by Afferrors otherwise not viz. the Lord. For a Corrody granted with a distress if not paid Corrody he may avow for a distress for it 27 Edw. 3.81 pl. 13. Dammage feasant For dammage feasant Lib. Intra 554. D. Sect. 3.556 A. Sect. 7.559 A. Sect. 1 2. No. Lib. Intra 575. B. Sect. 6.577 C. Coke 8. part 89. B. Franceâ— case Antea If the Cattel be chased out of the Land before he distrain he cannot avow the distress Coke 9. part 22. Avowry 16 Edw. 4.10 2 Edw. 3.2 Avowry 182. for they must be taken in the ground or Land A man pleads it is his Franktenant and avows for dammage feasant and it was sound that it was his Franktenant and his wifes the Judgment shall be against him for both were seized and so the plea false Trin. 38 Eliz. Com. Ban. Walker versus Bonner The Plaintiff shews that A was seized and the Land descended to him and that he was seized in Fee and avows for dammage feasant and good Trin. 9 Jac. Newton versus Arsley for here is a good Title derived For a Moiety of the value of the Land Forfeiture upon 4 Hen. 7. forfeited For maintenance of Husbandry Lib. Intra 575. D. Sect. 1. For a Herriot custome No. Lib. 613. B. Sect. 22. Herriot But he ought to shew the certainty of the Land holden for to say that he held two Tenements is not sufficient but if he claims it of the Lessee for life he ought to shew which Lease he holds by 21 Hen. 7.79 pl. 27. Crooke For Relief Lib. Intra 555. C. Sect. 4. Relief But the Avowry shall not be for the double rent but only the quantity of the single rent 16 Hen. 7.4 pl. 2. 1. For a Rent-charge Rent No. Lib. Intra 585. A. Sect. 7 8 9. by deed 2. For a Rent-charge by prescription Lib. Intra 557. B. Sect. 1 2. C. 3. For Rent-service but if be avow for two rents where one Rent-day is not come the Avowry shall abate for that only which is not come Coke 8. part 45 B. Godfreys case but for the other it is good because due 1. For Fealty Lib. Intra 555. C. Sect. 4. Services 2. For Homage Lib. Intra 555. C. Sect. 4. Coke 4. part 6. A B. Bevils case For Rent-service Lib. Intra 554. C. Sect. 2.556 Sect. 8. But if it be to render one thing or other as a Rose or a pair of Spurs and shew for what he avows he shall avow accordingly For Bracton lib. 2. fol. 35. B. in hoc casu tenens â—abeâ— electionem unum solvendo liberatur ab â—lâ—ero For Rent-service when the Cattel are chased out Lib. Intr. 557. A. Sect. 10. antea Seisin in Avowry in whom it may be alledged It may be alledged in the Ancestor of the Avowant Ancesâ—or 34 Hen. 6.21 3 Edw. 2. Avowry 187. 20 Hen. 6 7. com 140. A. 16 Hen. 7.4 pl. 10. 2 Edw. 3.27 pl. 4. because he derives his Title â—rom him In the Father of the Feoffor Feoffor Lib. Intra 556. B. sect 8. and so the Feoffor had a good Title by presumption In the Predecessor good Predecessor 6 Edw. 3.277 Com. 96. A. under whom he claims By what hands Seisin of the Rent or Services shall be alledged By the Ancestor of the Plaintiff Ancestor 34 Edw. 3. Avowry 258. 34 Hen. 6.8 who was possâ—ssed of the Land By a Disscisor Disscisor good Coke 2. part 67. A. Tookers case Coke 6. part 57. B. Bredimans case for he was owner protempore Unless it be by Covin Coke 6. part 58. A. Bredimans case betwixt him and he that distrains for the Law protects not â—raud By the hands of an Infant Infant good 34 Edw. 3. Disclaimer 30. Coke 9. part 33. B. Bucknals caâ—e Quaere Feoffor of the Tenant In the Feoffor of the Tenant Com. 95. A. Manâ—eâ—s case for the Tenant derives under hiâ— By the hands of one Joyntenant only it is good Joynt-tenant Coke 2. part 67. A. Tookers case Prescription to have rent of a Village Resiantâ— Seisin by the Resiants is good because all the Village is chargeable 4 Hen. 6.29 30. Coke 6. part 59. Bredimans case By Tenant for years not good Tenant because he hath not an estate out of which seisin may be gained Coke 6. part 57. A. Bredimans case in respect of the feebleness of it By the hands of the Tenant for life good when the remainder is over to another Coke 6. part 58. A. Bredimans case for he hath a Freehold By the hands of the Tenant by the Courtesie not good to charge the Heir with a Herriot-service because none may have his estate 21 Hen. 7.84 pl. 8. Crooke nor derive a Title from him for his estate determines with his life A Tenant to a Lord makes a Feoffment and after notice to the Lord gives seisin to the Lord this is good because he remains Tenant to the Lord until notice be given Coke 6. part 58. A. Bredimans case for the Lord cannot take notice of the Feoffment By the hands of the Tenant and needs not say Tenant of the land 34 Hen. 6.8 for it shall be so intended By the hands of the Tenant peravail good Coke 6. part 58. A. Bredimans case or Under-tenant The Sheriff claims a rent by prescription and seisin 42 Edw. 3 4. Within what time seisin ought to be alledged The Advowant is not bound to alledge seisin within 40 years but may alledge it generally and then the other may plead that he was not seised within 40 years Coke 8. part 65. A. Fosters case 9. part 36. A. Bucknalls case 14 Eliz. Dyer 315. pl. 10. and that will destroy the seisin if it be so When it is not requisite to alledge Seisin In an Avowry for an amerciament it is not requisite to alledge it Avowry 11 Hen. 4.89 13 Hen. 4.9 In an Avowry for a Rent-charge 44 Edw. 3. Avowry 75. Coke 8. part 56. A. Fosters case it is necessary for if he were never seised the rent was not executed In an Avowry for rent upon a seoffment by deed Seisin is not necessary to be alledged because the deed is the Title and the commencement of it appears by it 2 Edw. 2. Avowry 185. Coke 8. part 65. A. Fosters case So for Rent or Service upon a gift in Tail or other particular estate Coke 8. part 65. A. Fosters case created by deed What Seisin shall be good Seisin of the superiour Service is seisin of all inferiours Superiour because they are incident to it Coke 4. part 8. Bevils case and included as it were in it For Example seisin of Esâ—uage is seisin of Homage Coke 4. part 8. Seisin of Homage is seisin of Fealty Coke 4. part 8. Seisin of Homage is seisin of the Superiour or inferiour Inferiour For Example seisin of Homage is seisin of Escuage the superiour 13 Edw.
Market 11 Hen. 4.47 41 Edw. 3.24 29 Edw. 3.18 9 Hen. 6.45 Nat. br 91. G. 2 Edw. 3.32 pl. 9. For it is as well a private injury to them as it is a prejudice to the Commonwealth 3. For disturbing me to hold a Fair or Market 16 Edw. 2. Action sur case 47. for it hinders my profit And the Writ was that it held three days and the Count two days and two half days and good for it is all one in substance 4. For disturbing me to take Toll in a Fair or Market 9 Hen. 6.45 21 Hen. 7.16 quaere for it seems Trespass lies 5. For selling in another place out of the Fair Regist orig 107. A B. for thereby the Fair and the profit is lessened 1. When the Tenant for life or years burns the Deed to him delivered of remainder Deeds 9 Edw. 4.53 viz. by the remainder in Ann. 2. When a Deed is lost 34 Hen. 6.4 viz. by negligence for the Law punisheth negligence whereby another is damnified 3. When the Seal is broken off 39 Hen. 6.46 Lib. Intra 7. B. Sect. 1 3. either wilfully or negligently 4. For Deeds sold with the Land and not delivered upon request Lib. Intra 5. A. Sect. 2. for the agreement is not performed which the Law creat s. 5. For forging a Statute Staple or Merchant Nat. br 96. B. 17 Edw. 3.49 Regist orig 115. A B. to recompence the party wronged though the party may also be indicted for it 6. For forging of a Release by which I lose my Ward 39 Edw. 3.13 False Return 1. For returning me summoned and thereby Judgment is given by default against me where I never was summoned but this was after the death of the Summoners 8 Hen. 6.1 6 Edw. 4.3.8 26 Assize 48. 2. For returning a Nichil where I had lands Nat. br 93. b. 31 Edw. 3. Process 55. for I am thereby disparaged 1. For setting up a new Ferry to the Nusance of my Ferry Ferry 22 Hen. 6.14 and so my damage 2. For threatning me or Passengers by which I lose the profits of my Ferry 22 Hen. 6.17 pl. 32. For disturbing my Foldage Foldage No. Lib. Intr. 14. D. Sect. 12. for by the Foldage my land is made better For disturbing one to have certain walks in the Forrest of Selwood Forrest Coke 5. part 76. the Countess of Pembrokes case for his profit is thereby hindred For erecting a Warren or Dove-house this Action lies not although it be to the Nusance of another Warren Coke 5. part 104. B. Boulstons case for they are casual and uncertain profits For executing Process in my Liberty Liberty Nat. br 95. B. Regist orig 103 104. 5 Edw. 3.150 pl. 20. for my priviledge is thereby abridged 1. For hindring my light by making a Wood pile Coke 9 part 57. B. Alreds case le Count there House and 58. No. Lib. Intra 19. B. sect 16. 7 Edw. 3.261 pl. 15. Q. if I make it upon my own ground and for my own private use 2. For infecting the Air of my Parlour with an Hogs-skin Coke ibidem for thereby my health is endangered which is more to be valued than wealth 3. With a Dyehouse Coke ibid. for they use many offensive Drugs Michaelis 9 Jac. Ban. Regis Ward versus Cheshire The Plaintiff counts that he is seized in fee of a Kitchin in parochia sancti Dunstani in London and prescribes to have Windows into the Backside of the Defendant and for his stopping up of maximam partem c. port To action and upon Not guilty pleaded it was found pro quer and moved in arrest of Judgment 1. He did not shew that the Kitchin was ancient but it was resolved that it was implyed in the Prescription but by Williams this was not material but Crook è contra by the custome of the City it may be stopped if not ancient Q. 2. For that the quantity was not shewed but resolved it need not be Coke 4. part 49. Com. 249. 3. Neither shews he the Parish in which the Backside is sed non allocatur because the stopping of the light is the material point and it was shewed where that was and the Plaintiff had judgment Nota que C. Ley a cest jour Hill 9. Jac. Ban. Regis Hughes Keme A had an ancient house in London B builds a new one which stops the light of A per Curiam 1. That a man cannot by the custome of London erect a new house where there was not one before to stop the Lights of the ancient house 2. Upon an ancient Foundation a man may erect a new house and stop the ancient Lights of his Neighbour for by the same reason that his Neighbour erected his house more high may the other at any time erect his but he cannot enlarge his in breadth or length to stop the Lights of his Neighbour vide 22 H. 6.15 Q. For removing a Plaint out of my Mannor without cause Mannor 27 Hen. 6.4 for thereby the profits of my Court are lessened For taking an estray within my Mannor or Liberty 13 Edw. 3. breve 674. 31 Edw. 3. breve 333. but ibidem it lies not before seisure of the stray for before the Lord was not intituled unto it For removing a Meerstone though one of them be Tenant in Common Meer-stone 1 Hen. 5.1 Lib. Intra 9. C. sect 1. for thereby part of the Land may be endangered to be lost and Suits may thereby arise touching the extent of the Lands 1. For disturbing my Customers to come to my Mill Mill. 11 Hen. 4.47 41 Edw. 3.24 29 Edw. 3.18 9 Hen. 6.45 for thereby my Toll is lessened 2. For erecting a new Mill Lib. Intra 9. B. Sect. 2 D. sect 1. Q. if it be not to the hindrance of an ancient Mill. 1. For disturbing to take seisure of an Office Office 6 Edw. 3.9 for till seisure he cannot receive the profits thereof 2. For disturbing the Steward to hold Court Lib. Intra 5. B. Sect. 1. Q. whether it may be brought by the Lord and the Steward also It seems it may for both may be damnified 3. For disturbing to take the profits which belong to the office 9 Rich. 2. Action sur case 5. for there is apparent dammage 4. Against an Escheator that returns contrary to that which was found by office 9 Hen. 6.60 for by the false return the party concerned may be damnified 5. If he make a return where no office was found 21 Edw. 4.23 27. for he is not a Judge but Officer 9 Hen. 6.60 viz. to return the Enquest found by the Jury and not to judge of himself how the Lands were held 6. For procuring a false Office to be found by which my Land is seised 47 Edw. 3.15 Kitcbin 175. A. for my Inheritance is thereby made worse by reason of the tenure This is now otherwise For erecting of a Dyhouse which
of all Coke 9. part 34. A. Bucknals case 21 Edw. 3.52 13 Edw. 3. Avowry 103.19 Edw. 2. Avowry 224.16 Edw. 4.11 pl. 11. for Escuage includes all the rest Tenure by Homage Fealty or Escuage or Suit of Court and other services and seisin is alledged of all he may traverse the seisin of Homage and Escuage 2 Edw. 3.21 pl. 4. because they include the rest Not seised within 40 years Not seised within 40 years is a good barr 32 Hen. 8. cap. 2. Coke 9. part 36. Bucknals case 14 Eliz. Dyer 315. pl. 101. for it is not likely if he had any right there would have been no seisin in so long time But he that pleads this ought first to confess a tenure to the intent that the Lord may have a Writ of Customes and Services 15 Rich. 2. Avowry 214. Coke 9. part 34. B. Bucknals case It seems the pleading so doth impliedly confess a tenure or at least doth not deny it But this is no plea in an Avowry for rent upon a grant or reservation by deed because the deed makes the Title Coke 8. part 65. A. Fosters case and not the seisin Or upon a gift in Tail because the commencement of the Estate is within the time of memory Coke 8. part 64. A. Fosters case 4. part 11. A. Bevills case Or if it be for casual services as homage fealty or to go to war because perchance it may not happen within 40 years Coke 4. part 10.11 Bevills case and so there could be no seisin of it So if the Lord release to the Tenant so long as A hath heirs of his body because A may have heirs a long time after Coke 4. part 11. A. Bevilis case So if Land be conveyed to a Major and Commonality which was held by homage and fealty which conveys this over this is no plea because the Major and Commonalty cannot do homage or fealty Coke 4. part 11. A. Bevills case for that must be done by one single person and not by a body politick consisting of multitudes Note 1. The Issue in tail shall avoid seisin by the hands of the Tenant in tail Seisin avoided in Avowry Coke 9. part 34. A. Bucknalls case 34 Edw. 3. Avowry 131. for he comes in by the Donor But this is intended when the Tenant of the Lord makes a gift in Tail the remainder in Fee for the Tenant in tail shall himself avoid the encroachment and seisin made between by the Donor because he ought to shew the commencement of the reservation Coke 8. part 65. A. Fosters case 10. part 108. Lofields case 2. Successor of a Bishop shall avoid seisin beâ—â—en by the hands of the predecessor Coke 9. 〈◊〉 34. A. for the predecessors act shall not bind â—im 3. Veray Tenant of the land if he have deed â—od shew the contrary Coke 9. part 34. A. 10 Hen. â— 11 Nat. br 163. C. 22 Hen. 6.5 4 Edw. 2. â—â—vry 201 202. shall avoid seisin 4. Encroachment of seisin is not material there is no tenure Coke 9. part 34. B. Bucknalls â—se for the tenure is the ground of the seisin 5. Such seisin shall be avoided because it was 〈◊〉 coercion of distress Coke 9. part 34. B. Buckâ—nllâ— case 12 Edw. 4.7 pl. 18. 8 Hen. 6.18 pl. 1. â—â— Edw. 3.4 pl. 8. and not voluntarily rendred 〈◊〉 is in the nature of a thing obtained by Duress 6. If rent be payable at one day in a year and the Lord encroacheth seisin upon two days of the year this being involuntary yet shall be avoided is an Avowry for this that they agree in the â—â—â—ual sum Coke 9. part 34. B. Bucknalls case â—ide 21 Edw. 4.64 pl. 36 fol. 84. pl. 39. and the â—â—me is only in question and the Lord is not lessened in the rent Tenure In an Avowry the seisin is traversable and not the tenure Crooke 13 Hen. 7.31 B. for without seisin the Avowry is not issuable 1. When the Lord varies in avowing of the â—erity of the quantity of the services by colour of seisin the tenure shall be traversed Coke 9. part 33. A. Bucknals case 10 Hen. 7.11 pl. 31. Com 94. Mantels case Crooke 13 Hen. 7.31 B. â—iz he may say that he holds not by so much â—â—nt or so many services But then the Tenant ought to confess the Tenure in part for he needs not traverse all the tenure as to say that he holds not of him but he may disclaim or plead out of his fee Coke 9. part 35. A. Bucknals case 10 Hen. 6.6 7. pl. 20. 37 Hen. 6.25 pl. 13. 15 Rich. 2. Avowry 214. as to part But note 11 Hen. 4.10 pl. 22. the Tenant said that the Avowant did give the Lordship to A in tail the remainder to B in tail and that A died without issue B yet living there he needs not suffer a Disclaimer or plead out of his fee but there fol. 7. pl. 40. he had judgment of the Avowry and admitted good 2. When they agree in the quantity of the Services and vary in the quantity of the Land there the Plaintiff may traverse absque hoc that he held modo forma or say that he held one Acre only Coke 9. part 35. B. Bucknals case 20 Hen. 6.20 21. And so one may avow severally where it is a joynt Tenure or to the contrary Coke 9. part 35. B. Bucknals case 9 Hen. 6.26 pl. 24. 2. Edw. 3.34 pl. 19. But if he vary in the quantity of the Land and of the Services he may not confess the Tenure according to the verity of the case but may traverse mode forma or say he held one only Coke 9. part 35. A B. Bucknals case 5 Hen 5.4 3. When one distrains for fealty rent and suit of Court and alledges seisin in all and avows for rent the Tenant may confess that he held by fealty and rent and plead as to the rent nothing arrear without that that he held by fealty rent â—nd suit modo forma as is alledged and good â—â—d if upon Issue joyned it be found that he â—eld by fealty and rent and not suit although that â—he Avowry be for rent yet insomuch that the tenure alledged by the Avowant was traversed and found against him Judgment shall be given against the Avowant for in vain shall he make this traversable and yet that he should have the return when it is found against him Coke 9. part 35 36. Bucknals case Tender of Homage ought to be to the person of the Lord Tender ubicunque fuerit infra regnum proper reverentiam Bracton lib. 2. fol. 80. A. quaere for this may be prejudicial to the Tenant Judgment If the Plaintiff counts upon a Detainer and the Defendant appears and makes default the other shall have Judgment for dammages and costs and also for the value of the Cattel Nat. br 69. L. No. Lib. Intra 610. C. Sect. 20. for by the default he confesseth the tort
is concerned The reason that it lies not against the Lord is insomuch that he cannot come within his Tenants Land being within his Fee against the peace although he had not cause to distrain for it seems he may go any where within his own Fee 47 Edw. 3.7 pl. 3. Finchden Quaere tamen This Statute is intended as well to every Lessor as of the Lord 9 Hen. 6.43 pl. 21. this is in cases of Entries to distrain If the Lord distrain where nothing is in arrear yet Trespass lies not against him Coke 4. part 11. B. Bevils case 9. part 76. A. because he may do this as Lord. Q. for it seems unreasonable to vex his Tenants without cause yet they are not without remedy for they may replevy the distress But if the Lord distrain where there is nothing arrear and the Mesn will put his Cattel in the Pound for the Cattel of the Tenant and the Lord will not permit him Trespass lies against the Lord Coke 9. part 22. B. Case of Avowry because here the Lord is offered a legal way to come to his right if any thing be due to him And if the Lord incroach and afterwards distrain for the Services and for the Incroachment also the Tenant may tender the very Services and shall have Trespass for the other Coke 4. part 11. B. Bevils case 10 Hen. 6.3 pl. 11. for though the Law favour him as Lord yet it will not countenance his incroaching And if a Baily or Servant distrains where nothing is arrear Trespass lies because it is not within the Statute Coke 9. part 76. A. Combs case 9 Hen. 5.10 11 Hen. 4.78 B. 9 Hen. 7.4 48 Edw. 3.20 pl. 16. and they must take heed not to be too officious for their Master Against the Lord. When the Lord abuses his Authorty given him by the Law he shall be punished by Trespass Coke 8. part 146. the six Carpenters case for the Law will not countenance wrong but punish it in any person If he labour or kill the Distress 8 Edw. 4.15 22 Edw. 4 5. pl. 16. fol. 47. pl. 22. Coke 8. part 146. B. Trespass lies for he must use it only as the Law allows If he tie the Cattel in the pound 27 Assize 64. which he ought not to do Trespass lies against him If he break the hedges or gates or such like of the party where he distrains 20 Edw. 4.3 pl. 11. 48 Edw. 3.6 pl. 10. for though the Law allow him a way to come by his right yet in doing it it allows him not to do dammage to the other unnecessarily If he cut the Trees or stay all night 11 Hen. 4.75 upon the Land for this the Law warrants him not to do The Lessee cuts Trees to repair the Lessor carries them away and Trespass lies against him 44 Edw. 3.44 for the Lessor might cut them and therefore to take them away was a Trespass If the Lessor distrain dammage feasant 5 Hen. 7.10 pl. 2. upon the Land left for he hath no present interest and so there can be no such dammages So if he out the Termor 48 Edw. 3.6 pl. 11. Trespass and Ejectment lies Or the Executor of the Termor Regist orig 102. B. may have this Action for now the term is come unto him The Lessor excepts the Trees and roots them up it seems Trespass lies Coke 11. part 49. B. Lissords case in respect of the dammage done in the Soil by the rooting Quaere tamen for the whole Trees are reserved The Lord sells the Distress and buys it again Trespass lies 29 Hen. 8. Dyer 35. pl. 34. for he ought not to sell it and the buying of it again cannot salve the matter It lies by a Copyholder against the Lord that cuts him 21 Edw. 4.80 Coke 4. part 22. A. in respect of his interest in the Land by the Custome of the Mannor The Reason in all these Cases is when one hath authority license or entry by the Law given him by the misusing it or the not doing it as he ought he is a Trespasser ab initio Coke 8.146 Deaf and dumb It lies against one that is deaf and dumb Digest br 72. A. for he may see to do a Trespass Q. if it lies against a blind man it seems it doth Tenant at will If Tenant at will make voluntary waste Coke 5. part 13. B. Salops case Littleton 15. A. fo per 3 Mariae Dyer 122. B. This is a determination of the Will of the Lessee and Trespass lies by the Lessor without entry because the term is determined For cutting Underwood Trespass lies 2 Edw. 4.24 pl. 25. But quaere in what cases Tenant by sufferance It lies not against Tenant by sufferance because he comes lawfully to the possession 22 Edw. 4.13 pl. 3. viz. at the first and he holds not by tort because by sufferance Tenant in Common If there be two Tenants in common of a foldâ—ge by prescription one shall have a Trespass against the other for the breaking the fold Nat. br 91. A H. Q. For taking away the Meer-stones that bound Land Meer-stone 1 Hen. 5.1 pl. 1. for this is a great injury to the Owner of the Land bounded by them Note Sheriff when the Court hath not Jurisdiction of the cause commenced there the Officer that makes the Arrest shall be a Trespasser but where the Court hath Jurisdiction and proceeds â—â—ronice there it is not punishable Coke 10. part 76. A. for the Officer is not to judge of the proceedings but where there is no Jurisdiction the Officers have no warrant at all for what they do for they are accounted no Officers The Sheriff takes one not named in the Writ Trespass lies against the Sheriff 11 Hen. 4.91 A. Hankeford 13 Hen. 4.2 Hankeford Thirning for he hath no warrant for the Arrest It seems also a Writ of false Imprisonment lies But if the Plaintiff shew another person to him that was not to be Arrested the Action lies against them both for they are both Actors in the same Trespass A procures the Sheriff to Arrest B without a Writ and after purchased a Writ and the Sheriff arrests him afterwards being in his custody the Action lies 7 Eliz. Dyer 244. pl. 61. for the purchasing the Writ and Arresting of him afterwards cannot purge the first wrong The Sheriff takes B upon a Capias and returns not the Writ B shall have Trespass 20 Hen. 6.24 A. 21 Hen. 6.5 for if the Writ be not returned it is as if there were no Writ Otherwise upon a Capias ad satisfaciend for that is an Execution and needs no return Coke 4. part 67. A. Capias to the Sheriff of Middlesex and he takes him in London Trespass lies 16 Edw. 4.6 for it is out of his County and so done without warrant So if he makes a Repleg of Cattel distrained of an estranger he may have Trespass against him 14 Hen. 4 24. pl. 32.
Fol. 469 Diminution in Error 1. by whom 2. in what cases 3. at what time Fol. 472 The assignments of Errors 1. by whom 2. at what time 3. upon what Record 4. of what things Fol. 474 Barr in Error Fol. 491 Iudgement in Error 1. for the Plaintiff 2. for the Defendant 3. for both Fol. 493 Execution in Error Fol. 495 ACCOUNT Account is by Common Law By Act of Law Guardian in Soccage Next of Kin. A Stranger Baily of a Court or Hundred in Law in case of a Subject of a Mannor-house c. in deed in case of the King By his own act Receiver By other hands in law in case of a Subject By his own hands in deed in case of the King Statute Law Marlebridge cap. 17. Against a Guardian in Soccage Marlebridge cap. 23. Against a Baily vagarant Westm 2. cap. 23. For Executors 25 Edw. 3. cap. 5. For Executors of Executors 3 Edw. 3. cap. 11. For Administrators 23 Hen. 8. cap. 8. Collectors for repairing of Goals shall account to Justices of Peace 2 3 Maria cap. 8. Against Head-Constables or Church-wardens 43 Eliz. cap. 2. Overseers of the Poor shall Account to Justices of Peace 1 Jacobi cap. 9. Against Churchwardens and Constables for Forfeitures of Alehouse-keepers by them received Account against a Guardian in Soccage In what Court Account lieth against a Guardian in Soccage IT lies in the County Court or Common Bank Nat. br 117. b. It lies not before the Sheriff 43 Edw. 3. fol. 21. pl. 11. Thorpe For Brook Account 14. saith the Sheriff cannot assign Auditors and therefore it is in vain to bring the Action before him A good plea to say the Land is ancient demesn because the reality may come in question Coke 5. part fol. 105. A. Aldens case It lies not in the Marshalsey Coke 10. part 74. b. Marshalsey Who shall have a Writ against Guardian in Soccage The Heir in ward shall maintain an Action against him after the age of 14 years or at his full age at his election Littleton S. 123. But Nat. br 118. b. he shall not have it till the age of 21 years Crook fol. 131. pl. 106. by reason of the words of the Statute of Marlebridge cap. 17. scil cum ad aetatem pervenerit 3 4 Mariae Dyer 137. pl. 25. New tenures 3. b. 18 Edw. 3.55 pl. 76. 29 Edw. 3. fol. 5. pl. 13. Vide Regist origin 136. Lib. Intra 21. D. 8 R. 2. Gard. 166. 10 Rich. 2. Account 132. Doct. Stud. fol. 14. b. Old Nat. br 91. A. If the Heir in such case die before his full age his Executor shall maintain an Action of Account Crook 131. pl. 106. because it concerns a Chattel Yet note the Heir in Gavel-kind at 15 years brought an Account against a Guardian in Soccage and shews by the Custome he may alien at such age and for this cause he was awarded to Account per Welby 29 Edw. 3. fol. 5. pl. 13. For if he may do the greater he may do the less to fell is more than to take an Account The Executor of an Heir shall have an Account per West 2. cap. 23. Littleton 27. A. Crook 131. pl. 106. Executor of an Executor shall have an Account by 25 Edw. 3. cap. 23. Com. 290. Filius Haeres Domini defuncti non habebit breve de computo quia pertinet ad executionem administrationis bonorum defuncti Regist Orig. 135. b A Recusant shall not have an action for any thing that is seized into the hands of the King 3 Jac. cap. 5. for the King is accountablle to no body Against what person an Account lieth as Guardian in Soccage Account lieth against any that taketh the profits before the Ward be of the age of 14 years Littleton Nat. br 118. D. 4. Hen. 7.6 10 Hen. 6.7 13 Edw. 3. Account 77. 29 Ed. 3.5 pl. 13. But if one occupy and after Guardian in Soccage recover in right of the Ward the party shall not render an Account to the Heir for the Guardian ought to account for this 27 Edw. 3.79 Gard. 22. and therefore the Account shall be made to the Guardian The reason is as it seems that the Writ doth not make mention of the blood Regist orig 136. b. neither the Count Lib. Intra Account lieth not against an Executor of a Guardian Littleton Nam non jacet versus Executores quia merè pertinet ad Curam Christianam cognoscere de computo reddendo versus Executores Regist orig 135. b. 28 Hen. 8. Dyer 23. pl. 145. But if Executors account an Action of Debt lieth for the Arrearages 2 Hen. 4.13 pl. 2. And if the Testator covenants to account to the Heir and doth not Covenant lieth against his Executor Regist origin 165. b. Nat. br 145. H. It lies against a Woman 19 H. 6. b. Newton It lies against the Husband and Wife 18 Ed. 3.55 pl. 76. For what things Account lieth It lies for Woods and Under-woods sold for Lands Tenements Meadow Pasture also for Rents and Services perquisites of a Court ad valentiam Lib. Intra 21. B C. Marlebridge cap. 17. Respondeant de exitibus per aequalem computationem salvis ipsius custodibus rationabilibus misis suis For Fines of Copyhold Land granted by one Trin. 1 Jac. Com. Banc. Shopland versus Rider Rot. 853. For the issues and profits of the Lands Littleton For the Marriage of the Heir if he marry before the Age of fourteen years Littleton 27. a. If the Marriage be not as great in value as the marriage of the Heir Littleton 27. A. No Account for the presentation of a Church therefore the Guardian cannot present thereunto Nat. br 33. T. 28 Edw. 3.89 29 Edw. 3.5 8 Ed. 2. Presentment 10. But by Daniel Justice Trin. 1. Jac. Com. Ban. Rot. 853. Shopland against Rider the Guardian shall present if the Heir be not of the age of discretion It lies for Writings 32 Edw. 3. Account 60. The Account against a Guardian in Soccage The Heir counts that it was ordained by the Common Council of the Land that the Guardian in Soccage should Account c. and shews the tenure specially and that the Defendant had the custody of the Lands c. from such a day for 12 years ensuing and hath not accounted for the issues and profits c. and that at such a day the Heir was at full age Lib. Intra 21. b. Sect. 1 2.29 Ed. 3.4 pl. 13. No. Lib. Intra 47 E. Sect. 3. The Writ against a Guardian in Soccage Rex c. si A. fecerit c. tunc summon c. B. quod sit coram Justic nostris c. ostensum quare cum de Comm. Concilio Regni nostri provisum sit quod custodes terrarum tenementorum quae tenentur in Soccagio haeredibus terrarum tenementorum cum ad aetatem pervenerint reddant rationabilem computum suum de exitibus terris tenementis illis provenient de
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-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
is a Stranger to the estate Tertenant shall have a Detinue for the deeds Tertenant Coke 1. part 2. A. which concern the Lands in his possession The Lord by Escheat shall have a Detinue Lord. Coke 1. part 2. A. 10 Edw. 4.14.6 Moyle for the deeds which concern the Land escheated Against whom Detinue lies 1. Of Chattels 2. Of Deeds Detinue lies against an Abbot and his Commoigue for a thing delivered to his Commoigue fore-deliver Abbot 3 Edw. 3.83 pl. 32. a thing delivered to them An Administrator sold a thing Administrator the Executor proves the Will he shall have a Detinue against the Vendee of the Administrator Com. 275. Foxes case for now the Administrators title and property is destroyed and the sale accounted void irreplevisable that is that the Cattel or Goods ought not by Law to be replevied again Avowant returns irreplevisable Avowant the other tenders amends and upon refusal shall have a Detinue Coke 8. part 147. A. for the property is in him 10 Eliz. Dyer 280. pl. 14. notwithstanding the distress for the distress did but put them into the custody of the Law and altered not the property Baily of goods Goods delivered to A to keep and they are stole yet Detinue lies against him Coke 4. part 83. B. Southcots case for he ought to have kept them at his peril and he shall have his remedy against the Thief But if he take them to keep as he would keep his own and they are stole Detinue lies not Coke 4. part 83. for here he warrants not the safe keeping of them for he cannot warrant his own from stealing Goods delivered to B to deliver to C yet C shall have a Detinue against B 18 Hen. 6.9 A. Nat. br 138. A. for the delivery of them to be delivered to B vests the property of them in B and not in C. Husband and wife It lies not against husband and wife supposing they detain 38 Edw. 3.1 pl. 1. 13 Rich. 2. Breve 644. for the wife cannot detain but it is the detainer of the Husband But of bailment to the Wise dum sola fuit and that the Husband did detain 43 Edw. 3.18 pl. 1. Lib. Intra 219. D. sect 4. it lies A Carrier loseth B's goods Carrier or they are stole from him yet Detinue lies against him Coke 4. part 84. A. 2 Hen. 7.11 B. Townsend for the property was in the owner and the Law chargeth the Carrier with them It lies against an Executor Executor but he shall not be charged but for his Detainer 39 Edw. 3.5 pl. 21. in his own time and not for the Testators Detainer Crooke 118. pl. 62. A bails goods to B which dies in Detinue against the Executors the question was whether they shall be named Executors or not and it seemed they needed not for the Detainer is the point of Action Quaeretâ—men for they detain by virtue of their Executorship For Hill 12 Jac. Ban. Regis Isack Clark 13 Hen. 4.12 pl. 2. 11 Hen. 4.45 pl. 20. 2 Heâ— 5.6 pl. 29. 21 Hen. 6. pl. 1. one shall not answer without the other therefore they are charged for the Detainer only Quaere tamen for although they make but one person yet this proves not but that they detain as Executors and are so to be charged as it seems It lies against an Executor upon a rationabile parte bonorum 17 Edw. 3.9 pl. 29. brought by the Feme of the Testator An Executor shall have a Detinue for goods in the possession of the Executor of his Joynt-executor if the said Joynt-executor will pay a debt to the value 3. Eliz. Dyer 187. pl. 6. for the Executorship survives It lies against a Stranger when they come to the possession of two Estranger 4 Edw. 4.9 pl. 11. Nat. br 138. E. Q. Lessor shall have a Detinue for implements leased with the house at the end of the term Lessee against the Lessee although they are wasted 20 Hen. 6.16 pl. 2. for the property of them was not divested out of the Lessor by the lease Trover of goods Against him that finds goods if they be wasted per wilful negligence otherways if it be by casual means Doct. Stud. 129. B. or a Trover lies for that he could not prevent If a Horse be stole and sold in a market Vendee but not according to the Statute the Owner shall have a Detinue per 3 Mariae cap. 7. for the sale is void and so the property is not altered Administrator sold a thing the Executor proves the Will he shall have a Detinue against the Vendee of the Administrator Com. 275. Foxes case See the reason before that the sale is made void It lies against a Sheriff Sheriff where he returns upon a returna habenda quod averia elongata sunt per Westm 2. cap. 2. 9 Hen. 6.42 See before the reason A Wife Tenant in tail dies before issues Husband quaere if a Detinue lies against the Husband without request 33 Hen. 6.30 B. A Feme sues goods dum sola fuit and takes a Husband Detinue lies against the husband and wife Lib. Intr. 209. D. Sect. 4. 43 Edw. 3.18 pl. 1. for now the goods are come into possession of the husband by the marriage and so they are both to be sued for the cause of Action begun whilst the Feme was sole and it is continued in the husband by the intermarriage and detainer since If A. enfeoff B. with warranty Feoffor B. shall have a Detinue against A. for deeds that comprehend warranty or are material for the Title Coke 1. part 2. because the warranty is for his benefit If A. enfeoff B. without warranty B. shall have it against A. for all the deeds concerning the land the Feoffor needs not any deeds to make out the warranty And if the thing lies in grant then it lies against the Feoffor for all Coke 1. part 1. Buckhursts case for there is no warranty for him to make out as it seems And so in any case for a deed that makes his estate good Nat. br 138. K. for it is reason to let him have weapons requisite for his necessary defence Against a Lessee for life A Lease made to A. for the life of B. remainder over to C. B. dies C. shall have a Detinue against A. without request because C. had interest in it before 33 Hen. 6.30 B. and he knows that by the death of B. his estate is determined sed quaere if A. do not know B. is dead For what things Detinue lies 1. Of Chattels 2. Of Deeds Detinue ought to be of a thing certain Certain Nat. br 138. A. because the very thing detained is to be recovered A Detinue lies for money in a Bag or Box or Coffer Nat. br 138. A. for that may be certainly known And this although the Seal be broken 21 Edw. 4.30 pl. 25.
Statute but the Master sole shall not Hill 11 Jac. Ban. Regis Colledge of Physicians versus Dr. Tenant Lib. Reports title Plaints Q. Debt lies by a Conusee of a Statute or Recognizance Stat. Merchant Staple Conusee According to 23 Hen. 8. Recogn Counsellor Nut br 122. D. 11 Hen. 6.49 pl. 7. 36 Hen. 6.2 pl. 2. 39 Hen. 6.3 pl. 5. 22 Eliz. Dyer 369. pl. 52. 13 Rich. 2. bre 649. upon the Statute or Recognizance Debt upon a retainer to be his Counsellor for 40 s. per annum but then he ought to count that he was of his counsel or was ready to be 37 Hen. 6.8 B. Prisott if required But if I retain a Sergeant at Law for A he shall not have debt for his salary against me 31 Hen. 6.9 B Fortescue for he is retained for his Client and it is reason he should pay him Executor Executor shall have debt for a debt due to the Testator 11 Hen. 6.7 for he is in place of the Testator Executor of an Executor shall have debt 25 Edw. 3. Ca. 5. sic in infinitum as it seems Executor shall not have debt before probat of the Testament 7 Hen. 4.18 Coke 5. part 28. A. Midletons case Com. 278. Foxes case Perkin 193. for before that he is not Executor in the eye of the Law But if pendente breve the Testament be proved it sufficeth Pasch 43 Eliz. Com. Ban. Walmesly for that relates to the death of the Testator and so includes the time of hanging the Action Feme Rent services granted to the husband and wife for life the husband dies the wife shall have the Arrearages that did accrue in the life of the husband and debt for them after the estate ended 29 Edw. 3.40 pl. 19. for here is a surviving estate in the wife Grantee of a Reversion Annuity Grantee of a Reversion shall not have debt for Rent upon a Lease for years before Attornment Nat. br 121. N. for before Attornment the Reversion passed not But a Devisee shall have it Nat. br 121. N. Mich. 14 Jac. Ban. Regis Bayliffs and Burgesses case of Ipswiche for there it passeth by the will So Bargainee shall have it Coke 3. part 24. A. Walkers case for it passeth by enrolment of the Deed. Heir A is bound to B and his heirs B dies his heirs shall not have debt Nat. br 120. I. but the Executor but contrary where A binds himself and his heirs to B. But if a penalty be granted to one and his heirs then the heir shall have debt Nat. br 120. M. 11 Hen. 4.84 28 Hen. 8. Dyer 24. pl. 149. for that is a present duty wherein the heir hath interest The heir shall have debt for the reasonable part of the goods where the custome gives it him Nat. br 122. L. for this is a customary duty for which the Law will give a remedy But if there be no such custome it lies not Regist orig 142. B. 40 Edw. 3.38 pl. 19. 7. Edw. 4.20 pl. 23. 30 Edw. 3.26 A. seton Regist orig 141. B. for the Common Law takes no such notice of the heir to have any goods as heir For the Statute of Magna Charta is but one forspris and for that an Action shall not be founded upon it vide Lib. Intra 541. by reason of the incertainty of the meaning of the Statute in that point But Nat. br 122. L. Glanvill Lib. 12. cap. 20. 17 Edw. 3.9 pl. 29. this is by the Common Law quaere Custome that the heir shall have the principal Chattels c. he shall have debt for them 30 Edw. 3.2 pl. 9. 39 Edw. 3.6 pl. 24. fol. 9. pl. 15. The Law takes notice and maintains ancient Customes Lessor Lessor shall have debt for Rent reserved upon a Lease at will Coke 5. part 10. Hensteads case Littleton 15. by reason of the privity of the Contract betwixt the Lessor and the Lessee And so for a Lease for years 7 Rich. 2. this seems a stronger case Tenants in Common make a Lease rendring Rent they ought to joyn Littleton 72. in the Action in respect of their joyning in the Lease and so a joynt interest passed Ordinary The Ordinary shall not have debt because he hath not absolute interest in the things of the Intestate Coke 9. part 33. Hensloes case Nat. br 120. D. but hath it only as a Conduit-pipe to derive it to others to whom the Law directs Parson A Parson shall have debt for not setting out of Tithes by the Stat. of 2 Edw. 6. cap. 13. and recover treble dammages Physician A Physician shall have debt for Physick and Diet Lib. Intra 187. B. Sect. 1. upon a quantum meruit if there be no special contract Recusant Recusancy shall be pleaded in disability for such Lands and Tenements which are not seized into the Kings hands 3 Jac. cap. 5. in disability of the person to sue Q. Robbery The party robbed shall have an Action against the Hundred per le Stat. 27 Eliz. cap. 13. But he ought to bring his Action within the year after the Robbery done 27 Eliz. cap. 13. And the day of the Robbery shall be accounted parcel of the time Pasch 15. Jac. Com Ban. per 2 Justices as it seems because the Law is penal Quaere tamen Steward Steward of a Court retained by word for such a sum per annum shall have debt for his salary 8 Eliz. Dyer 248. pl. 79. Coke 4. part 30. A. Servant Servant shall have debt for his salary 11 Hen. 6.10 pl. 20. upon the contract which created a duty One retained in England to do service beyond the Sea shall have debt in England where the retainder was Nat. br 120. E. and not where the service is done because it is beyond Sea aliter quaere Servant retained by a Corporation without deed shall not have debt for his salary 4 Hen. 7.6 Com. 91. B. for such Retainer is null in Law and the Servant could not have been compelled to serve Successor Sole Corporation consists of one person One sole Corporation shall not have a personal thing in Succession Coke 4. part 65. A. Fulwoods case 19 Hen. 6.44 pl. 94. 20 Edw. 4.2 vide 32 Hen. 8. Dyer 48. pl. 14. for personal things cease with the person Unless the Custome will warrant it Coke 4 part 65. A. Fulwoods case Custome if it be not unreasonable makes a Law But a Corporation aggregate that is consisting of many persons shall have an Action for a personal thing in succession Coke 4. part 65. A. 20 Edw. 4.2 Master of an Hospital recovers dammages the Successor shall have them 19 Hen. 6.44 pl. 94. for the benefit of the house Abbot recovers dammages in battery and is removed or created Bishop his Successor shall have them because he recovered them but to the use of his house 22 Hen. 6.4 B. for he could sue in no other
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.
Parish and a Distress taken for it and good Doct. Stud. 74. B. by prescript Suit to a Mill. A man may distrain for suit to a Mill 22 Hen. 6. 14. 9 Edw. 3.356 Nat. br 122. M. For it is a profit and valuable Rent service A man may distrain for Rent service and all manner of services Doct. Stud. 74. A. For it is a Duty issuing out of the Land held A. gives Land to B for him to serve in such a place when he shall be requested he may distrain 22 Hen. 6.33 A. Q. if he were never seised of the Service Herriot Difference between seising and disseising For Herriot-service a man may distrain 44 Edw. 3.13 pl. 24.27 Assize pl. 24. Com. 96. Mantels case Doct. Stud. 75. A. But for Herriot-custom he can but only seize 2 Edw. 2. Herriot 7. 8 Hen. 7.10 Doct. Stud. 75. A. And if he cannot seize he hath no remedy And for Herriot-service a man may seize 18 Edw. 3.22 pl. 4. 38 Edw. 3.7 pl. 27. 16 Ed. 3. Herriot 2. 6 Edw. 3.227 pl. 10. And Distress for Herriot-service is more worthy than Heriot-custom For a certain Leet A man cannot distrain for a certain Leet without prescription because it is against common right Coke 11. part 44. Godfreyes case vide 6 Edw. 3.10 so that a prescription binds common right And the Tything-man that prescribes to have it of the Resiants ought to prescribe to distrain 6 Edw. 3.189 pl. 26. Coke 11. part 44. B. else he cannot Ayd A man may distrain for Ayd for marrying his Daughter or making his Son Knight Glanvil Lib. 9. cap. 8. 5 Edw. 3.138 pl. 38. 39 Edw. 3.34 pl. 40. 40 Edw. 3.22 pl. 21. This by tenure is due to the Lord. Suit to the Hundred For suit to his Hundred Court by reason of tenure there shall be a distress of common right Lib. intra 608. B. 5 Edw. 3.152 pl. 32. 9 Edw. 3.356 pl. 39. to compel it to be done or â—ecompence for not doing it The Lord may distrain for relief Relief and hath no other remedy but his Executor shall have debt and shall not distrain Coke 4. part 49. B. 7 Hen. 6.13 as for a duty vested in the Lord to whom it was a personal service A man cannot distrain for money due for Agistment but shall have trespass Agistment if that they chase the Cattel out of the Land before the Agistment be paid Regist Orig. 92. A. 30 Edw. 3.11 pl. 6. Q. whether debt lies not for it against him that agisted his Cattel Inholder An Inn-holder cannot distrain for his Victuals provided for his guests 3 Edw. 3. Distress 19. but may have an action of debt for the value of them He that takes Cattel as Estrays Estray may distrain them until he be saisfied for the Meat 44 Edw. 3.13 pl. 25. by the owner of them if they be claimed within the year and the day Pledge A. indebted to B for tabling delivers Goods to him until he be satisfied B. may distrain them until he be paid 46 Edw. 3.30 pl. 39. that is he may keep them but this is upon the special agreement Toll For Toll a man may distrain 30 Edw. 3.15 B. 11 Hen. 6.39 9 Hen. 6.45 20 Hen. 7.1 Marrowe viz. Toll of a Market or Fair this seems not to be of common right But Trin. 28 Eliz. Ban. Regis Rot. 963. the Village of Northampton distrained for Toll and alledged not a special Title or prescription to have Toll and for this it was adjudged against them Dammage feasant A Commoner may distrain the Cattel of a stranger dammage feasant upon the common of common right Coke 9. part 112. B. 7 Edw. 3.266 pl. 39. 24 Edw. 3.42 46 Edw. 3.23 15 Hen. 7.2 12. 13 Hen. 8.15 B. in respect of his interest in the Common Forfeitures The Officers may distrain for the Forfeitures of Inn-keepers and sell the Distress 1 Jac. cap. 9. by Statute vid. The Lord may distrain for the Forfeitures of Inmates or for erection of Cottages Stat. 31 Eliz. cap. 7. vid. Distress may be taken by Surveyors of High ways 18 Eliz. cap. 10. from those that make default in labouring By the Stat. Arrerages Tenant in Dower cannot distrain for Arrerages of Rent due before the Recovery of her Dower 40 Edw. 3.22 pl. 19. For the Tenants were not bound to pay her A Lease of Tithes rendring Rent Rent there shall be no distress because the Tithes are the very thing leased 11 Hen. 4.40 and therefore cannot be distrained no more than Land lett and the rent issues not out of the Tithes Rent by prescription A person claims rent by prescription and distrains for it Lib. intra 557. Charge 1. and good A. grants a Rent-charge to B in Tayl Rent-charge and grants that if the Bayliff of the King distrained the party might distrain 46 Edw. 3.18 and good by the contract Rent granted by Fine and Distress appointed to the Justices of the Com. Ban. or Barons of the Exchequer they may distrain 38 Edw. 3.33 So if the Distress had been appointed to any others they might distrain by vertue of the Fine Of what things a man may distrain Money cannot be distrained Money unless it be in a Bag sealed or a Chest locked 22 Edw. 4.50 B. pl. 17. 41 Edw. 3. Distress 14. For then it may be known and replevied else it cannot Cattel in a Wagon Cattel in a Wagon viz. fastned to it may be distrained but out of a Wagon they cannot 2 Hen. 4.15 pl. 17. 41 Edw. 3. Distress 14. 22 Edw. 4.50 11 Hen. 7.14 pl. 8. 21 Hen. 7. 39. pl. 55. because there can be no Return neither doth a Replevin lie of them Q. It seems because Cattel of the Plough are not distrainable so they shall be adjudged if they be loose but when they are in the Wagon it is known they are for other uses Q. The Lord cannot seize the Cattel Lord. and put them in a Wagon and then distrain them 18 Edw. 3.4 For by this means no Cattel of the Plough would be priviledged from distraining A Horse at the Smiths Shop Horse or a Garment in a Taylors Shop or an Horse in an Hostrey shall not be distrained for this would hinder publick commerce and dealing But if the Saddle be on the back of the Horse when he is at the Shop he may be destrained 22 Edw. 4.40 pl. 15. 15 Rich. 2. Avowry 19. because it seems he is then as it were in the Owners custody Q. tamen A Horse upon which I ride over my ground the Lord cannot pursue and take him as a Distress 6 Rich. 2. Rescous 14. So if I have him bridled in my hand as it seems for that is to distrain the man as well as the Horse A Horse of any man through the whole Village shall be distrained for the Fees of the
Knights of the Parliament 11 Hen. 4.2 For the Law looks upon the Village in general and every one is liable for the whole if he be able If a man be taxed to Fifteens having Cattel levant in another Village when they come within the Parish they shall be distrained 18 Edw. 3. 11. pl. 39. For the Parish is liable with the Tax If a Horse of a Stranger escapes into the Land of him that hath lost Issues he shall be distrained as it seems 5 Hen. 7.1 Q. For it seems hard If the best Beast be estrayed the Lord may distrain any Cattel in the Land 27 Assize pl. 24. viz. where the Lord is to have the best Beast but it seems they must be levant and couchant A Goshawk distrained Goshawk and the Distress justified 16 Edw. 4. pl. 9. viz. a reclaimed Goshawk for in that one may have a property and it is valuable Fishes in a Pond cannot be distrained Fishes Crookes Reports 188. because they cannot be known what they are nor can be replevied A Hive of Bees shall be distrained as it seems Hive of Bees for a Replevin lies of them Nat. br 68. D. Q. if it be in the day-time how it can be Door or window A Door or Window is not distrainable 11 Edw. 3. Cessavit 21. 21 Hen. 7.26 14 Hen. 8.25 Brudenel For it is part of the Freehold A Milstone that is severed for picking shall not be distrained 14 Hen. 8.25 Milstone For it is part of the Mill. An Anvil shall not be distrained Anvil 14 Hen. 8.25 For it is part of the Smiths Tools he gains his Livelihood by A Barge was distrained by prescription Barge 3 Mar Dyer 117. pl. 73. and held good for that may alter the Law The Lord distrained Cattel for services before they were Levant and Couchant Lord. 4 Edw. 3.37 Issue joined 8. 22 Hen. 6.37 15 Hen. 7.17 Doct. Stud. 15 A. and well as it seems Sheep shall be distrained Sheep if other distress cannot be found at the day of the distraining 29 Edw. 3.16 else not in respect of the hindrance of clothing Cattel of the Plough shall not be distrained Plough if there be other distress sufficient 14 Eliz. Dyer 312. pl. 86. else they may for otherwise the party may be without remedy Cattel in Dower Cattel delivered by the Sheriff to the Tenant in Dower for seisin of Rent shall not be distrained for Arrerages of the Rent 40 Edw. 3.22 pl. 19. For she shall not take such advantage Yarn brought upon a Horse to a Neighbour to weigh Yarn this the Lord cannot distrain for Rent because it was brought for a special intent Mich. 39 40 Eliz. com Ban. Burleigh versus Read and it would hinder publick commerce and dealing If Cattel put into Black Acre Cattel and they stray into White Acre through default of enclosure they shall not be distrained 22 Eliz. Dyer 365. pl. 33. For the Owner is in no fault Default of Inclosure A. ought to inclose against B and leases to C for 21 years which leases to D for 10 years rendring Rent the Cattel of B for default of enclosure escape into the Lands of A. and he pursues them C cannot distrain for no default was in the owner of the Cattel 15 Eliz. Dyer 317. pl. 9. vide 39 Edw. 3.3 pl. 12. and the Law doth not punish the innocent What Person shall distrain Dammage feasant A Commoner shall distrain for dammage sesant and is not tied to shew per quod amisit Communiam No. Lib. intra 573. D. sect 4. 24 Edw. 3.42 pl. 23. Coke 9. part 112. B. 46 Edw. 3.23 15 Hen. 7.2 7 Edw. 3.266 pl. 39.13 Hen. 8.15 For the Distress there taken implies it Tenant at sufferance distrains dammages feasant 4 Hen. 7.3 and good for he hath title against a stranger He to whose use before 27 Hen. 8. could not distrain because he had nothing in the Land 15 Hen. 7.2 pl. 4. but the Feoffee of the Land but now it is otherwise Sheep bailed to a woman sole to dung her Land Sheep who takes a Husband who commands the Owner to take them again who refuseth the Husband may distrain them dammage feasant 43 Edw. 3.32 pl. 3. For now they are dammage feasant unto him in respect of his interest in the Land The Lord distrains Cattel because the Tenant puts in more than he ought into the Common Lord. 46 Edw. 3.12 pl. 13. and good for he ought not to surcharge the Common A. sold 50 Acres of Moor which lay common Common to B yet every one of them ought to inclose against the other and if the Cattel of the one go into the Land of the other they shall be distrained dammage feasant 23 Eliz. Dyer 372. pl. 10. For by the sale the Lands are severed At what time a man may distrain Services and Amerciaments For Rent-services he shall not distrain in the night 11 Hen. 7.5 pl. 8. 12 Edw 3. Distress 17. 10 Edw. 3.21 Coke 9. part 66. A. For the night is for rest and all things ought to be then in peace After the Term ended no distress 14 Hen. 4.31 For then the privity betwixt the Lessor and the Lessee is gone Q. But 22 Hen. 7.96 pl. 5. by all if a Lease for years be ended and the Lessee keeps in the Lessor shall distrain for the arrerages For that continues the privity as it seems Q. A Lease till Mich. for one year rendring rent at Mich. he cannot distrain because the Lease is ended at the instant Doct. Stud. 74. A. That is at the day and the Law admits not of Fractions of time Husband and wife Husband leases the Wifes Lands rendring Rent th Wife dies without Issue the Husband cannot distrain because the reversion goes to the Heir 9 Hen. 6.45 28 Hen. 8. Dyer 28. pl. 191. And the rent go with the Reversion A Lease for years Reversion grants the reversion to B yet if the Cattel of B comes upon the Land A shall distrain during the Term 10 Edw. 4.4 tamen quaere because he hath nothing in the Land Dammage feasant For Dammage feasant in the night one may distrain and good enough Coke 9. part 66. A. Mackally's case 11 Hen. 7.5 pl. 8. 12 Edw. 3. Distress 17. 10 Edw. 3.21 For else it might be mischievous in respect of the dammages which might be done before the morning A. enters upon a condition broken and takes the Cattel of the Lessee dammage feasant Quaere 5 Eliz. Dyer 322. It seems he may for he comes in upon a good Title A man may distrain dammage feasant although the owner make fresh suit in respect of his satisfaction for the dammage done 7 Hâ—n 7.1 pl. 11. 11 Hen. 7.4 pl. 11. 10 Hen. 7.21 Doct. Stud. 15. è contra In what place a man may distrain A man fined in a Leet being
one of the Deziners Leet shall be distrained through all the jurisdiction of the Leet although that he be of another dezin Coke 11. part 45. A. 11 Hen. 4.89 13 Hen. 4.9 For he may it seems be liable in both places Tourne of the Sheriff A man shall distrain in any place within the precinct of the Court 19 Edw. 3.2 Avowry 225. 8 Rich. 2. Avowry 194. 47 Edw. 3. pl. 12. where the Amerciament is set but not without for there is no jurisdiction For Amerciament in the Sheriffs Tourne he may distrain throughout the County 12 Hen. 4.24 pl. 17. 13 Hen. 4.9 8. Rich. 2. Avowry 194. because all the County is within the jurisdiction of the Sheriffs turn for it is the County-Court If a man had a Leet within his Mannor he cannot distrain out of his Mannor 4 Edw. 3 96. pl. 26. For that is not within his jurisdiction For a tax by the Parliament For a Tax by the Parliament a distress may be justified throughout all the Village 11 Hen. 4.2 18 Edw. 3.11 pl. 39. upon which the Tax is set This was according to the old way but now the Law is altered A Fishing lying within tenure a man may distrain in it For Service for it seems that the Soil passeth 40 Edw. 3.45 as well as the water viz. terra aqua cooperta Q. For a Fishing seems but a Liberty or Priviledge Herriot-service A man may seize his Herriot-service in any place that he shall find him although not within his Fee 6 Edw. 3.208 pl. 3. For it is a personal service and not local or fixt The Lord may enter the House of his Tenant to distrain if the Door be open House 38 Hen. 6. 26 pl. 4. But he cannot open the Door to do it Q. If the Lord find the House fast with a Bar and he break it open and distrain this is wrongfully done 8 Edw. 2. Distress 21. For a mans House is his Castle of defence If the Beasts of a stranger escape into anothers Land Estranger and the Owner chases them out before and the Lord comes and distrains them here the Lord cannot distrain them yet it is otherwise if they go out of their own accord without chasing 11 Hen. 7.4 pl. 11 Com. 38. A. Plats case 2 Edw. 4.6 B. Littleton 33 Hen. 6.52 pl. 39. 34 Hen. 6.18 B. For in the former case he may take notice of the Owner but in the latter case he cannot The Lord distrains the Cattel of the Patron within the Glebe belonging to the Advowson Glebe 33 Hen. 6.35 Littleton This is a good distress held A man cannot distrain for Rent but in the place leasâ—d Lessee unless the Lessee grant a distress in other Land 9 Hen. 6.9 which he may well do by special agreement Lords Ecc. The Lord distrains in his Fee the Tenant chases them out of his Fee he may take them again 44 Edw. 3.20 pl. 18. for by the distress he had a property Fresh suit A Baily attaches a Horse which is rescued and brought into another County he shall make fresh sâ—it and take him again 33 Hen. 6.52 pl. 39. 33 Hen. 6.550 pl. 46. else not for the gaining him upon the fresh suit re-continues the Attachment A distrains and puts them in the pound Pound the Owner takes them out A may take them again in any place 34 Hen. 6.18 pl. 33. because they were once in custody of the Law and he may place them there again wherever he finds them If one put his Cattel in Land charged with a Rent-charge Rent-charge they shall be distrained for the Rent-charge although they are neither Levant nor Couchant otherwise if they escape upon the Land 15 Hen. 7.17 pl. 13. for it shall be prefumed he took notice of the Rent but not so where the Beasts escape there for that is against his will and he could not help it Quaere by the 18 Edw. 2. Avowry 219. if the Cattel that escape shall not be distrained for dammage feasant It seems they shall in respect of the dammage to be recompenced which come by his negligence River of Thames 2 3 Mariae Dyer 117. pl 73. Distress for an annual sum upon the River of Thames Q. of what nature What Distress shall be sold A Distress taken in a Court-Leet shall be sold Court-Leet although that a common person be Lord of the Leet 3 Hen. 7.4 pl. 15. Fairsax Distress taken by a Baily of a Lord of a Leet for forfeiture of Inmates Inmate and sold by force of a grant of the Steward in nature of a Scire faciâ—s No. Lib. Intra 666. A. Sect. 14. Q. whether by the Common Law A Distress taken for a Fine touching High-ways shall be sold Highways per 18 Eliz. cap. 10. What shall not be said a Distress excessive No Distress shall be said excessive for Homage 42 Edw. 3.26 pl. 11. Belknap Excessive 27. Assize pl. 51. Coke 4. Part. 8. B. Bevils case 28. Assize pl. 50. this is in respect of the great consequence of the thing distrained for and the easiness for the Tenant to perform it So likewise for fealty 27. Assize pl. 51. 28 Assira pl. 50. Coke 4. part 8. Bevils case for the same reason and in respect of the contempt done to the Lord. A man distrains four Horses and a Cart for two shillings rent this is not excessive because they are fixed to the Cart otherwise if not fixed so of a fold of Sheep 20 Edw. 4.3 otherwise if not in the fold Quaere rationem differentia It seems to be because in the former cases the intent of the party appears but only to have his due and not to take advantage of the Distress But not 〈◊〉 in the latter for then he might have distrained 〈◊〉 Horse or one Sheep 1. The Barr. 2. Justification 3. Conusance 4. Avowry No Barr that the Plantiff is possessed of the â—â—tel Nat. br 69. H. for he ought to have damâ—ages for the wrongful distraining of them That he took them not a good barr Lib. Intra â—1 B. Sect. 1.565 C. Sect. 1 2. 19 Edw. 3. Aid 28. 〈◊〉 that disaffirms the Replevin viz. the supposal 〈◊〉 the Writ Claim of Property 26 Hen. 8.6 pl. 27. 31 〈◊〉 6.12 for then it was lawful to take them as â—â—own This may not be by way of Avowry 31 Hen. â— 12 In Replevin of grain it is a good Barr to say Grain 〈◊〉 was his Wises dum sola and that the Plaintiff â—â—â—endred it to her 30 Edw. 3.9 pl. 3. for by the â—arriage the interest is his 2. Justification Difference between a Justification and an Avowry When a man cannot have the thing for which 〈◊〉 distrains then he may justifie the taking in lieu 〈◊〉 the thing and not avow to keep it till he have 〈◊〉 thing it self per Curiam 19 Hen. 6.41 â—83 But 22 Edw 4.36 B. è
contra Collow Q. If a man distrain for Services and the Tenant 〈◊〉 in Repleg brought by the Executors he shall â—â—fie but not avow 17 Edw. 3. Executors 106. the can make no title against them but he may â—â—ifie the taking Because he cannot have a return for the same thing against the Executors 22 Edw. 4.36 B. Collow If a man distrain for Services he may justifie or avow at his Election 15 Edw. 4.29 In every case where he may avow he may justifie for he hath done no wrong sed non è contra 5 Edw. 4.6 Young for he may have done no wrong in taking and yet may not be able to maintain an Avowry A man may justifie for Rent determined but not avow viz. for Rent arrear before it was determined Mich. 33 34 Eliz. Com. Ban. Goddards case because he cannot make a Title Tenant at sufferance may justifie a distress for dammage fâ—asant 4 Hen. 7.3 pl. 6. for he hath a Title against a Stranger One makes Conusance of the distress for dammage feasaâ—t in the Frank-tenant of his Master 10 11 Eliz. Dyer 280. pl. 15.21 Eliz. Dyer 365. pl. 32. and good in the behalf of his Master Conusance as Baily of A and that he took them dammage feasant in the Land that his Master had for years 2 3 Mariae Dyer 117. pl. 76. and good Conusance as Baily to the Parson of D which claims a Rent by prescription and a distress for it and good Lib. Intra 557. Charge 1. He cannot avow for Rent determined but may justifie Mich. 33 34 Eliz. Com. Ban. Goddards case antea because his Title to the Rent is gone 1. Avowries for Rent-services are twosold Quotuplex â— peâ— Common Law and 2. by Statute Law â—â—â—e 9. part 134. B. Ascoughs case 2. One may avow upon one as upon his veray â—â—mant by the manner scil when the Tenant â—â—sed it for life or made a gift in Tail the reâ—ainder over in Fee 20 Hen. 6.9 B. for he is 〈◊〉 bound to take notice of such a lease or gift But then the Lord ought to shew this special â—â—tter in his Avowry 15 Edw. 4.12 A. Catesby â—â—e 4 Hen. 6.14 pl. 11. Quaere 3. Upon one as his Tenant by the manner when â—e Lord hath but an estate in Tail or a lesser â—â—te in the Lordship or when the Tenant hath â—â—â—sser estate than Fee-simple for neither of these â—â—ders him from being Tenant 21 Hen. 6.22 〈◊〉 2. 2 Hen 4.24 pl. 13. Hankâ—ford 4. Upon the matter in the Land generally as â—ing within his see and Signory 38 Hen. 6.23 〈◊〉 7. 5. Upon the Land by any Lord generally per 〈◊〉 Hen. 8. cap. 19. as in Land within his Fee and â—â—gnory without making Avowry upon any person certain Coke 9. part 136. Ascoughs case 〈◊〉 the Avowry is in respect of the Lands held â—ed not of the person Who shall avow An Administrator shall avow for Rent due in the life of the Intestate Administrator per 32. Hen. 8. for he comes in the place of the Intestate in respect of interest Husband and Wife Husband and Wife in right of the wise for Rent-services due for Land held of the wife Lib. Intra 555. D. Sect. 6. for the Husband hath the present interest and by his death the wifes interest returns Or for Rent due to the wife afore Coverture 4 Hen. 6.13 for by the Coverture the Rent belongs to the husband But one cannot make Conusance as Baily to the husband and wise because a Feme covert cannot make a Baily 13 Hen. 4. Avowry 198. Q. how the Baily of Lands held by the husband in right of the wife shall avow It seems as Baily to the husband only He to whose use He to whose use before 27 Hen. 8. cannot avow for dammage fesant in his own name because he hath nothing in the Land at Common Law but occupation at sufferance of the Feoffees 15 Hen. 7.2 pl. 4. fol. 12. pl. 23. fol. 13. pl. 1. Crooke 17 Hen. 7.41 pl. 2. antea But may justifie in the names of the Feoffees Crooke 17 Hen. 4. pl. 7. by their leave as it seems A Commoner may avow for dammage feasâ—nt Commoner Coke 9. part 112. B. 24 Edw. 3.42 pl. 23.40 Edw. 3.23 15 Hen. 7.8 13 Hen. 8.15 7 Edw. 3.266 pl. 39. Coke 8. part 78. B. Welds case Crooke 17 Hen. 7.41 pl. 2. antea in respect of his interest Although he be Copyholder or Tenant for years Coke 9. part 112. B. for he hath interest in the Common in respect of such estate And needs not shew per quod amisit communiam for it shall be intended so No. Lib. Intr. 573. D. Sect. 4. but vide Coke 9. part 113. A. who ought to shew it for in some cases it must be so specially pleaded For Rent reserved by the Testator upon a Lease for years in the avowry by the Executor he shall not be put to shew the Testament 12 Rich. 2.163 for the other may traverse that he is not Executor if it be so An Executor may avow for Rent due in vita Testatoris Executor by the Statute of 32 Hen. 8. cap. 37. If a Rent be granted to husband and wife Woman Arrearages incurr the husband dies the wife shall distrain for the Arrearages 29 Edw. 3.40 pl. 19. for the Rent is now due to her by Survivorship Gardein in Soccage Gardein in Soccage may avow for dammage feasant in his own name for he hath the Governance of the Land Crooke 17 Hen. 7.46 B. Frowick and so the wrong is as it were done to him and he is to account for the profits of the Land A Parson may avow for a Rent-charge by prescription Parson Lib. Intra 557. B. sect 1. Antea The King having the profits of Land by Outlawry in a personal action may avow for the Rent King 15 Hen. 7.2 pl. 4. for it belongs to him in right of the outlawed person Tenant at will Tenant at will for dammage feasant Lib. Intra 561. B. Sect. 1. 15 Hen. 7.2 pl. 4. may avow for the dammage done to him Tenant at sufferance Tenant at sufferance cannot avow for dammage feasant for he can make no Title Crooke 17 Hen. 7.47 A. But vide 4 Hen. 7.3 pl. 6. in Trespass he justifies for dammage feasant and good for he ought to have the profits till he that hath right enter upon him and the distress is to recover amends for the profits taken from him For what things a man may avow For an Amerciament in a Leet 1. Amerciament No. Lib. Intra 572. A. sect 2. Crooke 20 Hen. 7.66 pl. 8. In the Tourn of the Sheriff 2. 28 Edw. 3.95 In a Court Baron it was by custome alledged 3. 15 Eliz. Dyer 322. pl. 23. Crooke 20 Hen. 7.66 pl. 8. for Amerclament for the Tenants not coming to the Court he may distrain if it be assâ—ssed
for anothers Life shall have Trespass without re-entry because the Act of God shall not prejudice him 19 Hen. 6.28 B. Ascough Coke 5. part 41. Kniets case Tenant at sufferance Tenant at sufferance shall not have Trespass Crook 17 Hen. 7.47 A. for the feebleness and uncertainty of his Estate If a man be outlawed or attainted in Trespass or Felony Outlawed and pardoned he shall have Trespass for Trespass done to his person before the pardon 29 Assize pl. 63. No. Lib. intra 248. A. 30 Edw. 3.4 pl. 18. For by the pardon he is made rectus in curia and restored to the priviledge of the Law ab initio But for other Trespass quaere 5 Edw. 3.170 viz. concerning his Goods or Lands in respect of the forfeiture But before a Scire facias be brought upon the pardon he cannot without doubt because the pardon was conditional 21 Edw. 3.55 pl. 7. Q. Against whom Trespass lies Administrator takes the Goods Administrator B proves a Will by which he was made Executor and brought Trespass and it lies although the Administration were never repealed for the Administration was void ab initio and the Administrator a Trespasser Mich. 12. Jac. Ban. Regis Fisher Young A makes a Trespass Agreement B agrees to it afterwards and avows the doing of it yet B is no Trespasser 9 Edw 3.35 pl. 17 For the consenting is a matter ex post facto and cannot make him a Trespasser ab initio Trespass lies against an Alien Alien Digest br 72. A. For an Alien is subject to the Laws of the Land as much as concerns the peace and quiet of it Attainted person A person attainted shall be sued in Trespass Mich. 38 39 Eliz. Com. Ban. Banister Trussel No. Lib. intra 248. A. For he shall not take advantage of his own wrong to plead it in bar to the prejudice of another An Infant makes a Letter of Attorney to A Attorney to take Livery and Seisin for him A takes it the Infant shall not have Trespass against A because it is for his advantage to take the Livery for him 21 Hen. 6.31 B. Ascue Husband and wife Trespass De muliere abducta cum bonis viri c. lies against Husband and Wife because the Wife may assent at the time to the Ravishment and also to the carrying away of the Goods 43 Edw. 3. pl. 15.44 Assize 13. and this Assent makes her a joint Trespasser with her Husband Trespass against Husband and Wife the Wife is taken by Capias but not the Husband Dodderidge and Haughton Justices said that if the Declaration be against the Wife alone it is not good and if there be no Declaration the Wife shall be at large but afterwards Dodderidge said a Declaration shall be put in against the Husband and Wife and the Wife appearing shall be committed to prison to which Crooke agreed yet quaere what was done in it Mich. 15 Jac. Ban. Regis Ashwel against Opshard and his Wife if no Bail be put in for her So hath it been since held by Rolle Chief Justice If the Woman beat another the Husband must be named in the Writ Regist orig 105. B. Lib. intra 612. A. sect 11. for he must answer for his Wifes behaviour Trespass lies against him that commands another to do a Trespass Commander Doct. Stud. 19. A. tamen quaere For it seems otherwise Body politick It lies against a Master of an Hospital and his Brethren Regist orig 105. B. For they are one body in Law and so it is but one Trespass done by them all Dean and Chapter It lies against a Dean and Chapter 32 Hen. 6.8 pl. 13. for the same reason Mayor Commu nalty It lies against a Mayor and Communalty Quare vi armis 38 Edw. 3.18 8 Hen. 6.1 9 Hen. 6.36 20 Hen. 6.9 15 Edw. 4.2 4 Hen. 7.13 32 Hen. 6.10 for the same cause But no Capias lies against them because they cannot appear all in person for this would make confusion 45 Edw. 3.2 3. 22 Assize 67. 21 Edw. 3.59 pl. 1. But they must appear by an Attorney for them all Disseisee shall have Trespass against his Disseisor before his entry Disseisor for the former entry upon his Disseisin 32 Hen. 6.32 38 Hen. 6.28 A. Fortescue But after his entry he shall have Trespass against the Disseisor for all the mean profits taken during the Disseisin Coke 11. part 51. A. Liffords case 3 Hen. 4.13 pl. 18. Gascoigne 37 Hen. 6.7 pl. 12. But shall not have Trespass against the Disseisor of the Disseisor for then the last Disseisor should be twice charged Coke 11. part 51. once by the first Disseisor and a second time by the Disseisee which is unreasonable Neither against the Feoffee or Feoffor of the former Disseisor 34 Hen. 6.30 pl. 14. 13 Hen. 7.15 Coke 11. part 51. for the same reason Liffords case 2 Edw. 4.18 pl. 12. per 2 Justices Crooke 12 Hen. 7.1 pl. 2. But against a Co-adjutor of a Disseisor it lies 21 Edw. 4.5 19. for he is as the Disseisor himself It lies against an Infant Infant Digest br 72. Q. of what age It seems at the age of Discretion It lies not against an Executor Executor quia actio personalis moritur cum persona Doct. Stud. 75. viz. for a Trespass done by the Testator if personal Guardian shall have Trespass against his Ward Guardian 5 Hen. 4.2 pl. 7. Q. for what Trespass whether for a Trespass done to him as his Guardian It lies against an Ideot Ideot Digest br 72. A. Q. for it seems it lies not against one not compos mentis Trespass and Imprisonment lies not against any of the Judges at Westminster Judge although he commit him without cause 21 Hen. 6. pl. 9. in fine For this would be to affront Justice to call the Judges in question for doing things as Judges But they are questionable by the King But if Auditors commit not an Accomptant forthwith but at another time Auditors Trespass lies against them 27 Hen. 6.8 pl. 7. For their power is limited to time and place for they are Judges but hac vice It lies against a Miller that takes toll of them that are Toll-free Miller 41 Edw. 3.24 pl. 17. 44 Ed. 3.20 pl. 16. for it is dammage to them and wrong in the Miller It lies against the Queen sole without joyning the King Queen for the King cannot be a Trespasser to any Trespass lies not against the Lord Lord. per Marlebridge cap. 13. Q. for what Trespasses and by whom It seems for Trespasses done to his Villains most properly Non ideo puniatur dominus per redemptionem Coke 4. part 11. B. Bevills case But afore this Statute Trespass did lie against the Lord vi armis 48 Edw. 3.20 pl. 16 Thorp for there the peace of the Commonwealth