the Heir Disselsee obliges him and his heirs and dies this is not Assets for it is but a Right descended Pasch 6. Jac. Com. Ban. Molineux versus Molineux for his Ancestor died out of possession Right without an estate in Possession Reversion or Remainder is not Assets until it be reduced into possession Coke 6. part 58. Bredimans cases and then it shall release to the time of the death of the Ancestor Land in ancient demesn shall be Assets 7 Hen. 4.14 pl. 11. Q. to whom and where pleadable Copyhold Land is not Assets to the heir Coke 4. part 22. A. for it doth not descend but depends upon the Lords admittance If an heir alien bona fide before the Action brought it shall not be Assets Coke 5. part 60. A. Gooches case 27 Edw. 3.78 pl. 16.10 Hen. 7.8 pl. 17. 19 Hen. 6.46 pl. 95. 42 Edw. 3.10 pl. 12. 48 Edw. 32. pl. 22. Vid. antea for he is not tied from sâ—lling the Land If Land descend to the heir although he enter not yet it is Assets 42 Edw. 3.10 pl. 12. for he might have entered and may do when he will the Grandfather makes a Fâ—offment in Fee to the use of the heir of his body and dies per 26 Hen. 8. the Father enters and obliges him and his heirs and dies quaere 182 Mariae Dyer 111. pl. 46. whether the Grandchild be bound A Reversion expectant upon an estate Tail is not Assets because it lies in the will of Tenant in tail to dock and barr it at his pleasure Coke 6. part 58. B. Bredimans case 42. A. Mildmays case Q. if it be Assets when it happens Franktenement descendible express is not Assets Coke 10. part 98. A. Seymors case for it is an incertain estate Rent-seck descendible is not Assets until seisin of it Coke 6. part B. Bredimans case for before seisin he hath no estate in it If the heir had Assets in debt brought against him and afterwards Assets come to his hands the first judgment is no barr of the Action 19 Hen. 6.37 A. Markham because there was no satisfaction made which may now be by matter ex post facto The profits taken by the heir at the time of the descent are sufficient and if this be shewed to the Court and the heir cannot deny it there shall be a general judgment against him per Dyer 18 Eliz Dyer 344. pl. 1. to pay the debt and dammages quod querens recuperet The heir confesses the action and says that he had nothing but a Reversion descended to him there the Plaintiff shall have judgment to recover upon the said Reversion and the Debt to be levied when it comes in possession and the Plaintiff shall have a special Writ of extent 23 Eliz. Dyer 373. pl. 14. mentioning the special matter If the Father recover and Error be brought against the Son and a recovery against him he shall not render dammages unless he hath Assets of Land in Fee-simple from his Father If one be robbed Hundred he shall have debt against the Hundred per 27 Eliz. cap. 13. antea Debt lies against a Lessee at will for rent during the Term Lessee Coke 5. part 10. antea Quaere if he hold over So against a Lessee for years Nat. br 120. H. And this during the term Coke 4. part Or after the term ended by effluction of time Coke 3. part 23. B. for rent due during the term By limitation ended By condition in Law or in deed Common Law Nat. br 120. H. Statute Law 19 Hen. 6.42 A. waste Nat. br 120. H. re-entry Coke 3. part 23. B. Walkers case 30 Edw. 3.7.17 Edw. 3.48 fol. 73. pl. 107. It lies not against Tenant for life so long as his estate continues Life Coke 4. part 49. A. 11 Hen. 6.14 pl. 4. viz. for rent for the Land is charged But yet by the Statute 32 Hen. 8. cap. 37. the Executors of a Lessor for life shall have debt during the estate for life Coke 4. part which seems but reasonable Debt lies not against the Master upon the buying of the Servant Master unless it comes to his use or by his assent Doct. Stud. 137. A. for otherwise it might be mischievous to the Master Debt lies against an Ordinary Ordinary when a man dies intestate Nat. br 120. D. Coke 5. part 83. A. Snellings case 9. part 39. B. 11 Hen. 7.12 9 Edw. 4.33 Danby 18 Hen. 6.23 com 277.8 Eliz. Dyer 247. if the goods come into the hands of the Ordinary The Ordinary administers and then grants Administration yet debt lies against the Ordinary but it was said that such Administration ought to be alledged in the Diocess of the Ordinary 12 Rich. 2. Administrator 21. else it might be prejudicial to the Creditors But note no Debt lies against the Ordinary after that he hath committed Administration to another 8 Eliz. Dyer 247. pl. 73. viz. where he never administers Debt was brought against the Father for the Sons Commons in a Colledge in Oxon although the Father had delivered it to the Tutor of the Son Pasch 9. Jac. Ban. Regis St. Johns in Oxford against Brickâ—nden for the Father and not the Tutor is hable yet quaere for this is not usually practised Debt lies against him that becomes pledge without deed Pledge Nat. br 122. K. 18 Edw. 3.13 pl. 7. Finchden if the principle pay it not A borrowed of B 20 l. to pay it at Michaelmas at which day D prays B to take him for his Debtor and he gives him day over and D obliges him to pay it by one Tally ensealed Debt lies not against D because A was not by this discharged 44 Edw. 3.21 pl. 23. and so he may recover one Debt twice if D should be chargeable A
contra Collow Q. If a man distrain for Services and the Tenant 〈◊〉 in Repleg brought by the Executors he shall â—â—fie but not avow 17 Edw. 3. Executors 106. the can make no title against them but he may â—â—ifie the taking Because he cannot have a return for the same thing against the Executors 22 Edw. 4.36 B. Collow If a man distrain for Services he may justifie or avow at his Election 15 Edw. 4.29 In every case where he may avow he may justifie for he hath done no wrong sed non è contra 5 Edw. 4.6 Young for he may have done no wrong in taking and yet may not be able to maintain an Avowry A man may justifie for Rent determined but not avow viz. for Rent arrear before it was determined Mich. 33 34 Eliz. Com. Ban. Goddards case because he cannot make a Title Tenant at sufferance may justifie a distress for dammage fâ—asant 4 Hen. 7.3 pl. 6. for he hath a Title against a Stranger One makes Conusance of the distress for dammage feasaâ—t in the Frank-tenant of his Master 10 11 Eliz. Dyer 280. pl. 15.21 Eliz. Dyer 365. pl. 32. and good in the behalf of his Master Conusance as Baily of A and that he took them dammage feasant in the Land that his Master had for years 2 3 Mariae Dyer 117. pl. 76. and good Conusance as Baily to the Parson of D which claims a Rent by prescription and a distress for it and good Lib. Intra 557. Charge 1. He cannot avow for Rent determined but may justifie Mich. 33 34 Eliz. Com. Ban. Goddards case antea because his Title to the Rent is gone 1. Avowries for Rent-services are twosold Quotuplex â— peâ— Common Law and 2. by Statute Law â—â—â—e 9. part 134. B. Ascoughs case 2. One may avow upon one as upon his veray â—â—mant by the manner scil when the Tenant â—â—sed it for life or made a gift in Tail the reâ—ainder over in Fee 20 Hen. 6.9 B. for he is 〈◊〉 bound to take notice of such a lease or gift But then the Lord ought to shew this special â—â—tter in his Avowry 15 Edw. 4.12 A. Catesby â—â—e 4 Hen. 6.14 pl. 11. Quaere 3. Upon one as his Tenant by the manner when â—e Lord hath but an estate in Tail or a lesser â—â—te in the Lordship or when the Tenant hath â—â—â—sser estate than Fee-simple for neither of these â—â—ders him from being Tenant 21 Hen. 6.22 〈◊〉 2. 2 Hen 4.24 pl. 13. Hankâ—ford 4. Upon the matter in the Land generally as â—ing within his see and Signory 38 Hen. 6.23 〈◊〉 7. 5. Upon the Land by any Lord generally per 〈◊〉 Hen. 8. cap. 19. as in Land within his Fee and â—â—gnory without making Avowry upon any person certain Coke 9. part 136. Ascoughs case 〈◊〉 the Avowry is in respect of the Lands held â—ed not of the person Who shall avow An Administrator shall avow for Rent due in the life of the Intestate Administrator per 32. Hen. 8. for he comes in the place of the Intestate in respect of interest Husband and Wife Husband and Wife in right of the wise for Rent-services due for Land held of the wife Lib. Intra 555. D. Sect. 6. for the Husband hath the present interest and by his death the wifes interest returns Or for Rent due to the wife afore Coverture 4 Hen. 6.13 for by the Coverture the Rent belongs to the husband But one cannot make Conusance as Baily to the husband and wise because a Feme covert cannot make a Baily 13 Hen. 4. Avowry 198. Q. how the Baily of Lands held by the husband in right of the wife shall avow It seems as Baily to the husband only He to whose use He to whose use before 27 Hen. 8. cannot avow for dammage fesant in his own name because he hath nothing in the Land at Common Law but occupation at sufferance of the Feoffees 15 Hen. 7.2 pl. 4. fol. 12. pl. 23. fol. 13. pl. 1. Crooke 17 Hen. 7.41 pl. 2. antea But may justifie in the names of the Feoffees Crooke 17 Hen. 4. pl. 7. by their leave as it seems A Commoner may avow for dammage feasâ—nt Commoner Coke 9. part 112. B. 24 Edw. 3.42 pl. 23.40 Edw. 3.23 15 Hen. 7.8 13 Hen. 8.15 7 Edw. 3.266 pl. 39. Coke 8. part 78. B. Welds case Crooke 17 Hen. 7.41 pl. 2. antea in respect of his interest Although he be Copyholder or Tenant for years Coke 9. part 112. B. for he hath interest in the Common in respect of such estate And needs not shew per quod amisit communiam for it shall be intended so No. Lib. Intr. 573. D. Sect. 4. but vide Coke 9. part 113. A. who ought to shew it for in some cases it must be so specially pleaded For Rent reserved by the Testator upon a Lease for years in the avowry by the Executor he shall not be put to shew the Testament 12 Rich. 2.163 for the other may traverse that he is not Executor if it be so An Executor may avow for Rent due in vita Testatoris Executor by the Statute of 32 Hen. 8. cap. 37. If a Rent be granted to husband and wife Woman Arrearages incurr the husband dies the wife shall distrain for the Arrearages 29 Edw. 3.40 pl. 19. for the Rent is now due to her by Survivorship Gardein in Soccage Gardein in Soccage may avow for dammage feasant in his own name for he hath the Governance of the Land Crooke 17 Hen. 7.46 B. Frowick and so the wrong is as it were done to him and he is to account for the profits of the Land A Parson may avow for a Rent-charge by prescription Parson Lib. Intra 557. B. sect 1. Antea The King having the profits of Land by Outlawry in a personal action may avow for the Rent King 15 Hen. 7.2 pl. 4. for it belongs to him in right of the outlawed person Tenant at will Tenant at will for dammage feasant Lib. Intra 561. B. Sect. 1. 15 Hen. 7.2 pl. 4. may avow for the dammage done to him Tenant at sufferance Tenant at sufferance cannot avow for dammage feasant for he can make no Title Crooke 17 Hen. 7.47 A. But vide 4 Hen. 7.3 pl. 6. in Trespass he justifies for dammage feasant and good for he ought to have the profits till he that hath right enter upon him and the distress is to recover amends for the profits taken from him For what things a man may avow For an Amerciament in a Leet 1. Amerciament No. Lib. Intra 572. A. sect 2. Crooke 20 Hen. 7.66 pl. 8. In the Tourn of the Sheriff 2. 28 Edw. 3.95 In a Court Baron it was by custome alledged 3. 15 Eliz. Dyer 322. pl. 23. Crooke 20 Hen. 7.66 pl. 8. for Amerclament for the Tenants not coming to the Court he may distrain if it be assâ—ssed
by Afferrors otherwise not viz. the Lord. For a Corrody granted with a distress if not paid Corrody he may avow for a distress for it 27 Edw. 3.81 pl. 13. Dammage feasant For dammage feasant Lib. Intra 554. D. Sect. 3.556 A. Sect. 7.559 A. Sect. 1 2. No. Lib. Intra 575. B. Sect. 6.577 C. Coke 8. part 89. B. Franceâ— case Antea If the Cattel be chased out of the Land before he distrain he cannot avow the distress Coke 9. part 22. Avowry 16 Edw. 4.10 2 Edw. 3.2 Avowry 182. for they must be taken in the ground or Land A man pleads it is his Franktenant and avows for dammage feasant and it was sound that it was his Franktenant and his wifes the Judgment shall be against him for both were seized and so the plea false Trin. 38 Eliz. Com. Ban. Walker versus Bonner The Plaintiff shews that A was seized and the Land descended to him and that he was seized in Fee and avows for dammage feasant and good Trin. 9 Jac. Newton versus Arsley for here is a good Title derived For a Moiety of the value of the Land Forfeiture upon 4 Hen. 7. forfeited For maintenance of Husbandry Lib. Intra 575. D. Sect. 1. For a Herriot custome No. Lib. 613. B. Sect. 22. Herriot But he ought to shew the certainty of the Land holden for to say that he held two Tenements is not sufficient but if he claims it of the Lessee for life he ought to shew which Lease he holds by 21 Hen. 7.79 pl. 27. Crooke For Relief Lib. Intra 555. C. Sect. 4. Relief But the Avowry shall not be for the double rent but only the quantity of the single rent 16 Hen. 7.4 pl. 2. 1. For a Rent-charge Rent No. Lib. Intra 585. A. Sect. 7 8 9. by deed 2. For a Rent-charge by prescription Lib. Intra 557. B. Sect. 1 2. C. 3. For Rent-service but if be avow for two rents where one Rent-day is not come the Avowry shall abate for that only which is not come Coke 8. part 45 B. Godfreys case but for the other it is good because due 1. For Fealty Lib. Intra 555. C. Sect. 4. Services 2. For Homage Lib. Intra 555. C. Sect. 4. Coke 4. part 6. A B. Bevils case For Rent-service Lib. Intra 554. C. Sect. 2.556 Sect. 8. But if it be to render one thing or other as a Rose or a pair of Spurs and shew for what he avows he shall avow accordingly For Bracton lib. 2. fol. 35. B. in hoc casu tenens â—abeâ— electionem unum solvendo liberatur ab â—lâ—ero For Rent-service when the Cattel are chased out Lib. Intr. 557. A. Sect. 10. antea Seisin in Avowry in whom it may be alledged It may be alledged in the Ancestor of the Avowant Ancesâ—or 34 Hen. 6.21 3 Edw. 2. Avowry 187. 20 Hen. 6 7. com 140. A. 16 Hen. 7.4 pl. 10. 2 Edw. 3.27 pl. 4. because he derives his Title â—rom him In the Father of the Feoffor Feoffor Lib. Intra 556. B. sect 8. and so the Feoffor had a good Title by presumption In the Predecessor good Predecessor 6 Edw. 3.277 Com. 96. A. under whom he claims By what hands Seisin of the Rent or Services shall be alledged By the Ancestor of the Plaintiff Ancestor 34 Edw. 3. Avowry 258. 34 Hen. 6.8 who was possâ—ssed of the Land By a Disscisor Disscisor good Coke 2. part 67. A. Tookers case Coke 6. part 57. B. Bredimans case for he was owner protempore Unless it be by Covin Coke 6. part 58. A. Bredimans case betwixt him and he that distrains for the Law protects not â—raud By the hands of an Infant Infant good 34 Edw. 3. Disclaimer 30. Coke 9. part 33. B. Bucknals caâ—e Quaere Feoffor of the Tenant In the Feoffor of the Tenant Com. 95. A. Manâ—eâ—s case for the Tenant derives under hiâ— By the hands of one Joyntenant only it is good Joynt-tenant Coke 2. part 67. A. Tookers case Prescription to have rent of a Village Resiantâ— Seisin by the Resiants is good because all the Village is chargeable 4 Hen. 6.29 30. Coke 6. part 59. Bredimans case By Tenant for years not good Tenant because he hath not an estate out of which seisin may be gained Coke 6. part 57. A. Bredimans case in respect of the feebleness of it By the hands of the Tenant for life good when the remainder is over to another Coke 6. part 58. A. Bredimans case for he hath a Freehold By the hands of the Tenant by the Courtesie not good to charge the Heir with a Herriot-service because none may have his estate 21 Hen. 7.84 pl. 8. Crooke nor derive a Title from him for his estate determines with his life A Tenant to a Lord makes a Feoffment and after notice to the Lord gives seisin to the Lord this is good because he remains Tenant to the Lord until notice be given Coke 6. part 58. A. Bredimans case for the Lord cannot take notice of the Feoffment By the hands of the Tenant and needs not say Tenant of the land 34 Hen. 6.8 for it shall be so intended By the hands of the Tenant peravail good Coke 6. part 58. A. Bredimans case or under-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.
be intended that he hath assets else he would have pleaded so and not a shifting plea. One dies intestate and Administration is committed to D by the Ordinary and the Defendant pleads that he comes as servant to D. to administer absque hoc that he did administer in any other manner this is no plea because he did not shew that it was the Ordinary of the place and Judgment de bonis Testatoris 31 Hen. 6.13 pl. 5. as he ought because it is traversable This is an unskilful and not a false plea therefore the Judgment shall not be de bonis propriis 17 Edw. 3.20 pl. 58. where one Executor pleaded non factum and found against him there the Judgment was against him of the goods of his own as well as of the goods of the Testator and against the other of the goods that he had at the day of the Writ vide 17 Edw. 3.20 pl. 1. stat 9 Edw. 3. cap. 3. statute 1.17 Edw. 3.46 pl. 3. because by the Deed the Testators Estate is chargeable and by the false plea his own In Plenè administravit pleaded the Judgment was for so much of the principal debt as they had and for the dammages de bonis Testatoris si c. if there were sufficient and if not then for dammages de bonis propriis and for the residue as much as they had Coke 8. part 134. Shipleys case 34 Hen. 6.32 B. Prisot com 440. B. Pepyes case vide 17 Edw. 3.66 pl. 83. 46 Edw. 3.9 pl. 6. Judgment special for the debt Upon such a plea of the Defendant the Plaintiff may pray execution forthwith because it is a confession of the debt but no execution shall issue until the Defendant hath goods of the Testators Coke 8. part Shipleys case vide 21 Hen. 6.40 But if it be found for the Plantiff no scire facias lies against them 4 Hen. 6.4 pl. 8. Q. Unless he prays Judgment upon the plea. But yet 33 Hen. 6.24 pl. 1. is That a scire facias lies yet Coke 8. part 53. A. Syms his 04 case that if it be for Land he shall not have a scire facias because there is no Record upon which it may be founded Q. Against an heir In debt if the heir confess the Action for as much as did descend then there shall be a special Judgment against him of so much as did descend Com. 440. A. Pepyes case 22 Eliz. Dyer 373. pl. 4. the Judgment Lib. intra 172. D. and he shall be charged for no more But if he plead any other plea and it be found against him the Judgment shall be general Com. 440. Pepyes case for the whole for his false plea. So if he confess the Action and shew as much as descends if it appear to the Court that the profits of the Land from the time of the descent until the time of the execution are sufficient for the debt the Judgment shall be general else not per Dyer 18 Eliz. Dyer 344. pl. 1. Execution in debt 1. For the Plaintiff 2. For the Defendant 3. Of what Lands 4. Of what Goods At the Common Law it was but a fieri facias Coke 3. part 12. or a levari facias Coke 3. part 12. A. and this is of Chattels and Profits of Lands and Rents com 441. A. Pepyes case And this only within the year for if the year were past the party was put to his action of debt upon the Indictment Coke 3. part 12. A. Herberts case unless the process be continued 33 Hen. 6.49 pl. 33. For if it be continued then is the cause still fresh before them otherwise the Court will take no notice of it But for a recovery against an heir then it was but a Liberate of the Land Com. 441. A. Pepyes case Lib. Intra 172. D. 173. A. 3 Edw. 3. Execution 107. For the heir is only bound in respect of the Lands descended to him But by Westm 2. cap. 45 a Scire facias was given after the year and per Westm 2. cap. 18. an Elegit was given Coke 3. part 12. A. If a man have an Elegit filed on Record and there be a Nichil returned he shall never have any other Execution 19 Hen. 6.4 5 Edw. 4.41 15 Hen. 7.15 Fairfax for it is the last and highest Execution and the Court cannot descend à majore ad minorem executionem But if it be not filed it is otherwise And by the Stat. of 25 Edw. 3. cap. 17. a Capias was given in debt and per consequence a Capias ad satisfaciendum in execution of a Judgment in debt Coke 3. part 12. A. Harberts case Foâ— it is reason an Execution may be of as high a nature as the mean process in the Action was and 〈◊〉 the same nature Mich. 41 42 Eliz. com Ban. if the Plaintifâ— die after Execution yet the Sheriff may levy 〈◊〉 and if there be no Executor or Administrator the Moneys shall remain in Court until Administration Q. whether the Ordinary may not haâ—â— it But if the Defendant die before Execution there the Sheriff cannot make Execution 〈◊〉 the words of the Writ are That it shall be levied of the Goods of the Defendant Thoroughguâ—â— case Q if it may not be against the Executor because the Testators Goods in their hands may be said to be the Defendants Goods Upon a non est inventus returned of the Principal upon a Capias upon a Judgment in com Ban. the party shall have Execution against the Baâ—â— because the debt being by Original is certain 〈◊〉 it is mentioned particularly in the Writ and there the Lands of the Bail which they had 〈◊〉 the day of the taking the recognizance shall be liable but quaere in ban Regis if more Lands aâ—â— liable than they had the day of the Judgment because the debt is uncertain Mich. 15. Jac. Ban Regis Baskervile Brocket special verdict The Defendant for Dammages and Costs shall have the same execution as the Plantiff should have had if he had recovered against the Defendant per 23 Hen. 8. cap. 15. Viz. Of the Lands which he had at the 〈◊〉 of the Judgment and not before Coke 8. paâ—â— 171. Fleetwoods case 42 Edw. 3.11 pl. 13. â— Edw. 193. pl. 14. But if the Judgment be the last day of the Term the Lands which he had the first day of the Term are liable because all the Term is but one day in Law 42 Assiz 17. as to the Judgment for a Judgment given the last day is a Judgment of the first day If two joint-Joint-Tenants are for life and one of them and against whom the Judgment is given dies before execution this shall not be put in execution 13 Hen. 7.22 A. viz. against the other because he was not party Land in ancient demesne shall be put in execution Coke 5. part 105. A. Aldens case Hill 11. Jac. Com. Ban. Rot. 2541. Cox Barnesly upon a Judgment in debt given at
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-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
doing of wrong to the dammage of another touching a thing hereditary who shall have it Baron and Feme Baron and Feme joyn upon an assumpsit to the Wife dum sola fuit and good Hill 9 Jac. Ban. Regis Wolverton and his Wife against Day For else the party would be without remedy Baron and Feme joyn in Trover and conversion for a Deed for an annuity granted to the Wife and it is good for if he survive he shall have the Deed Trin. 40 Eliz. Com. Ban. Russel Caresby Q. Husband had an Action sole upon the Assumpsit to the Wife and counted of the assumpsit to him 27 Hen. 8.24 25. for the assumpsit made to the Wife is made to the Husband Commoner shall have it for feeding his Common Commoner though he be but a Copyholder Coke 9. part 112. B. Mayes case For he is thereby damnified and no other Action lies for him But then it shall be such feeding by which he loseth his Common or else cannot have it in that beneficial manner as he ought Coke 9. part 231. A. Mayes case De minimis non Curat Lex Executor shall have it for putting him out of his Term by the Lessor Executor Nat. br 92. G. Regist 97. Coke 4. part 95. A. Slades case For a Term belongs to an Executor except it be otherwise disposed of For money for Grain fold Lib. Intra 4. B. Sect. 2. the Court there Q. whether debt lies not Upon an Assumpsit to the Testator to marry one or pay 20 l. Lib. Intra 10. B. Sect. 5. For by the Consideration the Testators estate is prejudiced if the assumpsit be not performed Upon an assumpsit to save the Testator harmless of an obligation Lib. Intra 12. B. Sect. 2. for the Executor is liable to be sued upon it If a Nusance be made Feoffee and a Feoffment is made if this continue as a new Nusance the Feoffee shall have an action Coke 5. part 101. A. Penruddocks case For the Feoffee is thereby hindred of enjoying the best of his bargain The Heir shall have an action for a Nusance made in the time of his Father Heir if it be continued c. for the Inheritance is prejudiced thereby Coke 5. part 101. A. Penruddocks case Two cannot joyn for calling them false Knave and Thief Joynder 28 Hen. 8. Dyer 19. pl. 112. for they are several slanders and personal Two cannot sue in the Admiralty where one of them ought to have an Action at Law 5 Mariae Dyer 157. pl. 39. for the Common Law is to be preferred Lessor shall have it against Tenant at will for voluntary waste Lessor Littleton 15. A. 14 Hen. 8.12 Brown Coke 5. part 13. B. Salops case 48 Edw. 3.25 Dyer 121. pl. 17. 11 Hen. 6.38 for an Action or waste doth not lie But not for negligent or permissive waste Coke 5. part 13. B. Salops case because he is not bound to repair Tenant in Common Tenant in common shall have it against the other for breaking a Gutter between their houses 2 Hen. 5.3 pl. 12. for sic debes uti tuis ut aliens non noces For making a Lime-pit in his Land which they have in common by which the water surrounds his house 13 Hen. 7.26 for the same reason Tenants in Common may joyn in an action for a Nusance upon their Land committed because this concerns all their profit Mich. 7 Jac. Ban. Regis Stone against Dromage For taking of a Meer-stone 1 Hen. 5.1 Lib. Intra 9. C. sect 1. for the Land may thereby be endangered to be lost 2. Against whom this lieth It lies against an Administrator Administrator upon an assumpsit of the Testator Lib. Intra 4. C. sect 3. for he received benefit by the consideration viz. their estate Which cuts Trees without cause 18 Edw. 4.27 Against a Baily of a Baily of goods Baily 12 Edw. 4.13 It lies against Baron and Feme Baron and Feme for not repairing Seabanks upon the Land of his Wife 7 Hen. 4.31 for the tort is done by the Husband as well as by the Wife Trover and Conversion lies against Baron and Feme for the Conversion of the Feme for it is a disloyal act which his Wife may do Mich. 7 Jac. Ban. Regist Drapers case and so an Action upon the Case lies not Trover and Conversion lieth not against a Carrier for a delivery to his Servant Carrier but an Action upon the Case Pasch 9 Jac. Ban. Reg. Wornhall and Bradshaw For the delivery to the Servant is a delivery to the Master and for which he is answerable A Counsellor is retained to purchase land Counselor and discloses the Secrets by which the party is damnified c. 11 Hen. 6.18 Upon an assumpsit to pay a debt Assumpsit No. Lib. Intra I. B. sect 1. Coke 9. part 86. B. Pinchons case 1. Coke 9. part 94. A. Banes case viz. upon the special agreement Against Churchwardens for not repairing a Gutter of the Church Church-wardens which is a Nusance to my house Lib. Intra 10 D. sect 1. For they ought to repair the Church and are publick Officers of whom the Law takes notice Divers do make an assumpsit Joynder action lies not against two of them only but if the Plaintiff shews that the others are dead then it is good and it is sufficient to shew that at the request of them that are alive and the others the thing was done and that the others are now dead Trin. 7 Jac. Ban. Regis Brereton and his Wife against King and Milner Against a Master upon a sale and warranty of the Servant Master 11 Edw. 4.6 for the act of the Servant being for the Masters advantage is the act of the Master Tenant at will Against Tenant at will for voluntary waste Littleton 15. A. 14 Hen. 8.12 Brown Coke 5. part 13. Salops case Dyer 121. pl. 17. But not for permissive or negligent waste Coke 5. part 13. B. Salops case for the Law makes a difference betwixt negligent and wilful and malicious wrongs Tenant per Elegit Against Tenant per Elegit which holds over and cuts the Trees after money tendered to him 21 Edw. 3.16 to satisfie the debt for he is to hold the Land till his debt is satisfied Tenant in common Against a Tenant in common of a House by his Companion for breaking his Gutter between their houses 2 Hen. 5. plea 12. for trespass vi armis he cannot have because he is seised per jug per tout For making a Lime-pit to burn Lime Kiln by which his house is damnified 13 Hen. 7.26 Tenant for years A having an ancient Light B erects a house which stops it and leases it to C yet an Action lies not against C because the Lessee had done no wrong and he could not pull it down Trin. 13 Jacobi Ban.
Regis Bolds case Q. as the Law is now taken whether it lies against B. When a man prescribes in an I le in a Church Vicar and the Vicar will not suffer him to make a Sepulchre there No. Lib. Intra 8. B. sect 7. for he disturbs his Inheritance Against a Sheriff upon a false return Sheriff Lib. Intra 11. A. sect 1. Upon returning nichil where the party had sufficient Lib. Intra 11. C. sect 2. for this is a false return For what things this Action lies Against a Tenant by elegit Trees that holds the Lands after his money tendered him and cuts the Trees 21 Edw. 3.16 vid. supra So if Tenant at will cuts the Trees Littleton 15. A. Coke 8. part 13. B. Salops case 48 Edw. 3.25 for that is voluntary waste for which he is punishable If a Baily cuts Trees without cause 18 Edw. 4.27 Chappel For disturbing of men to come to my Chappel with offerings 19 Rich. 2. Action upon the Case 52. This is now out of doors since the Reformation temps Edw. 6. Against the Owner of the Land in which I have a Way Way 1. Estreite and he straitens it for I am thereby abridged of my easement 33 Hen. 6.26 For trenching of it 2. Trench for the former reason Lib. Intra 616. C. Sect. 1. For any manner of disturbance in my passage or part of my way 3. Disturb so that I cannot pass so commodiously as I did before 14 Hen. 8.31 21 Hen. 7.35 22 Hen. 6.15 10 Hen. 7.21 4. Stopping of it If the whole way be stopped by one that is not owner of the Soil it lies 22 Hen. 5. 33 Hen. 6.26 10 Hen. 7.21 For I am wholly deprived of my easement and no other Action lies against him So if Tertenant and others stop it 34 Hen. 6.4 tamen quaere as to the Tertenant For against Tertenant that stops all the way an assize of Nusance doth lie and not this Action 22 Hen. 6.14 3 Eliz. Dyer 250. pl. 88. 19 Hen. 6 29. pl. 49. Paston 2 Hen. 4.11 pl. 48. No. Lib. Intra 12.6 Sect. 10. Q. whether two Actions may not be brought in the former case But if I have it but for years an Action on the Case lies 33 Hen. 6.26 Nat. br 176 184. L. eodem For he can claim no inheritance in the Land where the way lies If A stops my way and leases the Land to B it lies against B if he do not open it for continuing of the wrong but if A build a House and leases it to B there B cannot pull it down for to lay open my way for this is waste in B. Trin. 13 Jac. Regis Bolds case and Rutlandshiers case and therefore an Action lies not against B for not pulling down the house for that were unreasonable But by 11 Hen. 4. an Action upon the case lies for stopping of a way in gross only and an assize of Nusance for a way appendant 21 Edw. 3.2.6 34 Hen. 6.4 pl. 11. Note the difference one savours of the realty the other is but personal But for stopping of a way in my own Land Trespass vi armis lies and not this Action 31 Edw. 3. Action upon the Case 38. 13 Hen. 7.26 For there is a plain breach of the Peace by disturbing my possession But for stopping of a Highway the Desendant shall be punished in the Leet and not by this Action unless the party had a special loss for a special loss admits of a special remedy 27 Hen. 8.26 5 Edw. 4.2 b. 7 Edw. 4 8. 33 Hen. 6.26 Coke 5. part 73. A. Williams case 21 Hen. 7.35 Coke 9. part 113. Mayrs case For a Court Leet is to redress such publick grievances Slander of my Title If A says that B hath right in my Land for years an Action lies Coke 1. part 177. Mildmays case No. Lib. Intr. 30. A. sect 27. but I ought to shew how I am prejudiced by his saying so or else it lies not for his lye were it a trespass only the Law will not punish it A brought an Action upon the Case against B because that B published and declared falsly that he had the Lease of the Land of A and that he intended to sell his Land and was thereby hindred B said that he had an Indent of Lease as in the Count is mentioned and traverseth that he forged it not 1. when B claims a right though he had none yet the Action lies not for it appears not whether he had a right or not 2. the Count is good because it is that it was against the knowledge of B that it was forged 3. Sciens is not traversable Coke 4. part 18. A. case 14. See the Case at large For stopping a Ditch by which my land is surrounded with water Nat. br 88. E 89 M 39 Hen. 6.32 11 Hen. 4.82 14 Hen. 8.31 Q. whether it lies for suffering it to be stopped by negligence Land viz. by another For not scouring a Ditch by which my land is overflown Regist orig 100. A. Q. if I be not thereby damnified For breaking of a Seabank by which my land is surrounded Nat. br 86. F. 89. B C. Reg. orig 95. A. It lies not for erecting of Coney-burroughs by which I lose part of the profits of my land because the party that erected them had no property in the Coneys for they are ferae naturae Coke 5. part 104. Boulstons case and it is lawful for me to kill them if they come upon my ground Q. tamen in regard of the trouble If one hath a Bakehouse by Prescription Trade and I set up another by him to his prejudice for the Law favours and protects ancient Rights presuming they had lawful commencements 1. For disturbing my Baily to distrain for an amercement Distress 18 Hen. 6.9 pl. 20. for the wrong is done to me for the Baily is my Servant and acts for my benefit 2. For disturbing me to distrain or to attach Nat. br 102. F. This is stronger than the former case and the injury more apparent 3. For distraining more Suitors to come to my Leet than ought to be Nat. br 94. G. Coke 4.94 B. Regist orig 103. B. for the Law hates needless troubles and vexations 4. For distraining Parsons or Vicars in their Spiritual possessions Nat. br 94. E. and the Writ is contra legem consuetudinem regni nostri contra formam articulorum contra pacem nostram ibidem For the Common Law protects the Clergy and takes care for their estates to preserve them from violence Fair and Market 1. Against him that sets up a new Fair or Market against my Fair or Market 22 Hen. 6.14 11 Hen. 4.74 for I am prejudiced thereby in my ancient right But 41 Edw. 3.24 per Belknap Quod permitt at lies and not this Action Q. tamen car semble nemy 2. For disturbing Customers to come to the
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
Executor Executor of an Executor shall have Covenant by the Common Law 19 Edw. 3. Covenant 24. pol. Com. 290. Chapmans case Lib. Intr. 134. B. sect 1. and so forwards for the right dies not The Heir shall have covenant Heir if the deed be made to him and his heirs Nat. br 145. C. 16 Eliz Dyer 338. pl. 39. but this was to enfeoff him and his heirs so that this holds not generally but where the heir is interessed in the Covenant A enfeoffs B in see rendring for 8 years one Rose and afterwards 20 Roses B dies his heir within Age the Lord recovers the Land by reason of Collusion the Heir at full age shall have covenant 18 Edw. 3 Covenant 7. in respect of his privity to the Covenant A covenants with B and C and their heirs joynt- Joynt-tenant eorum utrique to make an estate to the heir of him which first dies being Parcener the heir of one shall have covenant sole 16 Eliz. Dyer 338. pl. viz. of him that first dies When any of the Covenantees shall have several interests or estates and the covenant is made with them cum quolibet eorum they shall have several covenants otherways not Coke 5. part 22. A. Matthewsons case in respect of their several interests Lessee for years by deed Poll is outed by the Lessor Lessee he shall have covenant Nat. br 145. L. 21 Edw. 4.30 pl. 25. for the lease implies a covenant to enjoy during the term But if a stranger outs him without title he shall not have Covenant Nat. br 145. L. 22 Hen. 9.52 pl. 26. But if he had a colourable title and ousts him quaere Although it be by verdict Coke 4. part 80. B. Nokes case for the verdict may not be according to Law Q. And although the Lessor warrant to him during the term 26 Hen. 8.3 pl. 11. for the warranty is not so general but if he warrant it against all men Q. But if a stranger that hath Title out him then it lies Nat. br 145. 32 Hen. 6.32 pl. 27. Nedham for that proves he had no power to lett But Lessee for life shall not have Covenant upon such outing for this cannot divests him of the Freehold 26 Hen. 16. Covenant 10. Nat. br 145. M. if in the covenant it be not exprest But 13 Edw. 3. sines 165. per Shard if a lease be to A without impeachment of waste and waste be brought against him A shall have Covenant for the lease implies a Covenant that he shall not be sued for waste Tenant for life shall not have the benefit of warranty if he be not in possession 26 Hen. 8.3 pl. 11. viz. at the time of the warranty Lessee for years shall have Covenant upon a demise and grant Coke 4. part 80. B. Nokes case 5. part 17. A. that is if the lease runs that Lessor doth demise and grant Q. If the land be evicted Pasch 7 Jac. Ban. Regis Winchombe Rigge A lease made to A. per dedi concessi the land is evict for years A shall have Covenant against the lessor for judgment was so entered Mich. 9 Jac. But Williams Yelverton said that it was without their privity and Williams said that it lied not quaere ergo Recusant shall not have an action of covenant for any thing seised into the Kings hands Recusant 1 Jac. cap. 5. by vertue of the Lessors recusancy for the Common Law takes no notice of Recusancy Successor shall have covenant upon a covenant made and broken in the time of his predecessor Successor 4 Edw. 3.130 pl. 71. quaere what Successor or whether any kind of Successor A covenants to levy a fine Fine the party to whom this covenant is made shall have covenant Nat. br 146. F. Against whom Covenant lies 1. Personal 2. Real Administrator is subject to it Administrator 13 Edw. 3. cap. 11. Coke 9. part 40. A. Hensloes case upon a Covenant made by the Intestate Assignee of a Termor shall be liable without naming how the condition of the thing extends Assignee to the things in esse parcel of the demise Coke 5. part 16. A. Spencers case fol. 24. Worcesters case This extends to him that comes to the demise any way Coke 5. part 17. B. Spencers case viz. any legal way but quaere if the Lessee be outed by one who hath no interest So if the Covenant extends to a thing to be newly made if it shall be made upon the demised land the Assignee shall be bound by express Covenant to the Lessor and his Assigns Coke 5. part 16. B. Spencers case 25 Hen. 8. br Covenant 32. Lessee covenants for him and his Assigns to repair a house Covenant lies against the Lessee and then against the Assignee also for the same breach and no remedy but an Audita querela per Brook Q. A leases for years to B and covenants to suffer him to enjoy there the Assignee of A of the Reversion is liable though not named 9 Eliz. Dyer 255. pl. 4. for he comes in interest of estate in the room of A who covenanted When the Covenant extends to a thing which had not essence at the time of the demise the Assignee is not liable without naming him Coke 5. part 16. B. as where the Lessee Covenants to build a new house upon Land lett Q. rationem When the demise is of a personal thing the Assignee is not liable by express name Coke 5. part 16.17 because the Covenant goes to the person and not the estate If the demise be of Land and a personal thing the Assignee is not bound by express name for the personality for there can be no privity between the Lessor and Assignee Coke 5. part 16 17. but for the realty he shall be bound The Statute of 32 Hen. 8. cap. 34. extends to Covenants which touch the thing demised and not to collateral Covenants which concern it not for the Statute looks at the estate It lies against Executors Executors Regist orig 165. B. Nat. br 145. H. and this is although they be not named 28 Hen. 8. Dyer 14. pl. 69. 45 Edw. 3.17 pl. 4. 47 Edw. 3.22 48 Edw. 3.2 pl. 4. 9 Eliz. Dyer 255. pl. 4. for they represent the person of the Testator and come in his stead But all the Executors ought to be named 47 Edw. 3.22 pl. 20. in the Writ and Declaration A Lease is made to A the Lessor covenants to pay the quit Rents c. divers dues likewise this is a personal thing and binds not the Executor 2 3 Mariae 114. pl. 6. of the Lessor Q. for it is paid ratione terrae A Lease is made to the Husband and Wife Feme the Husband covenants to make assurance for the Rent this binds not the wife because it is collateral 45 Edw. 3.11 pl. 7. for the Lessor hath remedy for the Rent without such assurance But if they covenant that
deed An Estranger shall not have a Detinue for deed unless he makes title to the Land Estranger but upon request to deliver them and a refusal he shall havâ— an Action upon the Case 33 Hen. 6.26 pl. 1â— Prisot if the Deeds do concern him If one have Deeds and some concern warrantâ— some not Feosâ—ee and enfeoff B with warranty B shaâ—â— not have a Detinue for the deeds which servâ—â— to deraigne the warranty per amount Coke 1. part 2. Buckhursts case 44 Edw. 3.11 B. because they do not wholly concern him Neither is it material for to maintain the title Coke 1. part 1. Buckhursts case But they shall have them which concern the possession only ibidem viz. of the Land and the Feoffor is to have the Deeds to maintain his warranty But if a Feoffment be made without warranty the Feoffee shall have a Detinue for all Coke 1 part 1. Buckhursts case viz. all the Deeds that do any ways concern the title that he may be able to defend it Unless it be per dedi then it is express warranty during the life of the Feoffor per statutum de Bigamis cap. 6. Coke 1. part Buckhursts case 1. for the word Deed implies so much But note that in all these Cases the Feoffee shall have Detinue for them against a Stranger that cannot intitle himself by the Feoffor Nat. br 138. G. Coke 1. part 2. A. 7 Edw. 4.26 because a Stranger cannot pretend any colour And note if the thing which lies in grant as a Lordship Rent Advowson c. be granted to A with warranty which grants it to B with warranty B shall have a Detinue for the Ancient deed because he cannot make a title without the Ancient deed Coke 1. part 1. B. Buckhursts case quaere So in all other Cases the Feoffee shall have a Detinue for every deed which concerns the making of his estate good Nat. br 138. K. for the Law favours Titles to Land and loves the maintenance of them Note Note if A bail deeds of Land to B to re-bail them to him and his Heirs and afterwards enfeoff C in fee yet C shall not have a Detinue against B for it is a charge to A per cause of Bailment Crooke 18 Hen. 7.48 pl. 3. If one enfeoff another with warranty the Feoffor shall have the ancient deeds Feoffor which contain the warranty or which are material for the maintenance of the Title Coke 1. part 1. B. Buckhursts case If A grant a thing that lies in grant to B with warranty B shall have a Detinue for the Ancient deed because this makes his title Coke 1. part 1. B. A enfeoffs B per dedi A shall have the Ancient deed which comprehends the warranty because dedi makes an express warranty Coke 1. part 2. B. and therefore it is good reason he should have the deed to make out the warranty by A makes a deed of Feoffment and delivers this upon condition if the Condition be not performed he shall have a Detinue 37 Hen. 6.37 B. for the deed for the property was not absolute out of him Heir general The Heir general shall have the Ancient deeds comprehending warranty or necessary for the maintenance of the title where the Feoffor obliges him and his heirs to warranty for he is bound by his Fathers act and its reason he should have the deed to maintain it Coke part 1. B. Buckhursts case Nat. br 138. L. Feoffment per dedi the heir of the Feoffee shall not have the Ancient deeds because he is not bound to warranty Coke 1. part 2. B. Buckhursts case but the heir of the Feoffor Q. The heir of the disseisee shall have a Detinue for the deeds Nat. br 138. L. for he is in by deceit and the Law will judge his title good till it be evicted Heir special The Heir in tail shall have a Detinue against the Discontinuee for the deed of entail Nat. br 138. H. 9 Edw. 4.52 pl. 15. for it belongs to him to make out his Title by virtue of the entail And although there be a warranty to the Feoffee by his Father 9 Hen. 6.15 pl. 5. 4 Hen. 7.10 pl. 4. for the heir in tail comes in paramount the Father One Joytenant sole delivers the deed to redeliver to him Joyntenant he alone shall have a Detinue per cause of this special Bailment 13 Rich. 2. bre 648. though the deed doth belong unto both for the bailment is the cause of the Action Joyntenant survivor A enfeoffs B and C and the heirs of B and delivers all the deeds to B which dies C shall have a Detinue for the deed of Feoffment but not for the other deeds 34 Hen. 6.1 A. Coke 1. part 2. A. Nat. br 138. F. viz. which concern the Inheritance but the deed of Feoffment concerns the estate for life as well as the Inheritance If A makes a Release to B and C and this delivers to B which dies C shall not have it ibidem for the Parchment and the Wax do belong to him to whom it was delivered But if A and B Joyntenants per defeasible title and S. J. makes a Release to them the Survivor shall have it 34 Hen. 6.1 per the Report Coke 1. part 2. A. for this concerns the Land and shall survive with the estate Feoffment to two in Fee the survivor shall have all the deeds Coke 1. part 2. B. Buckhursts case because the estate survives which the deeds concern If deeds concern more Lands if the Ter-tenant of any part happen upon the deed he may detain it because he hath an interest 4 Hen. 7.10 pl. 4. 2 Eliz. Dyer 183. pl. 57. and it is reason he should have the deeds to maintain it as well as any other Recusant shall not have an Action for any thing seised into the hands of the King Recusant 3 Jac. cap. 5. By Stat. vid. 22 Hen. 6.1 A Tenant for life dies Remainder he in the Remainder shall have Detinue for the deed 9 Hen. 6.54 pl. 39. for now his title is come in possession and so the deed that created it belongs to him But if the Donor release to the Tenant for life he in the Remainder shall not have a Detinue 9 Hen. 5.54 pl. 39. Q. If Tenant for life die he in the Remainder of a Copyhold shall have it Coke 4. part 22. B. for Copyholds are in many things governed by the rules of the Common Law and so no difference betwixt them and other estates Land is given to A for the life of B the Remainder to C in Fee B dies C shall have a Detinue against A without request because he had interest in the deed during the life of B 33 Hen. 6.30 B. 35 Hen. 6.9 A. Moyle in respect of his Remainder But there quaere whether it lies against the Husband when the wife is dead without issue without request and possession because he
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.
Westminster for the judgment is well given The Goods that he had at the time of the execution shall be only liable to execution Coke part 171. A. Fleetwoods case 2. Hen. 4.14 9 Hen. 6.58 11 Hen. 4.7 34 Hen. 6.23 B. Prisot 21 Hen. 7.87 pl. 1. Crooke Unless it be in case of Executors 34 Hen. 6.23 B. Prisot For they may have other goods of the Testator come to their hands afterward But sale by covin after Judgment cannot hinder the execution 22 Assiz 72. 13 Hen 4.4 pl. 9. Q. if sale be made pending the Suit before Judgment by covin Hill 40. Eliz. Com. Ban. per Curiam if a Writ of execution be awarded for debt or dammages and between the Test of the Writ and Execution the party sold the goods bona fide yet these are liable to the execution Q. If so where the Vendee knows not of the Judgment for it seems hard and yet it seems as hard on the other side also Ejectment In what Court it lies IT lies not in the Marshalsey Coke 10. part 72. A. Marshalsey For no Title for Land could be tried there In Ban. Regis it lies In Com. Ban. it lies In the Exchequer it lies for a party priviledged Coke 1. part 3. A. Pelhams case and this was by Bill It seems it lies as well on the Pleas side and more properly than by Bill But if it be for ancient demesne-Land it lies not in the Court of the King Coke 5. part 105. A. Aldens case 9. part 77. B. but in the Court of the Mannor by their priviledge but by consent it may be as it seems tried elsewhere Because the possession is to be removed in such action per Hobart Chief Justice Hill 11. Jac. com Ban. Rot. 25.41 Cox versus Barnibee But none can plead this out ter-tenant of the Land in ancient demesne because the possession doth only concern him 2 Hen. 7.17 pl. 1. But if the Plaintiff do not put in his declaration until the end of the Term the Defendant cannot plead ancient demesne the next Term but must move the Court that the Plaintiff put in his declaration so late and pray no advantage may be taken against him and then the advantage shall be saved Trin. 12. Jac. Ban. Regis and he shall have liberty by rule of Court to plead ancient demesne the next Term. But he may plead this after view because by this he may confess if it be frank fee or not 50 Edw. 3.9 pl. 20. Q. Who shall have an Ejectione firmae Lessee for years only shall have it Possession Nat. br 120. F. because this action is only to recover the present possession and concerns not the Title but ex obliquo or collaterally And this only upon the possession in deed for he shall not have it upon a possession in Law 23 Hen. 8. br quia ejecit infra c. 5. For that is not an actual possession and so there is no present disturbance Nor upon a Lease to commence in futuro 37 Hen. 6.18 A. For the same reason and it may be it may never come in esse Note that Tenant for years needs not count that he entred Note but that a Lease was made to him by virtue of which he has possessed com 503. B. Grendons case For the Word Possessed supposeth an Entry or at least a taking of the Profits Tenant for years leases to B. at will who is outed by a stranger tenant for years shall not have an action because he had not the actual possession Pasch 11 Jac. in the Exchequer inter Sir Richard Grebham Stone Q. if Tenant at will may for the feebleness of his estate it seems he may Tenant for years Tenant for years leases for one year or a Lease is made for years the remainder for years a stranger enters none shall have an ejectment but the Tenant in possession Crooke 130. pl. 99. for none else is disturbed Lessee shall have an ejectment after the term ended Lessee and recover all in dammages 21 Edw. 4.30 pl. 25. Brian 7 Edw. 4.6 B. Fairfax For other remedy he hath not to recover them Lessee which may have a real Action cannot have an ejectione firmae Com. 419. B. Bracebridges case For real Actions are to be preferred before possessory and personal because of a higher nature and thereby justice is more speedily done Husband and wife Husband and Wife ought to to join if it be in right of the Wife 21 Edw. 4.10 pl. 1.30 pl. 25. 7 Edw. 4.6 B. Fairfax Com. 418. B. Bracebridges case For the Husband cannot declare of a Lease made to himself though he be interessed in it by reason of the Marriage and the Lease may come again to the Wife by his Death But if the term be ended the Husband alone shall have it because nothing shall be recovered but dammages 7 Edw. 4.6 B. Fairfax Which do only concern the Husband Lessee for one year of a Copy-holder shall have an ejection firm Coke 4. part 26 For he is a possessor for a term of years because the time is certain and of less term certain than for years the Law takes no notice Lessee of a Copy-hold for more years Copy-hold shall have an ejection firm although that such Lease be a forfeiture for it is a good Lease against all but the Lord Trin. 36 Eliz. Ban. Regis Downings case and it may be the Lord will take no advantage of it Executor of a Lessee shall have it Executors No. Lib. intra 195. D. sect 6. because the possession is come to him and he is damnified by the disturbance Executor Plaintiff Husband and Wife Co-executors Defendants and the Count. Lib. intra 252. B. sect 6. Executor shall have an ejection firm in vita Testatoris per the equity of the Statute 4 Edw. 3. cap. 6. Coke 9. part 78. B. Peytoes case else he should lose the term Churchwardens shall have it of Land leased to them 15 Hen. 7.8 in right of the Church Church-wardens for it is their possession pro tempore Q. If new be elected before the trial what shall be done Tenant by Elegit Tenant by Elegit shall not have an ejectione firmae Crooke 109. pl. 29. For he hath no certain term for the Owner may redeem the Land when he will Tenant in common Tenant in Common shall have it against his Companion Littleton 73. A. For they have distinct interests in Law Father and Son having several inheritances in divers Lands the Father levies a Fine of it all the Son being beyond sea at the time dies his Issue enters and leases it being within Age to A without rendring any Rent A. enters the Conusee of the Fine enters and leases it to B yet B. shall not have an ejectione firmae against A if he be outed without express outing of A because as to the moyery the Plantiff had not title for of that the Father might levie the
Fine and the Defendant had none because there was no Rent reserved and so had for the present nothing in the Land Pasch 32 Eliz. com ban Rot. 1017. Smye versus June and others Against whom Ejectment lies Husband and wife It lies against Husband and Wife Lib. intra 253. C. sect 11. Coke 9. part 77. B. Petoyes case Com. 187. Wortleyes case Where the Husband outs one by colour of his Wifes Title It lies against a stranger that wrongfully outs one Estranger 6 Rich. 2. Ejection firm 2. 21 Edw. 4.30 pl. 25. Brian Nat. br 220. F. Coke 9. part 80. A. 32 Hen. 6.32.27 S. to gain the possession and to recover dammages for the disturbance It lies not against a Feoffee of a Lessor Feoffee because he cannot do wrong Nat. br 198. A. 21 Edw. 4.10 pl. 1. Choke 21 Edw. 4.30 32 Hen 6.32 pl. 27. 38 Edw. 3.33 pl. 44. For he comes in lawfully as to the reversion Unless the Feoffee make a Deed presently upon the outing to pass the possession to another then it lies against him Nat. br 198. A. Or if he enter upon the Lessee afterwards that the Lessee had entred upon him to regain his possession Nat. br 198. A. Lessor grants a Reversion to A the Lessee attornes Grantor A outs him the Lessee shall have an ejectione firmae Nat. br 221. A. 1 Hen. 5.3 pl. 3. For by the Attornment only the Rent and the Reversion passed and not the possession It lies against the Heir of the Lessor Heir Nat. br 198. K. if he out the Lessee in case his Ancestor had power to lease It lies against the Lessor that outs the Lessee Lessor Nat. br 220. F. 21 Edw. 4.10 pl. 1. Choke 30. pl. 25. 38 Edw 3.33 pl. 44. Coke 9. part 80. A. Nat. br 198. K. without lawful cause and he shall make title by the Lessor Lessor suffers a Recovery Recoverer the Recoverer outs the Lessee he shall have an Ejectione firmae against the Recoverer by the equity of the Statute 21 Hen. 8. cap. 15. Nat. br 220. J. 198. E. For the Recovery shall not destroy the Lease except the Lessee be party to it It lies against the Lord per Escheat Lord. which outs one Nat. br 221. I. B. 198. K. For the Lessees Title was paraâ—â—ount the Lords It lies against the Lord of a Villain which enters upon the Termor Nat. br 221. C. 198. K. that had a Lease of the Land before the Villain purchased it Tenant in common It lies against Tenant in common per his companion Littleton 73. A. vid. antea Of what things an Ejectmont lies It lies upon a Lease for Cattel Cattel because it is a personal thing 1 Hen. 6.1 Cottesmore granted for a certain time It lies of a Wood leased for years Wood. Com. 223. B. Barkleyes case the count there It lies of a Chamber Chamber Mich. 30. Eliz. Ban. Regis Brand against Cage It lies of Tithes Tithes per 32 Hen. 8. cap. 7.2 3 Mariae Dyer 116 pl. 17. the count ought to shew the nature or quality of the Tithes Coke 11. part 24. B. Harpers case vid. antea It lies of a Garden Gardon c. Barn and Tithes 9 Eliz. Dyer 258. pl. 16. together for they are all personal things But if all the Tithing consists of a modus decimandi and a Lease be made thereof an ejectione firmae lies not Coke 11. part 25. B. Harpers case For there is no possession of any thing lett but things which lie in prender It lies of a Water-course Water-course Com. 288. B. Brown Regist orig 227. B. viz. of the soil where the water runs or for the water to pass through It lies of a Hundred Hundred because it is liberum tenementum 15 Hen. 7.8 pl. 1. and so it may be lett for years It lies of a Mannor Mannor and the Writ Regist orig 227. B. Nat. br 220. G. Com. 229. A. Barkleyes case which consists in demesnes and services Q. of a reputative Mannor The Count. Lib. intra 252. A. sect 4. Count of a Demise of 300 Acres by the name of a Mannor habendum Manerium cum c. and good 13 14 Eliz. Dyer 340. pl. 5.7 for this is a good description of the thing lett It lies of a Messuage Messuage Coke 11. part 55. A. Sauls case For that is a thing certain The Count No. Lib. intra 184. A. sect 1.3.197 C. sect Lib. intra 252. B. sect 5.6 Coke 1. part A. Pelhams case It lies of a House Goods and Chattels altogether The Count lib. intra 252. B. sect 7. For they are all personal things It lies de medietate Messuagii Lib. intra 256. D. sect 14. The Count Com. 459. B. Studs case For it is certain enough what it doth mean It lies de tribus partibus duorum Messuagiorum No. Lib. intra 195. D. sect 6. It is not formal to have it of a Chappel Chappel but it shall be called a House Coke 11. part 25. B. Harpers case For the Plaint in Assize shall not be of â—o Hospital but shall say Messuage 8. Assize 29. For the Law takes no notice of Leases of such things not what is meant by them as to lay use It lies of a Mill Mill. No. Lib. intra 192. A. sect 5. But it seems he must shew what kind of Mill it is It lies of 300 Acres of Pasture Pasture the Count Lib. intra 251. D. sect 2. It lies of a Lease of pasturing of an Oxe Oxe Com. 228 B. Brown Regist 227. B. It lies of 100 Acres of Meadow Medow Lib. Intra 252. A. sect 13. It lies of a Rectory Rectory 15 Hen. 8. pl. 1. 16 Hen. 7.8 pl. 6.13 14 Eliz. Dyer 304. pl. 25. The Count Lib. intra 253. A. sect 9 10. For it seems that is certainly known Q. It lies not of a Reversion Reversion Com. 159. B. Thracies Case per Dyer For of that there can be no possession recovered It lies of 100 Acres of Land Land The Count Lib. intra 251. C. sect 1. For it shall be intended arable Land terra dicitur à terendo because broken up by the Plough But it lies not of a Close containing three Acres but shall be of so many of the Acres by name Coke 11. part 55. Savels Case to wit 3 Acres called Crowlands or the like for the word Close is uncertain For by Crooke Justice Mich. 15 Jac. Wicks Sparrow the Land of every man is enclosed and therefore an Ejectione firmae cannot lie of it for the uncertainty of the word Close But Coke 11 part 55. Savels Case was it seems that if it be of a Close containing three acres of Pasture it is good because the quantity is shewed and also the quality which makes it more certain and so it was adjudged Mich. 15. Jac. Banc. Regis Q.
Knights of the Parliament 11 Hen. 4.2 For the Law looks upon the Village in general and every one is liable for the whole if he be able If a man be taxed to Fifteens having Cattel levant in another Village when they come within the Parish they shall be distrained 18 Edw. 3. 11. pl. 39. For the Parish is liable with the Tax If a Horse of a Stranger escapes into the Land of him that hath lost Issues he shall be distrained as it seems 5 Hen. 7.1 Q. For it seems hard If the best Beast be estrayed the Lord may distrain any Cattel in the Land 27 Assize pl. 24. viz. where the Lord is to have the best Beast but it seems they must be levant and couchant A Goshawk distrained Goshawk and the Distress justified 16 Edw. 4. pl. 9. viz. a reclaimed Goshawk for in that one may have a property and it is valuable Fishes in a Pond cannot be distrained Fishes Crookes Reports 188. because they cannot be known what they are nor can be replevied A Hive of Bees shall be distrained as it seems Hive of Bees for a Replevin lies of them Nat. br 68. D. Q. if it be in the day-time how it can be Door or window A Door or Window is not distrainable 11 Edw. 3. Cessavit 21. 21 Hen. 7.26 14 Hen. 8.25 Brudenel For it is part of the Freehold A Milstone that is severed for picking shall not be distrained 14 Hen. 8.25 Milstone For it is part of the Mill. An Anvil shall not be distrained Anvil 14 Hen. 8.25 For it is part of the Smiths Tools he gains his Livelihood by A Barge was distrained by prescription Barge 3 Mar Dyer 117. pl. 73. and held good for that may alter the Law The Lord distrained Cattel for services before they were Levant and Couchant Lord. 4 Edw. 3.37 Issue joined 8. 22 Hen. 6.37 15 Hen. 7.17 Doct. Stud. 15 A. and well as it seems Sheep shall be distrained Sheep if other distress cannot be found at the day of the distraining 29 Edw. 3.16 else not in respect of the hindrance of clothing Cattel of the Plough shall not be distrained Plough if there be other distress sufficient 14 Eliz. Dyer 312. pl. 86. else they may for otherwise the party may be without remedy Cattel in Dower Cattel delivered by the Sheriff to the Tenant in Dower for seisin of Rent shall not be distrained for Arrerages of the Rent 40 Edw. 3.22 pl. 19. For she shall not take such advantage Yarn brought upon a Horse to a Neighbour to weigh Yarn this the Lord cannot distrain for Rent because it was brought for a special intent Mich. 39 40 Eliz. com Ban. Burleigh versus Read and it would hinder publick commerce and dealing If Cattel put into Black Acre Cattel and they stray into White Acre through default of enclosure they shall not be distrained 22 Eliz. Dyer 365. pl. 33. For the Owner is in no fault Default of Inclosure A. ought to inclose against B and leases to C for 21 years which leases to D for 10 years rendring Rent the Cattel of B for default of enclosure escape into the Lands of A. and he pursues them C cannot distrain for no default was in the owner of the Cattel 15 Eliz. Dyer 317. pl. 9. vide 39 Edw. 3.3 pl. 12. and the Law doth not punish the innocent What Person shall distrain Dammage feasant A Commoner shall distrain for dammage sesant and is not tied to shew per quod amisit Communiam No. Lib. intra 573. D. sect 4. 24 Edw. 3.42 pl. 23. Coke 9. part 112. B. 46 Edw. 3.23 15 Hen. 7.2 7 Edw. 3.266 pl. 39.13 Hen. 8.15 For the Distress there taken implies it Tenant at sufferance distrains dammages feasant 4 Hen. 7.3 and good for he hath title against a stranger He to whose use before 27 Hen. 8. could not distrain because he had nothing in the Land 15 Hen. 7.2 pl. 4. but the Feoffee of the Land but now it is otherwise Sheep bailed to a woman sole to dung her Land Sheep who takes a Husband who commands the Owner to take them again who refuseth the Husband may distrain them dammage feasant 43 Edw. 3.32 pl. 3. For now they are dammage feasant unto him in respect of his interest in the Land The Lord distrains Cattel because the Tenant puts in more than he ought into the Common Lord. 46 Edw. 3.12 pl. 13. and good for he ought not to surcharge the Common A. sold 50 Acres of Moor which lay common Common to B yet every one of them ought to inclose against the other and if the Cattel of the one go into the Land of the other they shall be distrained dammage feasant 23 Eliz. Dyer 372. pl. 10. For by the sale the Lands are severed At what time a man may distrain Services and Amerciaments For Rent-services he shall not distrain in the night 11 Hen. 7.5 pl. 8. 12 Edw 3. Distress 17. 10 Edw. 3.21 Coke 9. part 66. A. For the night is for rest and all things ought to be then in peace After the Term ended no distress 14 Hen. 4.31 For then the privity betwixt the Lessor and the Lessee is gone Q. But 22 Hen. 7.96 pl. 5. by all if a Lease for years be ended and the Lessee keeps in the Lessor shall distrain for the arrerages For that continues the privity as it seems Q. A Lease till Mich. for one year rendring rent at Mich. he cannot distrain because the Lease is ended at the instant Doct. Stud. 74. A. That is at the day and the Law admits not of Fractions of time Husband and wife Husband leases the Wifes Lands rendring Rent th Wife dies without Issue the Husband cannot distrain because the reversion goes to the Heir 9 Hen. 6.45 28 Hen. 8. Dyer 28. pl. 191. And the rent go with the Reversion A Lease for years Reversion grants the reversion to B yet if the Cattel of B comes upon the Land A shall distrain during the Term 10 Edw. 4.4 tamen quaere because he hath nothing in the Land Dammage feasant For Dammage feasant in the night one may distrain and good enough Coke 9. part 66. A. Mackally's case 11 Hen. 7.5 pl. 8. 12 Edw. 3. Distress 17. 10 Edw. 3.21 For else it might be mischievous in respect of the dammages which might be done before the morning A. enters upon a condition broken and takes the Cattel of the Lessee dammage feasant Quaere 5 Eliz. Dyer 322. It seems he may for he comes in upon a good Title A man may distrain dammage feasant although the owner make fresh suit in respect of his satisfaction for the dammage done 7 Hâ—n 7.1 pl. 11. 11 Hen. 7.4 pl. 11. 10 Hen. 7.21 Doct. Stud. 15. è contra In what place a man may distrain A man fined in a Leet being
one of the Deziners Leet shall be distrained through all the jurisdiction of the Leet although that he be of another dezin Coke 11. part 45. A. 11 Hen. 4.89 13 Hen. 4.9 For he may it seems be liable in both places Tourne of the Sheriff A man shall distrain in any place within the precinct of the Court 19 Edw. 3.2 Avowry 225. 8 Rich. 2. Avowry 194. 47 Edw. 3. pl. 12. where the Amerciament is set but not without for there is no jurisdiction For Amerciament in the Sheriffs Tourne he may distrain throughout the County 12 Hen. 4.24 pl. 17. 13 Hen. 4.9 8. Rich. 2. Avowry 194. because all the County is within the jurisdiction of the Sheriffs turn for it is the County-Court If a man had a Leet within his Mannor he cannot distrain out of his Mannor 4 Edw. 3 96. pl. 26. For that is not within his jurisdiction For a tax by the Parliament For a Tax by the Parliament a distress may be justified throughout all the Village 11 Hen. 4.2 18 Edw. 3.11 pl. 39. upon which the Tax is set This was according to the old way but now the Law is altered A Fishing lying within tenure a man may distrain in it For Service for it seems that the Soil passeth 40 Edw. 3.45 as well as the water viz. terra aqua cooperta Q. For a Fishing seems but a Liberty or Priviledge Herriot-service A man may seize his Herriot-service in any place that he shall find him although not within his Fee 6 Edw. 3.208 pl. 3. For it is a personal service and not local or fixt The Lord may enter the House of his Tenant to distrain if the Door be open House 38 Hen. 6. 26 pl. 4. But he cannot open the Door to do it Q. If the Lord find the House fast with a Bar and he break it open and distrain this is wrongfully done 8 Edw. 2. Distress 21. For a mans House is his Castle of defence If the Beasts of a stranger escape into anothers Land Estranger and the Owner chases them out before and the Lord comes and distrains them here the Lord cannot distrain them yet it is otherwise if they go out of their own accord without chasing 11 Hen. 7.4 pl. 11 Com. 38. A. Plats case 2 Edw. 4.6 B. Littleton 33 Hen. 6.52 pl. 39. 34 Hen. 6.18 B. For in the former case he may take notice of the Owner but in the latter case he cannot The Lord distrains the Cattel of the Patron within the Glebe belonging to the Advowson Glebe 33 Hen. 6.35 Littleton This is a good distress held A man cannot distrain for Rent but in the place leasâ—d Lessee unless the Lessee grant a distress in other Land 9 Hen. 6.9 which he may well do by special agreement Lords Ecc. The Lord distrains in his Fee the Tenant chases them out of his Fee he may take them again 44 Edw. 3.20 pl. 18. for by the distress he had a property Fresh suit A Baily attaches a Horse which is rescued and brought into another County he shall make fresh sâ—it and take him again 33 Hen. 6.52 pl. 39. 33 Hen. 6.550 pl. 46. else not for the gaining him upon the fresh suit re-continues the Attachment A distrains and puts them in the pound Pound the Owner takes them out A may take them again in any place 34 Hen. 6.18 pl. 33. because they were once in custody of the Law and he may place them there again wherever he finds them If one put his Cattel in Land charged with a Rent-charge Rent-charge they shall be distrained for the Rent-charge although they are neither Levant nor Couchant otherwise if they escape upon the Land 15 Hen. 7.17 pl. 13. for it shall be prefumed he took notice of the Rent but not so where the Beasts escape there for that is against his will and he could not help it Quaere by the 18 Edw. 2. Avowry 219. if the Cattel that escape shall not be distrained for dammage feasant It seems they shall in respect of the dammage to be recompenced which come by his negligence River of Thames 2 3 Mariae Dyer 117. pl 73. Distress for an annual sum upon the River of Thames Q. of what nature What Distress shall be sold A Distress taken in a Court-Leet shall be sold Court-Leet although that a common person be Lord of the Leet 3 Hen. 7.4 pl. 15. Fairsax Distress taken by a Baily of a Lord of a Leet for forfeiture of Inmates Inmate and sold by force of a grant of the Steward in nature of a Scire faciâ—s No. Lib. Intra 666. A. Sect. 14. Q. whether by the Common Law A Distress taken for a Fine touching High-ways shall be sold Highways per 18 Eliz. cap. 10. What shall not be said a Distress excessive No Distress shall be said excessive for Homage 42 Edw. 3.26 pl. 11. Belknap Excessive 27. Assize pl. 51. Coke 4. Part. 8. B. Bevils case 28. Assize pl. 50. this is in respect of the great consequence of the thing distrained for and the easiness for the Tenant to perform it So likewise for fealty 27. Assize pl. 51. 28 Assira pl. 50. Coke 4. part 8. Bevils case for the same reason and in respect of the contempt done to the Lord. A man distrains four Horses and a Cart for two shillings rent this is not excessive because they are fixed to the Cart otherwise if not fixed so of a fold of Sheep 20 Edw. 4.3 otherwise if not in the fold Quaere rationem differentia It seems to be because in the former cases the intent of the party appears but only to have his due and not to take advantage of the Distress But not 〈◊〉 in the latter for then he might have distrained 〈◊〉 Horse or one Sheep 1. The Barr. 2. Justification 3. Conusance 4. Avowry No Barr that the Plantiff is possessed of the â—â—tel Nat. br 69. H. for he ought to have damâ—ages for the wrongful distraining of them That he took them not a good barr Lib. Intra â—1 B. Sect. 1.565 C. Sect. 1 2. 19 Edw. 3. Aid 28. 〈◊〉 that disaffirms the Replevin viz. the supposal 〈◊〉 the Writ Claim of Property 26 Hen. 8.6 pl. 27. 31 〈◊〉 6.12 for then it was lawful to take them as â—â—own This may not be by way of Avowry 31 Hen. â— 12 In Replevin of grain it is a good Barr to say Grain 〈◊〉 was his Wises dum sola and that the Plaintiff â—â—â—endred it to her 30 Edw. 3.9 pl. 3. for by the â—arriage the interest is his 2. Justification Difference between a Justification and an Avowry When a man cannot have the thing for which 〈◊〉 distrains then he may justifie the taking in lieu 〈◊〉 the thing and not avow to keep it till he have 〈◊〉 thing it self per Curiam 19 Hen. 6.41 â—83 But 22 Edw 4.36 B. è
br 87 H. Regist orig 95. A. for the dammages do concern the Husband 21 Hen. 6.30 pl. 16. Lib. Intr. 6.50 C. Sect. 3. and the Count shall be bona catalla of the wife 7 Hen. 7.2 vide 14 Eliz. Dyer 305. pl. 59. the Count Lib. Intra 650. C. Sect. 3. Husband and wife may joyn in Trespass for the beating of the wife 46 Edw. 3.3 pl. 5. 22 Assize 60 87. Regist 105. B. Lib. Intra 612 668. C. Sect. 4. for he is damnified by it as well as his wife viz. by losing his labour and society So for imprisonment of the Wife Coke 5. part 59. A. Fosters case for the same reason But if they joyn for battery of both this abates for the battery of the Husband 9 Edw. 4.54 3 Edw. 3. brev 737. For the battery of the Husband is not the battery of the Wife and so as to that she hath no cause of Action And if they brought a Trespass for beating and taking away of Goods during the coverture thé Writ shall say de bonis of the Husband for the Wife cannot have a property during the coverture Regist orig 105. B. And if the Husband and Wife are beaten they shall have several Actions Regist orig 105. in the Note quia transgressio personalis ought to be brought only by the person injured Trespass quare domum suam fregit maremium iude asportavit c. being the house of the Wife is good by the Husband alone because he may pull it down and sell it 43 Edw. 3.16 pl. 15 fol. 26. pl. 6. Q. It seems so because he cannot be sued for it during the coverture So for entring and chasing and carrying away of the Deer in a Park although the Wife had a joint Estate with her Husband yet it is a personal thing in the Husband 43 Edw. 3.8 pl. 23. So for Deeds concerning the Land of the Wife 8 Hen. 5.9 pl. 13. For Deeds are Chattels though they concern the Realty So in trespass upon the Statute of 5 Richard 2. cap. 7. because he only shall have dammages 38 Hen. 6.3 pl. 9.4 Edw. 4.13 if he recover So for taking away of his Wife and his Goods Nat. br 89. O. 14 Hen. 6.2 pl. 11. 6 Edw. 3.208 pl. 2. 43 Edw. 3.23 pl. 15. 44 Assize pl. 13. Regist orig 97. A. for this is given by Westm 1. cap. 12. Westm 2. cap. 34. It seems this Statute was but in affirmance of the common Law Quando breve fertur ab aliquibus ad liberum tenementum annexis fiat in nomine amborum Nota. sed si sit de rebus libero tenemento non annexis in nomine viri tantum sed si sit de domo fracta sit in nomine amborum sed alii Clerici dicunt quod fiat in nomine viri tantum Regist orig 108. B. This is when trespass is brought concerning House and Lands of the Wife being covert Vide tamen in nomine amborum de clauso fracto bona c. Lib. intra 640. B. sect 4. fol. 662. D. sect 21 Rich. 2. brev 933. Q. Chaplain of a Chappel The King collates and the Sheriff puts him in who is collated he shall have trespass Nat. br 37. D. if the Trespass be done after he be put in A Commoner shall not have Trespass for any thing in the Land Commoner viz. the soil of a Common 4 Hen. 7.3 15 Hen. 7.13 pl. 1. fol. 12. pl. 23. For he hath only an interest in the Herbage Q. tamen He that hath not soil A lets Land to B for to sow and A to have the Moiety of the Corn yet B cannot have trespass Quare clausum fregit against him for wasting of the Corn for he hath interest in the whole Crop Hill 30 Eliz. Hâ—re versus Oakley And although this was not pleaded in abatement yet the special matter being found the Plaintiff shall not have judgment because it appears to the Court they cannot be disjoined to have an action in such form For they are upon the matter joint-tenants of the Land He to whose use He to whose use shall not have Trespass in his own name but in the name of the Feoffees Crooke 17 Hen. 7.41 pl. 2. For the Estate in Law is in them A Copy-holder shall have trespass for the breaking his Close and cutting his Trees Copy-holder 2 Hen. 8.4.12 Coke 4. part 21. B. No. Lib. intra 644. C. sect 3. the pleadings For he hath an interest in both to some purposes He shall have it against the Lord 20 Edw. 3. â—0 Coke 4. part 22. A. For the Lord in this â—espect is in no better condition than a stranger Disseisee shall have Trespass for the mean profits Disseisee and all other things after his re-entry Coke 11. part 51. A. Liffords case 3 Hen. 4.13 pl. 18. Gascoigne 37 H. 6.7 pl. 13. but not before because then he had no interest in the Land but a bare right But before his entry he shall not have Trespass 32 Hen. 6.32 A. 38 Hen. 6.28 A. Fortescue viz. against one that entred before he was disscised Q. Unless in case of necessity as Tenant for the Life of another is disseized and he for whose life he hath it dies or Tenant for years is outed and the years expire they shall have Trespass asore the entry and recover the mean profits 38 Hen. 6.28 B. Where there is a necessity the Law doth give way to usual things rather than there should be a failure of Justice An Executor shall have Trespass for Goods taken out of the possession of the Testator Executor Nat. Br. 87. E. Regist 98. A. in respect of his interest by his Executorship And the Writ shall not say ad grave damnum neque in retardationem executionis testamenti Regist orig 98. A. the Count Lib. intra 640. A. sect 2. But this was given by the Stat. of 4 Edw. 3. cap. 6. 14 Hen. 7.13 And at this day an Executor of an Executor shall have such an Action Regist 98. A. the rule there it seems upon the equity of the former Statute But he should not have had it before 25 Edw. 3. viz. at the Common Law cap. 5. Com. 290. A. Chapmans case But an Executor shall not have such Action De clauso fracto 11 Hen. 4.3 pl. 8. 4 Edw. 4.8 A. Catesby viz. in vita Testatoris for this is not within the Statute Neque de Arboribus succisis tempore Testatoris 18 Edw. 4.16 A. Pigott Nor this and so both are left at the Common Law An Executor shall not have Trespass before probate of the Will unless it be for a thing taken out of his own possession Com. 281. Q. rationem differentiae One Executor shall have Trespass for a thing taken out of his possession with his companion 42 Edw. 3.26 pl. 12. 2 Rich. 2. Executor 75. For Executors are but as one person in Law or he
Retorno habendo Null 1. The Defendant said that the place is ancient demesn c. if the issue be found for him the Plaintiff shall not have a return 21 Edw. 3.7 pl. 18. 2. If one justifies for Services and makes no Avowry he shall not have a return although it be found for him 15 Edw. 4.29 5 Edw. 4.6 34 Hen. 6. Avowry 47. for there is difference betwixt Avowing and Justifying Avowing supposeth tenure but Justifying doth not If one make a Conusance as Bailiff he shall have a return No. Lib. Intra 591. A. sect 9. viz. for his Master 3. The Plaintiff in a Recaption dies the Lord shall have return if another Writ be purchased 11 Hen. 6.14 pl. 3. Q. If the Plaintiff be Nonsuited Returno habendo the other shall have a return Lib. Intra 570. D. sect 1 2. 11 Eliz. Dyer 280. pl. 14. 35 Hen. 6.47 pl. 12. 17 Hen. 8. br second Deliverance 15. 22 Hen. 7.92 pl. 7. Crooke and this although the other do make no Avowry 16 Hen. 6. return of Cattel 1. 2 Hen. 5.6 for the Nonsuit confesseth the Distress well taken and so the Avowry is needless But otherways he may abate the Writ by pleading 9 Hen. 6.4 pl. 10. 11 Hen. 6.5 B. Danby 35 Hen. 6.40 pl. 1. But if the Count abate or if he count not of the place of the taking yet he shall not have a return before an Avowry 35 Hen. 6.40 pl. 1. because that is but for want of good pleading and he may have just cause of complaint notwithstanding for ought that appears to the Court. The second Deliverance he shall not have it without Avowry per Newton 16 Hen. 6. return of Cattel 1. for it is grounded upon a Title shewn The Defendant cannot claim a property in Repleg to have a return because he ought to claim at the time of the Repleg sued 31 Hen. 6.12 pl. 1. and now it is too late The Plaint is removed and it abates for default of the Sirname there was a return awarded without an Avowry 27 Hen. 6.3 pl. 35. for here is no right party complained of Repleg against C and D C pleads he took them not D justifies in right of C and found for him yet he shall not have a return 22 Hen. 6.52 pl. 27. because he justifies in the right of another who disclaims the distress The Defendant pleads property in another and found so there he shall have a return without an Avowry for the Plaintiff had deliverance without cause 39 Hen. 6.35 pl. 47. Prisott because the Cattel belonged to another One avows for rent at two days one whereof is not come the Plaintiff is Nonsuited there shall be a return in respect of the rent due for one day because he is not meerly an Actor per 4. Justices against three But Newton said he ought to have several Avowries Q. At the Common Law a return irreplevisable was but when it was found against the Plaintiff 1. Return irreplevisable 1. At Common Law 2. At the Statute Law by an issue tried 36 Hen. 6.8 pl. 24. Babbington for then the matter was fully tried If the Defendant doth not answer to the Avowry there the Cattel shall be irreplevisable Lib. Intra 571. A. sect 4. for he thereby confesseth the distress lawful 2. Return irreplevisable after Westm 2. cap. 2. is but upon a Nonsuit in second Deliverance 2 Hen. 4.23 pl. 9. Lib. Intra 571. A. sect 4 5. Upon a Nonsuit in Repleg it shall not be 24 Edw. 3.33 pl. 22. if it be not after verdict 14 Hen. 7.6 pl. 14. for he may have just cause of complaint though he be Nonsuit but by the verdict it appears he had not If the Plaintiff be Nonsuited in a Replevin and after in a second deliverance there shall be a return irreplevisable before Avowry but quaere if he shall have dammages before Avowry 10 Eliz. Dyer 280. pl. 14. It seems he shall for this double Nonsuit admits the taking lawful If the Plaintiff be Nonsuited when the Jury comes again and gives their verdict yet there shall not be a return irreplevisable 34 Hen. 6.5 pl. 14. 14 Hen. 7.6 pl. 14. for it may be he hath better evidence which he then failed of The Plaintiff in Repleg makes default at the Nisi prius they shall not be irreplevisable because it is out of the Law 3 Hen. 6.8 pl. 24. The Plaintiff in a Repleg is Nonsuited and a return awarded the King demises the pledges being warned come not quaere if the return shall be irreplevisable 1 Edw. 7. pl. 13. Or upon a Return awarded in second deliverance 2 Hen. 4.23 pl. 9. Q. Or upon a judgment against the Plaintiff upon a Demurrer 2 Hen. 4.23 pl. 9. 14. Hen. 7.6 pl. 14.2 3 Mariae Dyer 118. pl. 77. Q. Upon a Demurrer upon a plea to the Writ and judgment for the Defendant they shall not be irreplevisable 34 Hen. 6.37 B. br Repleg 6. for that is not upon the merits of the cause Or upon issue tried 2 Hen. 23. pl. 9. the Defendant in a Repleg pleads to the Writ and found by the Jury so there shall be a return irreplevisable the contrary upon a Demurrer upon a Writ or Concession 34 Hen. 6.37 B. br Repleg 6. for a verdict is of a higher account than a Demurrer or Concession If the Plaintiff upon a second Deliverance suffer the plea to be discontinued there it shall be irreplevisable 17 Hen. br second Deliverance for the Court will not be troubled with Suits to no purpose Dammages by Statutes Note that at this day dammages are given where the Plaintiff is Nonsuited or found against him or otherwise barred in Conusance Avowry or Justification for Rents Customes or Services per 7 Hen. 8. cap. 4. com 82. B. Crokers case 14 Mariae Dyer 141. pl. 46. 19 Hen. 8.11 pl. 7. And for dammage feasant per 21 Hen. 8. cap. 19.1 3 Mariae Dyer 118. pl. 77. 4 Mariae Dyer 141. pl. 46. But if it be for an Estray he shall not have dammages because the Statute extends not to it â—asch 34 Eliz. Ban. Regis Rot. 292. and being penal it shall not be expounded by equity But at the Common Law the Avowant shall not recover dammages 35 Hen. 6. pl. 12. for it was though enough for him to have return of the distress If one have a return irreplevisable upon a Non-suit in second deliverance it is doubted whether he shall have dammages before Avowry 11 Eliz. Dyer 280. pl. 14. It seems he shall because there needs no Avowry Quaere tamen for it appears not to the Court that he had cause to distrain TRESPASS Quid. Quotuplex 1. Court 2. Plaintiff 3. Defendant 4. Thing 5. Writ 6. Process 7. New Assignment 8. Barr. 9. Judgment 10. Execution Trespass is either by Common Law upon the doing of wrong to Inheritance Corporate Castle House Mill. Columbary Toft Garden Land Meadow Pasture Wood. Park Forrest
Chase Pond Tithes Trees Incorporate Village Way Common Fishing Warren Game of Swans Toll Waife Stray Bona felonum Fair or Market Frank-foldage Returna Brevium upon the doing of wrong to Chattels Reals Son Daughter Neece Ward Woman Servant Prentice Tenants Prisoner Captive Personal Living Abducta Capta fugata Capta fugata imparcata Capta interfecta Districta Fugata Imparcata Interfecta Percussa Tonsa Dead Arrestata Capta arrestata Capta asportata Combusta Consumpta Depasta Districta Extracta Extracta aspertata Faleata asportata Fracta Impedita Submersa Succisa asportatâ— Upon the doing of wrong to the Body Menace Siege Assault Battery Wounding Imprisonment Imprisonment till they make Fine Acquittance Statute Obligation Find Pledges Release Oath Against a Goaler for putting Irons upon one Statute Law Marlebridge cap. 2. For distraining to come to his Leet Cap. 4. Averia ad loca incognita fugata de com in com Westm 1. cap. 16. 1 2 Mar. cap. 12. excessive distress Cap. 5. Distress extra foedum Westm 1. cap. 16. In via Regia In com strato Cap. 28. For a Successor of a thing taken in the time of his Predecessor Westm 1. cap. 17. Distress by a Baily not sworn 21 Edw. 1. De malefactoribus in pareis vivariu c. 4 Edw. 3. cap 6. For Executors De bonis asportatis in vita Testatoris 5 Rich. 2. cap. 7. Entrie ubi non datur per Legem 8 Hen. 6. cap. 9. Forcible entry 1 2 Mariae For severing a Distress taken at one time Trespass In what Court Trespass lies County Court IN the County Court but then it shall not say vi armis Nat. br 85. G. neither against the peace because the Sheriff cannot determine it Regist 92. A. for that Court is not to meddle with criminal matters Note Regist orig 111. B. Trespass vi armis Note shall not be sued in any Court but the Kings or before his Justices if otherways a Supersedeas shall be awarded Coke 8. part 120. A. for he is the proper Judge of such matters as the chief conservator of the Peace In the Marshalsey Marshalsey if the party be of the Houshold Trespass lies but then it shall say vi armis for battery or carrying away of goods and no other causes Coke 10. part 72. A. which indeed are rather civil than criminal causes For it shall not be Quare clausum fregit Coke 10. part 76. A. which is of a higher nature and may concern title of Land It lies in Chancery for one priviledged there Chancery Regist orig 104. A. No. Lib. Intra 678. B. sect 20. in respect of his attendance required there And there shall be an Alias c. Regist 104. A. It lies in Com. Ban. or Ban. Regis Nat. br 86. G. for these are high Courts of Record Com. Ban. Regis Ancient Demean If Trespass be brought in the Court of the King where the reality shall come in debate Ancient Demean is a good plea because the Title ought to be tried there Coke 5. part 105. as in trespass for Trees where the Defendant claims Franktenement in the land where the Trees grew 6 Hen. 4.1 pl. 6. otherwise it is no plea 46 Edw. 3.1 pl. 2. because the Action is personal which may be any where sued In Trespass for a Pigeon-house with Pigeons it is no plea 47 Edw. 3.22 pl. 54. viz. Ancient demesn because the Action is chiefly in respect of the Pigeons So in Trespass upon the Case 5 Rich. 2. cap. 7. because dammages are only to be recovered 21 Edw. 4.3 2 Hen. 7.17 pl. 1. 47 Edw. 3.22 pl. 54. 46 Edw. 3.1 pl. 2. which are personal And note Note none may plead this but the Ter-tenant of the Land in Ancient demâ—â—n 2 Hen. 7.17 pl. 1. and that in respect of his service to be done to the Lord there Trespass in the Five Ports the Writ is Dilecto fideli suo W. Constabular Castri sui de D. Custodi quinque Portuum suor salutem Mandamus vobis quod Audita quaerela A. de quadam transgr eidem A. per B. qui est de libertate Portuum praedict illat ut dicitur auditisque hine inde earum rationibus eidem A. facias exhiberi celeris justitiae complementum prout de jure secundum legem consuetudinem portuum praedict fuerit faoiend ne clamor ad nos inde perveniat iteratus c. Who shall have Trespass Note that he that taketh only the profit of the soil of anothers Land shall not have a Trespass Quare clausum fregit 15 Hen. 7. 14 Hen. 8. because he hath no interest in the soil He that hath certain Acres of land annuatim shall have Trespass for he hath a term in those Acres of land An Administrator shall have Trespass for goods of the Intestates taken out of the possession of the Administrator Administrator Regist orig 94. A. 22 Edw. 4.120 pl. 32. the Count Lib. Intra 649. D. Sect. 1. for he hath a property in them ratione Administrationis An Administrator shall have Trespass for goods taken out of the possession of the Intestate in respect of his interest in them Nat. br 92. A. 14 Hen. 7.13 Tremaile the Count Lib. Intra 640. A. Sect. 1. An Executor shall have it Executor per the Stat. of 4 Edw. 3. cap. 6. and the Statute of 31 Edw. 3. gives the same remedy to an Administrator but this is by the equity of the Statute 4 Edw. 3. cap. 7. Crooke 24 Hen. 7.101 B. pl. 2. An Administrator shall have an Action of Trespass before the Administration committed to him Administrator but not against him that justifies under the Ordinary for he was Administrator pro tempore 18 Hen. 6.22 pl. 7. 36 Hen. 6.8 A Prisot Register Original 102. B. that is for goods taken before the Administration granted But if the Administration be committed by word to A who sells goods to B and dies and the Administration is committed to C quaere if C shall have Trespass for the goods sold It seems not for A had authority as it seems to sell An alien Friend shall have all Actions personals Alien 6 Hen. 8. Dyer pl. 8. Coke 7. part 17. A. ratione commorantiae by the Law of Nations which the Common Law maintains But an alien Enemy shall have no Action 6 Hen. 8. Dyer 2. pl. 8. Coke 7. part 17. A. 14 Hen. 8.4 for it is not reason that he that wishes ill to the Nation where he lives should have the protection of their Laws Husband and wife Husband and wife Executrix to B joyn in Trespass for taking the Goods during coverture 21 Edw. 4.5 per Littleton and good in respect of the Husbands interest in right of his wife viz. in taking her goods In a Trespass done to the wife sole who takes a Husband they shall have Trespass in both their names Nat.