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
contra Collow Q. If a man distrain for Services and the Tenant 〈◊〉 in Repleg brought by the Executors he shall â—â—fie but not avow 17 Edw. 3. Executors 106. the can make no title against them but he may â—â—ifie the taking Because he cannot have a return for the same thing against the Executors 22 Edw. 4.36 B. Collow If a man distrain for Services he may justifie or avow at his Election 15 Edw. 4.29 In every case where he may avow he may justifie for he hath done no wrong sed non è contra 5 Edw. 4.6 Young for he may have done no wrong in taking and yet may not be able to maintain an Avowry A man may justifie for Rent determined but not avow viz. for Rent arrear before it was determined Mich. 33 34 Eliz. Com. Ban. Goddards case because he cannot make a Title Tenant at sufferance may justifie a distress for dammage fâ—asant 4 Hen. 7.3 pl. 6. for he hath a Title against a Stranger One makes Conusance of the distress for dammage feasaâ—t in the Frank-tenant of his Master 10 11 Eliz. Dyer 280. pl. 15.21 Eliz. Dyer 365. pl. 32. and good in the behalf of his Master Conusance as Baily of A and that he took them dammage feasant in the Land that his Master had for years 2 3 Mariae Dyer 117. pl. 76. and good Conusance as Baily to the Parson of D which claims a Rent by prescription and a distress for it and good Lib. Intra 557. Charge 1. He cannot avow for Rent determined but may justifie Mich. 33 34 Eliz. Com. Ban. Goddards case antea because his Title to the Rent is gone 1. Avowries for Rent-services are twosold Quotuplex â— peâ— Common Law and 2. by Statute Law â—â—â—e 9. part 134. B. Ascoughs case 2. One may avow upon one as upon his veray â—â—mant by the manner scil when the Tenant â—â—sed it for life or made a gift in Tail the reâ—ainder over in Fee 20 Hen. 6.9 B. for he is 〈◊〉 bound to take notice of such a lease or gift But then the Lord ought to shew this special â—â—tter in his Avowry 15 Edw. 4.12 A. Catesby â—â—e 4 Hen. 6.14 pl. 11. Quaere 3. Upon one as his Tenant by the manner when â—e Lord hath but an estate in Tail or a lesser â—â—te in the Lordship or when the Tenant hath â—â—â—sser estate than Fee-simple for neither of these â—â—ders him from being Tenant 21 Hen. 6.22 〈◊〉 2. 2 Hen 4.24 pl. 13. Hankâ—ford 4. Upon the matter in the Land generally as â—ing within his see and Signory 38 Hen. 6.23 〈◊〉 7. 5. Upon the Land by any Lord generally per 〈◊〉 Hen. 8. cap. 19. as in Land within his Fee and â—â—gnory without making Avowry upon any person certain Coke 9. part 136. Ascoughs case 〈◊〉 the Avowry is in respect of the Lands held â—ed not of the person Who shall avow An Administrator shall avow for Rent due in the life of the Intestate Administrator per 32. Hen. 8. for he comes in the place of the Intestate in respect of interest Husband and Wife Husband and Wife in right of the wise for Rent-services due for Land held of the wife Lib. Intra 555. D. Sect. 6. for the Husband hath the present interest and by his death the wifes interest returns Or for Rent due to the wife afore Coverture 4 Hen. 6.13 for by the Coverture the Rent belongs to the husband But one cannot make Conusance as Baily to the husband and wise because a Feme covert cannot make a Baily 13 Hen. 4. Avowry 198. Q. how the Baily of Lands held by the husband in right of the wife shall avow It seems as Baily to the husband only He to whose use He to whose use before 27 Hen. 8. cannot avow for dammage fesant in his own name because he hath nothing in the Land at Common Law but occupation at sufferance of the Feoffees 15 Hen. 7.2 pl. 4. fol. 12. pl. 23. fol. 13. pl. 1. Crooke 17 Hen. 7.41 pl. 2. antea But may justifie in the names of the Feoffees Crooke 17 Hen. 4. pl. 7. by their leave as it seems A Commoner may avow for dammage feasâ—nt Commoner Coke 9. part 112. B. 24 Edw. 3.42 pl. 23.40 Edw. 3.23 15 Hen. 7.8 13 Hen. 8.15 7 Edw. 3.266 pl. 39. Coke 8. part 78. B. Welds case Crooke 17 Hen. 7.41 pl. 2. antea in respect of his interest Although he be Copyholder or Tenant for years Coke 9. part 112. B. for he hath interest in the Common in respect of such estate And needs not shew per quod amisit communiam for it shall be intended so No. Lib. Intr. 573. D. Sect. 4. but vide Coke 9. part 113. A. who ought to shew it for in some cases it must be so specially pleaded For Rent reserved by the Testator upon a Lease for years in the avowry by the Executor he shall not be put to shew the Testament 12 Rich. 2.163 for the other may traverse that he is not Executor if it be so An Executor may avow for Rent due in vita Testatoris Executor by the Statute of 32 Hen. 8. cap. 37. If a Rent be granted to husband and wife Woman Arrearages incurr the husband dies the wife shall distrain for the Arrearages 29 Edw. 3.40 pl. 19. for the Rent is now due to her by Survivorship Gardein in Soccage Gardein in Soccage may avow for dammage feasant in his own name for he hath the Governance of the Land Crooke 17 Hen. 7.46 B. Frowick and so the wrong is as it were done to him and he is to account for the profits of the Land A Parson may avow for a Rent-charge by prescription Parson Lib. Intra 557. B. sect 1. Antea The King having the profits of Land by Outlawry in a personal action may avow for the Rent King 15 Hen. 7.2 pl. 4. for it belongs to him in right of the outlawed person Tenant at will Tenant at will for dammage feasant Lib. Intra 561. B. Sect. 1. 15 Hen. 7.2 pl. 4. may avow for the dammage done to him Tenant at sufferance Tenant at sufferance cannot avow for dammage feasant for he can make no Title Crooke 17 Hen. 7.47 A. But vide 4 Hen. 7.3 pl. 6. in Trespass he justifies for dammage feasant and good for he ought to have the profits till he that hath right enter upon him and the distress is to recover amends for the profits taken from him For what things a man may avow For an Amerciament in a Leet 1. Amerciament No. Lib. Intra 572. A. sect 2. Crooke 20 Hen. 7.66 pl. 8. In the Tourn of the Sheriff 2. 28 Edw. 3.95 In a Court Baron it was by custome alledged 3. 15 Eliz. Dyer 322. pl. 23. Crooke 20 Hen. 7.66 pl. 8. for Amerclament for the Tenants not coming to the Court he may distrain if it be assâ—ssed
by Afferrors otherwise not viz. the Lord. For a Corrody granted with a distress if not paid Corrody he may avow for a distress for it 27 Edw. 3.81 pl. 13. Dammage feasant For dammage feasant Lib. Intra 554. D. Sect. 3.556 A. Sect. 7.559 A. Sect. 1 2. No. Lib. Intra 575. B. Sect. 6.577 C. Coke 8. part 89. B. Franceâ— case Antea If the Cattel be chased out of the Land before he distrain he cannot avow the distress Coke 9. part 22. Avowry 16 Edw. 4.10 2 Edw. 3.2 Avowry 182. for they must be taken in the ground or Land A man pleads it is his Franktenant and avows for dammage feasant and it was sound that it was his Franktenant and his wifes the Judgment shall be against him for both were seized and so the plea false Trin. 38 Eliz. Com. Ban. Walker versus Bonner The Plaintiff shews that A was seized and the Land descended to him and that he was seized in Fee and avows for dammage feasant and good Trin. 9 Jac. Newton versus Arsley for here is a good Title derived For a Moiety of the value of the Land Forfeiture upon 4 Hen. 7. forfeited For maintenance of Husbandry Lib. Intra 575. D. Sect. 1. For a Herriot custome No. Lib. 613. B. Sect. 22. Herriot But he ought to shew the certainty of the Land holden for to say that he held two Tenements is not sufficient but if he claims it of the Lessee for life he ought to shew which Lease he holds by 21 Hen. 7.79 pl. 27. Crooke For Relief Lib. Intra 555. C. Sect. 4. Relief But the Avowry shall not be for the double rent but only the quantity of the single rent 16 Hen. 7.4 pl. 2. 1. For a Rent-charge Rent No. Lib. Intra 585. A. Sect. 7 8 9. by deed 2. For a Rent-charge by prescription Lib. Intra 557. B. Sect. 1 2. C. 3. For Rent-service but if be avow for two rents where one Rent-day is not come the Avowry shall abate for that only which is not come Coke 8. part 45 B. Godfreys case but for the other it is good because due 1. For Fealty Lib. Intra 555. C. Sect. 4. Services 2. For Homage Lib. Intra 555. C. Sect. 4. Coke 4. part 6. A B. Bevils case For Rent-service Lib. Intra 554. C. Sect. 2.556 Sect. 8. But if it be to render one thing or other as a Rose or a pair of Spurs and shew for what he avows he shall avow accordingly For Bracton lib. 2. fol. 35. B. in hoc casu tenens â—abeâ— electionem unum solvendo liberatur ab â—lâ—ero For Rent-service when the Cattel are chased out Lib. Intr. 557. A. Sect. 10. antea Seisin in Avowry in whom it may be alledged It may be alledged in the Ancestor of the Avowant Ancesâ—or 34 Hen. 6.21 3 Edw. 2. Avowry 187. 20 Hen. 6 7. com 140. A. 16 Hen. 7.4 pl. 10. 2 Edw. 3.27 pl. 4. because he derives his Title â—rom him In the Father of the Feoffor Feoffor Lib. Intra 556. B. sect 8. and so the Feoffor had a good Title by presumption In the Predecessor good Predecessor 6 Edw. 3.277 Com. 96. A. under whom he claims By what hands Seisin of the Rent or Services shall be alledged By the Ancestor of the Plaintiff Ancestor 34 Edw. 3. Avowry 258. 34 Hen. 6.8 who was possâ—ssed of the Land By a Disscisor Disscisor good Coke 2. part 67. A. Tookers case Coke 6. part 57. B. Bredimans case for he was owner protempore Unless it be by Covin Coke 6. part 58. A. Bredimans case betwixt him and he that distrains for the Law protects not â—raud By the hands of an Infant Infant good 34 Edw. 3. Disclaimer 30. Coke 9. part 33. B. Bucknals caâ—e Quaere Feoffor of the Tenant In the Feoffor of the Tenant Com. 95. A. Manâ—eâ—s case for the Tenant derives under hiâ— By the hands of one Joyntenant only it is good Joynt-tenant Coke 2. part 67. A. Tookers case Prescription to have rent of a Village Resiantâ— Seisin by the Resiants is good because all the Village is chargeable 4 Hen. 6.29 30. Coke 6. part 59. Bredimans case By Tenant for years not good Tenant because he hath not an estate out of which seisin may be gained Coke 6. part 57. A. Bredimans case in respect of the feebleness of it By the hands of the Tenant for life good when the remainder is over to another Coke 6. part 58. A. Bredimans case for he hath a Freehold By the hands of the Tenant by the Courtesie not good to charge the Heir with a Herriot-service because none may have his estate 21 Hen. 7.84 pl. 8. Crooke nor derive a Title from him for his estate determines with his life A Tenant to a Lord makes a Feoffment and after notice to the Lord gives seisin to the Lord this is good because he remains Tenant to the Lord until notice be given Coke 6. part 58. A. Bredimans case for the Lord cannot take notice of the Feoffment By the hands of the Tenant and needs not say Tenant of the land 34 Hen. 6.8 for it shall be so intended By the hands of the Tenant peravail good Coke 6. part 58. A. Bredimans case or Under-tenant The Sheriff claims a rent by prescription and seisin 42 Edw. 3 4. Within what time seisin ought to be alledged The Advowant is not bound to alledge seisin within 40 years but may alledge it generally and then the other may plead that he was not seised within 40 years Coke 8. part 65. A. Fosters case 9. part 36. A. Bucknalls case 14 Eliz. Dyer 315. pl. 10. and that will destroy the seisin if it be so When it is not requisite to alledge Seisin In an Avowry for an amerciament it is not requisite to alledge it Avowry 11 Hen. 4.89 13 Hen. 4.9 In an Avowry for a Rent-charge 44 Edw. 3. Avowry 75. Coke 8. part 56. A. Fosters case it is necessary for if he were never seised the rent was not executed In an Avowry for rent upon a seoffment by deed Seisin is not necessary to be alledged because the deed is the Title and the commencement of it appears by it 2 Edw. 2. Avowry 185. Coke 8. part 65. A. Fosters case So for Rent or Service upon a gift in Tail or other particular estate Coke 8. part 65. A. Fosters case created by deed What Seisin shall be good Seisin of the superiour Service is seisin of all inferiours Superiour because they are incident to it Coke 4. part 8. Bevils case and included as it were in it For Example seisin of Esâ—uage is seisin of Homage Coke 4. part 8. Seisin of Homage is seisin of Fealty Coke 4. part 8. Seisin of Homage is seisin of the Superiour or inferiour Inferiour For Example seisin of Homage is seisin of Escuage the superiour 13 Edw.
his right The King grants a Free Chappel to B by Patent Sheriff if the Sheriff will not put him into possession he shall have a Quare Impedit against the Sheriff for this is in the nature of a Lay see and belongs not to the Ordinary and the Writ shall be general 14 Hen. 4.11 pl. 9. Haukeford as in other Quare Impedits but the Count must be special as it seems Quare Impedit of what disturbances it lies If a Disturber presents three times within the six months Disturber Quare Impedit lies for the former Nat. br 35. R. of the Presentations for there began the first cause of action The Ordinary refuses to grant a Jure Patronatus to try the Title or to admit the Clerk a Quare Impedit lies 33 Hen. 6.12.32 34 Hen. 6.11 35 Hen. 6.38 for this is a disturbance to the Presentation So if it be Litigious and the Ordinary admit a Clerk without awarding a Jure Patronatus 22 Hen. 6.25 Bre. 83. for this is to disturb by fore-judging of the right So if he do not admit him within convenient time 22 Hen. 6.29 for delays are disturbances and accounted denials for Justice ought to be speedily done The Bishop refuses to admit the Clerk because it was first found for another in a Jure Patronatus this is a disturbance Nat. br 35. G. for he is not to take notice of the Suits between the parties Unless the Admittas be delivered to him 21 Hen. 6.44 for that is the Act of the Court of which he is bound to take notice Quare Impedit of what things it lies And if one had been disturbed before the Statute yet he should have had the Writ because the Statute refers before as well as after 6 Edw. 3.221 pl. 51. Q. The Count Lib. Intra 646. C. It lies of a Chappel 22 Hen. 6.25 B. antea Chappel And it lies by Westm 2. cap. 5. Lib. Intr. 52. A. sell 2. The Writ shall be Praesentatum ad Capellam liberam Nat. br 32. H. 8. But if the King brings a Quare Impedit of his free Chappel it shall be praesentare ad Praebendam in his Frank Chappel Nat. br 33. 16 Edw. 3.3 nota differentiam It lies of a Deanary Deanary 17 Edw. 3.40 It lies of Domus Sancti Martini in Bristol Nat. br 33 G. Domus S. Martini Hospital It lies of an Hospital Nat. br 33. G. pro Westm 2. cap. 5. the Count Lib. Intra 506. C. Sect. 1. because they are all presentative De Medietate Advocationis It lies not de medietate Advocationis neque de Advocatioue medietatis Ecclesiae Nat. br 33. A. 33 Hen. 6.11 B. Prisot vide 4 Hen. 6.15 B. for it must be of an entire thing or at least so supposed by the Writ for the Law takes no notice of such moieties But in such cases the Writ shall be general scil ad Ecclesiam and not ad medietatem Ecclesiae but the Count shall be special and set forth special Title Coke 5. part 102. Winsors case 16 Edw. 6. Dyer 78. pl. 44. But where there are two several Patrons and two several Incumbents of the same Church within one and the same Village so that the Advowson and Church are severed in right and possession there one Patron may have a Quare Impedit de medietate Ecclesiae Coke 10. part 135. B. Smiths case for there their Titles are entire 21 Hen. 6.4 pl. 8. in fine One person says that he was Parson but of the Moiety of the Church and good 7 Edw. 3.246 pl. 24. Quare Impedit of the Moiety of the Church Q. It lies of a Parsonage Parsonage and the Writ shall be ad Ecclesiam because Ecclesia is intended of a Parsonage Nat. br 32. H. viz. the possession of the Church Glebe and Tithes It lies of a Prebendary Prebend per Westm 2. cap. 5. The Count No. Lib. Intr. 507. B. The Writ shall be ad Praebendam Nat. br 32. H. 40 Edw. 3.17 pl. 7. but it ought to shew the name of it 40 Edw. 3.17 to make it more certain for else the word is too general It lies of the Subdeaconry of York Subdeaconry Nat. br 34. G. because presentative of right as it seems The Writ shall be quod permittat eum praesentare and yet the King gives it by his Letters ters Patents Nat. br 34. G. but it seems such Writs were but of puisne temps It lies of a Vicarage Vicarage per 2. Westm cap. 5. viz. a Vicarage to be endowed The Writ shall be ad Vicariam Nat. br 32. H. which the Law well takes notice of The Count in a Quare Impedit He that brings a Quare Impedit in his count ought to alledge a Presentment in himself or in his Ancestors or in him by whom he claims Nat. br 33. H. 1. Unless a man erect a new Church for then the Count shall be special Nat. br 33. H. 17 Edw. 3.12 and shall set it forth to make it appear he cannot alledge a Presentment 2. If he recover in a Writ of right then he may alledge the presentation in him against whom he recovered Nat. br 33. J. Q. Or he may have this Writ without alleadging any presentation for he may count upon the Record Nat. br 36. A. whereby he recovered and that makes it appear the Presentation belongs to him Or if he recover in a Quare Impedit the same Law 42 Edw. 3.8 pl. 5. 3. He may alleadge seisin in the Procurator Nat. br 33. J. 17 Edw. 3.60 75. which is as it were his own seisin He that alleadges Presentation in himself ought to shew that the Presentee was instituted although that it was against a Common person for without Institution he had no fruit of his presentation and so it is as nul But against the King he ought to shew that he was Inducted Com. 528. Bickleys case Coke 6. part 49. Boswelt case for a man must make a full and compleat Title against the King And such presentment ought to be within memory 17 Edw. 3.10 Quaere of the Law at this day Presentation in his own name Devisee for life alleadges the presentation in himself and good Coke 5. part 37. 8 Hen. 5.10 in respect of his Free-hold Of the presentation of Tenant for life vid. Coke 5. part 97 98. For years 7 Edw. 4.20 22 Edw. 4.9 B. In Dower By the Courtesie At Will 5 Hen. 5.3 pl. 6. These are the presentments of him that hath Fee Q. The King grants the Advowson to A the Church being void and presents 13 Eliz. Dyer 330. pl. 36. by Lapse 21 Eliz. Dyer 364. pl. 28. and good for his grant hinders not for he presents by Lapse upon another title But the issue in Tail ought to alleadge presentment in the Donor because he derives his title from him or he may alledge it in himself Com. Manxels case fol. 4. B. If it be alleadged
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
his Service Coke 9 part 113. A. Mayers case 18 Edw. 4.27 pl. 24. 2 Hen. 4.12 pl. 49. 28 Hen. 6.14 and there was omitted this word per and yet good for the sense was good without it And if the Plaintiff have a Verdict and doth not count as aforesaid he shall never have judgment Crooke 21 Hen. 7.71 pl. 15. because it doth not appear he had cause to bring his Action But he need not count of the retainer 21 Hen. 6.31 pl. 18. 22 Hen. 6.30 B 43. B. 31 Hen. 6.12 pl. 2. for if he was not his Servant the Defendant may traverse it 4. For menacing my Servant per quod c. Regist orig 94. B. for the loss of the service is the main cause of the Action 5. For assault and battery of my Servant per quod c. Regist orig 102. A. Nat. br 91. vide the count Lib. Intra 613. B. sect 19 674. C. sect 1. 6. For assault and battery and imprisonment till the Plaintiff made fine per quod damnificatus c. 19 Hen. 6.35 pl. 37. 7. For battery mayheme and imprisonment per quod damnificatus c. Crooke 7. Hen. 8.180 pl. 4. 8. When his Dog bites my Servant per quod c. Regist 111. A. servitium amisi but then he must count that kept him knowing him to be accustomed to bite A good plea to the Writ that it was his Wife that was bitten 7 Rich. 2. traverse 206. for then his Count is false So that it was his Farmor 13 Rich. 2. traverse 210. So that it was his Prentice Q. for a Prentice is a Servant 2 Hen. 6.31 pl. 18. So that it was his Companion 37 Hen. 6.7 pl. 13. Against the Lessor that outs the Executors of the Term left to the Testator Term. Nat. br 92. G. Q. whether an ejectment doth not lie And the Writ is there by Summons not per pone per vadios c. Summons is the ancienter Process For doing of wrong to the damage of another touching his body Lying in wait For lying in wait to kill me or take me as his Villain so that I dare not go about my business 2 Edw. 4.5 17 Edw. 4.4 Regist orig 101 102. Crooke 13 Hen. 7.26 27. 2 Hen. 7.12 pl. 15. Coke 4. part 18. A. case 14. for the Law highly prizeth life and liberty Note Actio quod metus causa fuit datur ei qui probabili metu rem suam tradidit vendidit vel promisit versus cum qui metum intulit dicitur metus probabilis qui in virum constantem cadere possit non in hominem meticulosum Bracton lib. 3. cap. 4. fol. 103. B. It must be sure grounded on a reasonable cause of fear 1. For arresting me in the name of B Arrest without his consent 7 Hen. 6 43. pl. 19. for it may be he would not have arrested me though he had cause 2. For arresting me without cause 8 Edw. 4.13 But this ought to be by collusion to vex me 43 Edw. 3.20 for if there be probabilis causa it lies not for one may be deceived in the Law 3. For arresting me to appear in the Marshalsey where I was not sued 3 Hen. 6. estoppel 18. 10 Hen. 6.13 7 Hen. 6.30 for this is vexatious 4. For arresting me in London knowing I was priviledged in Bank 7 Hen. 6.45 for I am debarr'd of my priviledge and put to more trouble 5. Against a Sheriff for returning me nibil where I had lands by which I was taken per Capias Nat. br 93. b. 31 Edw. 3. Process 55. for his false return to my prejudice For arresting me and bringing me before a Justice where I was indicted and acquitted and this is good cause of Action although the time of the arrest is not shewed because of the vexation Trin. 7 Jac. Ban. Regis Olivers case which is the cause of the Action and the time is not material If one exhibit Articles to a Justice of Peace against B Articles to have him bound to his good Behaviour no Action lies for this because it is in course of Justice Coke 4. part 14. B. But quaere if the Articles be false For putting Irons and putting in the Stocks Goaler and giving little sustenance to one committed for Debt or Arrearages in Account Nat. br 83 H. for the Law warrants it not and the Law hates cruelty For procuring another to be indicted without cause Indictment Nat. br 114. D. 116. A. viz. probable cause For procuring B to be indicted for a common Barector and he is acquitted secundum Leges Angliae 1. good although that the Count was not that he was lawfully acquitted for it is so implied 2. he ought to have Counted quod inde acquietatus fuit or words that do amount to so much Mich. 7 Jac. Ban. Regis Rott 407. Bell versus Gamble for else there appears no cause of Action For threatning by word or writing to beat me Menace if I come out of my house 17 Edw. 3.4 vide Bracton lib. 3. cap. 4. fol. 1.13 B. for I am thereby hindered in my occasions and so damnified For threatning another of life and member 10 Edw. 4 6. the Writ and Count Lib. Intra 661. B. sect 1 2. for he thereby goes in fear and so the Peace is disturbed For putting poyson in my meat Poyâ—â—â— Regist orig 102. A. wittingly to the hazard of my life or health Against a Chirurgion that impairs the body by his Medicine 21 Hen. 6.55 11 Rich. 2. Action upon the case 37. For it is either a misfeasance of ignorance or of malice both which are punishable on those that undertake a trust and skill For doing a thing to the damage of another touching his Name which is Slander for it turns to his prejudice Dicitur quod scandalosum est generale verbum Slander and signifies that which one does to the overthrow of anothers credit and repute therefore it is conceived that if the words are spoken to the wrong of another an Action lies Kitchin 173. for the intended injury Fit autem injuria non solum cum quis pugno percussus fuit verberatus vulneratus vel fustibus cesus verum cum ei convitium dictum fuit vel de eo factum crimen famosum hujusmodi Bracton lib. 3. fol. 155. A. There are two kinds of defamations Spiritual and Temporal Nat. br 55. Note when words are not spoken adjectively if they touch one in his Profession or Trade they are actionable otherwise not Coke 4. part 19. case 15. Q. Adjective words are incertain and signifie nothing positively or directly affirmative Also if they imply or presume an illoyal act viz. against the publick Peace then an Action lies although they are spoken adjectively but if they imply an intention only then an Action lies not Coke 4. part 19. B. case 15. for the Law punisheth not Intentions except it be in cases of Treason It lies
was only made to try a Title an Action of Covenant lies not for such breach Trin. 11 Jac. Com. Ban. Rot. 384. Selby versus Shute for this was but a Lease in trust only for the benefit of the Lessor and not of the Lessee Lessee by deed Poll shall have a Covenant against the Lessor Lessee if he out him Nat. br 145. l. 35 Hen. 8. Dyer 57. pl. 24. Shelley for the Action ariseth upon the covenant of the Lessor which may be by deed Poll. But not upon outing by a stranger without Title Nat. br 145. L. 22 Hen. 6.52 pl. 26. Hill 12 Jac. Com. Ban. Tisdale Essex yet quaere if he had a colourable Title Although it be by Recovery by Verdict Coke 4. part 80. B. Nokes case vid. antea But if a Stranger hath Title then it lies Nat. br 145. L. 32 Hen. 6.32 pl. 27. Nedham for theâ— the Lessor could not lett But Tenant for life shall not have Covenant for such ousting Nat. br 145. M. 26 Hen. 6. Covenant so for ousting is intended of a term and not of a Freehold for such ousting is a disseisin If it be not exprest Nat. br 145. M. for that declares what ousting was meant by the parties Lessee for years shall have Covenant upon a demise and grant Coke 4. part 80. B. Nokes case 5. part A. Spencers case viz. upon the words demise and grant in the Lease for they imply a Covenant Lease for years with warranty the Lessee outed shall have Covenant 26 Hen. 8.3 pl. 13. by all 9 Eliz. Dyer 257. pl. 13. for the warranty implieth a Covenant for quiet enjoying Tenant for anothers life leases for years with warranty he for whose life the Lease was dies the first Lessor enters Covenant lies 32 Hen. 6.32 pl. 27.9 Eliz. Dyer 257. pl. 13. against the Lessee for life upon his warranty because his estate was but a contingent estate and the warranty supposed t absolute But if it be without warranty it lies not 9 Eliz Dyer 257. pl. 13. for he letts no greater estate than he hath A Covenants to serve B for years and dies no Action lies quia mors omnia solvit 48 Edw. 3.2 B. pl. 4. Finchden Hill 33 Eliz. Ban. Regis Wilson Mapes A Parson leases his Rectory and covenants to save harmless the Lessee concerning the lands and profits for one year against Blunt Blunt enters within the year Covenant lies because it is expressed against a certain person Quaere if it had been generally Lessee covenants that he will not assign his Term over by which it may come to D the Lessee assigns it to K per Curiam Covenant lies for he hath put the power out of him Trin. 13 Jac. Com. Ban. Guines case and it may come to D whether he will or no. Of a Fine levied of Rent a Writ of Covenant lies 22 Edw. 4.2 pl. 6. The Count in Covenant 1. Personal 2. Real The Count was that per Indenturam suam testat existit that the Defendant covenanted so and so this is good but such plea in bar is not good Mich. 7 Jac. Ban. Regis Wyrdnam versus Fankner 2 Mariae 117. pl. 78. but he must plead Covenants performed and tender an issue Prior and Covent leases to two for years with warranty Count. per Indenture rendring Rent one dies after possession the other survives and was sole possest the Prior dies the Defendant fuit electâ—â— praefectus Prior tali die expulsus ejectus est the Survivor by the new Prior and so the Defendant did not hold Covenant made between the late Prior and the said Survivor Lib. Intr. 135. D. sect 2. this is a good Count for the Covenant lies by the Survivor against the Successor Count upon covenants to make a new Lease Com. 2. Chapmans case and good A leases to B for 6 years if C live so long and covenants that he had power to demise it c. B in covenant needs not count that C was in life for if he were dead at the time of the demise yet Covenant lies 2. he need not shew that he had the better right because he did pursue the words of the Covenant negative Coke 9. part 60. Bradshawes case or else it cannot appear it is the Covenant upon which the Action is brought Count by the Lessor against the Lessee that Covenants to pay all charges and pays not the tenths granted per Parliament Lib. Intr. 136. C. sect 4. for the word Charges includes the Tenths for they are charges issuing out of the Land or payable ratione terrae The Count shall be general that he hath broken covenants between them to the dammage c. the other shall say that they are performed the Plaintiff may reply that they are not because he shall have several dammages for every Covenant broken but upon an Obligation he ought to shew in what he hath made a breach because he shall have the forfeiture for one breach 6 Hen. 4.8 pl. 34. if but one breach Tenant for life leases for years rendring Rent the Lessee covenants and is expulsed by him in remainder 1. he ought to count that he was possess'd 2. he ought to shew the estate for life and the remainder certain 9 Eliz. Dyer 257. pl. 13. because it is a special ouster and not by the Lessor and for the first if he were not in possession he cannot be said to be ousted Writ in Covenant 1. Personal 2. Real Rex In Comitat. c. justicies A. quod teneat B. conventionem inter eos factam de quibusdam defectibus in Manerio ipsius B. de N. existentibus sumptibus ipsius A. competenter emendand sicut c. ne amplius c. Regist orig 167. A. This is in the County Court as it seems Rex In Banco c. praecipe A. de B. quod juste c. teneat W. conventionem inter eos factam de viginti acris terrae in K. frumento alio blado competenti seminandis de bladis terris praedict crescentibus metend ad domus ipsius W. sumptibus ejusdem A. in eadem villa cariandis nisi fecerit c. Regist orig 166. A. This in the Common Pleas. The Writ shall be brought where the Covenant was made Nat. br 146. E. 11 Rich. 2. viz. in that County where it is a real Covenant But it is no plea to abate the Writ unless the Deed bears date in another County Nat. br 146. E. than where the Covenant is brought and it may be a Covenant by parol The Writ for outing the Lessee shall be de dampuis de perditis occasione expulsionis c. 9 Eliz. Dyer 257. pl. 13. for if he be not damnified no Action lies The Writ ought to mention all the Executors which did administer 47 Edw. 3.22 pl. 20.48 Edw. 3.2 pl. 4. where an Action of Covenant is brought against Executors for all the Executors are but one Executor in
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.
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
Purveyor contracts for fat wares for the King Purveyor and makes a Bill of receipt to the use of the King and for this obliges himself to pay it but seals it not he shall be charged by Assumpsit and the King by Debt and by no other way 8 Eliz. Dyer 230. pl. 56. in an Action upon the Case upon his promise only for it is the Kings Debt and not the Purveyors Debt lies against a Receiver Receiver which takes more than he ought per 7 Edw. 6. cap. 6. Lib. Intr. 191. B. sect 1. com 201. Stradlings case for that shall be accounted money borrowed only An Abbot shall be charged with the borrowing of his predecessor Successor if it come to the use of his house Nat. br 121. K. Lib. Intr. 152. A. sect 1. but not otherways The Count shall be general Coke 7. part 10. B. Vghtreds case and he needs not shew it for it shall be so intended Praecipe societati Lombardiorum London mercatorum de Florentia Society and this was good 19 Hen. 6.80 pl. 11. for they are in nature of body Politick Sheriff Under-Sheriff Debt upon an escape of one in execution upon an account it lies per Westm 2. cap. 11. and as of the Debtor per 1 Rich. 2. cap. 12. For not returning a Knight of the Parliament per 23 Hen. 6. cap. 15. the Count com 118. Buckleys case Lib. Intra 186. A. sect 1. antea for the penalty given by the Statute A Sheriff takes an obligation for Appearance of the Defendant which doth not appear yet debt lies not against the Sheriff by the Plaintiff Trin. 13 Jac. Com. Ban. if he return a Cepi but an Action on the Case lies and the Sheriff may bring his Action upon the Bond. Outlawed person It lies against a person Outlawed Mich 38 39 of Eliz. Com. Ban. Banister versus Trussel No. Lib. Intr. 248. A. 7 Hen. 6.10 for another debt or in another Action Q. For what things Debt lies It lies for money lent to another Lent Nat. br 119. G. this most properly For a Horse lent till such a day and then to give 10 l. for him or the Horse after the day debt lies for the one or the other Nat. br 121. B. at the election of the Plaintiff but before the day or at it it was in the Defendants election A borrowed money for the Servant Debt lies not against the Master unless it came to his use or was borrowed by his assent Doct. Stud. 137. A. antea Upon a delivery to redeliver debt lies Bailment if it be not redelivered 28 Hen. 8. Dyer 22. pl. 135. 11 Hen. 6.39 pl. 31. 4 Edw. 3.9 pl. 7. although the Receipt be not by deed Upon a delivery to redeliver over to another if it be not performed debt lies 28 Hen. 8. Dyer 22. pl. 135. 11 Hen. 6.39 pl. 31. 42 Edw. 3.9 pl. 7. Mich. 40. 41 Eliz. com Ban. Britons case for no property was altered But 6 Hen. 4.8 pl. 33. if A. ought to pay an Annuity in see to B. and deliver money to C. to pay it to B. yet B. shall not have debt against C. for there is no trust or privity between them Lease for life of another debt lies not for the Rent during the term Contract Coke 4. part 49. A. Ognels case vid antea it lies by cestuy que vie But by the 32 Hen. 8. cap. 37. the executors or administrators shall have debt during the estate for life Coke 4. part 49. A. antea But after the estate ended debt lies Coke 4. part 49. A. for then there is no other remedy So it is by the death of the Lessee Coke 4. part 49. A. antea Or by Limitation of the term Or by condition Antea in deed 39 Edw. 3.22 pl. 11. Nat. br 120. H. Coke 23. B. 6 Hen. 7.3.30 Edw. 3.7 in Law Statute Law 19 Hen. 42. A. waste Common Law Lease for years by a Bayliff the Master shall have debt for the Rent Lib. intra 174. D. sect 3. for it is accounted the Lease of the Master for no interest passeth from the Bayliff being but an instrument only A Corporation made a Lease for years rendring to P. 10 l. at Mich. or 20 days after after verdict it was moved in arrest of judgment that they shewed not the deed sed non allocatur because it was after verdict and so the Lease was sound 2 good although they had brought debt for the rent due for 6 years ended at Mich. to P. and not 20 days after for the rent was due at Mich. Mich 9 Jac. Ban. Regis Baldry defendant in debt by the Corporation of Brewers Bargainec of a reversion in debt for rent ought to shew in what court the Deed was enrolled Mich. 9 Jac. Ban. Regis Welby Putley by which the reversion was granted for the enrolment is traversable and must be punctually set forth and the enrolment may be in divers places for that the debt cannot take notice where Debt lies for the agistments for Cattel for so long time as they went in such Lands Agistment Lib. intra 150. A. sect 1. count Lib. intra 151. A. sect 1. but then he must shew the certainty of the time and sum A. promises 20 l. to B. to marry his Daughter Marriage-money B. shall have debt Nat. 120. K. count Lib. intra 178. A. sect 1.37 Hen. 6.8 pl. 18.16 Hen. 3. prohibition 22. for the consideration creates a duty if performed But if he promise 20 l. in marriage with his Daughter he shall not have debt but shall sue in court christian Nat. br 50. S. 16. Hen. 3. pro 22. vide Regist 46. B. Q. differentiam It seems because no Money is promised him But if it be by deed then it is otherwise see 45 Edw. 3.24 for the Deed is triable at the Law though the Marriage be not but in the Spiritual Court Bracton Lib. 5. cap. 16. Sic de rebus datis ul promissis ob causam matrimonii principaliter Regula se de rebus quae accidunt matrimonio ut si pecunia promissa fuerit ob causam matrimonii quia ejusdem juris id est jurisdictionis esse debet accessorum cujus est principale The Marriage is the principal and the Portion the accessory Upon Partition betwixt two Partition one promiseth the other 20 l. for equality of partition debt lies for it Nat. br 122. H. 14 Edw. 3. Debt 137. if it be not paid for the promise upon the partition made it a Duty Rent upon a personal thing If a personal thing be leased rendring rent debt lies for it Coke 3. part 22. A. Walkers case as a Horse Sheep or the like the loan implies a duty upon the contract An Attorney shall have debt for his fees Salary and for fees of counsel and costs of suit Nat. br 121. L. Count Lib. intra 202.
Executor of right and of his own wrong 39 Hen. 6.45 pl. 19. for the latter hath made himself liable But not against an Executor and an Executor of an Executor 41 Edw. 3.13 pl 3. for this would be to recover one thing twice Two Executors viz. a Man and a Woman administer and intermarry debt lies against both 22 Hen. 6.59 pl. 12. for the marriage drowns not the Executorship in the woman The Heir ought to be named Heir 30 Hen. 6.5 pl. 2. in debt brought against him as heir that it may be known in what capacity he is chargeable But Regist orig 140. A. he was named Heir in the Count only and not in the Writ and yet good Quaere tamen He was named Heir apparent and it was erronious Pasch 35 Eliz. Ban. Regis 242. Audleys case for he is not chargeable during the life of his Ancestor for the Heir is bound and not heir Apparent It shall be against him in the debet detinet and not in the detinet only because he hath Assets in his own right Coke 5. part 36. Walkots case Regist orig 140. A. Com. 441. A. Pepys case by intendment of Law till the contrary appear Debt against the Ordinary and the Writ Praecipe A. Episcop London ad cujus manus bena catalla quae fuerunt B. qui obiit intestat 〈◊〉 dicitur devenerunt quod juste sine c. reddat c. C. solidos quos idem B. ei debuit praedictâ—â— Episcop ei injuste detinet ut dicit nisi c. Regist orig 141. A. Nat. br 120. D. Et ibidem vide the Writ against an Executor of the Ordinary who is liable and not his Successor for that might be inconvenient But it lies not for the Ordinary Nat. br 120. D. Coke 9. part 39. Hensloes case for he hath no proper interest in the estate tamen vide the Writ for the Ordinary in the Regist orig 141. A. Quaere if it lie not what remedy the Ordinary hath to recover the estate and to punish the tort fesor Nota Nota. when a man demands money it shall be debet detinet Nat. br 119. G. viz. where the Action lies in the debet detinet And if it be for any other thing it shall be in the detinet only Nat. br 119. G. Regist orig 139. B. 34 Hen. 6.12 pl. 23. for a man is not properly said to owe goods but to detain them And the Writ shall make mention of the value of the goods 17 Edw. 3.48 pl. 17. 29 Edw. 3.39 pl. 14. fol. 45. pl. 6. that the charge may be certain And if it be for money or other things together with it then it shall say 10 l. quas ei debet injuste detinet 10 l. quarters of Corn quae ei injuste detinet Nat. br 152. B. 3 Hen. 4.13 pl. 20. 11 Hen. 6.48 pl. 6. 12 Hen. 6.1 pl. 3. vide 39 Hen. 6.34 pl. 46. debt for 300 l. A man cannot demand 10 l. by one Writ and 10 l. by another where the contract was for 20 l. 1 Hen. 5.6 B. but the charge thust be entire as the contract was otherwise there will be unnecessary charge For in Mich. 14 Jac. Ban. Regis in the case of the Bailies of Ipswich Houghton Justice said that A was indebted to the King in 3000 l. the King granted to B 1000 l. parcel of it yet B shall not have debt for the 1000 l. as was adjudged in the Chequer in t Yorke Allen for this were to alter the debt A was bound in 6 l. Flemmish quaere what Writ he shall have 34 Hen 6.12 pl. 23. 29 Edw. 3.19 pl. 5. viz. for what sum whether it shall be reduced into sterling money For Lib. Intra 158. C. sect 1. the Writ was for 28 l. and the account of the bill was 19 l. 16 s. Flemmish which is 14 l. English and for the Remnant c. the Action brought The Process in Debt 1. Before appearance 2. After appearance At the Common Law the Process was but a Summons Attachment and Distress infinite Coke 12. A. Harberts case But by 25 Edw. 3. cap. 17. Capias was given yet the Process is yet a Summons Attachment and Distress 3. a Capias and an Exigend 14 Hen. 6.20 A. But if Debt be in the County per Justicies and the Baily return a Nihil habet and afterwards this is removed quaere if a Capias lies 3 Hen. 5.4 Nota Nota. that a Capias lies not upon a Recognizance 23 Hen. 7.100 pl. 1. Crooke for that is in the nature of a Judgment upon which a mean Process lies not Nor against a Peer of the Realm Coke 6. part 52. B. 11 Hen. 4.15 3 Hen. 6.48 29 Edw. 3.30 pl. 40. 42. pl. 3. 5 Edw. 4.108 B. because he is intended to have Land sufficient to pay his debts But if a Bishop of Wales or Ireland be sued upon a Nihil habet returned a Capias lies ibidem Quaere of a Welsh Bishop The Barr in Debt Account For arrearages of account Debt lies for Arrearages of Account that he owes nothing is a good barr Lib. Intr. 149. B. sell 2. for this may be put in issue 1. Before Auditors And this may be by wager in Law because it is within the Statute 22 Hen. 6.35 pl. 53. 9 Hen. 5.3 pl. 9. 43 Edw. 1. pl. 3. 2. Before Auditors And so if it be before an Auditor Coke 10. part 103. A. 4 Hen. 6.25 pl. 3. 20 Hen. 6.16 pl. 4. 13 Hen. 7.3 B. Conesby If it be for Arrearages of account before Auditors imprisonment by Auditors is a good Bar but then he ought to be committed forthwith by the Auditors 27 Hen. 6.8 pl. 7. Coke 8. part 119. B. Com. 17. for this is as it were the Execution against him Non computavit a good barr 3 Mariae Dyer 122. pl. 18. for if there were no Account there can be no Arrearages found upon it for which to bring the Action Nul tiel account 34 Hen. 6.22 A. Danby a good barr Arbitrement for Arrearages of the account no barr because one is matter of Record but the Arbitrement is not 3 Hen. 4.5 pl. 23. 4 Hen. 6.17 6 Hen. 4.6 pl. 28. 8 Hen. 5.3 pl. 13. Hull 3 Hen. 6.55 A. and so cannot discharge a matter of Record Auditors discharged by the Plaintiff a good barr Lib. Intra 150. A. Sect. 9. in Account for this destroys the account upon which the Action is brought Obligation made to the Plaintiff for Arrearages no barr 11 Hen. 4.79 for an obligation is but a thing in Action Q. Payment in another County a good barr Lib. Intra 150. A. sect 10. for the place of payment is not material or traversable That he owes nothing per patriam a good barr Lib. Intra 150. A. sect 1.4 Mariae Dyer 145. pl. 63. for this is a direct tender of an issue That he owes nothing by the
accord with satisfaction is no Bar Obligation simple accord because the duty being certain ought to be avoided by matter of as high a nature as it was created which cannot be by parol Coke 6. part 44. A. Blakes case But if the duty accrue not until some subsequent act be performed there accord with satisfaction a good plea Coke 6. part 44. A. For there the duty was not certain but depended upon a matter ex postfacto A. obliged to B. in 100 l. shews 3 Acquittances Acquittance 1 of 10 l. 2 of 20 l. and 3 of 20 l. which amount to a receipt of 50 l. parcel of the 100 l. in which he was bound to pay 50 l. this is a good Bar because it appears that it was but 50 l. principal debt for which the Bond was made though the penalty was 100 l. 43 Edw. 3.31 pl. 26. Foreign Attachment in London is a good Bar Attachment as it seems No. Lib. intra 139. C. sect 20. 22 Hen. 6.47 pl. 2. By the Custom there Q. tamen for it may be unduly attached and no Judgment upon it But a Legacy cannot be attached because it may not be due in respect of payment of the Testators debts Mich. 14. Jac. Ban. Regis Vaughans case and so it is a thing uncertain Attainder of Felony no plea Attainder Mich. 38 39. Eliz. com Ban. Banister versus Trusselle in debt for the Attainder doth not discharge the debt Nil debet Nil debet in debt upon a Obligation is no plea because an Obligation shall not be avoided by a nude Averment but by matter of as high a nature Doct. Stud. 22. Non compos mentis Non compos mentis pleaded by the party is no good Bar. Trin. 37. Eliz. ban Regis Strode versus Marshal vide 5 Edw. 3.70 For the party shall not plead in his own disability Payment without acquittance no plea Payment in debt without a specialty 33 Hen. 8. Dyer 51. pl. 10. Coke 5. part 43. Doct. Stud. 22. 20 Hen. 6.3 A. Paston 26 Hen. 8. Dyer 6. pl. 3. 28 Hen. 8. Dyer 25. pl. 160. 41 Edw. 3.7 pl. 15. because it must be avoided by a matter of as high a nature A. by indenture sold Land for 20 l. and there were Covenants in the Deed for the performing of which he bound himself in 40 l. Debt was brought for the 40 l. Payment without Acquittance is no plea 26 Hen. 8. Dyer 6. pl. 3. fol. 25. because the Action is grounded upon the Indenture and the Bond. A Defeazance upon a Statute-Merchant to pay 20 l. thereof without an Acquittance is a good plea for the Defeazance is instead of an Acquittance and this is without bringing an audita querela when the party is not in execution 17 Edw. 3.3 pl. 10. For if he be in execution there he must have an audita querela Obligation conditional A. is bound by obligation to pay his Rent there payment without an Acquittance is a good bar 46 Edw. 3.1 pl. 1. because the obligation was but conditional and made no present duty When the original contract is for money Accord an accord with satisfaction is a good bar Coke 9. part 79. A. Petoyes case 22 Edw. 4.25 A. For thereby the contract is discharged But an accord made with a general receiver is no bar to his Master if he had not a special authority Doct. Stud. 137. B. But when the condition of the agreement is for a collateral thing there an accord is no bar Coke 9. part 79. A. 12 Hen. 4.23 9 Hen. 7.4 4 Hen. 8. Dyer 1. For such a thing cannot be accorded for And if it be before the day of doing the thing then part of the sum received is a good bar Coke 5. part 117. Pinnels case 27 Edw. 3.84 to the Action because the Action is brought upon the whole Contract part whereof was discharged before the time agreed on for performing it But at the day or after it is no bar unless it be in another place Coke 5. part 117. Pinnels case Because then the whole duty was due upon the entire contract part received is a good bar in another Country else the party shall be without remedy for so much as he paid The Defendant pleads he paid so much in full satisfaction the which the Plaintiff received and not that he paid so much the which the Plaintiff received in satisfaction Coke 5. part 117. A. Pinnels case and good for he must receive the money as it was paid and not as he will receive it Conditions performed Conditions performed is a good barr 41 Edw. 3. 10. pl. 7. fol. 25. pl. 19. Thorpe in an action of Debt upon a Bond for performance of Conditions One pleads part of the Arbitrement Arbitrement it shall be intended all that was arbitrated until the contrary be shewed by the other party 2. The other may shew the remnant and traverse absque hoc that they arbitrated that only as he pleaded it 3. The other needs not to rejoyn to more but joyn issue because else it shall be a departure from his Plea which must not be in pleading Pasch 12 Jac. Ban. Regis Linsey versus Ashton Condition to levy a Fine Upon an Obligation with a Condition to levy a fine upon Garnishment the Sheriff returns him garnished in debt he pleads that he was not by the Law 28 Edw. 3.100 pl. 42. 29 Edw 3.44 pl. 4. and good because it is penal unto him and the Bond is but conditional and no present duty and therefore the Sheriffs return shall not bind him Deed poll A enfeoffs B by Deed poll provided that if he pay 20 l. to B he may re-enter and is bound to perform all Covenants and Payments contained in the Deed poll he is not bound to pay the 20 l. for it is at his election to pay it or lose the Land Trin. 9 Jac. Ban. Regis Briscoe versus Knight Rott 271. for if the Proviso be not performed the Feoffment is absolute and the Bond is but to strengthen the Feoffment A is bound to B to pay a sum granted by C by Indenture to B and to levy it of his goods and Chattels viz. of C this is void and therefore no barr in Debt brought by C 41 Edw. 3.7 pl. 15. Belknap 46 Edw. 3.18 pl. 17. Belknap Quaere A thing void in Law cannot be pleaded in barr A Conditions that B shall lease to C the Land in his occupation Condition except the Trees this exception is not good unless they were excepted in the Original Lease and then B ought to shew it Mich. 15 Jac. Ban. Regis Dores case for he letts him not the land in his occupation if he had the Trees and excepted them A Conditions that Lessee for life shall make a Lease for 10 years and he makes one for ten years if he live so long this is good
tamen For it may be more certain It lies not of a piece of ground called Michels piece Trin. 38 Eliz. Ban. Regis Rot. 450. Palmer Humphreys for that is incertain both in the quantity and quality and other Lands may be called of the same name and so that makes no certainty in it It lies not of a virge of Land 38 Eliz. Rot. 453. Mell versus Moor for that may be incertain and may differ in respect of the place The Count Generally If it be of a Lease made by a Bishop Bishop it ought to count upon the Deed No. Lib. Intr. 186. D. Sect. 2. and set it forth because it is not an ordinary Lease whereof the Law takes notice But if it be of a Lease made by the husband and wife Husband and wife he needs not count that it was by Indenture Lib. Intra 252. C. Sect. 8. Coke 2. part 61. B. Wiscots case but it sufficeth to say that they lett and the Law will supply the rest If it be of a Lease made by a Person tunc adâ—uc seized of the Reversion Person it is good without averring of the life of the person 13 14 Eliz. Dyer 304. pl. 52. for the Lease is good whether he be alive or not If the Account be of a Lease made by three where two have nothing in it it is not good although they all joyned in the Lease for they could not all lett but contrary if he count by him only that hath right per Williams Crooke Mich. 10 Jac. Ban. Regis Longs case for he did only in truth lett though the others joyned A Lease to commence at Michaelmas next after the death of A Lease the Count ought to shew that A is dead 1 Mariae Dyer 97. pl. 46. fol. 89. 19 Eliz. Dyer 357. pl. 46. for else the Plaintiff shews no title but shews matter against himself The Plaintiff Counts that A demised to him per Indenture dated 27 Martii Demise 11 Jac. primum delibat 10. decimo Aprilis eodem anno for 21 years from Michaelmas next before and the Ejectment 12 Aprilis this is good though the year be mistaken or he may Count that by Indenture dated 27 Martii primum delibat 10 Aprilis Mich. 11 Jac. Ban. Regis Michels case which is more plain and certain The Count upon the Imparlance Roll was upon a Lease made 10. of December 10 Jac. and upon the Plea-roll it was upon a Lease made 30 Januarii 10 Jac. babendum from the 20. of Decomber before this is not good Hill 14 Jac. Milward Wats Ban. Regis for it cannot be the same Lease upon which he counted so there is no certainty in the pleading to which the Defendant may answer The Count was that J. S. was seized and so seised leased to the Plaintiff 9 Eliz. Dyer 258. pl. 16. Com. 416. A. Bracebridges case Com. 187. A. Adams case Com. 223. B. Barkleys case Com. 530. B. Howel Crosts case here is a good colour of a Title to his Lessor and to his own Lease But 14 Eliz. Dyer 340. pl. 57. he doth not count of the seisin Coke 11. part 3. B. Coke 3. part 16. A. Borastons case Coke 3. part 45. Browns case Coke 4. part 96. A. Lamberts case Com. 459. B. Studs case Com. 504. B. Snowes case but only declares upon a Lease made unto him by the Lessâ—r and it seems good enough The Writ In Wales it may be by plaint without an original Writ for this action is out of the Statute 26 Hen. 8. cap. 6. Hill 36 Eliz. Ban. Regis 610. Griffin â—â—â—sus Eliot Wilkins and is there still as it was 〈◊〉 the Common Law It is Vi armis 1 Hen. 5.3 Coke 9. part 78. 1. Petoes case 21 Edw. 4. pl. 1. Choke which alâ—â—ys supposeth breach of the publick Peace But Hill 36 Eliz. Ban. Regis Rott 610. Griffin â—â—â—sus Eliot Wilkins in Error that it may be without Vi armis 7 Hen. 6.4 17 Edw. 3.1 It â—â—â—ms it was so held because the Defendant might â—â—â—er by colour of title to the Land Fuit ad terminum qui nondum praeteriit 2 Marie Dyer 116. pl. 71. but there 's not the certainty of the time for that is not material Et est pone per vad salvos pleg 21 Edw. 4.10 〈◊〉 1. 31. pl. 25. Brian that is the taking of bail It may be bonis catallis Com. 228. B. Lib. Intra 252. B. Sect. 7 8. Although Regist orig 227. B. says to the contrary Quaere ergo But it may be without it Com. 229. A. 199. A. Adams case The Process 1. before 2. after appearance The Process is Attach and Distress and Process of Outlawry Nat. br 220. H. 35 Hen. 6.6 per Wangford Moyl Com. 228. B. Coke 9. part 78 A. Peytoes case Attachment against the person Distress against the goods Outlawry against person and goods and lands The last Process in Law is the strictest and most severe The Barr. Accord with satisfaction a good barr Accord Coke 〈◊〉 part 78. A. Petoyes case because it is but in the nature of a Trespass for here is no land in question but only a possession Duress a good barr Duress Lib. Intra 253. B. sect 10. viz. that the Plaintiff gained the Lease by distess for the Law hates fraud and force and will protect no person in them Non ejecit a good barr Ejecit si bona catalla are not in the Writ 7 Edw. 6.89 pl. 111. 19 Hen. 6.56 for that is a barr only as to the Land for a man cannot be properly said to be ejected out of goods Quaere But if such words be in quaere whether it be good It is a good barr Entry that the Lessor had it but in right of his wife and he entered after the death of the Lessor in right of his wife Lib. Intra 252. D. sect 8. That he surrendred before the Action brought Surrender quod non ejecit a good barr 21 Edw. 4.10 pl. 1.30 pl. 25. Q. if there should not be a traverler it seems it needs not The Judgment The judgment shall be quod recuperet against â—â—e Defendant terminum suum praedictum venturum 〈◊〉 in c. ac dampua sua occasione c. quod â—â—â—end capiatur this supposeth a Vi armis 〈◊〉 â—liz Dyer 258. pl. 16. 7 Edw. 6. Dyer 89. pl. 109. 〈◊〉 420. A. Bracebridges case 5â—5 Snowes case 〈◊〉 Intra 253. A. sect 8.256 C. sect 13.259 C. 〈◊〉 15. No. Lib. Intr. 188. A. pl. 7. â—03 A. Sect. 8. 〈◊〉 D. Sect. 11.216 B. Sect. 13. Com. 526. A. â—â—â—nthams case But note this is when the term is not ended Note 〈◊〉 9. part 80. A. Peytoes case 4. part 104. Lamâ—â—s case Nat. br 220. H. 7 Edw. 4.6 13 Hen 7. 〈◊〉 B. Wood for if the term be ended then there 〈◊〉 to term to come to
but a meer right still Tenant for life or years of an Advowson suffers an usurpation Reversioner the Lessor shall not be aided by his own Westm 2. cap. 5. for it is a fault to lett it to such a Tenant But his Heir shall be Nat. br 31. G. for he is in no fault But 33 Hen. 6.12 pl. 3. 34 Hen. 6.27 pl. 8. è contra Ergo quaere If Tenant for years or a Gardein brings a Quare Impedit and a Writ be awarded to the Bishop for the Defendant yet the Tenant of the Franktenement is not out of possession for the Presentee is in by course of Law 50 Edw. 3.14 B. Coke 6. part 50. B. Boswells case and therefore the Tenants or Gardians interest shall not be prejudiced The Queen shall have it alone Queen because she is a sole person exempt by the Common Law and cannot joyn with any in a Suit and the Writ shall not say unde queritur because she shall not find Pledges 18 Edw. 3.2 pl. 6. for it were dishonourable for her to find Pledges for she shall be presumed to be sufficient and so deal justly with all The Lord that hath an Advowson by Escheat Lord. shall have a Quare Impedit the Count Lib. Intra 500. D. in respect of his Title accrued by Law If an Abby which hath an Appropriation be dissolved the Lord that hath the Mannor to which it was appendant shall have a Quare Impedit to present to the Advowson Nat. br 33. K. Coke 2. part 47. B. Canterburies case 21 Hen. 7.4 B. Frowick 20 Edw. 4.14 B. Com. 501. Grendons case for by the dissolution the Appropriation is extinguished and the Lord in of his old right to the Patronage Tenant in Tail Tenant in tail suffers an Usurpation he hath no remedy for it was his own Latches to suffer it but his Issue shall have a Quare Impedit 49 Edw. 3.14 pl. 9. This is by the equ ty of Westm 2. cap. 5. Coke 6. part 50. B. Boswells case who shall not be prejudiced by his Fathers act Tenant in tail of a Mannor to which an Advowson belongs enfeoffs A of the Mannor which grants the Advowson to B and re-enfeoffs the Tenant in tail the Issue shall not have a Quare Impedit because the other had no remedy Nat. br 35. B. 19 Hen. 6.30 and so shall not be in a better condition and by the Grant of the Advowson apart it ceaseth to be appendant Tenant in tail leases his Estate over the Church voids he dies the Issue in tail shall present 9 Edw. 3.10 and not the Lessee of the Mannor for the presentation is not comprized in the Lease Tenant in tail suffers an Usurpation before the Statute the Issue shall not have a Quare Impedit after the Statute 8 Edw. 2. Quare Imp. 167. for before he was in no better a condition than his Ancestor and the Statute was made for the bepefit of the Issue in tail Tenant in Dower shall have the third presentment where she is Dowable of the Thirds In Dower Nat. br 33. L. 33 Hen. 8. br Presentment 55. 15 Hen. 7.17 Q. what she shall have when she is Dowable of the half during her Widowhood by the custome of Gavel-kind So if she have the third part of a Mannor to which an Advowson belongs Nat. br 34. Q. 6 Edw. 3.215 in the respect of interest in the Mannor proportionable to it Tenant for life shall have a Quare Impedit For life in respect of his Freehold The Count Lib. Intra 513. A. But if he suffers an Usurpation he shall not have a Quare Impedit at any time after 22 Hen. 6.26 B. for it was his own Latches to suffer it for he might have brought his Quare Impedit upon the first disturbance For years Tenant for years shall have a Quare Impedit although he doth not present within the term Nat. br 34. B. 9 Edw. 3.338 pl. 6. 39 Hen. 6.39 viz. if the Church become void during the term and no Lapse incurred for it was a Chattel vested Tenant in common shall not have it without his Companion In common Nat. br 34. V. 14 Eliz. Dyer 304. pl. 52. 33 Hen. 6.11 B. in respect of their common interest and that the Disturber may not be doubly vexed He that traverseth an Office Traverse and hath the Land in Farm shall have the presentment if the Church be void during the time of his Lease so it be found for him although no mention be made of the Advowson Nat. br 34. P. for it goes with the Land Note Note that the King upon an Office found for him shall not put the Patron out of possession without admission and institution of his Clerk Coke 9. part 96. A. Reynels case for that is the only way to gain possession of an Advowson and an Office may not be true for it is traversable Against whom a Quare Impedit lies Patron sole It lies against a Patron sole 29 Hen. 6.57 19 Hen. 6.67 pl. 14. fol 73. pl. 1. fol. 75. pl. 5. But then the Incumbent shall not be removed 29 Hen. 6.57 7 Hen. 4.34 for if he be it lies also against the Disturber Unless there be no Incumbent at the time of the Writ brought 29 Hen. 6.57 19 Hen. 6.67 pl. 14. fol. 73. pl. 1. fol. 75. pl. 5. for then the Patron only must necessarily be the Disturber Incumbent sole If it be against an Incumbent sole it shall abate 3 Hen. 4.2 Quare Impedit 113. 41 Edw 3.2 Br. Quare Imped 24. vide 47 Edw. 3.10 for he comes in under another mans right who must be named in the Writ But note this is intended when the Inheritance estate or interest of the Patron in the Patronage Note is to be devested by the Judgment for otherwise he ought not to be named Coke 7. part 26. B. Halls case for it concerns him not to be made a party When there is no Patron the Writ shall be against the Incumbent sole 13 Hen. 8.12 4 Hen. 8.3 for there can be no other Disturber but he When the King presents it lies against the Incumbent sole because the King shall not be sued Coke 7. part 26. B. Halls case 92 Hen. 8. Dyer 48. pl. 16. 24 Edw. 3.77 pl. 103. Crooke 19 Hen. 7.53 pl. 9. But by Petition he may be sued too and the Law intends he will do all his Subjects right without suit It lies for the Defendant against the Plaintiff Plaintiff if the Clerk of the Defendant be not instituted Nat. br 35. C. and he be disturbed by the Plaintiff It seems this is meant where there is a cross Suit betwixt them But not of the same presentation if the Plaintiff have brought his Writ 19 Hen. 6.67 pl. 14. fol. 73. pl. 1. fol. 75. pl. 5. 22 Edw. 3.4 pl. 10. for he that first commences his Action shall first determine
Hen. 6.23 7 Hen. 4.18 pl. 22. 11 Hen. 7.12.17 Edw. 2. brev 8 22. as Ordinary for he hath a kind of property in it But not for a thing which was not in his possession Nat. br 92. A. Coke 9. part 39. A. Henslees case 7 Hen. 4.18 pl. 22. For the Law takes no notice of his right without a possession A Parson shall have Trespass for Tithes taken after severance of the 9 parts Parson 10 Hen. 4.2 pl. 2. Gascoign 21 Hen. 7.27 pl. 5. before any seisure because it is certain by the severance what was his and the Law casts the possession and property upon him Com. 281. A. Foxes case But not of a Mortuary before seisure Com. 281. A. 10. Hen. 4.1 but there is but a bare customary right A Parson or Vicar shall have Trespass for the Walls or Glass of the Church or Grass or Trees in the Church-yard c. or Glebe-Land 11 Hen. 4.12 pl. 25. 8 Hen. 6.9 pl. 20. 11 Hen. 6.4 B. Danby Q. For the Church belongs to the Parishioners and the Chancel to the Parson yet the free-hold of the Church is in the Parson Parson imparsonee shall have Trespass against any that is admitted and inducted into the said Church if he intermeddle with the Glebe or Tythes Com. 500. B. 38 Hen. 6.24 39 Hen. 6.24 27. because they belong unto him Protected person He that hath a protection Royal shall have Trespass against him that takes his Goods Nat. br 92. B. though if not protected he might take them for during the protection he is not to be molested and so hath wrong done him If one hath the possession of a thing Possessor he shall maintain an Action against him that hath no right Com. 546. A. whether his possession be lawful or not But note Note that upon a possession in Law only he shall not have Trespass 22 Hen. 6.49.5 but it must be an actual possession for that is visible and notorious and the other is not so but may be disputable But if A gives Goods to B B shall have Trespass before possession for he hath the property in Law in them 2 Edw. 4.25 per 2 Justices Coke 3. part 26 27. Butler Baker and property in Law is made then a possession in Law In a Trespass brought it was found by office that another was Tenant and that it escheated to the King this shall abate the Writ as to the things upon the Land Com. 488. B. Nichols case 546. A. 19 Edw. 4.2 pl. 5. because the Land was the Kings and not the Plaintiffs He that enters upon the possession of the King shall not gain possession therefore he shall not have Trespass Com. 546. A. Paramors case 2 Hen. 4.7 pl. 29. For nothing can pass out of the Crown but by matter of Record Or upon a Farmer of the King 2 Hen. 4.7 pl. 29. For he is in upon the Kings right and the prejudice done unto him is done unto the King immediately But against him that outs the Farmer the King shall have Trespass Com. 546. A. Paramors case Q. whether the Farmer may not also have Trespass The King shall have Trespass King Nat. Br. 90. I. Regist orig 99. A. And in this case the party cannot make fine because the dammages are to the King himself to Hen. 4.3 pl. 7. and the fine shall be included in the dammages Q. tamen For it seems he shall make fine But for Trespass in the Rings Lands there uses to be an information in the Exchequer Nat. br 90. I. This is not by way of English Bill but on the Pleas side Q. if it may not be by an English Bill And in such case the judgment is that the party shall be removed and put out of possession although that it be but a personal Suit and the removal shall be by Writ formed in the case ditected to the Sheriff Com. 561. B. This Judgment is by way of Decree ergo on the Pleas side But the King may have a Trespass quare clansum fregit Nat. br 90. I. if he will The Queen shall have Trespass without the King Queen Nat. Br. 101. for Lands belonging to her Revenue and she is not in the nature of another Feme covert Revusancy shall be pleaded in disability to sue an Action of Trespass for as many Hereditaments as are not seised into the Kings hands Recusant 3 Jac. cap. 5. For such as are seised concern not the Recusant A Bishop shall not have an Action of Trespass for a Trespass made in a vacancy of the Bishoprick Bishop 39 Edw. 3.12 pl. 18. 18 Edw. 2. Trespass 237. For that could not concern him but the Guardian of the Spiritualties as it seems Vide tamen Regist 101. A Writ formed in such case for the succeeding Bishop Ergo. Q. Master of an Hospital A Master of an Hospital shall have an Action of Trespass for a thing done in the time of his Predecessor for the dammage redounds to the House Nat. br 89. G. Regist orig 196. B. the Writ there And by the same reason why may not the Bishop for a Trespass done in the Vacancy Tenant at will Tenant at Will shall have Trespass against a Stranger 19 Hen. 6.45 pl. 94. 12 Edw. 4.8 pl. 20. 35 Hen. 6.5 pl. 7. For he hath a Title against him For entring his Close and burning his Hay 35 Hen. 6.5 pl. 7. Copy-holder shall have Trespass Copy-holder Coke 4. part 31. A. 2 Hen. 4.12 pl. 49. Coke 4. part 4.21 B 23. B. and this before his admission per descent for his admission is but a Ceremony yet essential to his Estate Tenant in common Tenants in Common join in Trespass touching their Tenancies Littleton sect 315. 18 Hen 6.5 14 Hen. 6.9 pl. 38. 12 Hen. 6.4 pl. 11. 45 Edw. 3.13 5 Hen. 4.1 14 Hen. 4.31 43 Edw. 3.24 pl. 3 22 Hen. 6.12 in respect of their common and undivided interests But if one dies the other shall have an Action for all the Trespass 43 Edw. 3.24 pl. 3. For it survives with the Land They ought to join in Trespass 5 Rich. 2. cap. 7. 34 Hen. 6.32 pl. 16. 4 Edw. 4.18 21 Hen. 7.22 because it concerns them both in common and undividedly Note For battery they shall not join Reg. orig 105. B. For that is a distinct Trespass for the beating of one is not the beating of the other A had Male Swans B Female which having young ones for the young ones they shall join if they be taken away because they are Tenants in Common Coke 7. part 17. A. 2 Rich. 3.15 16. of the Swans and the young ones One Tenanant in common shall not have Trespass de bonis asportatis against his companion that takes them Lib. Intra 653. B. sect 3. because he hath an interest in them Tenant for anothers life Tenant for anothers Life is disseised he for whose life he held dies Tenant
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
second judgment Error lies in Ban. Regis or in Com. Ban. Nat. br 21. G. 14 Edw. 3. Error 6. 8 Eliz. Dyer 250. pl. 86. Judgment in London Custom viz. before the Mayor shall be redressed in Com. Ban. or Ban. Regis Nat. br 20. E. 23. A. B. But a judgment before the Sheriffs of London London shall be redressed before the Mayor and Aldermen in their Hustings Nat. br 22. H. which is the highest Court And judgment before the Mayor and Sheriff shall be redressed by Commission directed to certain persons at St. Martins the Great Nat. br 23. E. 18 Edw. 3.8 But by 34 Hen. 6.42 pl. 14. the Mayor and Aldermen have forty days to advise of their judgment and then the Recorder certifies it forthwith if they do not reverse it Note Note this manner of proceeding is given by the Stat. of 28 Edw. 3. cap. 10. scil that the error shall be redressed within the City and if they do not redress it then there shall be a commission and if error be found they shall forfeit to the party his treble dammages and to the King 1000 Marks c. but by the 1 Hen. 4. cap. 5. their Fine is at the discretion of the Commissioners Judgment given in the Cinque-ports Cinque-ports shall not be redressed in com ban or ban regis but only by the Warden of the 5 Ports at the Court at Shepewaye si falsum fuerit revocabitur Major Jurati qui dederunt Judicium fecerint fines Major deponetur ab officio 23 Eliz. Dyer 376. pl. 23. The Writ to the Cinque-ports shall be directed Custodi quinque portuum vide 30 Hen. 6.6 Pole But 30 Hen. 6.6 the Barons of the five Ports are Judges there Upon a Custom in Village or Town to hold in all manner of Pleas Village and a judgment thereupon given error lies in ban regis 21 Edw. 3.40 37 Assize pl. 5. Nat. br 20. D. 2 Hen. 7.19 pl. 4. 18 Edw. 4.12 Mich. 10 Jac. ban regis Godson versus Duffeild Or in com ban Nat. br 20. D. Common right Marshalsey Judgment in the Marshalsey shall only be redressed in ban regis per 5 Edw. 3. cap. 2. 10 Edw. 3. cap. 3. Lib. intra 297. coram ipso rege Judgment in Court of Pypowders shall be redressed in ban regis Pypowder or com ban Nat. br 20. D. Who shall have a Writ of Error He that confesses the Action shall not have a Writ of error against his own confession Parties Nat. br 21. K. 34 Hen. 6.41 For he hath lost all that advantage by his confession Conusor of a Statute shall have a Writ of error if execution be not well sued out against him Conusor 18 Edw. 3.25 for to overthrow the execution And although he were outlawed if he be pardoned for then he is enabled again to sue 29 Assize 47. Nat. br 22. B. A Corporation shall have a Writ of Error jointly for a judgment given against them Corporation but no single person of them 21 Edw. 4.58 Townesend For they are all but one body and cannot sever nor be severed in pleading or in being impleaded He that disclaims shall not have it Disclaim Nat. br 22. C. Coke 8. part 6. B 62. A. viz. the thing sued for whereupon judgment is given But if one plead Non-Tenure and it be found against him Non-Tenure yet he shall have it 6 Edw. 3.188 pl. 17. Nat. br 22. C. For that is but a plea to the Action A brought a Praecipe against B who infeoffs C judgment is given for A yet B shall have error 21 Edw. 3.53 12 Assize 41.20 of Assize 2. 50 Assize 3. Coke 1. part 111. Albanies case because the judgment is against him and not the Feoffee Judgment was given against the Defendant in debt and after because he paid it not nor rendred his Body c. judgment was given upon a Scire facias against the Bail and they all join in a Writ of error and therefore held not good because one of them is not party to the judgment given against the other Mich. 9. Jac. Regis Wildgoose against Duport but they are distinct and several judgments given against them severally and ought to have several Writs of error Trespass against two where one was within age and appears by Attorney and judgment Quod capiantur they join in a Writ of error because the judgment is entire Hil. 9. Jac. Ban. Regis Orme Bird and good though the judgment was well given against one of them Surviving joint-tenant shall have error of all the judgment given against both Survivor for he is only now concerned 19 Edw. 3. Error 1.19 Assize pl. 8. Two outlawed upon a Capias in Redisseisin with force one shall have error sole Outlawed 8 Hen. 4.3 For the Outlawry is as two Outlawries viz. against each one of them particularly Judgment against two in conspiracy Conspiracy one dies the other shall have a Writ of error 24 Edw. 3.76 pl. 99. else it would be mischievous to him if the judgment be erroneous if he may not reverse it Mich. 30 31 Eliz. ban regis Pigot being an Infant and another levies a fine Infant Pigot sole brought error and good for this is error in fact therefore it shall be brought by him it most concerns which here is the Infant If one makes a Retraxit viz. upon the Roll Retraxit that he will not proceed yet he shall have error Coke 8. part 62. A. Beechers case For the Retraxit was but till the judgment The King shall have error Reversion 15 Edw. 3. Error 72. and that is but reasonable He in reversion disseises two joint-Tenants for Life and suffers an erroneous recovery the wife releases with warranty and dies this warranty is a bar to the Writ of error because by his own Act he had disabled himself to take benefit of the forfeiture Coke 3. part 61. A. Lincoln-Colledg case Q. De cest case A recovers a Moyety of a Mannor against B which infeoffs C B Heir and C makes partition B dies his Heir shall have a Writ of error and by Newton if A had issue a Son and a Daughter by one Venter and another Daughter by another Venter and dies the Son enters and dies the youngest Daughter is found Heir in a Nuper obiit they make partition the eldest Daughter shall have a Writ of Error 19 Hen. 6.25 A. For the judgment binds her interest till it be reversed Prayer in Aid shall have a Writ of error Nat. br 21. C. Coke 3. part 3. B. 4 Assize Pray in Ayd pl. 7. For the praying in Aid is but to satisfie his Title which he had before Patron after Aid Patron Prayer shall have error 12 Hen 8.8 Pollard For the Judgment concerns his Title notwithstanding the Aid-Prayer Garnishee shall have a Writ of error 21 Hen.
his Age proved But if he come to full age it is not for then he is not in the same condition as he was when he levied the Fine 17 Edw. 3.53 pl. 33. Greene 17 Assize pl. 17. no◠can it be so well tried And although the other ject a protection yet if the Infant be inspected when he comes to full age he shall have the benefit of his nonage 22 Edw. 3.6 pl. 24. 21 Assize pl. 10. for the Infant could not proceed to reverse the Fine during his Infancy by reason of the protection Feme Covert Feme Covert as Feme sole levies a Fine this shall bind all but the Husband Coke 7. part 8. Bedfords case 17 Edw. 3.52 78. 7 Hen. 4.23 because as to him she was covert and could not act without him though not in respect of others But if the Husband enters and dies Husband the Fine is void without more suit to all parties concerned Coke 7. part 8. Bedfords case 7 Hen. 4.2.23 for that shews his disagreement to his Wives act But if living the former Husband and she take a second Husband and they levy a Fine this is utterly void because the second Marriage is void 7 Hen. 4.24 B. Gascoign 9 Hen. 6.34 B. pl. 3. This was before the Statute of Jac. against having two wives or two husbands Note Note when a thing is amendable before the Writ of Error brought it is amendable as well after and this by a Superiour Court as well as an Inferiour Court Coke 8. part 162. A. Blackamores case for the Writ of Error doth not hinder such amendments Note Note that those things that are not amendable and yet vicious are Errors at this day for there is no other way to redress them When Judgment is given but not upon a verdict of 12. upon Issue joyned there are 7 Errors not amendable Coke 8. part 162. A. Blackamores case as upon a Judgment by default by Nihil dicit non sum informatus or upon a Demurrer c. Vid. some alterations by a late Statute temps Caroli Secundi concerning Errors Want of the Original Writ 1. Original No. Lib. Intra 246. D. Misprision of the form of the Original 2. Form false Latin in it or variance from the Register Material variance between the Original and the Count or Declaration 3. Count. as C.W. in the Writ and W. W. in the Count Coke 5. part 37. Bishops case Jeosail 4. Pleading fault of Colour insufficient pleading or some default of the person or of his Counsel Error or misprision of the Judges in another Term Misericordia pro Capiatur è contra Coke 8. part 59. A. 41 Eliz. Dyer 315. pl. 99. Want of warrant of Attorney 6. Warrant Error in pleas of the Crown and Appeals 7. Appeal or in proceedings upon them they are not amendable for they are excepted out of the Statute of Amendments and also Error in the exigent to make one to be outlawed Coke 8. part 162. A. Blackamores case Br. 10. This is in favour of life and liberty and property What things are amendable after verdict 1. Material variance When Judgment is given upon a verdict of 12. men upon issue joyned there are 10. Misprisions not to be remedied or amended Coke 8. part 163. Blackamores case Material variance between the Original and the Count Coke 5. part 37. Bishops case The Original is Barbara and the Count is Barbaria this is erroneous Mich. 9 Jac. Ban. Regis Harrison Fettiplace for they are two several names and so may be two several persons Waste brought in Burrum Appleby and Flackbridge and the Count is of waste made in Burrum Appleby Flackbridge Park in Langton and it is variance because there is more in the Count than in the Writ Hill 12 Jac. Com. Ban. Countess of Cumberlands case and so it may not be for one and the same matter When the Original and the Count differs in the substance Coke 5 part 45. Husband and wife brought debt or an Action for rent due to them where it was due to the wife before Coverture this is aided by the Statute and good after verdict Trin. 9 Jac. Ban. Regis Peore versus Boule Hill 36. Eliz. Ban. Regis Rot. 610. Griffin versus Elliot Ejectione firmae wants vi armis this is but a fault in form and shall not stay Judgment after Verdict and then it was also said that these words are not material for it may be without them 7 Hen. 6.4 17 Edw. 3.1 Q. 3. Misprision of the Visne When the Venue is mistaken The Issue was that within the Mannor of Wargrave and it was of the Mannor of Wafield demisable by Copy of Court Roll c. the Venue was of the Mannor of Wargrave and good because the issue was upon the Custome within the Mannor of Wargrave Coke 11. part 18. A. Nevils case but if one Mannor was in one County and another in another then it is otherways Mich. 11 Jac. Ban. Regis in the same case for then that Jury could not try the issue 1. Trin. 11 Jac. Ban. Regis Morton versus Orde resolved in a Writ of Error 1. Infancy during Nonage shall be tried by the Justices by inspection and other proof in Court Coke 9. part 30. 17 Edw. 2. Account 122. 46 Edw. 3.8 48 Edw. 3.11 14 Hen. 4. after Nonage by a Jury 2. If it be doubtful to the Justices the Infant and the Witnesses shall be examined in Court 25 Edw. 3.42 50 Edw. 3.5 3. If he be of full age in Actions reals it viz. the Issue shall be tried where the Land lies 21 Edw. 3.28 38 Edw. 3.17 44 Assize 10. 46 Edw. 3.7 13 Hen. 4.3 19 Hen. 6.51 for the Land is the principal matter 4. If it be an Action personal as Ejectione firmae it shall be tried where the Action is brought 21 Edw. 3.7 3 Hen. 6.40 34 Hen. 6.50 and so it was adjudged because it is transitory and not fixt to a place 4. Sheriffs Retorn When the Retorn is by the Sheriff where it ought to be by the Coroners or è converso for such is no retorn because made by a wrong Officer When the Sheriff puts not his name to the Retorn of the Jury 5. Jury as he ought to do for else it cannot be known to be his Retorn 6. Venire facias When there is no Retorn indorsed upon the Venire facias so if the name of the Sheriff be not put to the Writ of Inquiry of Dammages Mich. 9. Jac. in the Chequer Chamber Shackly versus Porter for these are things of substance When one gives the Verdict that was not returned in the Venire facias 7. Verdict though he be sworn When it appears to the Court by all the Record 8. Action that the Plaintiff had no cause of Action for the Court is to judge of the Record In Appeal 9. Crown or Pleas of