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
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
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
Market 11 Hen. 4.47 41 Edw. 3.24 29 Edw. 3.18 9 Hen. 6.45 Nat. br 91. G. 2 Edw. 3.32 pl. 9. For it is as well a private injury to them as it is a prejudice to the Commonwealth 3. For disturbing me to hold a Fair or Market 16 Edw. 2. Action sur case 47. for it hinders my profit And the Writ was that it held three days and the Count two days and two half days and good for it is all one in substance 4. For disturbing me to take Toll in a Fair or Market 9 Hen. 6.45 21 Hen. 7.16 quaere for it seems Trespass lies 5. For selling in another place out of the Fair Regist orig 107. A B. for thereby the Fair and the profit is lessened 1. When the Tenant for life or years burns the Deed to him delivered of remainder Deeds 9 Edw. 4.53 viz. by the remainder in Ann. 2. When a Deed is lost 34 Hen. 6.4 viz. by negligence for the Law punisheth negligence whereby another is damnified 3. When the Seal is broken off 39 Hen. 6.46 Lib. Intra 7. B. Sect. 1 3. either wilfully or negligently 4. For Deeds sold with the Land and not delivered upon request Lib. Intra 5. A. Sect. 2. for the agreement is not performed which the Law creat s. 5. For forging a Statute Staple or Merchant Nat. br 96. B. 17 Edw. 3.49 Regist orig 115. A B. to recompence the party wronged though the party may also be indicted for it 6. For forging of a Release by which I lose my Ward 39 Edw. 3.13 False Return 1. For returning me summoned and thereby Judgment is given by default against me where I never was summoned but this was after the death of the Summoners 8 Hen. 6.1 6 Edw. 4.3.8 26 Assize 48. 2. For returning a Nichil where I had lands Nat. br 93. b. 31 Edw. 3. Process 55. for I am thereby disparaged 1. For setting up a new Ferry to the Nusance of my Ferry Ferry 22 Hen. 6.14 and so my damage 2. For threatning me or Passengers by which I lose the profits of my Ferry 22 Hen. 6.17 pl. 32. For disturbing my Foldage Foldage No. Lib. Intr. 14. D. Sect. 12. for by the Foldage my land is made better For disturbing one to have certain walks in the Forrest of Selwood Forrest Coke 5. part 76. the Countess of Pembrokes case for his profit is thereby hindred For erecting a Warren or Dove-house this Action lies not although it be to the Nusance of another Warren Coke 5. part 104. B. Boulstons case for they are casual and uncertain profits For executing Process in my Liberty Liberty Nat. br 95. B. Regist orig 103 104. 5 Edw. 3.150 pl. 20. for my priviledge is thereby abridged 1. For hindring my light by making a Wood pile Coke 9 part 57. B. Alreds case le Count there House and 58. No. Lib. Intra 19. B. sect 16. 7 Edw. 3.261 pl. 15. Q. if I make it upon my own ground and for my own private use 2. For infecting the Air of my Parlour with an Hogs-skin Coke ibidem for thereby my health is endangered which is more to be valued than wealth 3. With a Dyehouse Coke ibid. for they use many offensive Drugs Michaelis 9 Jac. Ban. Regis Ward versus Cheshire The Plaintiff counts that he is seized in fee of a Kitchin in parochia sancti Dunstani in London and prescribes to have Windows into the Backside of the Defendant and for his stopping up of maximam partem c. port To action and upon Not guilty pleaded it was found pro quer and moved in arrest of Judgment 1. He did not shew that the Kitchin was ancient but it was resolved that it was implyed in the Prescription but by Williams this was not material but Crook è contra by the custome of the City it may be stopped if not ancient Q. 2. For that the quantity was not shewed but resolved it need not be Coke 4. part 49. Com. 249. 3. Neither shews he the Parish in which the Backside is sed non allocatur because the stopping of the light is the material point and it was shewed where that was and the Plaintiff had judgment Nota que C. Ley a cest jour Hill 9. Jac. Ban. Regis Hughes Keme A had an ancient house in London B builds a new one which stops the light of A per Curiam 1. That a man cannot by the custome of London erect a new house where there was not one before to stop the Lights of the ancient house 2. Upon an ancient Foundation a man may erect a new house and stop the ancient Lights of his Neighbour for by the same reason that his Neighbour erected his house more high may the other at any time erect his but he cannot enlarge his in breadth or length to stop the Lights of his Neighbour vide 22 H. 6.15 Q. For removing a Plaint out of my Mannor without cause Mannor 27 Hen. 6.4 for thereby the profits of my Court are lessened For taking an estray within my Mannor or Liberty 13 Edw. 3. breve 674. 31 Edw. 3. breve 333. but ibidem it lies not before seisure of the stray for before the Lord was not intituled unto it For removing a Meerstone though one of them be Tenant in Common Meer-stone 1 Hen. 5.1 Lib. Intra 9. C. sect 1. for thereby part of the Land may be endangered to be lost and Suits may thereby arise touching the extent of the Lands 1. For disturbing my Customers to come to my Mill Mill. 11 Hen. 4.47 41 Edw. 3.24 29 Edw. 3.18 9 Hen. 6.45 for thereby my Toll is lessened 2. For erecting a new Mill Lib. Intra 9. B. Sect. 2 D. sect 1. Q. if it be not to the hindrance of an ancient Mill. 1. For disturbing to take seisure of an Office Office 6 Edw. 3.9 for till seisure he cannot receive the profits thereof 2. For disturbing the Steward to hold Court Lib. Intra 5. B. Sect. 1. Q. whether it may be brought by the Lord and the Steward also It seems it may for both may be damnified 3. For disturbing to take the profits which belong to the office 9 Rich. 2. Action sur case 5. for there is apparent dammage 4. Against an Escheator that returns contrary to that which was found by office 9 Hen. 6.60 for by the false return the party concerned may be damnified 5. If he make a return where no office was found 21 Edw. 4.23 27. for he is not a Judge but Officer 9 Hen. 6.60 viz. to return the Enquest found by the Jury and not to judge of himself how the Lands were held 6. For procuring a false Office to be found by which my Land is seised 47 Edw. 3.15 Kitcbin 175. A. for my Inheritance is thereby made worse by reason of the tenure This is now otherwise For erecting of a Dyhouse which
is a Stranger to the estate Tertenant shall have a Detinue for the deeds Tertenant Coke 1. part 2. A. which concern the Lands in his possession The Lord by Escheat shall have a Detinue Lord. Coke 1. part 2. A. 10 Edw. 4.14.6 Moyle for the deeds which concern the Land escheated Against whom Detinue lies 1. Of Chattels 2. Of Deeds Detinue lies against an Abbot and his Commoigue for a thing delivered to his Commoigue fore-deliver Abbot 3 Edw. 3.83 pl. 32. a thing delivered to them An Administrator sold a thing Administrator the Executor proves the Will he shall have a Detinue against the Vendee of the Administrator Com. 275. Foxes case for now the Administrators title and property is destroyed and the sale accounted void irreplevisable that is that the Cattel or Goods ought not by Law to be replevied again Avowant returns irreplevisable Avowant the other tenders amends and upon refusal shall have a Detinue Coke 8. part 147. A. for the property is in him 10 Eliz. Dyer 280. pl. 14. notwithstanding the distress for the distress did but put them into the custody of the Law and altered not the property Baily of goods Goods delivered to A to keep and they are stole yet Detinue lies against him Coke 4. part 83. B. Southcots case for he ought to have kept them at his peril and he shall have his remedy against the Thief But if he take them to keep as he would keep his own and they are stole Detinue lies not Coke 4. part 83. for here he warrants not the safe keeping of them for he cannot warrant his own from stealing Goods delivered to B to deliver to C yet C shall have a Detinue against B 18 Hen. 6.9 A. Nat. br 138. A. for the delivery of them to be delivered to B vests the property of them in B and not in C. Husband and wife It lies not against husband and wife supposing they detain 38 Edw. 3.1 pl. 1. 13 Rich. 2. Breve 644. for the wife cannot detain but it is the detainer of the Husband But of bailment to the Wise dum sola fuit and that the Husband did detain 43 Edw. 3.18 pl. 1. Lib. Intra 219. D. sect 4. it lies A Carrier loseth B's goods Carrier or they are stole from him yet Detinue lies against him Coke 4. part 84. A. 2 Hen. 7.11 B. Townsend for the property was in the owner and the Law chargeth the Carrier with them It lies against an Executor Executor but he shall not be charged but for his Detainer 39 Edw. 3.5 pl. 21. in his own time and not for the Testators Detainer Crooke 118. pl. 62. A bails goods to B which dies in Detinue against the Executors the question was whether they shall be named Executors or not and it seemed they needed not for the Detainer is the point of Action Quaeretâ—men for they detain by virtue of their Executorship For Hill 12 Jac. Ban. Regis Isack Clark 13 Hen. 4.12 pl. 2. 11 Hen. 4.45 pl. 20. 2 Heâ— 5.6 pl. 29. 21 Hen. 6. pl. 1. one shall not answer without the other therefore they are charged for the Detainer only Quaere tamen for although they make but one person yet this proves not but that they detain as Executors and are so to be charged as it seems It lies against an Executor upon a rationabile parte bonorum 17 Edw. 3.9 pl. 29. brought by the Feme of the Testator An Executor shall have a Detinue for goods in the possession of the Executor of his Joynt-executor if the said Joynt-executor will pay a debt to the value 3. Eliz. Dyer 187. pl. 6. for the Executorship survives It lies against a Stranger when they come to the possession of two Estranger 4 Edw. 4.9 pl. 11. Nat. br 138. E. Q. Lessor shall have a Detinue for implements leased with the house at the end of the term Lessee against the Lessee although they are wasted 20 Hen. 6.16 pl. 2. for the property of them was not divested out of the Lessor by the lease Trover of goods Against him that finds goods if they be wasted per wilful negligence otherways if it be by casual means Doct. Stud. 129. B. or a Trover lies for that he could not prevent If a Horse be stole and sold in a market Vendee but not according to the Statute the Owner shall have a Detinue per 3 Mariae cap. 7. for the sale is void and so the property is not altered Administrator sold a thing the Executor proves the Will he shall have a Detinue against the Vendee of the Administrator Com. 275. Foxes case See the reason before that the sale is made void It lies against a Sheriff Sheriff where he returns upon a returna habenda quod averia elongata sunt per Westm 2. cap. 2. 9 Hen. 6.42 See before the reason A Wife Tenant in tail dies before issues Husband quaere if a Detinue lies against the Husband without request 33 Hen. 6.30 B. A Feme sues goods dum sola fuit and takes a Husband Detinue lies against the husband and wife Lib. Intr. 209. D. Sect. 4. 43 Edw. 3.18 pl. 1. for now the goods are come into possession of the husband by the marriage and so they are both to be sued for the cause of Action begun whilst the Feme was sole and it is continued in the husband by the intermarriage and detainer since If A. enfeoff B. with warranty Feoffor B. shall have a Detinue against A. for deeds that comprehend warranty or are material for the Title Coke 1. part 2. because the warranty is for his benefit If A. enfeoff B. without warranty B. shall have it against A. for all the deeds concerning the land the Feoffor needs not any deeds to make out the warranty And if the thing lies in grant then it lies against the Feoffor for all Coke 1. part 1. Buckhursts case for there is no warranty for him to make out as it seems And so in any case for a deed that makes his estate good Nat. br 138. K. for it is reason to let him have weapons requisite for his necessary defence Against a Lessee for life A Lease made to A. for the life of B. remainder over to C. B. dies C. shall have a Detinue against A. without request because C. had interest in it before 33 Hen. 6.30 B. and he knows that by the death of B. his estate is determined sed quaere if A. do not know B. is dead For what things Detinue lies 1. Of Chattels 2. Of Deeds Detinue ought to be of a thing certain Certain Nat. br 138. A. because the very thing detained is to be recovered A Detinue lies for money in a Bag or Box or Coffer Nat. br 138. A. for that may be certainly known And this although the Seal be broken 21 Edw. 4.30 pl. 25.
Statute but the Master sole shall not Hill 11 Jac. Ban. Regis Colledge of Physicians versus Dr. Tenant Lib. Reports title Plaints Q. Debt lies by a Conusee of a Statute or Recognizance Stat. Merchant Staple Conusee According to 23 Hen. 8. Recogn Counsellor Nut br 122. D. 11 Hen. 6.49 pl. 7. 36 Hen. 6.2 pl. 2. 39 Hen. 6.3 pl. 5. 22 Eliz. Dyer 369. pl. 52. 13 Rich. 2. bre 649. upon the Statute or Recognizance Debt upon a retainer to be his Counsellor for 40 s. per annum but then he ought to count that he was of his counsel or was ready to be 37 Hen. 6.8 B. Prisott if required But if I retain a Sergeant at Law for A he shall not have debt for his salary against me 31 Hen. 6.9 B Fortescue for he is retained for his Client and it is reason he should pay him Executor Executor shall have debt for a debt due to the Testator 11 Hen. 6.7 for he is in place of the Testator Executor of an Executor shall have debt 25 Edw. 3. Ca. 5. sic in infinitum as it seems Executor shall not have debt before probat of the Testament 7 Hen. 4.18 Coke 5. part 28. A. Midletons case Com. 278. Foxes case Perkin 193. for before that he is not Executor in the eye of the Law But if pendente breve the Testament be proved it sufficeth Pasch 43 Eliz. Com. Ban. Walmesly for that relates to the death of the Testator and so includes the time of hanging the Action Feme Rent services granted to the husband and wife for life the husband dies the wife shall have the Arrearages that did accrue in the life of the husband and debt for them after the estate ended 29 Edw. 3.40 pl. 19. for here is a surviving estate in the wife Grantee of a Reversion Annuity Grantee of a Reversion shall not have debt for Rent upon a Lease for years before Attornment Nat. br 121. N. for before Attornment the Reversion passed not But a Devisee shall have it Nat. br 121. N. Mich. 14 Jac. Ban. Regis Bayliffs and Burgesses case of Ipswiche for there it passeth by the will So Bargainee shall have it Coke 3. part 24. A. Walkers case for it passeth by enrolment of the Deed. Heir A is bound to B and his heirs B dies his heirs shall not have debt Nat. br 120. I. but the Executor but contrary where A binds himself and his heirs to B. But if a penalty be granted to one and his heirs then the heir shall have debt Nat. br 120. M. 11 Hen. 4.84 28 Hen. 8. Dyer 24. pl. 149. for that is a present duty wherein the heir hath interest The heir shall have debt for the reasonable part of the goods where the custome gives it him Nat. br 122. L. for this is a customary duty for which the Law will give a remedy But if there be no such custome it lies not Regist orig 142. B. 40 Edw. 3.38 pl. 19. 7. Edw. 4.20 pl. 23. 30 Edw. 3.26 A. seton Regist orig 141. B. for the Common Law takes no such notice of the heir to have any goods as heir For the Statute of Magna Charta is but one forspris and for that an Action shall not be founded upon it vide Lib. Intra 541. by reason of the incertainty of the meaning of the Statute in that point But Nat. br 122. L. Glanvill Lib. 12. cap. 20. 17 Edw. 3.9 pl. 29. this is by the Common Law quaere Custome that the heir shall have the principal Chattels c. he shall have debt for them 30 Edw. 3.2 pl. 9. 39 Edw. 3.6 pl. 24. fol. 9. pl. 15. The Law takes notice and maintains ancient Customes Lessor Lessor shall have debt for Rent reserved upon a Lease at will Coke 5. part 10. Hensteads case Littleton 15. by reason of the privity of the Contract betwixt the Lessor and the Lessee And so for a Lease for years 7 Rich. 2. this seems a stronger case Tenants in Common make a Lease rendring Rent they ought to joyn Littleton 72. in the Action in respect of their joyning in the Lease and so a joynt interest passed Ordinary The Ordinary shall not have debt because he hath not absolute interest in the things of the Intestate Coke 9. part 33. Hensloes case Nat. br 120. D. but hath it only as a Conduit-pipe to derive it to others to whom the Law directs Parson A Parson shall have debt for not setting out of Tithes by the Stat. of 2 Edw. 6. cap. 13. and recover treble dammages Physician A Physician shall have debt for Physick and Diet Lib. Intra 187. B. Sect. 1. upon a quantum meruit if there be no special contract Recusant Recusancy shall be pleaded in disability for such Lands and Tenements which are not seized into the Kings hands 3 Jac. cap. 5. in disability of the person to sue Q. Robbery The party robbed shall have an Action against the Hundred per le Stat. 27 Eliz. cap. 13. But he ought to bring his Action within the year after the Robbery done 27 Eliz. cap. 13. And the day of the Robbery shall be accounted parcel of the time Pasch 15. Jac. Com Ban. per 2 Justices as it seems because the Law is penal Quaere tamen Steward Steward of a Court retained by word for such a sum per annum shall have debt for his salary 8 Eliz. Dyer 248. pl. 79. Coke 4. part 30. A. Servant Servant shall have debt for his salary 11 Hen. 6.10 pl. 20. upon the contract which created a duty One retained in England to do service beyond the Sea shall have debt in England where the retainder was Nat. br 120. E. and not where the service is done because it is beyond Sea aliter quaere Servant retained by a Corporation without deed shall not have debt for his salary 4 Hen. 7.6 Com. 91. B. for such Retainer is null in Law and the Servant could not have been compelled to serve Successor Sole Corporation consists of one person One sole Corporation shall not have a personal thing in Succession Coke 4. part 65. A. Fulwoods case 19 Hen. 6.44 pl. 94. 20 Edw. 4.2 vide 32 Hen. 8. Dyer 48. pl. 14. for personal things cease with the person Unless the Custome will warrant it Coke 4 part 65. A. Fulwoods case Custome if it be not unreasonable makes a Law But a Corporation aggregate that is consisting of many persons shall have an Action for a personal thing in succession Coke 4. part 65. A. 20 Edw. 4.2 Master of an Hospital recovers dammages the Successor shall have them 19 Hen. 6.44 pl. 94. for the benefit of the house Abbot recovers dammages in battery and is removed or created Bishop his Successor shall have them because he recovered them but to the use of his house 22 Hen. 6.4 B. for he could sue in no other
be recovered but only damâ—â—â—ges Note also he shall recover dammages but for 〈◊〉 Ejectment Coke 9. part 80. A. Peytoes case 〈◊〉 here is no detainer and so no possession to be divered by a habere facias possessionem If the term be ended he shall recover all in â—â—â—mages 7 Edw. 4.6 Fairfax No. Lib. Intra â—â—5 D. Sect. 9. Vid. antea Judgment upon demurrer First for the Plainâ—â—â— Com. 526. Granthams case Secondly for the Defendant No. Lib. Intra 197. C. Sect. 6. presidents 〈◊〉 both Judgment for the Defendant upon a Non-suit â—ther Evidence delivered to the Jury No. Lib. â—â—tra 189. B. Sect. 2. viz. for the costs Quare Impedit Ne admittas Quare non admisit Quare incumbravil IMpedire est pedem ponere in jus alienum Quid. quiâ— quis habet in jure praesentandi Bracton lib. 4. cap. 6. sol 247. A. Haee dictio Impedit componitur do in 〈◊〉 pes unde revera ille impedit qui nititur 〈◊〉 pedem ponere in jus alienum ubi nullum jas 〈◊〉 competit nec proprietatis nec possessionis Bractâ—â— lib. ibidem An Advowson is an interest to present an able man to a Benefice 5 Hen. 7.38 B. Brian and Townsend Advocation est incorporalis est jus praesent and ad Ecclesiam vacantem Bracton lib. 2. fol. 53. A. Jus Patronatus est Honorificum to be Patron 〈◊〉 Protector Vtile to advance his Friend Onerosum a burthen to his conscience if he present one not able Quart for he is not Judge of the Ability but the Ordinary In what Court it lies Bracton Lib. 3. fol. 160. A. Immediate in â—uria Domini Regis terminari debent placita de advocationibus Ecclesiarum quia si alius à Rege mandaret Episcopis de admittendo Clericum ipse non obumperabit alius à Rege coâ—rcionem non haberet quia Episcopus ad alterius mandatum quà m Regis Clerieum admittere non tenetur per consequens 〈◊〉 temporis Rex habebatur caput Ecclesiae Stat. de H. 8. factum fuit solummedo in affirmatione legit Quare Impedit of an Advowson in Wales ought to be in Com. Ban. in England and shall be tried 〈◊〉 the County next adjoyning to Wales and the reason is because the Lords there have not power to send to the Bishop 36 Hen. 6.33 B. Forteseue 35 Hen. 6.30 pl. 35. 3 Edw. 3.163 pl. 35. 8 Edw 3.319 pl. 15. 24 Edw. 3.3 pl. 26. for the King is Supream Head of the Church in all his Dominions No plea to the Jurisdiction to say that it is Ancient demean because they cannot in their Court award a Writ to the Bishop 7 Hen. 6.35 for the former reason no Liberty or Franchise can be endowed with this high prerogative In Ban. Regis it lies for the King for he may sue there if he pleases Nat. br 32. G. 47 Edw. 3.4 pl. 9. or in the Exchequer as it seemeth It seems also that it lies in Banco Regis for a common person The King grants Majori Ballivis juratis Quinque Portuum that they shall not be impleaded for no Land in no Court nor for other cause unless it be within the Five Ports scil at Shepway before the Warden of the Five Ports this extends not to a Quare Impedit 21 Hen. 7.88 pl. 7. Crooke for that is intended for Temporal matters only Who shall have a Quare Impedit He that is out of the possession of the Advowson shall not have a Quare Impedit Note which a man may be five ways 1. by Presentation 2. by discontinuance of the Land to which the Advowson was appendant c. 3. by Disseisin 4. by Descent 5. by Recovery in the Writ of Right of Advowsons or Quare Impedit He that is out of possession of an Advowson cannot Present and therefore cannot be hindred and so the Writ cannot lie for a Writ must suggest the truth else it is naught Husband and Wife having an Advowson in jure uxoris they shall joyn in a Quare Impedit Coke 5. part 57. Specots case 50 Edw. 3.13 pl. 4. 7 Hen. 7.2 B. 38 Hen. 6.3 pl. 9. 28 Hen. 6.8 pl. 3. for the Wife is interested in the jus Patronatus notwithstanding her marriage But the Husband may bring this without the Wife 14 Hen. 4.12 pl. 12. 22 Rich. 2. br 937. for the particular wrong done to the Husband in hindering him to present hac vice The Church is void the Wife dies the Husband shall have the Quare Impedit because the Presentation was a Chattel vested in the Husband 21 Hen. 6.56 because the Church became void during his wites life The Husband presents and after they are divorced the Husband shall have the Writ 31 Hen. 8. br Divorce 8. if he be hindred in this presentation for the Divorce shall not look back Cestui que use shall not have it Cestui que use but the Feoffees of the Land for the presentation is always firm to the Advowson which is in the Feoffees Crooke 17 Hen. 7. A. Frowick ibidem 2 Hen. 8.160 B. pl. 1. Q. if the Statute of Uses alter not the Law in this point The Lord Chancellor shall present to all Churches under 20 Marks per annum Chancellor which are belonging to the Crown but not if the King have them by other Title Nat. br 35. K. 38 Edw. 3.3 pl. 14. Com. 528. B. as by Purchase Attainder c. But vide Br. Praescript 86. that at this day the Chancellor presents to all under 20 l. per Annum Twenty Marks anciently was more than 20 l. in succeeding times and that may be the reason The Defendant shall have a Quare Impedit against the Plaintiff if his Clerk be not Instituted Defendant Nat. br 35. C. for without it he is not a perfect Incumbent The elder Brother presents and dies Half-blood the Brother by the half-blood shall not have the next Avoidance Nat. br 36. E. 3 Hen. 7.5 because as it seems he shall not be inheritable of the Advowson But the 19 Edw. 2. Quare Impedit 177. Contra Ergo quaere for he may come in by the Father or Grandfather as Heir to them Two Sisters by several venters make composition for the Presenting and one dies before Presentment the other shall have it Nat. br 36. E. for the Agreement lasts but during their lives and the Executor shall take no advantage of it Corporation Bishop Ratione Patronatus The Bishop shall have a Quare Impedit ratione Patronatus if he be disturbed Patronage of a Deanary belongs to him of common right 17 Edw. 3.40 pl. 17. yet the King used of late times to bestow them The Bishop shall have a Quare Impedit ratione Lapsus for by the Lapse a Title to present accrues to him hac vice and the Writ shall be general but the Count shall be of the Collation Nat. br 33. D. 17 Edw. 3.64 pl. 69. Lib. Intra
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.
3.72 pl. 1. Testamentum abstulit asportavit Will. Regist orig 107. B. Tunicam sc a Coat Armor Coat 9 Edw. 4.14 pl. 8. Five Tuns of Wine Wine the Writ was bona catalla and good Wine taken and carried away 39 Edw. 3.18 pl. 17. Lib. intra 684. A. sect 1. The Count Lib. intra 684. A. sect 1. Vestimenta 11 Hen. 4.31 pl. 57. Q. whether he must not shew what Cloaths Trespass Quare spinas suas crescent Thorns cepit asportavit ad valen c. Good without shewing the number of Loads for this is special and the value reduces it to a certainty Mich. 15. Jac. Ban. Regis Jones Wilson But if it be quasdam garbas tritici it is not good for the uncertainty what is meant by Garbes Shocks of Wheat Trin. 7 Jac. Ban. Regis For it seems a Garb may be more or less ERROR Error is either by 1. Common Law 1. Judgment in Court of Record 1. Out of the Realm 1. Ireland 2. Wales 2. In the Realm 1. Superior 1. Parliament 1. Parliament the Sheriff in Redisseism per Merton cap. 3. 1. Assizes 2. Oyer Terminer 3. Conusance of Pleas. 1. Village 2. Single person 4. Forest 5. Stannaries 2. Ban. Regis 3. Com. Ban. 4. Chancery 5. Exchequer 2. Inferior prescription 1. In him and his Successors 2. In him and his Heirs 3. In him and whose Estate he hath 2. Agard Execution 3. Other Record Fine Grant of the King 4. Custom 1. London 2. Cinque ports 3. In any Village 5. Common Right 1. Pypowders in Fair or Market 2. Marshalsey Coke 10 part 69. B. 3. Tourne 4. Leet 2. Statute Law Westm 1 2 cap. 30. upon a Bill of exception 5 Edw. 3. cap. 2. Error in Marshalsey Redress in Ban. Regis 9 Rich. 2. cap. 8. He in Reversion his Heirs or Successors shall have Error upon Judgment against Tenant for life c. and by equity he in Remainder 34 Hen. 8. cap. 16. Error upon Judgment before the Justices in the grand Sessions in Wales shall be redressed in Ban. Regis in England if it be in plea real or mixt but for personal matters it was to be redressed before the President and Council in Wales 23 Eliz. cap. 3. False Latine rasing interlining mis-entring of a Warrant of Attorney or Proclamation Mis-return or not Return of the Sheriff or fault of form in words shall not be Error in Fine or common Recovery 27. Eliz. cap. 9. ordains that this Statute of the 23 Eliz. cap. 3. extends to Fines and Recoveries in Wales 27 Eliz. cap. 8. Judgment given in Ban. Regis shall be redressed before the Judges of the Common Pleas and Barons of the Exchequer but then it ought to be in Debt Detinue Account Covenant Ejectione firmae Trespass Action upon the Case and there shall be nothing assigned in the Jurisdiction of the Court or in form in a Writ returned Plaint Bill Declaration Pleading Process Verdict or Proceedings 31 Edw. 3. cap. 12. Error redressed in the Exchequer-Chamber before the Chancellor and the Treasurer calling to them the Barons of the Exchequer and Justices 31 Eliz. cap. 1. The not coming of the Chancellor shall not make a Discontinuance of the Error in the Exchequer-Chamber And for Error therein sued upon a Judgment in Ban. Regis three of the Justices or Barons may adjourn it and it shall be no discontinuance Error In what Court Error shall be redressed Upon Judgment in Court out of the Realm Ireland JUdgment given in Ban. Regis in Ireland Error lies in Ban. Regis in England 15 Edw. 3. Error 72 37 Assize pl. 7. 5 Edw. 2. Error 89. 36 Assize 5. Nat. br 22. E. Coke 7. part 18. Calvins A. case But not upon a Judgment given in another Court in Ireland 5 Edw. 2. Error 89. Nat. br 22 E. but they shall be as it seems reversed in the Kings Bench there if they be erroneous and not trouble the Kings Bench here Erroneous Judgment in Wales shall not be redressed in Ban. Regis in England Wales Dodderidge De Principalitate Walliae fol. 18. because Wales was not parcel of the Crown of England 27 Hen. 7.33 pl. 32. but a Principality of it self belonging to the Crown But Crooke 11 Hen. 8.202 pl. 19. è contra for there it is said it is parcel of England Q. But in Parliament this ought to be reversed 19. Hen. 6.12 Ascue And also before Justices itincrant there 19 Hen. 6.12 Newton viz. in Wales But at this day Judgment given at the Grand Sessions in Wales in a plea real or mixt shall be redressed in ban regis in England per Statute 34 Hen. 8. cap. 26. But in plea personal it shall be redressed before the President of the Council in Wales by Bill exhibited before him But Judgments given in the Assizes in Wales cannot be redressed in Com. Ban. here 8 Eliz. Dyer 250.87 Isle of Man Erroneous Judgment given in the Isle of Man may not be redressed in England because it is not parcel of England Crooke 11 Hen. 8.202 pl. 19. Upon a Judgment given in ban regis Error lies in the same Court per Common Law 2. Within the Realm in Court superior as Parliament Ban. Regis if it be upon Error in Process or default of Clerks Nat. br 21 I. 7 Hen. 6.28 pl. 22. 19 Hen. 6.2 pl. 2.15 Edw. 4.7 8. 3 Eliz. Dyer 196. pl. 39. 27 Hen. 8.15 B. Knightley But if it be Error in Law which is the fault of the Justices it shall not be redressed but by Parliament per Common Law Nat. br 21. I. 9 Edw. 4.3 3 Eliz. Dyer 196. pl. 39. 201. pl. 64. 23 Eliz. Dyer 374. pl. 19. 27 Hen. 8.25 B. Fitz-James For they shall not reverse their own Judgments But Error in process or default of Clerks ought to be reversed in the same Term or otherwise it lies not in the same Court as it seems by the Justices Trin. 7. Jac. ban regis Prowse Skeynner Q. But one case was Mich. 41 42 Eliz. Rot. 639. which is a rule that Error lies in another Term upon Error in Process when the party cannot have Error in the Exchequer Chamber But by the Stat. of 27 Eliz. cap. 8. if Judgment be given in ban regis upon a Suit commenced there the Writ of Error lies in the Exchequer-Chamber before the Iustices of the Common Ban. and Barons of the Exchequer or six of them Coke 3. part 7. B. 4. part 53 86. A. 5 part 18. B. 28. A. 43. A. 97. B. But then it ought to be in Debt Detinue Account Covenant Ejectione firmae Trespass upon the case and no other Actions for the Stat. shall not be largely expounded And also nothing shall be assigned for Error in the jurisdiction of the Court or form of the Writ Return Plaint Bill Declaration Pleadings Process Verdict or Proceedings but only in matter in Law And also a
6.35 B. Paston 7 Hen. 6.41 Coke 5. part 99. B. Hoes case Garnishee For he is bound by the judgment Garnishee in London upon an Attachment according to the Custom shall have error 22 Edw. 4.30 31. For the judgment is in part against him Tenant per Receipt shall have error Coke 3. part 3.4 Assize 7. 20 Edw. 3. Error 2. Tenant For by the Receipt he is made party to the Suit and concerned in the judgment Vouchee shall have a Writ of error 8 Hen. 4. 3. Nat. br 21. C. 4. Assize 7. 17 Edw. 3. Error Vouchee 90. Nat. br 21. M. 108. A. For by the Voucher he is called in and made a party And the Tenant shall have another Writ of Error 8 Hen. 4.3 21 Nat. br 21. C. for they are severally concerned But if the Vouchee release before Error brought the Tenant shall not have it 17 Edw. 2. Recovery in value 32. for by the release he is barred viz. a release of Errors or of his right Heir general shall have a Writ of Error 20 Edw. 4.13 Lib. Intra 269. A. Sect. 1. for he is prejudiced by the Judgment And if the Ancestor be outlawed of Felony Heir general he viz. the Heir shall have it Nat. br 21. N. viz. to reverse the Outlawry and to gain his own interest But not for High Treason per 28 Eliz. cap. 2. because thereby the blood is corrupt and disabled The Heir special shall have it for the Lands to which he is heir Heir special 3 Hen. 4.19 Nat. br 21. K. 9 Hen. 6.47 1 Mariae Dyer 90. pl. 5. but he must have a special Writ as it seems Executor shall have Error upon judgment for debt or dammages Executor Nat. br 21. M. given against the Testator for the regaining of the Testators estate Although that he be Executor to the Bishop Parson or other sole Corporation Nat. br 22. A. Coke 4. part 65. A. Fulwoods case 8 Hen. 6.25 A. Martin for that makes no difference in the case And this upon the Statute of 29 Eliz. cap. 8. Coke 6. part fol. ult Executor shall have error upon an Outlawry of the Testator and restitution of the goods lost by the Outlawry 11 Hen. 465. pl. 22. 5 Edw. 4.7 Although that the Outlawry be for Felony Coke 5. part 111. A. vid. antea Administrator shall have error in the same manner as Executor shall have Administrator Nat. br 21. M. 6 Edw. 6. Dyer 76. pl. 31. for he hath the same interest in the Intestates personal estate A Successor shall have error for a thing which toucheth the Succession Successor to a thing whereof he is so Nat. br 22. A. 16 Edw. 3. Error 69. 8 Hen. 6.25 A. Martin The King collates A to a Chappel King against whom an Action is brought A resigns to the King the King collates B Judgment is given pro querente B shall have Error 15 Edw. 3. Error 7. 15 Assize 8. for now the interest concerns him But for Debt or Dammages recovered against a Bishop Bishop c. or against any Secular sole Corporation the Successor shall not have Error Nat. br 22. A. for the dammages concern the Executor and not the Successor and so he hath no right to sue He in Reversion after the particular estate ended shall have Error at Common Law Reversâ—on and not before Coke 3 part 4. A. 21 Hen. 6.29 Newton 3 Hen. 4.6 32 Edw. 3. Error 73. 4 Hen. 8. Dyer 6. pl. 5. com 24. B. Weston for before he is not concerned in the Judgment Q. And per 9 Rich 2. cap. 3. he shall have it during the Estate for life Coke 3. part 4. 22 Edw. 4.31 A. Vavisor 3 Hen. 4 6. 12 Hen. 8.9 A. Brudnell And this seems reasonable for he may be prejudiced by the delay Q. And by equity he in the remainder shall have it Nat. br 108. A. 1 Mariae Dyer 90. pl. 5. But at Common Law the Donor in tall shall not have it altogether com 241. B. Q. And yet he shall not have Error during the estate Tail because he is not within the Statute of 9 Rich. 2. cap. 3. Coke 3. part 61. A. Lincoln Colledge case 10. part 44. B. Portingtons case But after the Estate tail ended he shall have it because the Law reserves the reversion in the Donor Coke 3. part 3. B. And although Tenant in tail suffered a Common Recovery and released Errors and yet â—â—ings error and is barred and dies without issue â—et the Donor or he in Remainder shall have Erâ—or 3 Eliz. Dyer 188. pl. 9. to reverse the Recovery â—or if that be erroneous then the Estate â—ail is not barred by it Note regularly no Stranger shall have Error Estranger â—2 Edw. 4.31 per Brian viz. a Stranger to the Judgment but this holds not always Conusor aliens Execution is sued erroneously Conusor the Alience shall have error Nat. br 22. B. 4 Hen. 8. Dyer 1. pl. 5. 17 Assize 24. 18 Edw. 3.25 pl. 17. Crooke 6 Hen. 8.169 A. Pollard for his title is concerned A claims wood in a Forest Tenant and this allowed before two Justices of the Forest B C which claim Estovers brought a writ of Error in Ban. Regis 21 Edw. 3.48 pl. 70. and good to reverse this allowance which is in nature of a Judgment and binds their right to the Estovers The Tenant in a Praecipe enfeoffs B Judgment given pro quer B shall have Error for the mischief that may fall to him by the Judgment 21 Edw. 3.53 21 Assize 41. 20 Assize 2. 50 Assize 3. But quaere 50 Assize 3. if the Tenant in the Praecipe aliens to B which releases to the Feoffor for life and judgment pro querente if B shall have Error per 9 Rich. 2. cap. 3. It seems he shall for all his interest is not gone by the release Where the King is party to the judgment King there shall be Error against him but not before Petition made to the King Pasch 12 Jac. Ban. Regis Davies case 23 Edw. 3.12 pl. 14. 18 Hen. 6.17 22 Edw. 3.3 pl. 25. 24 Edw. 35. pl. 43. for it may be that upon the Petition the King will let the judgment be reversed without Suit and it is not fit to sue the King where one may have right of him for asking it without suit The Writ of Error The Writ ought to make mention of him which was summoned and severed 9 Hen. 6.38.13 because he was once party to the suit An Action of Covenant is brought against A as Assignee and judgment given against him he brought Error the Writ needs not mention him as Assignee because this Addition was not of substance 19 Eliz. Dyer 356. pl. 41. Q. for then he must be called Lessee which properly he is not but by construction of Law The Process in Error 1. Vpon Judgment in Ireland 2. Vpon a Bill sealed
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