The common law epitomiz'd with directions how to prosecute and defend personal actions, very useful for all lawyers, justices of peace, and gentlemen : to which is annexed the nature of a writ of error, and the general proceedings there upon : with a plain table for the easie finding out of every particular / by William Glisson and Anthony Gulston ... Glisson, William. 1679 Approx. 951 KB of XML-encoded text transcribed from 255 1-bit group-IV TIFF page images. Text Creation Partnership, Ann Arbor, MI ; Oxford (UK) : 2012-10 (EEBO-TCP Phase 2). A42852 Wing G864 ESTC R177434 12418199 ocm 12418199 61778

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 Early English books online. (EEBO-TCP ; phase 2, no. A42852) Transcribed from: (Early English Books Online ; image set 61778) Images scanned from microfilm: (Early English books, 1641-1700 ; 939:11) The common law epitomiz'd with directions how to prosecute and defend personal actions, very useful for all lawyers, justices of peace, and gentlemen : to which is annexed the nature of a writ of error, and the general proceedings there upon : with a plain table for the easie finding out of every particular / by William Glisson and Anthony Gulston ... Glisson, William. Gulston, Anthony. Style, William, 1603-1679. Applegarth, Henry. The second edition, revised, explained, and much enlarged / [14], 495 p. Printed by the assigns of Rich, and Edw. Atkins for Hen. Brome and Tho. Basset ..., London : 1679. Reproduction of original in Bodleian Library. Translated from the French by Hen. Applegarth. Table of contents: p. [7]-[14]

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 eng Actions and defenses -- England. Civil procedure -- England. Writs -- England. Appellate procedure -- England. 2020-09-21 Content of 'availability' element changed when EEBO Phase 2 texts came into the public domain 2011-09 Assigned for keying and markup 2011-10 Keyed and coded from ProQuest page images 2012-04 Sampled and proofread 2012-04 Text and markup reviewed and edited 2012-05 Batch review (QC) and XML conversion
29. Nov. 1677.

I do allow the Reprinting the SƲRVEY OF THE LAW, as it is now Corrected and Inlarged.

Fra: North.

THE COMMON LAW EPITOMIZ'D: WITH Directions how to Proſecute and Defend Perſonal Actions. Very uſeful for all Lawyers, Juſtices of Peace, and Gentlemen. To which is annexed The nature of a Writ of ERROR, and the general proceedings thereupon. WITH A plain TABLE for the eaſie finding out of every particular. By William Gliſſon and Anthony Gulſton, Eſquires, Bariſters at Law. The Second Edition; reviſed, explained, and much enlarged by W. S. of the Inner-Temple, Eſquire.

Good communicated doubles it ſelf. —Vivere nemo Nunc ſine Lite ſolet, nec ſine Lege poteſt.

LONDON, Printed by the Aſſigns of Rich. and Edw. Atkins, Eſq for Hen. Brome and Tho. Baſſet, and are to be ſold at the Gun in St. Pauls Church-yard, and at the George in Fleetſtreet, MDCLXXIX.

The Epiſtle Dedicatory. TO THE Profeſſors & Practiſers OF THE COMMON LAW OF ENGLAND. Candid Reader.

THis Tract in French was bequeathed to me by an alliance, William Gliſſon Eſquire deceaſed, which I have tranſlated into our own Language for the Common benefit of all. I am not ſingular in it, for daily experience manifests the contrary: neither is it a Novelty for Law-books to appear in this dreſs. Antiquity may be pleaded, Sr. Germin Perkins, Stanford, Crompton, Lambert, Sir Henry Finch, Dalton, and divers others have in former days troden this path. My deſires are that it may not be peruſed by thoſe who read only to fault, what they cannot mend, but by thoſe whoſe judicious Pen will correct the errors as Cognizances of humane frailty. I wiſh it ſucceſsful to all, be he Pleader or Practiſer; and that the Common Law of England may ſhine forth in theſe Cloudy, and Eclipſed days, is the Prayer of him who is

St • ple Iune, January 20th, 1658. A Well-wiſher to the Laws HEN. APPLEGARTH.
To the READER. Ingenuous Reader,

THeſe enſuing Lines were not fixed to this Treatiſe to commend its worth unto thee; for, if I can judge rightly, it needs them not, as I doubt not but thou wilt confeſs upon the peruſal of it. And this made me ſome years paſt take ſome pains in correcting many Errataes of the Preſs, and explaining many obſcurities I met with; and in ſhewing the reaſon of the Law in many places, without any other aim than my own private ſatisfaction. But ſince that underſtanding an intent of Re-printing of the Copy, I thought it not amiſs to impart what I had done to the Undertakers thereof; not only for their benefit, but for the Readers clearer information, and eaſier underſtanding of the greater variety of the matters therein contained, and in the former Edition very briefly, and in many places obſcurely ſet forth. If my pains herein may prove profitable to any, I ſhall think it well beſtowed; however I ſhall reſt ſatisfied with this perſwaſion, That neither the Printers nor Readers can be prejudiced by theſe my well intended endeavours.

William Style.
THE CONTENTS. OF THE BOOK. 1. Accompt. 2. Caſe Aſſumpſit 3. Trover. 4. Covenant. 5. Detinue. 6. Debt. 7. Ejectment. 8. Quare Impedit, ne admittas, quare non admiſit, quare incumbravit. 9. Replevin. 10. Treſpaſs. 11. Error. VVherein is plainly ſet down and demonſtrated▪ 1. What their ſeveral natures are. 2. How many fold they are. 3. In what Court they moſt properly lye. 4. Who may beſt bring them. 5. Againſt whom they lye. 6. For what cauſes they lye. 7. What be good Pleas and Barrs to the ſeveral Actions. 8. What Judgements and Executions may be given in them.
The TABLE. Account. ACcount, Fol. 1 Account againſt a Guardian in Soccage, Fol. 1 In what Court Account lieth againſt a Guardian in Soccage, Fol. 1 Who ſhall have a Writ againſt Guardian in Soccage, Fol. 2 Againſt what perſon Account lieth as Guardian in Soccage, Fol. 3 For what things Account lieth, Fol. 4 The Account againſt a Guardian Soccage, Fol. 5 The Proceſs againſt a Guardian Soccage, 1. before appearance, 2. after appearance, Fol. 6 Bar by a Guardian in Soccage, 1. to the Action of Account, 2. before Auditors, Fol. 7 The Judgment againſt a Guardian in Soccage, 1. of Account. 2. to recover the thing. Fol. ib. Execution againſt a Guardian in Soccage, 1. per Common Law. 2. per Statute Law, Fol. 8 Ex parte talis, Fol. ib. Account againſt a Baily, 1. of a Court or Hundred, 2. of a Mannor-houſe, &c. Fol. 9 In what Court it lies againſt a Baily, Fol. ib. Who ſhall have an Account againſt a Baily, 1. of a Court, 2. of a Mannor. Fol. ibid. Againſt whom an Account lieth as Baily, 1. of a Court or Hundred, 2. of a Mannor, &c. Fol. 12 For what things Account lieth againſt a Baily, 1. of a Court, 2. of a Mannor, Fol. 14 The Account againſt a Baily, 1. Of a Court or Hundred; 2. of a Mannor, &c. Fol. 15 The Writs againſt a Baily, 1. of a Court or Hundred, 2. of a Mannor, &c. Fol. 16 The Proceſs againſt a Baily, 1. before appearance, 2. after appearance, Fol. 18 Bar to a Baily, 1. to an Action of an Account, 2. before Auditors, Fol. 19 Judgment againſt a Baily, 1. of Account, 2. to recover the thing, Fol. 21 Execution againſt a Baily, 1. per Common Law; 2. per Statute Law, Fol. ibid. Ex parte talis, by a Baily, Fol. 22 Account againſt a Receiver, 1. In Law, 2. in Deed, Fol. 23 Againſt whom Account lies as Receiver, Fol. 26 For what things Account lieth againſt a Receiver, Fol. 29 The Account againſt a Receiver, 1. by others hands, 2. by his own hands, Fol. ibid. The Judgment againſt a Receiver, 1. of Account, 2. of a Receiver, Fol. 37 The Writ againſt a Receiver, Fol. 38 The Proceſs againſt a Receiver, 1. before appearance, 2. after, Fol. 39 Bar by a Receiver, 1. to an Action of Account, 2. before Auditors, Fol. 41 Execution againſt a Receiver, 1. per Common Law, 2. per Statute Law, Fol. 43 Action upon the Caſe. QUid & Quotuplex. In what C • urt it lieth, Fol. 46 For doing of wrong to the dammage of another, touching things hereditary Fol. 47 Againſt whom this lieth, Fol. 49 For what things this Action lies, Fol. 51 The Writ, Fol. 62 The Proceſs, 1. before appearance, 2. after, Fol. ib. The Judgment, Fol. 63 For what things it lies. For. ib. For doing of wrong to the dammage of another touching his body, Fol. 69 For doing a thing to the dammage of another touching his name, which is ſlander, Fol. 72 For the doing wrong to the dammage of another touching ſuits in Law, Fol. 83 For not doing that which ought to be done by the Law, touching a thing hereditary to the dammage of another, Fol. 91 For not doing of things which ought to be done by the Law, to the dammage of another concerning Chattels, Fol. 95 For the not doing of a thing which ought to be done by the Law, to the dammage of another touching his body, Fol. 96 For not doing of a thing that ought to be done by the Law, to the dammage of another touching ſuits in Law, Fol. 97 Aſſumpſit. FOr the not doing of a thing which ought to be done by the agreement of the party, to the dammage of another touching things hereditary. Fol. 98 Aſſumpſit quid & Quotuplex, Fol. ib. General Bar, Fol. 99 For not doing of a thing, which ought to be done by the agreement of the parties touching Chattels, Fol. 102 The Judgment, Fol. 114 The Writ, Fol. ibid. For not doing a thing which is to be done by agreement touching the body, Fol. 115 The Writ, Fol. ibid. For not doing a thing which is to be done by agreement of the parties touching ſuits in Law, Fol. 116 For not doing a thing where a man is bound to do it in one manner, and he doth it in another, Fol. ibid. For negligent ſuffering a thing to be done to the dammage of another, Fol. 117 Bar, Fol. 118 For deceit in bargains, and agreements with warrant, Fol. 122 For deceit in bargains, and agreements without warranty, Fol. 124 Trover and Converſion. QUid & Quotuplex, Fol. 125 Of what things it lies, Fol. 126 Covenant. IN what Court Covenant lies, 1. perſonal, 2. real, Fol. 131 Who ſhall have a Covenant, 1. perſonal, 2. real, Fol. 132 Againſt whom Covenant lies, 1. perſonal, 2. real, Fol. 137 The Count in Covenant, 1. perſonal, 2. real, Fol. 145 Writ in Covenant, 1. perſonal. 2. real, Fol. 147 The Proceſs in Covenant, 1. before appearance, 2. after, Fol. 148 Bar in Covenant, 1. perſonal. 2. real, Fol. 149 Judgment in Covenant, 1. perſonal, 2. real, Fol. 150 Detinue. 1. QUid, Fol. 154 2. Quotuplex, ib. In what Court detinue lies, 1. of Chattels, 2. of Deeds for Land • , Fol. 155 Who ſhall have a Detinue, 1. of Chattels, 2. of Deeds, Fol. ibid. Againſt whom Detinue lies, 1. of Chattels, 2. of Deeds, Fol. 163 For what things Detinue lies, 1. of Chattels, 2. of Deeds, Fol. 167 Count in Detinue, 1. of Chattels, 2. of Deeds, Fol. 169 The Writ in Detinue, 1. of Chattels, 2. of Deeds, Fol. 173 The Proceſs in Detinue, 1. before appearance, 2. after, Fol. 174 The Garniſhment in Detinue, 1. of Chattels, 2. of Deeds, Fol. 175 Enterpleader in Detinue, 1. Of Chattels. 2. Of Deeds. Fol. 176 Bar in Detinue. 1. Of Chattels. 2. Of Deeds. Fol. 178 Execution in Detinue. 1. Of the Defendant. 2. againſt The Judgment in Detinue. 1. Of Chattels. 2. Of Deeds. Fol. 182. the Garniſhee. 3. of what Lands. 4. of what Goods. Fol. 184 Debt. DEbt, in what Court it lies. Fol. 191 Who ſhall have Debt. Fol. 193 Againſt whom Debt lies. Fol. 203 For what things Debt lies. Fol. 216 Judgment in Debt. Fol. 227 The Writ in Debt. 1. in the County. 2. in Com. Ban. Fol. 234 The Proceſs in Debt. 1. before appearance. 2. after. Fol. 239 The Bar in Debt. Fol. 240 The Judgment in Debt. Fol. 265 Execution in Debt. Fol. 269 Ejectment. IN what Court it lies. Fol. 272 Who ſhall have an Ejectione firmae. Fol. 273 Againſt whom Ejectment lies. Fol. 276 Of what things an Ejectment lies. Fol. 278. The Count generally. Fol. 281 The Writ. Fol. 283 The Proceſs. 1. before appearance. 2. after. Fol. ibid. The Bar. Fol. 284 The Judgment. Fol. 285 Quare Impedit. QƲid. Fol. 286 In what Court it lies. Fol. 287 Who ſhall have a Quare Impedit. Fol. 288 Againſt whom a Quare Impedit lies. Fol. 311 Quare Impedit of what diſturbance it lies. Fol. 312 Quare Impedit of what things it lies. Fol. 313 The Count in Quare Impedit. Fol. 315 The proceſs in Quare Impedit, 1. before appearance, 2. after. Fol. 317 Barr in a Quare Impedit, 1. by the Ordinary, 2 by others. Fol. 319 Good cauſes of refuſal in a Quare Impedit, Fol. 322 Theſe are not, Fol. ib. Theſe are likewiſe good cauſes of refuſal, Fol. 323 Who ſhall plead plenarty, and who not, Fol. 327 Againſt whom plenarty was, is no plea, Fol. 328 Judgement in a Quare Impedit, 1. when be ſhall have Judgement, 2. of what things he ſhall have Judgement. Fol. 330 The Writ to the Biſhop, to whom it ſhall be directed, Fol. 334 Proceſs in the writ to the Biſhop, Fol. 336 Of what things a man ſhall have Judgement. Fol. ib. A Writ to the Biſhop and ſingle dammages. Fol. 338 A Writ to the Biſhop and double dammages. Fol. 340 Single dammages and no Writ to the Biſhop. Fol. ib. Double dammages and no writ to the Biſhop. Fol. 341 Two writs to the Biſhop, Fol. ib. In what Court and what Judges have power to award a writ to the Biſhop. Fol. 342 Ne Admittas. WHat perſon ſhall have it. Fol. 342 In what caſes it lies. Fol. ib. Within what time this ought to be brought. Fol. 343 The Writ. Fol. 344 The Proceſs. Fol. ib. Quare non Admiſit. OƲt of what court this iſſues. Fol. ib. What perſon ſhall have it. Fol. 345 Againſt whom it lies. Fol. ib. In what caſe it lies. Fol. 346 The Writ. Fol. ib. The Count. Fol. 347 The Bar. Fol. ib. The Judgement. Fol. 348 Quare Incumbravit. IN what Court it ſhall be brought. Fol. 348 What perſon ſhall have it. Fol. 349 Againſt whom it lies. Fol. ib. In what caſes this lies not. Fol. ib. The writ. Fol. 350 The Count. Fol. 351 The Proceſs. Fol. ib. The bar. Fol. 352 The judgement. Fol. ib. Replevin. IN what Court it lies. Fol. 353 Who ſhall have a Replevin. Fol. 354 Againſt whom a Replevin lies. Fol. 356 Of what things a Replevin lies. Fol. 357 The writ. Fol. 359 The proceſs, 1. of a man replevied, 2. of chattels. Fol. 361 Second Deliverance. Fol. 362 In what caſe a man may diſtrain. Fol. 364 Of what things a man may diſtrain. Fol. 369 What perſon ſhall diſtrain. Fol. 373 At what time a man may diſtrain. Fol. 374 In what place a man may diſtrain. Fol. 375 What diſtreſs ſhall be ſold. Fol. 378 What ſhall not be ſaid to be a diſtreſs exceſſive. Fol. ib. 1. The Bar, 2. Juſtification, 3. Conuſance, 4. Avowry. Fol. 379 Who ſhall avow. Fol. 381 For what things a man may avow. Fol. 384 Seifin in avowry, in whom it may be alledged. Fol. 386 By what hands Seiſin ſhall be alledged. Fol. 386 In what time Seiſin ought to be alledged. Fol. 388 When it is not requiſite to alledge Seiſin. ib. What Seiſin ſhall be good. ib. Bar to an Advowry. Fol. 390 Judgment. 397 Treſpaſs. IN What Court Treſpaſs lies. Fol. 405 Who ſhall have Treſpaſs. Fol. 407 Againſt whom Treſpaſs lies. Fol. 422 For what matter Treſpaſs lies, viz. for the doing of wrong to the dammage of another. 1. Touching Inheritance. 2. Touching Chattels. 3. Touching the body. Fol. 432 Error. IN what Court Error ſhall be redreſſed. Fol. 453 Who ſhall have a Writ of Error. Fol. 461 The Writ of Error. Fol. 468 The Proceſs in Error, 1. upon a judgement in Ireland, 2. upon a Bill ſealed, 3. judgement in another Court. Fol. 469 Diminution in Error, 1. by whom, 2. in what caſes, 3. at what time. Fol. 472 The aſſignments of Errors, 1. by whom, 2. at what time. 3. upon what Record, 4. of what things. Fol. 474 Barr in Error. Fol. 491 Iudgement in Error, 1. for the Plaintiff, 2. for the Defendant, 3. for both. Fol. 493 Execution in Error. Fol. 495
ACCOUNT. Account is by Common Law By Act of Law Guardian in Soccage Next of Kin. A Stranger. Baily of a Court or Hundred in Law. in caſe of a Subject. of a Mannor-houſe. &c. in deed. in caſe of the King. By his own act. Receiver By other hands in law in caſe of a Subject. By his own hands in deed in caſe of the King. Statute Law Marlebridge cap. 17. Againſt a Guardian in Soccage. Marlebridge cap. 23. Againſt a Baily vagarant. Weſtm. 2. cap. 23. For Executors. 25 Edw. 3. cap. 5. For Executors of Executors. 3 Edw. 3. cap. 11. For Adminiſtrators. 23 Hen. 8. cap. 8. Collectors for repairing of Goals ſhall account to Juſtices of Peace. 2, & 3 Maria cap. 8. Againſt Head-Conſtables or Churchwardens. 43 Eliz. cap. 2. Overſeers of the Poor ſhall Account to Juſtices of Peace. 1 Jacobi cap. 9. Againſt Churchwardens and Conſtables for Forfeitures of Alehouſe-keepers by them received.
Account againſt a Guardian in Soccage.
In what Court Account lieth againſt a Guardian in Soccage.

IT lies in the County Court or Common Bank. Nat. br. 117. b.

It lies not before the Sheriff, 43 Edw. 3. fol. 21. pl. 11. Thorpe: For Brook, Account 14. ſaith, the Sheriff cannot aſſign Auditors, and therefore it is in vain to bring the Action before him.

A good plea to ſay the Land is ancient demeſn, becauſe the reality may come in queſtion, Coke 5. part, fol. 105. A. Aldens caſe.

It lies not in the Marſhalſey: Coke 10. part, 74. b. Marſhalſey.

Who ſhall have a Writ againſt Guardian in Soccage.

The Heir in ward ſhall maintain an Action againſt him after the age of 14 years, or at his full age at his election. Littleton S. 123.

But Nat. br. 118. b. he ſhall not have it till the age of 21 years. Crook fol. 131. pl. 106. by reaſon of the words of the Statute of Marlebridge, cap. 17. ſcil. (cum ad aetatem pervenerit) 3 & 4 Mariae, Dyer 137. pl. 25. New tenures 3. b. 18 Edw. 3.55. pl. 76. 29 Edw. 3. fol. 5. pl. 13. Vide Regiſt. origin. 136. Lib. Intra. 21. D. 8 R. 2. Gard. 166. 10 Rich. 2. Account 132. Doct. Stud. fol. 14. b. Old Nat. br. 91. A.

If the Heir in ſuch caſe die before his full age, his Executor ſhall maintain an Action of Account, Crook 131. pl. 106. becauſe it concerns a Chattel.

Yet note, the Heir in Gavel-kind at 15 years brought an Account againſt a Guardian in Soccage, and ſhews, by the Cuſtome he may alien at ſuch age; and for this cauſe he was awarded to Account, per Welby. 29 Edw. 3. fol. 5. pl. 13. For if he may do the greater, he may do the leſs; to fell is more than to take an Account.

The Executor of an Heir ſhall have an Account, per Weſt. 2. cap. 23. Littleton 27. A. Crook 131. pl. 106.

Executor of an Executor ſhall have an Account by 25 Edw. 3. cap. 23. Com. 290.

Filius & Haeres Domini defuncti non habebit breve de computo, quia pertinet ad executionem adminiſtrationis bonorum defuncti. Regiſt. Orig. 135. b

A Recuſant ſhall not have an action for any thing that is ſeized into the hands of the King, 3 Jac. cap. 5. for the King is accountablle to no body.

Againſt what perſon an Account lieth as Guardian in Soccage.

Account lieth againſt any that taketh the profits before the Ward be of the age of 14 years, Littleton Nat. br. 118. D. 4. Hen. 7.6. 10 Hen. 6.7. 13 Edw. 3. Account 77. 29 Ed. 3.5. pl. 13.

But if one occupy, and after Guardian in Soccage recover in right of the Ward, the party ſhall not render an Account to the Heir, for the Guardian ought to account for this, 27 Edw. 3.79. Gard. 22. and therefore the Account ſhall be made to the Guardian.

The reaſon is (as it ſeems) that the Writ doth not make mention of the blood. Regiſt. orig. 136. b. neither the Count, Lib. Intra.

Account lieth not againſt an Executor of a Guardian, Littleton. Nam non jacet verſus Executores, quia merè pertinet ad Curam Chriſtianam, cognoſcere de computo reddendo verſus Executores. Regiſt. orig. 135. b. 28 Hen. 8. Dyer 23. pl. 145.

But if Executors account, an Action of Debt lieth for the Arrearages, 2 Hen. 4.13. pl. 2.

And if the Teſtator covenants to account to the Heir and doth not, Covenant lieth againſt his Executor, Regiſt. origin. 165. b. Nat. br. 145. H.

It lies againſt a Woman, 19 H. 6. b. Newton.

It lies againſt the Husband and Wife, 18 Ed. 3.55. pl. 76.

For what things Account lieth.

It lies for Woods and Under-woods ſold, for Lands, Tenements, Meadow, Paſture; alſo for Rents and Services, perquiſites of a Court ad valentiam. Lib. Intra. 21. B, & C.

Marlebridge cap. 17. Reſpondeant de exitibus per aequalem computationem, ſalvis ipſius cuſtodibus rationabilibus miſis ſuis.

For Fines of Copyhold Land granted by one. Trin. 1 Jac. Com. Banc. Shopland verſus Rider, Rot. 853.

For the iſſues and profits of the Lands: Littleton.

For the Marriage of the Heir, if he marry before the Age of fourteen years: Littleton 27. a.

If the Marriage be not as great in value as the marriage of the Heir: Littleton 27. A.

No Account for the preſentation of a Church; therefore the Guardian cannot preſent thereunto, Nat. br. 33. T. 28 Edw. 3.89. 29 Edw. 3.5. 8 Ed. 2. Preſentment 10.

But by Daniel Juſtice, Trin. 1. Jac. Com. Ban. Rot. 853. Shopland againſt Rider: the Guardian ſhall preſent, if the Heir be not of the age of diſcretion.

It lies for Writings, 32 Edw. 3. Account 60.

The Account againſt a Guardian in Soccage.

The Heir counts, that it was ordained by the Common Council of the Land, that the Guardian in Soccage ſhould Account, &c. and ſhews the tenure ſpecially, and that the Defendant had the cuſtody of the Lands, &c. from ſuch a day for 12 years enſuing, and hath not accounted for the iſſues and profits, &c. and that at ſuch a day the Heir was at full age. Lib. Intra. 21. b. Sect. 1, 2.29 Ed. 3.4. pl. 13. No. Lib. Intra. 47 E. Sect. 3.

The Writ againſt a Guardian in Soccage.

Rex, &c. ſi A. fecerit, &c. tunc ſummon. &c. B. quod ſit coram Juſtic. noſtris, &c. oſtenſum quare cum de Comm. Concilio Regni noſtri proviſum ſit, quod cuſtodes terrarum & tenementorum quae tenentur in Soccagio haeredibus terrarum & tenementorum. cum ad aetatem pervenerint, reddant rationabilem computum ſuum de exitibus, terris, & tenementis illis provenient: de tempore quo cuſtodes illi habuerunt, ratione minoris aetatis haeredis praedictae, idem B. praefato A. rationabilem computum ſuum de exitibus provenient. de terris & tenementis ſuis in N. quae tenentur in Soccagio, & quorum cuſtodiam idem B. habuit, dum praedictus A. infra aetatem fuit, reddere contradicit, ut dicitur. Et ideo, &c. This Writ is founded per le Stat. de Marlebr. cap. 17. Nat. br. 118. A. Regiſt. orig. 136.

Note, this Writ lies againſt any one that occupies the Land during the nonage of the Ward, whether it be the parents of the Heir or not, Regiſt. origin. 136. b. for it makes no mention of the blood, but only of taking the profits.

The Writ was Receptor denariorum: A good plea to the Writ, becauſe he was Guardian in Soccage, for otherwiſe he would be twice charged, 18 Edw. 4.3. pl. 17. viz. as a Receiver of his rents or profits of the Lands, and alſo as a Guardian in Soccage by the Statute.

The Proceſs againſt a Guardian in Soccage: 1. Before appearance. 2. After appearance.

The Proceſs at Common Law before appearance was but a Diſtreſs infinite, Coke 3. part. 12. A. Herberts Caſe.

But per Marlebridge cap. 23. a Capias was given againſt a Baily, and per Weſtm. 2. cap. 11. exigend. given againſt a Servant, Baily, Chamberlain, or any other Receiver, Coke 3. part 12. A. Herberts Caſe.

And in Account againſt a Guardian there ſhall be a Capias, 29 Edw. 3.5. pl. 13.

But no exigend. becauſe this was given againſt a Receiver only, 17 Edw. 2. Proceſs 203. 17 Edw. 3.59. pl. 55. Shard.

2. After appearance.If he comes in by Capias or diſtreſs, he ſhall be committed to the Fleet, 29 Edw. 3.35 pl. 63.

If the Account be adjudged to lie, &c. and he be not preſent in Court, a Capias ad computandum ſhall iſſue forth, 1 Edw. 3.2. pl. 10. 1 Hen. 7.1. pl. per Townſhend. Lib. Intra. 18. c. Sect. 1, 2, 3.

In Judgment quod computet: the Plaintiff dies, his Executors ſhall have a Scire facias upon the Judgment, and if the Defendant come not in upon the garniſhment or warning, an exigend. ſhall iſſue forth, 14 Hen. 4.1.

The Barr by a Guardian in Soccage: 1. To the Action of Account. 2. Before Auditors in diſcharge.

That he had the Cuſtody till ſuch a day from ſuch a day, and accounted till the full age of the Plaintiff without that, that he was Guardian before or after, Lib. Intr. 21. cap. Sect. 2.

It is a good Barr in diſcharge of the Account, that he expended ſo much for neceſſaries for the Plaintiff, ultraque, &c. Littleton.

No Barr to ſay he was not next of Kin, for the occupation is the ſubſtance, and not the Kindred, Littleton 29 Edw. 3.5. pl. 13. 22 Edw. 3.11. pl. 8. 4 Hen. 7.6. b. 10 H. 6.7. pl. 21. 13 Edw. 3. Account 77.

That he was never Guardian in Soccage a good Barr, Lib. Intra. 21. b. Sect. 1.

The Judgment againſt a Guardian in Soccage, 1. Of Account. 2. To recover the thing.

1. To Account.The Judgment is, quod computet, & ideo in miſericord i, quia prius non computavit, Coke 11. par. 38. A. Metcalfs Caſe. Lib. Intr. 19. D. Sect. 1.

The Judgment is, Ideo conſideratum eſt, quod praedictus W. recuperet verſus praefatum M. to recover as much as he is found in Arrearages, & dampna occaſione implacitationis: Coke 11 part 40. A.

Execution againſt Guardian in Soccage: 1. per Common Law, 2. per Statute Law.

By the Common Law it was but a Levari facias or Fieri facias: Coke 3. part 12. A. Herberts Caſe.

And this only within the year; for if the year paſſed, he was put to his Action of debt.

If the Proceſs were not continued, 33 Hen. 6.49. pl. 33.

Per Weſtm. 2. cap. 45. Scire facias is given after the year.

Per Weſtm. cap. 2.18. Elegit is given, Coke 3. part 12. a.

Per Marlebridge cap. 23. & Weſtm. 2. cap. 11. Capias was given in Proceſs and by conſequence, Capias ad ſatisfaciendum: Coke 3. part 12. a.

Per Weſtm. 2. cap. 11. If an Accountant before Auditors be found in Arrearages, he ſhall be by them committed to the next Goal in execution; but then they ought to commit him forthwith, Coke 8. part 119 b. Bonhams Caſe. 27 Hen. 6.8. Com. 17.

But if an Account be before the Plaintiff, he ought not to commit him to priſon; becauſe the Statute ſaith, before Auditors, 45 Edw. 3.14 pl. 13.

Ex parte talis.

Weſtm. 2. cap. 11. If Auditors are aſſigned by the party, which will not allow to the Guardian his reaſonable allowances, and they charge him with the thing he never received, and him commit to priſon, he ſhall have an Ex parte talis. Nat. br. 129. F. 4. Hen. 6.18. A. pl. 3. Regiſt. orig. 137. b.

The Writ is returnable before the Treaſurer and Barons of the Exchequer at a certain day, and a Scire facias is in the Writ, to warn the Plaintiff and alſo the Defendant to be there, Nat. br. 129. G, H. Regiſt. orig. 137.

Account againſt a Baily, 1. of a Court or Hundred. 2. of a Mannor-houſe, &c.
In what Court it lies againſt a Baily.

IN the County Court: Regiſt. origin. 135. A. Nat. br. 117. b.

In London before the Sheriffs, Regiſt. orig. 135. A & B.

In the five Ports, Rigiſt. origin. 135. A.

In Communi Banco, Nat. br. 117. b. Regiſt. orig. 135. B.

But Ancient demeſn is a good plea to the juriſdiction, Coke 5. part 105. A. Aldens Caſe; becauſe the Account is of the iſſues and profits of the Mannor, 8 H. 6.34. pl 36. 2 Ed. 4.3. pl. 3.

And the reality by preſumption may come in debate, Hobart Chief Juſtice, Hill. 11 Jac. Com. Ban. Rot. 254. Cox & Barneſley.

Who ſhall have an Account againſt a Baily, 1. of a Court, 2. of a Mannor.

If A. make B. his Baily of his Court or of a Hundred, he ſhall have an Account againſt him. Nat. br. 118. E.

Ʋnder-Baily. A. having a Bailywick makes B. his Under-Baily, he ſhall have Account againſt B. 3 Edw. 3.54. pl. 24.

A. makes B. his Baily,Dep • ty. which makes G. his Deputy, A. ſhall have Account againſt B. but not againſt C. becauſe C. receives this to the uſe of B. Nat. br. 119. B. 14 Edw. 3. 100. pl. 8.

An Infant purchaſes Lands, he ſhall have an Account, if any take the profits. Nat. br. 117. B.

For the profits that the Guardian in Soccage takes after the Heirs age of 14 years, the Heir ſhall have an Account during his nonage againſt him as his Baily: but for the profits taken before ſuch age, he ſhall have Account as Guardian in Soccage; but not before his full age. Nat. br. 118. B. becauſe he cannot be Guardian after the age of 14 years.

Account for the Major and Aldermen of London. Major and Aldermen of London grant the Wardſhip of an Orphan to A. they ſhall have an Account againſt A. at the full age of the Orphan. 8 Rich. 2. guard. 166.

A. deviſes to his Executors that they ſhall ſell his Land, and that his daughter ſhall have part of the money, ſhe ſhall have an Account at the Common Law. 4 & 5 Mariae Dyer 151. pl. 5.

A Lunatick ſhall have an Account againſt the Committee,Lunatick. when he comes to his ſound memory; for the Committee is but in the nature of a a Baily. 28 Hen. 8. Dyer 26. pl. 164. Coke 4. part 127. b. Beverley's Caſe.

An Executor ſhall have an Account.Executor. Nat. br. 117. C. 3 Edw. 3.66. 7 Edw. 3.269. 5 Edw. 3.141. pl. 7.

But this was by Weſtm. 2. cap. 23.

And if one hath Judgment againſt a Baily upon an Account, and dieth, his Executors ſhall have a Scire facias, 14 Hen. 4.1. upon the Judgment.

Executor of an Executor ſhall not have an Account, per Weſtm. 2. cap. 23. 7 Edw. 3.270. pl. 54.

But this was given per 25 Edw. 3. cap. 5. pl. Com. 290.

Filius & haeres domini dofuncti non habebit Breve de Computo ſuper Ballivum, quia pertinet ad executionem adminiſtrationis bonorum defuncti. Regiſt. Orig. 135. b▪

Husband receives the profits of the Lands of his wife and dies, the wife ſhall not have an Account for the profits during the Coverture againſt the Executors of the husband. Nat. br. 119. A.

Joynt-tenant makes his Companion his Baily, he ſhall have Account againſt him, 21 E. 3.60. pl. 5. Q.

Two Joynt-tenants of a ward; one takes all the profits, the other ſhall have an Account. Nat. br. 118. J. 39 Edw. 3.28. pl. 25. 45 Edw. 3.1. Q.

Two Joynt-occupiers of a houſe and Merchandiſe, one ſhall have Account againſt the other as Baily of the houſe and Merchandiſe. Lib. Intra. 18. Sect. 6.

Terre-tenant ſhall have an account againſt Tenant by Elegit, but this is only by Scire facias, Old Nat. br. 24. 21 Edw. 3.26. pl. 21. & fol. 10. pl. 13. 21 Edw. 3.2. pl. 60. 5 Edw. 3.159. pl. 20. Conuſor ſhall have it in the ſame manner againſt the Conuſee, Coke 4. part 67. b. 47 Edw. 3.11. pl 9. & 25. pl. 63.

Prior, Abbot, or Maſter of an Hoſpital ſhall have an Account for the time of their Predeceſſor, Nat. br. 117. F. Regiſt. orig. 135. b. 4 Edw. 3.100. pl. 8. 25 Edw. 3.545. pl. 19. 28 Edw. 3.90. 30 Edw. 3.1.

If one make another Baily of his Mannor, &c. he ſhall have an Account againſt him as Baily, Nat. br. 116. D.

Breve fuit quod reddat, &c. M. & ſociis ſuis mercatoribus de ſocietate de D. in Flandria rationabilem computum; this is naught, 5 Edw. 3.138. pl. 39. for the generality of it.

The King may make a Bayliff of a Mannor, and ſhall have an Account againſt him, 33 Hen. 6.2. pl. 10. and fol. 29. b. pl. 2.

Againſt whom an Account lieth as Baily, 1. of a Court or Hundred. 2. of a Mannor &c.

A.having a Bailywick makes B. his Under-Baily to gather the Amercements, he ſhall have an Account againſt him, 3 Edw. 3.54. pl. 24.

If one enter into my land to my uſe, 2. Baily in Law. and take the profits, I ſhall have an Account againſt him as Baily in Law, Nat. br. 117. A.

An Infant purchaſes Lands, his parents occupy this, he ſhall have Account againſt them as Bailies in Law, Nat. br. 117. b.

Non jacet verſus Executores, quia mere pertinet ad curam Chriſtianam cognoſcere de Computo reddendo, verſus Executores, Regiſt. origin. 135. b. Nat. br. •• 7. C. Littleton, 48 Edw. 3.2. 4 Edw. 4.25.

But if an Executor will account, though not compellable, debt lieth for the Arrearages due upon the Account, 2 Hen. 4.13. P. 2.

And if a Baily be found in Arrearages before Auditors, his Executors ſhall be charged, if they have Aſſets, 11 Hen. 4.84. & fol. 19. pl. 48.

It lieth not againſt a Deputy-Baily, Nat. br. 119. B. 4 Edw. 3.100. pl. 8. becauſe the Head-Baily is chargeable.

It lieth not againſt an Infant, 118. D. Nat. br. becauſe he hath not diſcretion to Account, 21 Edw. 3.8. pl. 21. Regiſt. origin. 135. A. Alſo he cannot wage his Law, 26 Edw. 3.63. b. for he cannot take an Oath.

It lies againſt a Woman, Nat. br. 118. D. 19 Hen. 6 4 pl. 10.

Two Joynt-tenants of wood, one ſells all and takes the money, the other ſhall not have an Account againſt him, Doct. & Stud. 32. b.

It lies not againſt a Surveyor or Controller, Nat. br. 119. C.

The King ſhall have an Account againſt any perſon that takes the profits, though he claim them to his own uſe per Prerogativam, Coke part 11.90. Devouſhers Caſe. 35 Hen. 6.27. b. Nottingh. 8 Eliz Dyer 249. pl. 83.

The King ſhall have an Account againſt an Executor, Littleton, Coke 11. part 89. B. Devouſhers Caſe, per Prerogativum.

For what things Account lieth againſt a Baily, 1. of a Court, &c. 2. of a Mannor, &c.

Crook 21 Hen. 7.75. pl. 23. Account againſt one as Baily Burgi ſui de B: and good.

Account againſt one as Baily of a Mannor, Nat. br. 116. P.

Account againſt a Steward of an Houſe, and of Goods in it, 14 Hen. 4.20. 9 Edw. 3.356. pl. 40.

Account for the delivery of three Tuns of Wine ſold, 43 Edw. 3.2. pl. 11. 46 Edw. 3.3.3. pl. 6.13 Rich. 2. Account 50.

For Herrings delivered and ſold, 46 Edw. 3.9. pl. 4.

For four ſacks of Wool delivered and ſold, 9 Edw. 3.359. pl. 38.

Tenant per Elegit accounts for the overplus, Old Nat. br. 34. 21 Edw. 3.26. pl. 21.

A man accounts for the profits de, &c. Nat. br. 118. B.

A Baily of Woods accounts for Herons and Hawks, 14 Edw. 3. Account 131. Moubrey.

Arrearages of Rent upon a Leaſe for years or at will lies not in Account, for nothing certain lies in an Account, 19 H. 6.20. pl. 67. 20 H. 6.16. pl. 2. as the Rent is; but an Action of Debt.

So of Goods leaſed with a Houſe, although they are waſted, 20 H. 6.16. pl. 2.

So for a Cuſtome, that one ſhall gather Rents, and take the toll and pety Cuſtomes payable to the Lord 22 l. annuatim, becauſe he pays a certain ſum, 11 Hen. 6.14. pl. 4.

The Count againſt a Baily, 1. of a Court or Hundred. 2. of a Mannor, &c.

Counts that from ſuch a day to ſuch a day he had the adminiſtration de bladis, foenis, equis, bobus, vaccis, porcis, bidentibus, carucis, ac de omnibus aliis rebus, &c. & de, &c. ad merchandizandum & proficuum faciendum, &c. & ad rationabilem Computum, &c. Lib. Intra. 17. A. Sect. 1. vide more Lib. Intra. 17. a, & b. ſect. 1, 2, 3, 4, 5. fol. 17. b, &c. ſect. 1, 2, 3, 4, 5, 6.

The Plaintiff ought to Count that the Defendant was Baily of the Mannor-houſe and Lands, &c. and yet it is not material whether he had the Mannor-houſe, &c. for the Receipt charges him, 9 Edw. 3.356. pl. 38. Stoner. 27 Edw. 3.29. pl. 25.

He need not count the things particularly, becauſe it may be ſhewed before the Auditors, Crook 1 Hen. 8.153. pl. 2. where he is to charge him particularly.

But the Book of 49 Edw. 3.13. 14 Hen. 4.14. ſays, that it is material. Q. inde.

If Account be brought againſt one that by Cuſtome ought to gather the Rents, the Count muſt be ſpecial, 21 Hen. 7.76. pl. 23. becauſe the Cuſtome makes the caſe to be ſpecial.

The Count was againſt one as Baily of a houſe and merchandiſe occupied by Joynt-tenants, ex quacunque cauſa ſeu contractu. Lib. Intra. 18. A. ſect. 6.

The Count was, that he was Baily at the Feaſt of St. Michael, and good, becauſe it ſhall be intended th'Archangel, Coke 11. part 39. A. Metcalfes Caſe, 20 Hen. 6.23.

The Count was againſt a Tenant per Elegit, that he had made waſte to the value, &c. Old. Nat. br. 34.

Conuſor counts that the Conuſee had levied the ſum, or that he had levied part, and tendred the remnant, 47 Edw. 3.11. pl. 9. and fol. 25. pl. 63.

And ſo of the Aſſignee of a Conuſor, 25. Ed. 3.53. pl. 17.

The King is not held to Count againſt one as Baily, but may alledge generally in his information, quod ille ad computand. Domino Regi tenetur; and if it be againſt Executors, quod is tempore mortis ſuae tenebatur. Coke 11. part 90. Devouſhers Caſe.

The Writs againſt a Baily, 1. of a Court or Hundred, 2. of a Mannor, &c.

Rex, In Comitaſu. &c. Praecipimus tibi quod Juſticies I. B. quod juſtè, & ſine dilatione reddat B. rationabilem computum ſuum de tempore quo fuit Ballivus ſuus in M. ſicut rationabiliter monſtrare poterit, quod ſibi reddere debeat, ne amplius inde clamorem audiamus pro defectu juſtitiae, Teſte, &c. Regiſt. orig. 135 A.

In London, Regiſt. orig. 135. A.

For Executors, Regiſt. orig. 135. A.

For Merchants, Regiſt. orig. ibid.

Rex, &c. Praecipe A. quod juſtè, In Banco. &c. reddat B. rationabilem Computum ſuum de tempore quo fuit Ballivus ſuus in N. & niſi fecerit, & praedictus B. fecerit te ſecurum de clamore ſuo proſequendo; tune ſumm. per bonos ſummonitores praedictum A. quod ſit coram Juſtie. noſtris apud Weſtm. à die Paſchae in quindecim dies oſtenſur. quare non fecerit: & habeas ibi ſumm. & hoc breve Teſte, &c. Regiſt. orig. 135. b. Nat. br. 117. E.

It lies for a man and his Wiſe. Regiſt. orig. 135. b.

For a Maſter of a houſe. Regiſt. orig. 135. b.

For a Prior in the time of his Predeceſſor. Regiſt. orig. 135. b.

For an Executor and an Abbot Co-executor. Regiſt. orig. 135. b.

But there is another form of a Writ founded upon the Statute of Marlebridge, cap. 23. Nat. 117. H. orig. Regiſt. 135. b.

Account againſt B. as Baily and Receiver in K. a good bar to the Writ, that he was not Baily nor Receiver in K. 21 Hen. 6.21. pl. 42. Vide 44 Edw. 3.1. pl. 2.

The Writ ought to comprehend the County. 10 Edw. 3.365. pl. 19. Shard.

If it be brought againſt one as Receiver, where he was Baily, it ſhall abate. 3 Edw. 3.70. pl. 28. 18 Edw. 4. pl. 17. For the Law takes notice of them as diſtinct and different employments.

But one Writ may comprehend Baily and Receiver. 9 Edw. 3.356. pl. 38. Nat. br. 116. P. 21 Hen. 6.21. pl. 42. Regiſt. orig. 135 b. For a man may be charged in a double capacity, and if he rightly charged either way it is gone.

The proceſs againſt a Baily, 1. before appearance; 2. after appearance.

At the Common Law the Proceſs was but a diſtreſs infinite, Coke 3. part. 12. A. Harberts caſe.

But by Marlebridge, cap. 23. a Capias was given, Coke 3. part. 12. A.

And per Weſtm. 2. cap. 11. proceſs of Outlawry is given, Coke 3. part. 12. A. 17 Ed. 2 proceſs 203. 17 Edw. 3.59. pl. 55. Shard. 29 Ed. 3.5. pl. 13.

But againſt Tenant by Elegit, is but a Scire facias, 21 Edw. 3.2. pl. 6. 5 Edw. 3.159. pl. 20. Regiſt. judicial. 73. b. Old Nat. br. 34.

And if they appear not being ſummoned, judgment ſhall be given againſt them, 5 Edw. 3.159. 21 Edw. 3.1.

Conuſor ſhall have a Scire facias againſt the Conuſee, Coke 4. part. 67. b. 47 Edw. 3.11. pl. 9. & fol. 25. pl. 63.

So the Aſſignee of a Conuſor, 25 Edw. 3.53. pl. 17.

If a Baily come in by Capias or Exigend. he ſhall be forthwith committed to the Fleet, 29 Edw. 3.35. pl. 63. for his contempt in not appearing before.

So if he come in by Diſtreſs, and the Account be adjudged, 29 Edw. 3.35. pl. 63.

But if the Account be adjudged, and he be not preſent in Court, a Capias ad Computandum ſhall iſſue out againſt him, 1 Edw. 3.2. pl. 10. 1 Hen. 7.1. pl. 1. Townſend, Lib. Intra 18. c. Sect. 1, 2, 3.

The Bar for a Baily, 1. to an action of Account; 2. before Auditors.

A good Bar,Account before Auditors. that he did account before Auditors, 25 Edw. 3.39. pl. 1. 2 Edw. 3.45. pl. 13. Lib. Intra. 17. A. Sect. 1. he ſhall ſhew the time and the Auditors.

But in pleading he ought to ſay, that the Auditors were aſſigned by the Plaintiff only, and not by his aſſent, 29 Edw. 3.40. pl. 21.

A good Bar, that he did account with the Plaintiff himſelf. Lib. Intr. 18. A, & B. Sect. 6.11 Rich. 2. Stath. Account 46. 45 Edw. 3.14. pl. 13.

But it is no Bar to ſay,No bar. he did account with the Plaintiff after that he had impriſoned him, 22 Edw. 3.13. pl. 32.

Account per Executors a good Plea, that he did account to the Teſtator, and ſhews an Acquittance of the Teſtator. 1 Edw. 3.2. pl. 10.

Heir Frank-tenant a good bar, 28 Edw. 3.90.

An Abbot brought an account againſt B. as Baily of his Predeceſſor, and the Defendant pleads,Property. that he had a Leaſe of his Predeceſſor for 3 years, and entered after the end, and found certain things there; this is a good Bar, 16 Edw. 3.368. pl. 30.

The Defendant ſaid, that it was debated between the Plaintiff and his Wife, and it was agreed, that the Wife ſhould have the Land for her maintenance, and ſhe leaſed to the Defendant rendring Rent; this is a good bar, 47 Edw. 3.18. pl. 34.

An account for the delivery of three Tuns of Wine; a good bar for the Defendants to ſay▪ that the Wife was a common Taverner, and that they were Bailies for the ſale thereof, without the aſſent of him, and that ſhe fold and paid the Plaintiff, without that, that they were his Bailies in any other manner, 13 Rich. 2. Account 50.

Defendant pleads a Leaſe to him of the Mannor, a good bar, 49 Edw. 3.7. pl. 11.

Account of a Houſe and Goods: it is no Plea to ſay, he bought the goods of the Plaintiff; but muſt ſay without that, that he was his Baily for Account-render, 49 Edw. 3.7. pl. 11.

Payment by command of the Plaintiff,Payment. a good bar in diſcharge, Coke 11. part. 38. B. Metcalfs caſe. 1 Edw. 5. 42 Edw. 3.6. pl. 21. But this is before Auditors, and not in bar of the Action.

The Defendant ſaid,Servant. that he was Servant to the Plaintiff, and he did chaſe the Cattel out of the field, without that, that he was Baily in any other manner; for if the Cattel are hurt he ſhall have an action of the Caſe, 7 Hen. 4.14. pl. 18.

He was his Surveyor, without that, that he was his Baily, 4 Edw. 3. Account 34.

The Defendant ſaid,Statute-Merchant. that the Plaintiff granted by Deed, and ſhews, that when he came to C. he was to acknowledge a Statute Merchant, that the Account ſhould not be, and ſhews likewiſe, that he did it; this is nothing without ſaying, he delivered it to the Plaintiff, 20 Edw. 3. Account 79. Q.

Account for the delivering of Tyn,Vendee. &c. the Defendant ſaid, that he delivered this, and took an obligation in the name of the Plaintiff; this is no bar, 28 Hen. 8. Dyer 29. pl. 193. for he had no authority to take the Bond.

Baily of Woods to ſell; it is no Plea to ſay, he had not ſold them, becauſe this comes in debate before Auditors, 14 Edw. 3. Account 131.

The plt. after judgment for him quod Comput. dies, his Executors ſhall have a Scire facias; the which being ſerved, if he appear not, an Exigend. ſhall iſſue out againſt him, 14 Hen. 4.1.

The Judgment againſt a Baily, 1. of Account; 2. to Recover the things.

The Judgment is, Quod Computet & ideo in miſcricordia, quia prius inde non Computavit. Coke 11. part. 38. A. Metcalfs caſe. Lib. Intra. 19. b. ſect. 1. & 20. D. ſect. 1.

Quod computet for parcel, and Bar for the remnant. Lib. Intra. 22. A. ſect. 12.

The Judgment is, Ideo conſideratum eſt quod praedictus W. recuperet verſus praefat. M. as much as he ſhall be found in Arrearages, & dampna occaſione implacitationis, &c. Coke 11. part. 40. A. Metcalfs caſe.

Scire facias againſt Tenant per Elegit to Account, and not appearing upon garniſhment; the Judgment was, that the Plaintiff ſhall recover his Lands without any more proceſs upon the cauſe of the Account, &c. 5 Edw. 3.159. pl. 20.

Execution againſt a Baily, 1. per Common Law; 2. per Statute Law.

By the Common Law he ſhall have but a Levari facias, or Fieri facias. Coke 3. part. 12. A. Harberts caſe. And this within the year only, for if the year paſs, he was put to his Action of debt, if the proceſs were not continued, 33 Hen. 6.49. pl. 33.

Per Weſtm. 2. cap. 45. a Scire facias is given after the year.

And per Weſtm. 2. cap. 18. Elegit is given. Coke 3. part. 12. A.

And per Marlebridge, cap. 23. and Weſtm. 2. cap. 11. Capias is given in proceſs.

And per conſequence a Capias ad ſatisfaciendum after Judgment, Coke 3. part. A. 12.

And by the Statute of Weſtm. 2. cap. 11. if an Accountant be found in arrearages before Auditors, he ſhall be Committed by the Auditors to the next Goal in execution.

But then the Auditors ought to Commit him to priſon forthwith. Coke 8. part. 119. b. Bonhams caſe, 27 Hen. 6.8. Com. 1.7.

But if he Account before the plt. he cannot Commit him to priſon, 45 Edw. 3.14. becauſe he ſhall not be Judge in his own cauſe.

Ex parte Talis by a Baily.

Per Weſtm. 2. cap. 11. if Auditors be aſſigned by the party which will not allow to the Accountant reaſonable allowances, or charge him with a thing he never received, and Commit him to priſon, he ſhall have a Writ ex parte talis. Nat. br. 129. F. 4. Hen. 6.18. A. pl. 3. Regiſt. orig. 137. b.

But if Auditors be aſſigned by the Court, and they do not allow reaſonable allowances, he ſhall not have this Writ, but ſhall ſhew it to the Court, and they ſhall make allowances, Nat. br. 129. F. 3 Edw. 3.56. pl. 30.

If it be ſued in London, and Auditors be aſſigned by the Court which will not allow, &c. there this Writ lieth, Nat. br. 129. F.

But note in Regiſt. orig. 137. b. is againſt it. go: Q.

But if the Plaintiff aſſign Auditors there, then ſuch Writ lieth, Nat. br. 129. I. Regiſt. orig. 137. b.

The Writ ſhall be returnable before the Treaſurer and Barons of the Chequer at a day certain, and a Scire facias in the Writ to warn the Plaintiff and Defendant to be there, Nat. br. 129. Regiſt. orig. 137.

Account againſt a Receiver, 1. in Law; 2. in Deed.
The Court where it is to be brought,

IN the County Court, Regiſt. orig. 135. A.

In London, Regiſt. orig. 135. A.

In the 5 Ports, Regiſt. orig. 135. A.

Before Juſtice of Peace, per 2. Marlebridge, cap. 8.

Before Auditors, per Weſtm. 2. cap. 11.

In the Com. Ban. Regiſt. 135. Nat. br. 117. E.

Who ſhall have an Account againſt a Receiver.

Husband and Wiſe ſhall have an Account upon a Receipt dum ſola fuit, 22 Hen. 6.39. pl. 10.

Executor ſhall have an Account, but this is per Weſtm. 2. cap. 23. Nat. br. 117. C. 3 Ed. 3.66.7 Edw. 3.209.5 Edw. 3.141. pl. 7.11 Hen. 4.479.

But one Executor ſhall not have an Account againſt his Companion. 11 Hen. 4.79. pl. 20. for there is no privity betwixt them, and they have intereſt in the goods of Teſtator, in his right, and not their own.

If one have Judgment againſt a Receiver, and dies, his Executors ſhall have a Scire facias. 14 H. 4.1.

If two Merchants occupy in Common and one die, his Executors ſhall have an Account againſt the other. Nat. br. 117. D. for the two Merchants had ſeveral Intereſts.

An Executor of an Executor ſhall not have an Account, but only by the Statute of 25 Edw. 3. cap. 5. Com. 190.17 Edw. 3.270. pl. 5.

Filius & haeres non habebit breve de Computo verſus Receptorem, quia pertinet ad executionem Adminiſtrationis bonorum defuncti. Regiſt. orig. 135. B. and therefore it belongs to the Excecutor.

Guardians of a Church againſt their Predeceſſors, 8 Edw. 4.6. P. 5. ſhall have an account in right of the Pariſh.

And per 2. Marlebridge cap. 8. they ſhall have an Account againſt a Baily or head Conſtable of an Hundred, &c. for amerciaments, or not repairing High-ways.

Guardians and Pariſhioners ſhall have an Account againſt Conſtables and Churchwardens for Forfeitures of Alehouſe-keepers, in the ſame manner as for other things by the Common Law, 1 Jac. cap. 9.

Two Joynt-tenants of goods, one of them delivers the goods to the other to render Account, one ſhall have an Account againſt the other. 43 Edw. 3.21.12 Hen. 4.18. Nat. br. 118. H. for here is a privity betwixt their ſeveral Intereſts.

The Sheriff levies Money upon a fieri facias, and does not deliver it to the plt. neither brings it into Court, the plt. ſhall have an account againſt him, 11 H. 4.58. pl. 8.20 Hen. 6.24. A. 21 Hen. 6.5. A. Or the party may move the Court againſt him.

If one teſtifie by his deed, that he received 20 l. to beſtow for me, I ſhall have an Account, Hen. 8. Dyer. 20. pl. 118.11. Hen. 6.39. pl. 31. for the privity appears by the deed.

So if one receive Money to my uſe, Nat. br. 117. Q. 6 Hen. 4.7. pl. 33. But here I muſt prove the Receipt, though I need not in the former caſe.

So if A. deliver Money to B. to deliver to me. Nat. br. 117. Q. 13 Hen. 4. pl. 1. Hankeford, Nat. br. 138. A. I ſhall have an Account upon the privity in Law, and A. may have an Account upon the privity in Fact, Q.

A. indebted to B. in 200 l. prays C. to receive this for him. A. prays C. to borrow this to pay B. C. borrows it of D. to pay to B. but pays it not at the day. A. was bound to D. for re-payment. B. ſhall have an Account againſt C. for this Money belongs to B. inſomuch that C. had his warrant to receive it, Hill. 12 Jac. Com. Bon. Harringdon verſus Dean: and ſo there is a truſt and privity betwixt them.

A. delivers Money to B. to deliver to C. and he pays it not, A. ſhall have an Account againſt him. Crooke 21 Hen. 7.69. pl. 2. per Frowicke. Q. if C. may not have an Account.

The King ſhall have an Account,King. if goods be deviſed to him, againſt the Poſſeſſour in whoſe hands ſoever they be, Coke 11. part. 90. A. Devouſhers caſe. 40 Aſſi. pl. 35. per Praerogativam ſuam. For whereſoever the King hath equity, the Law will not be deficient to him.

If one takes goods which appertain to the King, claiming them to his own uſe; yet the King ſhall have an account, Coke 11. part. 90. A. 33 Hen. 6.2. 35 Hen. 6.27. B. Nottingham. 8. Eliz. Dyer 249. pl. 83. For the right being diſputable, the Law will judge the Kings claim to be true rather than the others; for the King can do no wrong in the eye of the Law.

Two offer to be bound for A, that he ſhall ſerve the King truly in ſuch an Office, and they preſent him to the King, and he doth not perform his Office, they ſhall account to the King, though they are not bound, Coke 11. part. 92. B. Devouſhers caſe. 30 Edw. 3. Rott. 6. For the King repoſed truſt in them, and he ſhall not be prejudiced by them.

If one be entituled to an action of Account, and be outlawed, the King ſhall have an Account for it, 28 Edw. 3.92. pl. 10. for he comes in the ſtead of the party outlawed.

If one be indebted to the King and dies, the King ſhall have an account againſt his Executors or Tertenant, 5 Eliz. Dyer 225. pl. 33. At his Election Q. whether againſt both.

Againſt whom Account lieth as Receiver.

It lies not againſt a Prentice, Nat. br. 119. D. 7 Hen. 4.14. 8 Edw. 3.310. pl. 26. for there is no Writ in the Regiſter againſt a Prentice, Coke 11. part. 89. B. Devouſhers caſe; for a Prentice is not ſui juris.

Per a. Marlebridge, cap. 8. Churchwardens ſhall have an account againſt a Baily or head Conſtable, for amerciaments for Highways not repaired.

It lies againſt the Husband for the receipt of the Wife, Nat. br. 118. F. for her Receipt is his Receipt. Q. If the Receipt was dum ſola fuit it ſeems it doth.

It lies againſt a Deputy of a Receiver, for he receives this to the uſe of his Maſter, Nat. br. 119. B. 4 Edw. 3.100. pl. 8. therefore the Maſter ſhall have account.

It lies not againſt an Executor,Executor. Nat. br. 117. C. Littleton, Regiſt. orig. 135. B. quia mere pertinet ad curam Chriſtianam cognoſcere de computo reddendo verſus executores, 48 Edw. 3.2. 4. Edw. 4.25. Q.

But if an Executor will account, he ſhall be charged afterward, 2 Hen. 4.13. pl. 2.19. Hen. 6.5. A. Forteſcue; for he hath waved the Spiritual Court.

Note in the caſe of the King he ſhall have account againſt Executors, Littleton. For he may recover his right by what Law he pleaſeth.

It lieth not againſt an Infant, Nat. br. 118. D. becauſe he hath not diſcretion to account, and ſo may wrong himſelf in his Account; and per. 21 Edw. 3.8. pl. 21. Regiſt. orig. 135. A. 26 Edw. 3.63. he cannot wage his Law, becauſe he muſt perform his Law by taking his Oath.

It lies againſt a Woman or Chaplin, Nat. br. 118. D. viz. a Feme ſole.

Churchwardens ſhall have an account againſt their Predeceſſors, 8 Edw. 4.6. pl. 5. for they are perſons intruſted by the Pariſh.

Two being bound, both of them to Account, and each of them of the whole; quaere if Account lies againſt one only, 5 Edw. 3.141. pl. 8.

It lies not againſt a Pariſh-Prieſt that hath the Offerings, for the Clark holds the veſſel in which they are put, Nat. br. 119. E. 25 Edw. 3.46. pl. 32. vide 11 Rich. 2. Juriſdiction 18. and he is not tied to be reſponſable for his Clark.

The King grants the Toll of a Village to the Inhabitants, and in the ſaid Village there were certain Collectors to receive it, the Village ſhall have a Commiſſion out of the Chancery againſt him that receives this Toll, to hear and determine it, and to hear their Accounts, &c. Nat. br. 119. F.

If any takes the goods of the Kings Debtors which dies, the King ſhall have an Account againſt him, Coke 11. part. 93. A. For the Law creates a privity in caſe of the King, for the preſervation of his Revenue.

It lies for the King againſt a Debtor, or his Executors or Tertenents, 5 Eliz. Dyer 225. pl. 33. Com. 321. Mynes.

But if one purchaſe to him and his Wife, and he become indebted to the King, and die, his Wiſe ſhall not be charged, 5 Eliz. Dyer 215. pl. 33. Contra, if he be firſt in debt, and purchaſe but a Chattel, 5 Aſſiz. pl. 5. For the Feme had an intereſt in the Land made by the Husband, and ſhe ſhall not be charged with her Husbands debt; but the Executor of the Husband.

If one be an Accountant to the King, and become indebted to the King, and afterward ſell a Leaſe for years, the Vendee ſhall not be charged, becauſe it is but a Chattel, Coke 8. par. 171. A. and it was lawful for him to buy it, and might not know the Vendor to be an Accountant.

One in debt to the King purchaſes Lands with the Kings money, to the uſe of ſome Friends in Fee per covin, and yet takes the profits, the King ſhall have the Lands in execution, 5 Mariae, Dyer 160. pl. 41.24 Edw. 3. Rot. 4. Coke 11. part. 92. B. Devouſhers caſe. For the Law abhors Fraud in all parties, but eſpecially where the King is concerned.

For what things Account lieth againſt a Receiver.

A. delivers three tuns of Wine to B. to ſell, he ſhall have an Account againſt him for them; but then he ought to count of the receipt of every ſum received of every ſeveral man, 43 Edw. 3.21. pl. 11. 46 Edw. 3.3. pl. 6. 46 Edw. 3.9. pl. 4. Hill. 43 Eliz. Com. Ban. Rot. 1707. Treſham againſt Ford. A indebted to B, and C indebted to B. A ſends money to B by his Servant, which accepts of it for the debt of C, and not for the debt of A; yet A ſhall have an Account againſt B, becauſe he cannot accept of this in any other manner than the other tendered it, which was, to ſatisfie his own debt.

If one receive money to my uſe he ſhall account for it, Nat. br. 117. q. 6 Hen. 4.7. pl. 33. Q. if he receive it againſt my will or conſent.

So if A deliver money to B, to deliver to me, Nat. 117. g. 13 H. 4. pl. 1. Hankeford, Nat. 138. A. I ſhall have an account, for it was delivered for my benefit: Q. if A ſhall not have an account.

He which ought to pay me an Annuity, pays this to another to pay me, or if my Tenant pay it to another to pay me, I ſhall have an account againſt him that received it, or I may charge my Tenant notwithſtanding the delivery of it, ſo not a double remedy, 6 Hen. 4.8. pl. 33.

A delivers Money to B beyond the Sea to be paid in England, he ſhall account for it to A, becauſe the payment was to be made in England, and that was the ground of the delivery of it. Nat. br. 118. G. 41 Edw. 3.3.

Money delivered to one upon the performing of a Condition, if the condition be not performed the money to be re-delivered, he ſhall account, Nat. br. 118. G. 41 Edw. 3.10. 18 Hen. 8. Dyer 22. pl. 135. 11 Hen. 6.39. pl. 31. for the Condition implies an Account, if not performed.

A leaſes Tithes to B rendring Rent: A being indebted to C, aſſigns B to pay this. No account lieth for this, 5 Edw. 4.140, 141. for if it be not paid A may have his Action for the Rent, and B is not a Receiver in this caſe.

If goods be deviſed to the King, account lieth for them, Coke 11. part 9. A. Devouſhers caſe. For the King may uſe what Action he will to recover his right, and no injuſtice is done to any by this Prerogative.

If one take goods of the Crown, and claim them as his own proper goods, yet he ſhall account for them, Coke 11. part. 90. A. 33 Hen. 8.2. 35 Hen. 6.27. B. 18 Eliz. Dyer. 249. pl. 83. For ſuch taking doth not deveſt them out of the Crown; for though he may have right, yet ſuch taking is not the proper way to recover them.

The Account againſt a Receiver, 1. by other hands; 2. by his own hands.

The Account was, that he was a Receiver till ſuch a time, until, &c. within which time he received of the moneys of the Plaintiff 10 l. by the hands of B, and 10 l. by the hands of C; for B and C here ſhall be accounted but as Servants to A, except the contrary be ſhewn, Lib. Intra. 19. C, & D. 1, 2, 3. fol. 20. A. Sect. 4.

Account of the Receipt of Moneys by the hands of the Wife and a Stranger not good, becauſe they ought to have been ſeveral Iſſues, 43 Edw. 3.33. pl. 34. For the Receipt of the Wife is the Receipt of the Husband, and therefore as to her the account ought not to be per autre maine.

Note the difference between the ballment of the Wife, and the Receipt of the Wife.But if the Account be of the delivery by the hands of the Wife of the Plaintiff, it had been good, 5 Edw. 3.146. pl. 6. Count of Bailment by the hands of a Servant of the Plaintiff, Hill. 4 Eliz. Com. Ban. Rott. 1707. Treſham verſus Forde.

And ſo it is of the delivery of a Stranger, and the Wife of the Plaintiff, 43 Edw. 3.33. pl. 34.

Account that the Defendant ſold a thing to A, and received 20 l. for it, and another thing to another, and received of him 10 l. this is nought, for the 10 l. and good for the remainder, 46 Edw. 3.3. pl. 6. Becauſe it is not ſaid to whom the other thing was ſold; and ſo there can be no iſſue joyned.

Viz. an Executrix,Baron and Feme count, that the Defedant fuit Receiver to the Teſtator from ſuch a time to ſuch a time, and received by the hands of B, &c. and did not account to the Teſtator neither to the Executrix dum ſola fuit, neither to them after the coverture. Lib. Intra. 20. A. Sect. 4.

Account againſt a Husband upon the receipt of his Wife ſhall be by the Husbands own hands, Nat. br. 118. F. viz. the count ſhall be that the Husband receive it, for the receipt of the Feme is the receipt of the Baron.

Bar in detinue is a bar in account, per Brian. 2 Rich. 3.14. pl. 19,Bar. for the one and the other affirm property, and ſuppoſe a detainer.

The Defendant ſaid,Coverture. that the Plaintiff at the time, &c. was under covert Baron, and this was good, 6 Edw. 3.184. pl. 5. Vide 18 Hen. 6.3. pl. 3. 2 Hen. 7.15. for then ſhe had no power to ſue.

Delivery to another by the command of the Plaintiff Male, Delivery. for it is too general; but to ſay, that he was Baily to the Plaintiff to deliver to B. of the which he had a deed, this is good; becauſe he had not confeſſed it by the account render, this being ſpecial matter of juſtification. 19 Hen. 6.5. pl. 10. 26 Hen. 49. pl. 7. 30 Hen. 6 5. pl. 4. 41 Edw. 3.31. pl. 37. Lib. Intra. 20. A. Sect. 5.

Account againſt a Carrier, who ſaid, that goods were delivered to him to deliver to B. which he had done without that he was Receiver in any other manner; this is a good bar, per cuſtome d' Angleterre. Mich. 40, 41 Eliz. Com. Ban. Burrel verſus Callice.

So if the plt. deliver to one 20 l. to carry to the Lombard to be exchanged, and he brings a Bill of exchange for the money and traverſeth, without that, that he was a Receiver for account render, for by this he doth not confeſs the receipt for Account-render, 5 Hen. 5.4. pl. 10. 28 Hen. 6.9. pl. 1. 3 Hen. 6.4. pl. 4. but juſtifies by a ſpecial Receipt.

So if the Plaintiff deliver to one 20 l. to obtain a diſcharge under the great Seal of the Cuſtomes for 10 Hogſheads of Wine, the which he hath done; this is good, 30 Hen. 6.5. pl. 4. for the former reaſon.

Re-delivery to the plt. without acquittance not good,Redelivery. 39 Edw. 3.19. pl. 21. for he confeſſes thereby the Receipt, and therefore it is reaſon he ſhould account.

So if it be with an Acquittance, 3 Edw. 3.52. pl. 13. becauſe by this he hath confeſſed the receipt for Account-render, and he may plead the Acquittance before the Auditors.

But this is good before Auditors, 29 Edw. 3.35. pl. 1. in diſcharge of the Account, though it was not good in bar of the Action.

The Defendant pleads, that he, as Meſſenger of the Plaintiff, received of C ſuch a ſum, being Provoſt to the Plaintiff, and this he paid and delivered to the Plaintiff, this is no bar to the Action, becauſe by the Receipt he is liable to the Account, 6 Edw. 3.185. pl. 7. 29 Edw. 3.20. pl. 11. but it may be in diſcharge of the account.

An account of a Receipt by the hands of B. 1. of May till the firſt of July; Mort. it is no plea that B was dead the third of May, becauſe he may receive this the ſecond of May. 8 Hen. 6.32. pl. 28. and ſo accountable by his own ſhewing.

A delivers 20 l. to B to redeliver;Obligation. B binds himſelf to pay this; no bar in account, 4 Edw. 3.125. pl. 45. for the obligation is but additional ſecurity, and alters not the nature of the bailment.

Defendant pleads,Payment. the Plaintiff being in his debt, commands him to receive of B ſo much to his own uſe as will ſatisfie his debt; which he doth without that, that he was his Receiver for Account-render, and good, Lib. Intra. 20. A, & B. ſect. 6. 5 Edw. 4.29. B. Brian. For there is difference betwixt a receiving by way of ſatisfaction, which is to the Receivers uſe; and a Receipt per Account-render, which is for anothers uſe.

But if he confeſs the Receipt upon account, and he commands him afterwards to retain the debt, this is no bar of the Account by reaſon of his confeſſion; 28 Hen. 6, 7. pl. 9.

No plea,Robbery. that he was Factor and was Robbed, in bar of the Action; but a good plea before Auditors, Coke 4. part. 84. A. 41 Edw. 2.2. pl. 9. in diſcharge of the Account; yet quaere, if he was robbed by the Kings Subjects.

Vendee and takes an obligation no bar, 28 Hen. 8. Dyer. 29. pl. 193.Vendee. for that is for his own ſecurity that made the ſale, and not the Owner of the goods.

Upon Receipt by others hands,Uniſon Receiver. a good plea that he was never Receiver by their hands, 10 Edw. 4.8. A. 7 Edw. 3.259. pl. 13. 8 Edw. 3.285. pl. 34. 7 Edw. 3.242. pl. 1. 24 Edw. 3.66. pl. 74. 25 Edw. 3.39. pl. 24. for this deſtroys the very gift of the action.

But 5 Edw. 3.159. pl. 22. this is not good; but ſhall ſay generally, that he never was his Receiver. Q. Car moy ſemble c'eſt n'eſt ley, ſi il ſoit charger come Receiver per autre maine.

If one teſtifie his Receipt by deed, he cannot plead, that he never was his Receiver, 10 Edw. 3.383. pl. 18. for he is eſtopped by his own deed to plead ſo, the Law will believe a mans deed rather than his bare averment.

Defendant pleads, that he is Executor of B, and that he received the money as a debt of B; this is not good, becauſe the Plaintiff ſuppoſeth him his Receiver; but he ought to ſay without that, that he received it as the money of the Plaintiff, 11 Hen. 4.79. pl. 20. 13 Hen. 4. pl. 1. for ſuch a traverſe doth deſtroy the Plaintiffs ſuppoſal.

Note, if the Receipt be by the hands of the Plaintiff, the Defendant may wage his law, 7 Edw. 3.269. pl. 52. viz. that he oweth him nothing, becauſe it may be a thing acted in private betwixt them, where the Nay of the Defendant is as much to be credited as the Yea of the Plaintiff.

So upon the delivery of the Wife of the Plaintiff, 13 Hen. 4.8. 43 Edw. 3.33. pl. 31. for Huſband and Wife are one perſon in Law.

But upon a Receipt by other hands he cannot, 9 Eliz. Dyer 265. pl. 2. 22 Hen. 6.39. pl. 10. 5 Edw. 3.159. pl. 22. 33 Hen. 6.8. B. Moyle, becauſe the Receipt lies in notice of the Countrey, upon which an iſſue may be joyned, and a trial had.

An Executor brought an Account upon the delivery of the Teſtator, the Defendant cannot wage his Law, 7 Edw. 3.269. pl. 52. for the delivery and the receipt was not acted betwixt them.

Outlawry of the Plaintiff after the Receipt a good bar,Outlawry. although he had a Charter of Pardon, 28 Edw. 3.92. pl. 10. for the Defendant is not bound to take notice of the Pardon until it be pleaded.

A good plea,Accord. that after the Receipt he married the Daughter of the Plaintiff, and it was then agreed, that he ſhould keep the money, 12 Hen. 4.18. A. for by this agreement the former contract in Law is deſtroyed.

So if that he put the money in a bag, and agreed that he ſhould keep it in licu of a debt, 28 Hen. 8. pl. 9. for the ſame reaſon.

Delivery and Redelivery.Delivery over by command of the Plaintiff, a good plea, 19 H. 6.5. pl. 10. Lib. Intr. 20. A. Sect. 5. 42. Edw. 6. pl. 21. for by this command the former truſt is made void.

A Re-delivery is a good plea without an Acquittance,Re-delivery. becauſe he cannot compel the Plaintiff to make an Acquittance, becauſe he received but his own goods, 29 Edw. 3.35. pl. 1. 6 Edw. 3.185. pl. 7. 29 Edw. 3.20. pl. 11. but it ſeems it may be a good plea before Auditors. Q.

Expences reaſonable ſhall be allowed to a Factor,Expences. 3 Edw. 3.56. pl. 30. for the labourer is worthy of his hire.

A Factor pleads, that he was robbed, Coke 4. part. 84. A. Southcots caſe 41 Edw. 3.3. pl. 9. vid. Antea, Q.

So for goods loſt by Tempeſt, 3 Edw. 3.56. pl. 30. 41 Edw. 3.3. pl. 9. For here is the hand of God, which could not be avoided, and therefore the party not to be puniſhed.

So for goods ſold under value, by reaſon of War, 3 Edw. 3.56. pl. 30. becauſe of the neceſſity of the time.

Receipt in Satisfaction.Defendant ſaid, he received money in full ſatisfaction of a debt of another, &c. This was held void, becauſe he did not name that he never was his Receiver, the which was ſound before Hill. 43 Eliz. Com. Ban. Rott. 1707. Treſhams caſe; ſo that his plea doth not anſwer the Plaintiffs Declaration.

Vendee of goods takes an obligation in the name of the Plaintiff,Vendee. a good plea, 28 Hen 8. Dyer 29. pl. 193.

But then he ought to ſhew that the obligor was ſufficient to pay at that time, 3 Edw. 3.56. pl. 30.

The Judgment againſt a Receiver, 1. to Account; 2. to Recover.

2. The Judgment is, quod computet, & ideo in miſericordia quia prius inde non computavit, Coke 11. part. 38. A. Metcalfs caſe, Lib. Intra 19. D. Sect. 1.

Quod computet for parcel, and bar for the remainder, Lib. Intr. 22. A. Sect. 2. for if there be juſt cauſe to account for part, the Action is maintainable.

But if he confeſs part and traverſe the other, no Judgment ſhall be till the other be tried, 41 Edw. 3. Account 34. for it may be he is to account for all notwithſtanding his traverſe, which may be falſe.

The Judgment is, Ideo conſideratum quod praedictus W. recuperet verſus praefat. M, ſo much as he is found in Arcarages, & dampna ſua occaſione implacitationis, &c. Coke 11. part. 40. A. Metcalfs caſe.

The King is not held to bring a particular Account againſt any as Receiver, but to declare generally, quod ille ad computum domino Regi reddend. tenetur: and againſt Executors, quod tenebantur tempore mortis ſuae, Coke 11. part. 90. Devouſhers caſe; for the King is not tied to punctualities of Law, where no perſon is injured by his not obſervance of them.

The Writ againſt a Receiver.

In Comitatu. Rex, &c. pr. A, quod juſte, &c. reddat B rationabilem computum ſuum de tempore quo fuit Receptor denariorum ipſius B,In Com. Ban. &c. Regiſt. orig. 135. & ibidem B. vide diverſa brevia de computo verſus Receptorem. Writat the Com. Law, by the Stat. of Marleb. cap. 29.

But there is another form of a Writ founded upon the Statute of Marlebridge, cap. 23. Nat. br. 117. H. Regiſt. orig. 136. B.

A good plea to the Writ, that he was Baily and not Receiver, for otherwiſe he ſhall be twice charged, viz. as Baily and Receiver, 3 Edw. 3.70. pl. 28. 18 Edw. 4.3. pl. 17. which the Law judges unreaſonable, and will prevent by making the Writ certain.

A good plea to the Writ, that he was Guardian in Soccage, 18 Edw. 4.3. pl. 17. and ſo not properly a Receiver, as the Writ ſuppoſeth.

The Writ ſhall be always general, and if the cauſe be ſpecial, it ſhall be ſet forth in the Count, Nat. br. 118.Q. F.

The Defendant pleads the Receipt by deed, and demands judgment of the Writ without ſhewing it, this is no plea to the Writ; becauſe the Receipt and not the Deed is the cauſe of Action, and he hath confeſſed the Receipt, and the Deed appears not to the Court, 1 Hen. 6.8. 28 Hen. 8. Dyer 20. pl. 121. But 9 Edw. 4.50. B. per Choke contra 2. Hen. 6.9. quaere.

No plea to the Writ, if it do not agree with the Plaintiff concerning the manner of the Receipt, 4 Hen. 6.12. pl. 4.

The Proceſs againſt a Receiver, 1. before Appearance; 2. after.

At the Common Law the Proceſs was but a diſtreſs infinite, Coke 3. part. 12. A. Harberts caſe.

But per Sat. de Marlebridge, cap 23. a Capias is given, Coke 3. part. 12. A. for more expedition; for Liberty is more precious than ones Eſtate in the eye of the Law.

And by Weſtm. 2. cap. 11. Proceſs of Outlawry is given, Coke 3. part. 12. A. 17 Edw. 3. Proceſs 203. 17 Edw. 3.59. pl. 55. Shard, 26 Edw. 3.5. pl. 13. which is a more violent proſecution to bring the Defendant to do right.

A Scire facias ſhall iſſue againſt Tenant per Elegit to account, 21 Edw. 3.2. pl 6. 5 Edw. 3.159. pl. 20. Regiſt. Judicial, 73. B. Old Nat. br. 34. what profits he hath received out of the lands extended, and how far his debt is ſatisfied.

And if he come not upon Summons returned, Judgment ſhall be given againſt him, 5 Edw. 3.159. pl. 20. 21 Edw. 3.1. Quod computet.

Conuſor of a Statute ſhall have a Scire facias againſt a Conuſee to Account, Coke 4. part. 67. B 47 Edw. 3.11. pl. 9. & fol. 25. pl. 63.

So the Aſſignee of a Conuſor, 25 Edw. 3.53. pl. 17. both for the former reaſon upon the Elegit.

But then he cannot ſurmize, that it was appraiſed and found of baſe value, 17 Edw. 3.36. pl. 6. For by the bringing of the Action he admits of a certain value to account upon, and ſuch a ſurmize is a matter dehors.

If a Receiver come in by a Capias or Exigend. he ſhall be forthwith committed to the Fleet, 29 Edw. 35. pl. 63. for his contempt in not coming in till compelled by force, which is a diſturbance of the publick Peace,

So if he come in by diſtreſs, and the account be adjudged againſt him, 29 Edw. 3.35. pl. 63. for then it doth appear he was a Fort feaſor.

But if the account be adjudged againſt him, and he be not preſent in Court, a Capias ad computandum ſhall iſſue out, 1 Edw. 3.2. pl. 10. 1 Hen. 7.1. pl. 1. Townſend, Lib. Intr. 18. Sect. 1, 2, 3. to make it appear to the Court, whether he was to account or no.

If in Judgment given quod computet, the Plaintiff dies, the Executor ſhall have a Scire facias, which being ſerved, if the Defendant appear not, an Exigend. ſhall iſſue forth againſt him, 14 Hen. 4.1.

But if the Defendant be taken per Capias ad computandum, and dies in priſon, a Scire facias lies not againſt his Executors, 10 Edw. 4.7.41. Aſſize: So that a Scire facias lies for an Executor, but not againſt an Executor; for the Executor may not be ſo privy to the receipts and payments of the Teſtator, as to know what to plead to the Account.

Bar by a Receiver, 1. to an Action of Account; 2. before Auditors.

The Defendant pleads, he bought the goods of the Plaintiff,Bought. before he brought this Action for them, a good bar, 14 Hen. 4.19 pl. 21. for thereby he claims the property in them.

The Defendant pleads,Accord. that it was agreed that he ſhould be bound to the Plaintiff for the principal and uſe, the which he did; this is a good bar to the Action, 22 Hen. 6.55. pl. 32. for this drowns the former contract: otherways he ought to plead this before Auditors. Q. Whether it may be pleaded in bar of the Action, or in diſcharge of the Account before Auditors. It ſeems it is no plea before Auditors.

So if the Plaintiff grant, that if the Defendant pay 20 l. he will withdraw his Action; this is a good bar to the Action, becauſe of this Accord, 7 Edw. 3.325. pl. 11. 18 Edw. 3.39. pl. 35. which hath taken away the ground of the Action.

No plea, that he put it in a bag, and that the Plaintiff agreed that he ſhould keep it in lieu of a debt; becauſe the Receipt for Account-render is confeſſed, 28 Hen. 6.7. pl. 9. and ſo it appears the Plaintiff hath cauſe of Action.

The Plea was, that he did account of ſuch a Sum ſuch a day, and year, and place, before A and B, Auditors aſſigned by the Plaintiff, a good Bar, Lib. Intra. 19. D. Sect. 3. 25 Edw. 3.39. pl. 1. 2 Edw. 3.45. pl. 13. For they are Judges, and ſo ſhall not account twice for one ſum.

The Plaintiff Counts of divers ſums received between ſuch and ſuch a day, and the Defendant pleads to parcel of the time, that he hath fully accounted, and to the remainder, that he was not his Receiver; there he ought to ſhew of what he had accounted, 30 Edw. 3.1. pl. 4. for otherwiſe his plea is too general, incertain, and captious, which the Law will not permit.

That he accounted to the Plaintiff from three months to three months, and ſo to the time of the action, a good Bar, 39 Edw. 3.5. pl. 22.

A good bar that he did Account 1o April; but then he ought to ſay, without that, that he w •• his Receiver after, 21 Edw. 4.66. pl. 47. 7 Hen. 4.14. pl. 17. 45 Edw. 3.14. pl. 13. 34. Hen. 6.44.

Counts that he was Receiver for ſeven years, i • is no bar that he accounted 1o Maii Anno 5o with out anſwering for the two other years; becau •• he is to anſwer for the whole time, as well ſo • the increaſe as principal, 7 Hen. 6 5. pl. 8.

As to 20s. received 1o Jun. fully account • for, and to the Receipt afterward, or before th •• he never was Receiver, 27 Hen. 6.1. pl. 8. a goo •• plea.

A good bar quod 21. Januarii Anno, &c. 〈◊〉 D, in the County of W, he fully accounted wi •• the Plaintiff, Lib. Intra. 20. B. Sect. 8, 9, 10, 11. Before the Writ brought he did account with th • Plaintiff, a good bar, 4 Hen. 6.43. pl. 4.

But he ought to account to the Plaintiff befor • he is impriſoned, or elſe no bar; becauſe it is pe •• dente lite, and it appears the Plaintiff had cauſe 〈◊〉 action, elſe he not not been committed, 22 Edw. • 3. pl. 32. 7 Hen. 4.14.34 Hen. 6.44. pl. 4.

For the Plaintiff cannot commit him to priſon, for Weſtm. 2. cap. 11. gives this power only to the Auditors, 45 Edw. 3.14. pl. 13. who are the Judges.

To an Account brought by Executors it is a good bar, that the Defendant did account to the Teſtator, and ſhew his Acquittances, 1 Edw. 3.2. pl. 10. for then the Executors have no colour of action.

The Defendant pleads an award made by Arbitrators, that he ſhould re-deliver the goods, this is nought; but if he had been charged only with the ſafe cuſtody of them, then good, 2 Hen. 5.2. pl. 6. For the Defendant is chargeable to Account for the provent of the goods, as well as for the goods themſelves.

Account upon a Receipt by other hands, Arbitrement is a good bar, 22 H. 6.39. pl. 10. For the ſubmiſſion to the Arbitrement creates a new Contract.

Execution againſt a Receiver, 1. per Common Law; 2. per Statute Law.

1. By the Common Law it was but a Levari facias, or Fieri facias, Coke 3. part. 12. A. Harberts caſe; to levy the arrears upon his Lands, or Goods and Chattels. Q.

And this only within the year; for if the year was paſt, then an Action of debt only lay upon the Judgment.

Unleſs the Proceſs be continued, 33 Hen. 6.49. pl. 33. For the Court will not grant out Executions upon ſleeping Judgments, for this may prove dangerous.

2. Per Weſtm. 2. cap. 45. a Scire facias is given after the year, Coke 3. part. 12. A. upon the Judgment againſt the Defendant, to ſhew why he ſhould not pay the Arrears due to the Plaintiff by the Judgment.

Per Marlebridge, cap. 23. & Weſtm. 2. cap. 11. a Capias was given in Proceſs, and by conſequence a Capias ad ſatisfaciendum in execution, Coke 3. part. 12. A. Lib. Intra. 18. C. Sect. 1, 2, 3. which are both to lay hold on the perſon of the Defendant.

Per Weſtm. 2. cap. 11. if the Accountant before Auditors be found in Arrearages, he ſhall be committed by them to the next Goal in execution: the ſame law is, if he will not account before the Auditors, 10 Edw. 3.387. pl. 28. when he is adjudged by the Court to do it.

But this ſhall be forthwith, Coke 8. part. 119. B. Bonhams caſe, 27 Hen. 6.8. Com. 17. for the Statute being penal muſt be ſtrictly purſued.

But if he account before the Plaintiff he cannot commit him to Priſon; for the Statute ſaith before Auditors, 45 Edw. 3.14. pl. and no impriſonment lay before the Statute.

But an Accountant to the King ſhall be impriſoned, and his goods and lands in execution per the Common Law, Coke 3. part. 12. B. 5 Eliz. Dyer 224. Com. 32. which is tender of the King as well in his Revenue as his Perſon.

Ex parte talis.

Per Weſtm. 2. cap. 11. if Auditors be aſſigned by the party Plaintiff, who will not allow reaſonable charges to the Receiver, or charge him with a thing he never received, and then commit him to priſon, he ſhall have this Writ, Nat. br. 129. F. 4 Hen. 6.18. A. pl. 3. Regiſt. orig. 137. B. which is in the nature of an Audita querela.

But if Auditors be aſſigned by the Court which do not make allowance; yet the Defendant ſhall not have this Writ, but may complain to the Court, and they ſhall order them, Nat. br. 129. E. 3 Edw. 3.56. pl. 30. to do juſtice; for they are Miniſters of the Court, and to be anſwerable for their actions.

If one be ſued in London, and the Court aſſign Auditors, who make not allowance, &c. the Defendant ſhall have this Writ, Nat. br. 129. F. But note Regiſt. orig. 137. contra, Q.

The Writ ſhall be returnable before the Treaſurers and Barons in the Exchequer at a certain day, and a Scire facias in the Writ to warn the Plaintiff in the Account, and alſo the Defendant to be there, Nat. br. 129. G, & H. Regiſt. orig. 137. vid. Weſtm. 2. cap. 11.

Note, that an account lieth in one Writ againſt a Baily and Receiver, Nat. br. 116. P. 21 Hen. 6.21. pl. 42. 9 Edw. 3.356. pl. 38, & pl. 40. 14 Hen. 4.20. pl. 25. vide the Writ Nat. 117. C. Regiſt. orig. 135. For one and the ſame perſon may be Baily and alſo Receiver at one time to one and the ſame perſon.

Vide the Count, Lib. Intra. 17. B. Sect. 1.

And for all the other parts they are in the ſame manner as is deſcribed before in Baily and Receiver.

Action upon the Caſe.1. Quid. 2. Quotuplex. Action upon the Caſe is either by 1. Doing of wrong to another, 1. Inheritance Real. 2. Chattels Perſonal. 3. Body. 4. Name. 5. Suits in Law. 2. Not doing of a thing, ought to be done by Law to the wrong of Inheritance Rea • Chattels Perſon. Corps, Suits in Law. Aſſumpſit touching Inheritance Rea •• Chartels Perſon. Body, Suits in Law. 3. Miſdoing. 4. Negligence. 5. Deceit in bargains With warranty. Without warranty. 6. Trover and Converſion in Deed. Law, as to perſons diſco • continued, Waſting, Denial to re-deliver.
In what Court it lieth.

IN Ban. Regis.

In Com. Ban.

It lieth not in the Marſhalſey, Coke 10. part. 7 • A. 76. A. Marſhalſey. For that Court is limited 〈◊〉 hold plea but in particular caſes. But this learni •• was now out of doors, in reſpect that that Court was wholly taken away; but now again revived.

For doing of wrong to the dammage of another, touching a thing hereditary, who ſhall have it.

Baron and Feme.Baron and Feme joyn upon an aſſumpſit to the Wife dum ſola fuit, and good, Hill. 9 Jac. Ban. Regis, Wolverton and his Wife againſt Day. For elſe the party would be without remedy.

Baron and Feme joyn in Trover and converſion for a Deed for an annuity granted to the Wife, and it is good; for if he ſurvive, he ſhall have the Deed, Trin. 40 Eliz. Com. Ban. Ruſſel & Caresby. Q.

Husband had an Action ſole upon the Aſſumpſit to the Wife, and counted of the aſſumpſit to him, 27 Hen. 8.24, & 25. for the aſſumpſit made to the Wife is made to the Husband.

Commoner ſhall have it for feeding his Common,Commoner. though he be but a Copyholder, Coke 9. part. 112. B. Mayes caſe. For he is thereby damnified, and no other Action lies for him.

But then it ſhall be ſuch feeding by which he loſeth his Common, or elſe cannot have it in that beneficial manner as he ought, Coke 9. part. 231. A. Mayes caſe. De minimis non Curat Lex.

Executor ſhall have it for putting him out of his Term by the Leſſor,Executor. Nat. br. 92. G. Regiſt. 97. Coke 4. part. 95. A. Slades caſe. For a Term belongs to an Executor, except it be otherwiſe diſpoſed of.

For money for Grain fold, Lib. Intra. 4. B. Sect. 2. the Court there. Q. whether debt lies not.

Upon an Aſſumpſit to the Teſtator, to marry one or pay 20 l. Lib. Intra. 10. B. Sect. 5. For by the Conſideration the Teſtators eſtate is prejudiced, if the aſſumpſit be not performed.

Upon an aſſumpſit to ſave the Teſtator harmleſs of an obligation, Lib. Intra. 12. B. Sect. 2. for the Executor is liable to be ſued upon it.

If a Nuſance be made,Feoffee. and a Feoffment is made, if this continue as a new Nuſance, the Feoffee ſhall have an action, Coke 5. part. 101. A. Penruddocks caſe. For the Feoffee is thereby hindred of enjoying the beſt of his bargain.

The Heir ſhall have an action for a Nuſance made in the time of his Father,Heir. if it be continued, &c. for the Inheritance is prejudiced thereby, Coke 5. part. 101. A. Penruddocks caſe.

Two cannot joyn for calling them falſe Knave and Thief,Joynder. 28 Hen. 8. Dyer 19. pl. 112. for they are ſeveral ſlanders, and perſonal.

Two cannot ſue in the Admiralty where one of them ought to have an Action at Law, 5 Mariae, Dyer 157. pl. 39. for the Common Law is to be preferred.

Leſſor ſhall have it againſt Tenant at will for voluntary waſte,Leſſor. Littleton 15. A. 14 Hen. 8.12. Brown. Coke 5. part. 13. B. Salops caſe, 48 Edw. 3.25. Dyer 121. pl. 17. 11 Hen. 6.38. for an Action or waſte doth not lie.

But not for negligent or permiſſive waſte, Coke 5. part. 13. B. Salops caſe; becauſe he is not bound to repair.

Tenant in Common.Tenant in common ſhall have it againſt the other, for breaking a Gutter between their houſes, 2 Hen. 5.3. pl. 12. for ſic debes uti tuis ut aliens non noces.

For making a Lime-pit in his Land, which they have in common, by which the water ſurrounds his houſe, 13 Hen. 7.26. for the ſame reaſon.

Tenants in Common may joyn in an action for a Nuſance upon their Land committed, becauſe this concerns all their profit, Mich. 7 Jac. Ban. Regis, Stone againſt Dromage.

For taking of a Meer-ſtone, 1 Hen. 5.1. Lib. Intra. 9. C. ſect. 1. for the Land may thereby be endangered to be loſt.

2. Againſt whom this lieth.

It lies againſt an Adminiſtrator,Adminiſtrator. upon an aſſumpſit of the Teſtator, Lib. Intra. 4. C. ſect. 3. for he received benefit by the conſideration, viz. their eſtate.

Which cuts Trees without cauſe; 18 Edw. 4.27.

Againſt a Baily of a Baily of goods,Baily. 12 Edw. 4.13.

It lies againſt Baron and Feme,Baron and Feme. for not repairing Seabanks upon the Land of his Wife, 7 Hen. 4.31. for the tort is done by the Husband as well as by the Wife.

Trover and Converſion lies againſt Baron and Feme for the Converſion of the Feme, for it is a diſloyal act: which his Wife may do, Mich. 7 Jac. Ban. Regiſt. Drapers caſe; and ſo an Action upon the Caſe lies not.

Trover and Converſion lieth not againſt a Carrier for a delivery to his Servant,Carrier. but an Action upon the Caſe, Paſch. 9 Jac. Ban. Reg. Wornhall and Bradſhaw. For the delivery to the Servant is a delivery to the Maſter, and for which he is anſwerable.

A Counſellor is retained to purchaſe land,Counſelor. and diſcloſes the Secrets by which the party is damnified, &c. 11 Hen. 6.18.

Upon an aſſumpſit to pay a debt,Aſſumpſit. No. Lib. Intra. I. B. ſect. 1. Coke 9. part. 86. B. Pinchons caſe, 1. Coke 9. part. 94. A. Banes caſe; viz. upon the ſpecial agreement.

Againſt Churchwardens for not repairing a Gutter of the Church,Churchwardens. which is a Nuſance to my houſe. Lib. Intra. 10 D. ſect. 1. For they ought to repair the Church, and are publick Officers of whom the Law takes notice.

Divers do make an aſſumpſit, Joynder. action lies not againſt two of them only, but if the Plaintiff ſhews that the others are dead, then it is good, and it is ſufficient to ſhew, that at the requeſt of them that are alive and the others the thing was done, and that the others are now dead, Trin. 7 Jac. Ban. Regis, Brereton and his Wife againſt King and Milner.

Againſt a Maſter upon a ſale and warranty of the Servant,Maſter. 11 Edw. 4.6. for the act of the Servant being for the Maſters advantage is the act of the Maſter.

Tenant at will.Againſt Tenant at will for voluntary waſte, Littleton 15. A. 14 Hen. 8.12. Brown, Coke 5. part. 13. Salops caſe, Dyer 121. pl. 17.

But not for permiſſive or negligent waſte, Coke 5. part. 13. B. Salops caſe; for the Law makes a difference betwixt negligent, and wilful and malicious wrongs.

Tenant per Elegit.Againſt Tenant per Elegit, which holds over, and cuts the Trees after money tendered to him, 21 Edw. 3.16. to ſatisfie the debt; for he is to hold the Land till his debt is ſatisfied.

Tenant in common.Againſt a Tenant in common of a Houſe by his Companion for breaking his Gutter between their houſes, 2 Hen. 5. plea 12. for treſpaſs vi & armis he cannot have, becauſe he is ſeiſed per jug. & per tout.

For making a Lime-pit to burn Lime,Kiln. by which his houſe is damnified, 13 Hen. 7.26.

Tenant for years. A having an ancient Light, B erects a houſe which ſtops it, and leaſes it to C; yet an Action lies not againſt C, becauſe the Leſſee had done no wrong, and he could not pull it down, Trin. 13 Jacobi Ban. Regis, Bolds caſe. Q. as the Law is now taken, whether it lies againſt B.

When a man preſcribes in an Ile in a Church,Vicar. and the Vicar will not ſuffer him to make a Sepulchre there, No. Lib. Intra. 8. B. ſect. 7. for he diſturbs his Inheritance.

Againſt a Sheriff upon a falſe return,Sheriff. Lib. Intra. 11. A. ſect. 1.

Upon returning nichil, where the party had ſufficient, Lib. Intra. 11. C. ſect. 2. for this is a falſe return.

For what things this Action lies.

Againſt a Tenant by elegit, Trees. that holds the Lands after his money tendered him, and cuts the Trees, 21 Edw. 3.16. vid. ſupra.

So if Tenant at will cuts the Trees, Littleton 15. A. Coke 8. part. 13. B. Salops caſe, 48 Edw. 3.25. for that is voluntary waſte, for which he is puniſhable.

If a Baily cuts Trees without cauſe, 18 Edw. 4.27.

Chappel.For diſturbing of men to come to my Chappel with offerings, 19 Rich. 2. Action upon the Caſe, 52. This is now out of doors ſince the Reformation temps Edw. 6.

Againſt the Owner of the Land in which I have a Way,Way. 1. Eſtreite. and he ſtraitens it; for I am thereby abridged of my eaſement, 33 Hen. 6.26.

For trenching of it,2. Trench. for the former reaſon, Lib. Intra. 616. C. Sect. 1.

For any manner of diſturbance in my paſſage or part of my way,3. Diſturb. ſo that I cannot paſs ſo commodiouſly as I did before, 14 Hen. 8.31. 21 Hen. 7.35. 22 Hen. 6.15. 10 Hen. 7.21.

4. Stopping of it.If the whole way be ſtopped by one that is not owner of the Soil, it lies, 22 Hen. 5. 33 Hen. 6.26. 10 Hen. 7.21. For I am wholly deprived of my eaſement, and no other Action lies againſt him.

So if Tertenant and others ſtop it, 34 Hen. 6.4. tamen quaere as to the Tertenant.

For againſt Tertenant that ſtops all the way an aſſize of Nuſance doth lie, and not this Action, 22 Hen. 6.14. 3 Eliz. Dyer 250. pl. 88. 19 Hen. 6 29. pl. 49. Paſton. 2 Hen. 4.11. pl. 48. No. Lib. Intra. 12.6. Sect. 10. Q. whether two Actions may not be brought in the former caſe.

But if I have it but for years an Action on the Caſe lies, 33 Hen. 6.26. Nat. br. 176, & 184. L. eodem. For he can claim no inheritance in the Land where the way lies.

If A ſtops my way, and leaſes the Land to B, it lies againſt B, if he do not open it, for continuing of the wrong; but if A build a Houſe and leaſes it to B, there B cannot pull it down for to lay open my way, for this is waſte in B. Trin. 13 Jac. Regis, Bolds caſe, and Rutlandſhiers caſe; and therefore an Action lies not againſt B for not pulling down the houſe, for that were unreaſonable.

But by 11 Hen. 4. an Action upon the caſe lies for ſtopping of a way in groſs only, and an aſſize of Nuſance for a way appendant. 21 Edw. 3.2.6. 34 Hen. 6.4. pl. 11. Note the difference, one ſavours of the realty, the other is but perſonal.

But for ſtopping of a way in my own Land Treſpaſs vi & armis lies, and not this Action, 31 Edw. 3. Action upon the Caſe 38. 13 Hen. 7.26. For there is a plain breach of the Peace by diſturbing my poſſeſſion.

But for ſtopping of a Highway the Deſendant ſhall be puniſhed in the Leet, and not by this Action, unleſs the party had a ſpecial loſs; for a ſpecial loſs admits of a ſpecial remedy, 27 Hen. 8.26. 5 Edw. 4.2. b. 7 Edw. 4 8. 33 Hen. 6.26. Coke 5. part. 73. A. Williams caſe. 21 Hen. 7.35. Coke 9. part. 113. Mayrs caſe. For a Court Leet is to redreſs ſuch publick grievances.

Slander of my Title.If A ſays, that B hath right in my Land for years an Action lies, Coke 1. part. 177. Mildmays caſe. No. Lib. Intr. 30. A. ſect. 27. but I ought to ſhew how I am prejudiced by his ſaying ſo, or elſe it lies not, for his lye were it a treſpaſs only, the Law will not puniſh it.

A brought an Action upon the Caſe againſt B, becauſe that B publiſhed and declared falſly, that he had the Leaſe of the Land of A, and that he intended to ſell his Land, and was thereby hindred; B ſaid, that he had an Indent. of Leaſe, as in the Count is mentioned, and traverſeth that he forged it not, 1. when B claims a right, though he had none; yet the Action lies not, for it appears not whether he had a right or not; 2. the Count is good, becauſe it is, that it was againſt the knowledge of B that it was forged; 3. Sciens is not traverſable, Coke 4. part. 18. A. caſe 14. See the Caſe at large.

For ſtopping a Ditch by which my land is ſurrounded with water, Nat. br. 88. E, 89, M, 39 Hen. 6.32. 11 Hen. 4.82. 14 Hen. 8.31. Q. whether it lies for ſuffering it to be ſtopped by negligence,Land. viz. by another.

For not ſcouring a Ditch, by which my land is overflown, Regiſt. orig. 100. A. Q. if I be not thereby damnified.

For breaking of a Seabank, by which my land is ſurrounded, Nat. br. 86. F. 89. B, & C. Reg. orig. 95. A.

It lies not for erecting of Coney-burroughs, by which I loſe part of the profits of my land, becauſe the party that erected them had no property in the Coneys, for they are ferae naturae, Coke 5. part. 104. Boulſtons caſe; and it is lawful for me to kill them if they come upon my ground. Q. tamen in regard of the trouble.

If one hath a Bakehouſe by Preſcription,Trade. and I ſet up another by him to his prejudice; for the Law favours and protects ancient Rights, preſuming they had lawful commencements.

1. For diſturbing my Baily to diſtrain for an amercement,Diſtreſs. 18 Hen. 6.9. pl. 20. for the wrong is done to me; for the Baily is my Servant, and acts for my benefit.

2. For diſturbing me to diſtrain or to attach, Nat. br. 102. F. This is ſtronger than the former caſe, and the injury more apparent.

3. For diſtraining more Suitors to come to my Leet than ought to be, Nat. br. 94. G. Coke 4.94. B. Regiſt. orig. 103. B. for the Law hates needleſs troubles and vexations.

4. For diſtraining Parſons or Vicars in their Spiritual poſſeſſions, Nat. br. 94. E. and the Writ is, contra legem & conſuetudinem regni noſtri, & contra formam articulorum, & contra pacem noſtram, ibidem. For the Common Law protects the Clergy, and takes care for their eſtates to preſerve them from violence.

Fair and Market.1. Againſt him that ſets up a new Fair or Market againſt my Fair or Market, 22 Hen. 6.14. 11 Hen. 4.74. for I am prejudiced thereby in my ancient right.

But 41 Edw. 3.24. per Belknap, Quod permitt at lies, and not this Action. Q. tamen car ſemble nemy.

2. For diſturbing Cuſtomers to come to the 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,Meerſtone. 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 poyſons my water, by reaſon where of my Fiſh dies,Piſcary. Coke 9. part. 59. A. Aldreds caſe; and ſo is it for infecting the Air thereby. vid. antea.

Procurement.1. For releaſing to me with warranty, and procuring another to ſue me, 34 Edw. 3.20. for this is fraudulent dealing.

1. Againſt Tenant in a Precipe,Protection. which hath protection allowed to Weſtm. for one year, and within the year he ſtays at Glouceſter, 15 Edw. 4. Q.

If I ſue a Schoolmaſter for erecting a School in the ſame Town the Action lies not;School. for it is no Nuſance, 11 Hen. 4.47. pl. 21. 22 Hen. 6.14. priſott. and it is for the good of the weal publick, which is to be preferred before any ones private profit.

S • ander of my Title.If A ſays that B hath right in my Land for years an Action lies, Coke 1. part. 177. Mildmay • caſe, No. Lib. Intra. 30. A. Sect. 27. but I ought to ſhew how I am prejudiced particularly, elſe there appears no cauſe of Action.

A brought an Action upon the caſe againſt B, becauſe that he publiſhed, that he had the leaſe of the Land of A, and that he intended to ſell it and was hindred; B ſaid, that he had an Indenture as in the Count is mentioned, and traverſeth that he forged it, 1. when B claims a right, though he had none, yet the Action lies not, for it may be he thought he had a right, and ſo there cannot be ſaid any malice. 2. The Count is good, becauſe it is that it was againſt the knowledge of B that it was forged. 3. Sciens is not traverſable, Coke 4. part. 18. A. caſe 14.

1. For ſtopping a Ditch,Land. by which my Land is ſurrounded, Nat. br. 88. E, 89. M. 39 Hen. 6.32. 11 Hen. 4.82. 14 Hen. 8.31. for the Land is thereby made worſe, elſe it will not lie.

For not ſcouring a Ditch, by which my Land is overflown, Regiſt. orig. 100. A. Non-feaſance is puniſhable as well as a Misfeaſance.

For breaking of a Seabank, by which my land is ſurrounded, Nat. br. 86. F, 89. B, & C. Regiſt. orig. 95. A. vid. antea.

It lies not for erecting of Coney-burroughs, by which I loſe the profits of my Land, becauſe the party had no property in them, Coke 5. part. 104. Boulſtons caſe; and I may take them upon my land and juſtifie it. vid. antea.

1. If one hath the trade of a Bakehouſe by preſcription for the whole Town,Trade. and another erects another and ſells, and Action lies, Coke 8. part. 125. caſe of London, 19 Rich. 2. Action ſur Caſe 52. The Law favours Ancient rights, for it tends much to peace.

2. For uſing the trade of a Dyer in R without Licenſe of the Archbiſhop of York, Regiſt. orig. 105, & 106. Coke ibidem; for the priviledge of the Biſhop is thereby impaired.

3. The King grants to A the ſole faiſance of play-cards, yet A ſhall not have an Action upon the caſe againſt others that uſe the trade, becauſe the grant is void, Coke 11. part. 86. A. Monopolies; for it is a Monopoly which is againſt the publick good, and the liberty of the Subject.

Tenant at will makes voluntary waſte,Waſte. an Action of waſte lies againſt him, Littleton 15. A. 14. Hen. 8.12. Brown. Coke 15 part. B. Salops caſe, 48 Edw. 3.25. Dyer 121. pl. 17. 11 Hen. 6.38. and not an Action on the Caſe.

For diverting of part of the ſtream by the owner of the Land, by which the ſtream flows over,Watercourſe. 12 Hen. 4.47. 21 Hen. 7.30. Dyer 248. pl. 80. Coke 4. part. 86. Lutterels caſe the Count there. 3 Eliz. Dyer 195. pl. 37.

But for diverting majoris partis Aſſize lies, 8 Eliz. Dyer 248. pl. 80. but this is intended when the Mill cannot go, for that is prejudicial to the Freehold.

For ſtopping a Pit that one hath for water, although it is not a common watering-place,Watering-places. 21 Hen. 7.35. No. Lib. Intra. 18. D. ſect. 15. for thereby I that digged it loſt my labour and eaſement.

The Writ.

Ought to be certain as the Count, except in the place and time, 22 Hen. 7.91. which in this actio • are not traverſable.

It ought to have the ſame certainty as the Count, and to have the effect of all the Count except the year and day, the quantity and certainty of the Land, 38 Hen. 6.9. pl. 20. Priſott▪ for the Land comes not in queſtion. Q.

The Writ ſhall not be vi & armis, Nat. br. 92. E. for it ſuppoſeth not the breach of the publick Peace, but only a particular dammage.

When there are two cauſes of Actions, 1. cauſ • cauſans, 2. cauſa cauſata, the former may be alledged vi & armis, Coke 9. part. 50. B. Salop▪ caſe: For that is but as an inducement to the cauſe of action, upon which the Action is brought.

The Proceſs, 1. before appearance; 2. after.

At Common Law a Capias lieth not, 43 Edw. 3.11. Coke 10. part. 72. A. Marſhalſey; for liberty was preferred before private wrongs, which concerned the eſtate only.

But 10 Hen. 7. cap. 9. ſuch proceſs is given in an Action ſur le Caſe in Ban. Regis & Com. Ban. as for Treſpaſs or debt, Br. exigend. 29. vid. the Statute.

The Judgment.

For not repairing of a Bridge per quod, &c. the judgment ſhall be to recover dammages to the party damnified, and a Diſtreſs to the Sheriff to compel the Defendant to repair to prevent further dammage to any.

For what things it lies.

Chaſing Sheep.1. For chaſing Sheep into the water, 2 Hen. 7.11. B. Q. if the Sheep be not hurt by it, if it do not lie? It ſeems not.

2. For taking of Sheep delivered to me for a year to dung my Land, Nat. 26. B, & D. Q. for I thereby am damnified.

1. Againſt him that I give money to give to my Attorney, and he gives it to my adverſary, 20 Hen. 7.9. for here is breach of truſt by which I am damnified.

For goods lent, and are waſted.2. If I lend my Plate or other goods to one, and he waſtes them, or miſuſeth them, or converts them to his own uſe, 27 Hen. 8.25. 28 Hen. 8. Dyer 22. pl. 137. 20 Hen. 7.4. 2 Hen. 7.11. 2 Edw. 4.5. 18 Edw. 4.23. 21 Edw. 4.19. Crook, 2 Hen. 8.160. pl. 2. For here the Law creates a truſt and Covenant, which is broken.

3. If againſt a Baily that cuts my Trees, or kills my Cows, 18 Edw. 4.23. Q.

4. If a Baily lend them to B. and he waſtes them, it lies againſt B. 12 Edw. 4.13. for the Bally might lend them.

5. Againſt my Butler that breaks my Hanaper, 18 Edw. 4.27. Now it is Felony by the Statute, Q.

6. Upon bailment of a Bag, in which was 20 l. and he breaks the Seal, 21 Edw. 4.30 pl. 25.

7. So for an obligation, 39 Hen. 6.46. for I may be damnified thereby.

8. Againſt a Baily of Beaſts, which kills them, Littleton 15. A. Dyer 121. pl. 17. 14 Hen. 8.12. for he hath no ſuch Authority quatenus a Baily.

Goods not delivered.The Executor comes to the Heir 31 days after the death of the Teſtator, and demands the goods that are in the houſe, and he refuſes to deliver them; 1. this is a convenient time, 2. this wrong is puniſhable. Mich. 7. Jac. Ban. Regis, Steedmans caſe; for thereby the execution of the will is retarded.

Wood and Eſtovers.1. A ſold 20 cords of Wood to B to have by aſſignment, and afterward ſold 4000 to C to have at his election, and aſſigns to B, which he ſhall cut, and C takes them, B ſhall have an Action againſt C, for the firſt bargain was made with him, Coke 5. part 24. Palmers caſe.

2. Tenant for years ſhall have Eſtovers in the Wood of B which ſhall be cut, or have an Action, Coke 9. part. 112. B. Mayers caſe; if he be hindred.

1. Againſt a Carrier that breaks Pots and Glaſſes, 2 Hen. 7.2.Carrier. for this is a misfeaſance in the Carriage, which the Law implies ought to be ſafely.

2. If the things be delivered to the Servant of the Carrier, yet an Action lies againſt the Maſter, Paſch. 9 Jac. Ban. Regis, Wornhall & Bradſhaw; For the Maſter muſt anſwer for the misfeaſance of his Servant.

A Horſe.1. For delivering a Horſe to B for ſaſeguard, who delivers him to C, to the uſe of A, who ſpoils him, A ſhall have an Action againſt C. 12 Edw. 4.13. pl 9. Q. for the Horſe was delivered for the benefit of A.

2. Againſt a Smith that pricks my Horſe, Nat. br. 94. D. vide the Writ there, 17 Edw. 4.43. 11 Edw. 4.6. 46 Edw. 3.19. 3 Hen. 6.36. 14 Hen. 6.18. Regiſt. orig. 106. A. 48 Edw. 3.6. pl. 11. For misfeaſance, for the Law implies he ought to be skilful and careful.

And if the Smith lends the Horſe to another, who pricks him, Action lies againſt the ſecond, 12 Edw. 4.13. Q. if it lies not alſo againſt the Smith.

A Servant brought a Horſe to the Smith, who pricked him, by which the ſervice of the Maſter is neglected, the Maſter ſhall have an Action, Hill. Jac. Ban. Regis, for the dammage comes only to the Maſter.

For taking my Pigeons with engines,Pigeons. 16 Edw. 4.7. or ſhooting of them. Q.

Dice and Cards.For playing with falſe Dice, Nat. br. 95. D. Regiſt. orig. 240. No. Lib. Intr. 8. ſect. 8. or for cheating with true.

The ſame law of falſe Cards, Coke 11. part. 87. B. Monopolies; for the Law puniſhes fraud in all things.

1. For diſtraining of a Horſe of a Prelate,Diſtreſs. when he had other things diſtrainable, Nat. br. 93. I. Regiſt. orig. 100. B. Coke 4. part. 95. A. Slades caſe; in reſpect of uſefulneſs of him above other goods, and his damage for want of him. Q. tamen.

2. For diſtraining in a High-way, or in any Spiritual Land belonging to a Church, againſt the Articles of the Clerks, 94 E. Regiſt. 100. B.

3. For diſtraining one to come to my Leet, when he owed no ſuit to my Leet, Nat. br. 94. G. for the diſtraining was unlawful.

For diſtraining Cows, and then impounding them till they caſt their Calves, Nat. br. 86. E. Q. if the diſtreſs was not abuſed, if it lie.

For diſtraining Cattel of the plough, or Lambs, where there was other ſufficient diſtreſs, Lib. Intra. 226. D. Diſtreſs, the Writ there, Nat. br. 90. B. for a mans lively hood is favoured in Law, and alſo tillage. Q. if the Lambs be weaned.

The Count ſhall not ſhew that there was other ſufficient diſtreſs, but it ſhall be contra forman Statuti, which provides againſt ſuch diſtraining, 14 Eliz. Dyer 312. pl. 86.

And it lies when the Tenant hath made agreement for the Rent, and yet is diſtrained, 18 Edw. 2. quaere.

For diſtraining in a Liberty where the Contract was not made, Regiſt. orig. A. per le Stat. Weſtm. 1. cap. 34. which directs where Diſtreſſes ought to be taken.

Eſcape from a Goaler.By a Goaler againſt a Priſoner that eſcapes being committed per Auditors, Nat. br. 95. C. 130. B. the Writ there; for the Goaler is liable, and therefore it is reaſon he ſhould have remedy againſt the party.

For tearing an Obligation delivered to be kept,Deeds. 30 Hen. 6.44. Lib. Intra. 7. B. ſect. 1. for this is breach of truſt.

The Defendant pleads, it was delivered in the nature of an Acquittance abſque hoc, that it was, &c. Lib. Intra. 7. B. ſect. 2.

Againſt a Ferry-man that ſurcharges his Boat,Ferryman. by which my Horſe is drowned, 22 Aſſize 41. for I am damnified by his misfeaſance.

Forgery & Counterfeiting.1. For forging of an Obligation that is put in ſuit againſt me, 5 Edw. 4.126. pl. 44. Coke 4. part. 18. B. caſe 14. 42 Aſſize 8. for the private dammage done me thereby.

2. For forging of a Reſignation, Regiſt. orig. 114. B.

3. For forging of a Will, 5 Edw. 4 120. B.

4. For counterfeiting a Letter in the name of his Maſter, that the Plaintiff would ſend his Maſter 20 l. upon which the Plaintiff delivered 20 l. to the Defendant, 33 Hen. 8. cap. 1. Paſch. 7. Jac. Ban. Regis, Tracy verſus Veale alias Smith. In all theſe caſes an Indictment doth alſo lie, becauſe it is contra pacem.

For taking away a ward,Guard. he ſhall have a value of the marriage, 29 Aſſize 35. and not this Action, by a Writ de valore maritagii.

For putting ſomething in my Ditch, whereby my grain is drowned, Regiſt. orig. 95. B. 97. A. Grain drowned. and thereby made worſe; elſe Q. whether it lie or no.

For menacing to take my goods,Menace. if I do not give him 20 l. 7 Edw. 42. Q.

For taking away my Pales,Pales. quaere whether Treſpaſs vi & armis doth not lie, 15 Edw. 4.4. Choke.

For putting in a common River piles,Piles. by which my Oxen periſh, Nat. br. 92. F. otherwiſe it ſeems it lies not.

For taking my goods after protection to me granted,Protection. Regiſt. orig. 12. A. Q. for I may plead my Protection upon a Replevin.

By a Sheriff againſt one that reſcued one in Execution,Reſcous. Dyer 24. 1. pl. 47. for the Sheriff is thereby in hazard to pay the debt.

1. For taking my Servant out of my ſervice,Servants. 19 Rich. 2. Action upon the Caſe 52. for it is to my prejudice in the intendment of the Law.

Not his Servant is a good plea in bar,Bar. 20 Hen. 7.4. pl. 13. Fineux; of the Action for the Defendant to plead, viz. tempore Captionis.

2. For inticing my Servant to depart,Servant. and him to retain, 11 Hen. 4.23. for this is fraudulent and unconſcionable.

3. For beating my Servant, though he ſerve me but for pleaſure, 21 Hen. 6.9. for I receive profit by his ſervice, and do loſe it by beating of him.

But he ought to count per quod he loſt 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,Poy ••• ▪ 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 not for calling one Adulterer,Adulterer. becauſe it belongs to the Spiritual Court, 27 Hen. 8.17. Coke 4. part. 17. caſe 11. but now it doth, becauſe Adultery is made death by a late Statute.

1. For calling a man Bankrupt it lies not,Bankrupt. unleſs a man be a Merchant, or uſe a Trade, or get his living by buying and ſelling, Paſch. 40 Eliz. B • ckard & Conſtable; it was there doubted, then one Caſe was cited in Ban. Regis, that it did not lie.

2. For ſaying that B will be a Bankrupt within two days, it lies, 6 Edw. 6. Dyer 72. pl. 6. Coke 4. part. fol. 19. for he is impaired in his credit, for none will truſt one that is likely to break.

3. A ſhews that he was a Shoemaker, and did uſe to buy and ſell per 10 years; the Defendant ſaid that he was a Bankrupt, and this was good although he did not ſhew that he was a Shoemaker for 10 years, for it is implied in that he ſaid, he uſed to buy and ſell per 10 years, Mich. 9 Jac. Ban. Regis, Dayet, Chandler.

4. For calling a Merchant Bankrupt-Knave it lies, becauſe it toucheth him in his Profeſſion, Coke 4. part. 19. A, & B. in both the words.

1. For calling one Baſtard, if he be an Heir,Baſtard. No. Lib. Intr. 28. ſect. 25. Trin. 25 Eliz. Ban. Regis. Q. if he be not an Heir, and no ſpecial damage laid.

2. A intends to preſent B to a Church, and C ſays that he is a Baſtard, by which he is not preſented, B ſhall have an Action, Coke 4. part. 17. caſe 11. for here is a particular damage laid.

For calling one Bawd it lies not,Bawd. 27 Hen. 8. Kitchin 173. becauſe it belongs to the Spiritual Court. —if it be ſpoken in London it lies; And me ſeems the ſame Law, if it be in the Countrey.

A ſaid to B your Attorney is a bribing Knave,Bribery. Action lies becauſe it toucheth him in his Profeſſion, Mich. 11 Jac. Com. Ban. Yardly & Ellil. Q. For a bribing Knave is one properly that gives bribes, and not a taker of bribes; but that is not fair practiſe.

A ſaid of an Attorney, you are well known to be a corrupt man, and to deal corruptly, Action lies, Coke 4. part. 16. caſe 6. for he is ſcandalized in his profeſſion.

For calling a man Common Miſſeaſor or Barector,Barector. it lies not, Kitchin 173. A. vide 22 Aſſiz. 43. Q. tamen of the word Barector.

1. For calling a man Couſener it lies not,Couſener. Coke 4. part. 15. B. Q.

2. Thou art a Couſening Knave, and haſt couſened my two kinſmen of Land worth 6000 l. and I will bring thee to ſtand upon the Pillory for it, the Action lies not, Kitchin 173. B. Q. tamen, for for calling one Cheater lately adjudged actionable in B. S. in Parkhurſt and Bramptons caſe, by Glon. Chief Juſtice.

3. A is a Couſening Knave, and I have proved him a Couſening Knave for ſelling me a Saphir for a Diamond, it lies not, Kitchin 174. A. Q. if the words were ſpoken of a Goldſmith or Jeweller.

4. If Sir John S. might have his will, he would kill all true Subjects and the King, and he is a maintainer of Papiſts and Rebellious perſons; upon Not guilty the Jury found that he ſaid, I think in my Conſcience ut ſupra, &c. 1. the words are actionable, for ſcandalum dicitur quod parit ruinam vel occaſionem ruinae, 2. the Jury found the ſubſtance and no variance, Mich. 14 Jac. Regis, Sydenham & May; one muſt not tell his thoughts to prejudice another.

Thou art an Enemy to the State of this Realm, an Action lies, Hill. 40 Eliz. Com. Ban. Hooknell & Smith. Q. tamen, for the words ſeem very dubious.

It lies for writing a Libel in a paper,Slander in writing. and affixing it to the Church-door, by which I am to enter, 17 Edw. 4.3. Lib. Intr. 13 B. ſect. 4. for it is in effect ſpeaking of Scandalous words.

Falſe Juſtice.For calling one falſe Juſtice of Peace it lies, 4 Edw. 6.22. if ſpoken in relation to his Office.

Falſe Knave.It lies not for calling a man falſe Knave, Kitchin 173. B. for the word Knave is a general word, and a word of heat.

Falſe ſuit.1. It lies not for ſuing a man for Forgery, 11 Eliz. Dyer 245.

Becauſe for falſe Action ſequitur nulla poena, 2 Rich. 3.9. for if the Action be falſe the Defendant ſhall have his damage pro falſo clamore.

For this is in courſe of Juſtice, Coke 4. part. 14. B. And if it would lie, men would be terrified from puniſhing Vice.

2. But if one be ſued in the Star-chamber for a thing not examinable, there an Action lies, Coke 4. part. 14. B. caſe 3. No. Lib. Intr. 23. B. ſect. 21. For Actions are to be brought in the Courts proper to try them, and not in Arbitrary Courts. Ergo Q. whether an Action upon the Caſe doth not lie for ſuing in Chancery, where a plain Action lies at the Common Law.

3. But if one bring an Appeal in Com. Ban. it lies not, becauſe this is in the nature of a Legal ſuit, though brought in a wrong Court.

1. For calling a Judge a Felon,Felon. 30 Aſſize 19. Kitchin 173. A. for Felony is Capital.

It lies for ſaying that one had forged a Deed,Forger. 11 Eliz. Dyer 285. for Forgery is indictable.

1. For calling one Heretick it lies not,Heretick. becauſe it properly belongs to the Spiritual Court, 27 Hen. 4.17. Regiſt. orig. 54. Coke 5. part. 57. B. Specotts caſe. And the Common Law Courts ought not to entrench upon the Spiritual Courts; nec i contra.

2. But if one ſaid of a Divine that he is a Heretick, by which he loſeth his Benefice or Preſentation, Action lies, Coke 4. part. 17. caſe 11. for there is a temporal loſs.

1. For calling one Thief an Action lies, 27 Hen. 8. 14 Eliz. Dyer. 236.Thief. pl. 26. Lib. Intr. 12. D. ſect. 2. Hill. 4 Eliz. Com. Ban. Reques caſe, Dyer 9. pl. 112.

Common voice and ſame is not ſufficient to call a man Thief, 26 Hen. 8.9. Dyer 236. pl. 26. for it may be falſe.

But he may juſtifie that the Plaintiff ſtole ſheep, Mich. 13 Jac. Com. Ban. Cuddinſton & Wilkins, or any other thing; the ſtealing whereof is Felony, or pety Larceny.

For calling one Thief, and cauſing him to be indicted where he was acquitted, 27 Hen. 8.11. Lib. Intr. 12. D. Sect. 2. Q. if the matter was ſuſpicious.

For ſaying that A had ſtole ſheep, 27 Hen. 8.22.

For ſaying that A ſtole Sheep of B, 26 Hen. 8.9. pl. 11.

A is a falſe Knave, and was at my houſe on the Seſſions day at night, and would have robbed me, and did break my doors, and did put me in jeopardy of my life, 28 Hen. 8. Dyer pl. 171. for the words are very ſcandalous, though they ſeem very general.

A is infected with ſuch a Robbery that he doth ſmell of it, 14 Eliz. Dyer 317. pl. 8. 6 Edw. 6. Dyer 72. pl. 6. for it implies that he was acceſſory to it.

There is a neſt of Thieves at B, and C is the maintainer of them, and is a ſtrong Thief, Dyer 75. pl. 2. Q. if the firſt words alone are actionable.

Men cannot have their Cattel go up and down the Common, but B and his Children will kill them with Barbers Dog, no Action lies, Dyer 118. pl. 79. for the words are not ſcandalous, and they are general and incertain.

Thou art a Steal-gown, and the firſt Gown that thou diddeſt wear thou ſtolleſt, and then diddeſt walk up and down in thy ſtollen Gown, and haddeſt no Gown until thou diddeſt ſteal one, Action lies, No. Lib. Intr. 22. D. ſect. 20. becauſe there is a particular act of Theft ſet forth.

Thou art a Thief, for thou ſtolleſt my Sons goods, Action lies without averring that he had goods, Paſch. 38 Eliz. Com. Ban. Elin. & Moore; for it ſhall be intended he had goods without an averment.

My Maſter B hath robbed me of all my goods, Action lies without averring that he was his Servant, for this is Aſſets certain, Mich. 15 Jac. Bun. Regis, Brown & Low; for Maſter and Servant are relata, poſito uno ponitur alterum.

B burned my Barn, (innuendo) a Barn of Corn, Action lies not; for it is not ſhewed a Barn with Corn, nor that it was parcel of the Manſion-houſe, and the innuendo cannot aid it, Coke 4. part. 20. caſe 16. No. Lib. Intra. 24. D. ſect. 22. for a Bar • may be without Corn, and not be parcel of 〈◊〉 Manſion-houſe.

A hath ſtollen my Wood, Action lies, for wool cannot be intended Trees growing, Paſch. 38 Elit. Com. Ban. Arbor dum creſcit, lignum dum creſce • neſcit.

A doth or will prepare to Rob me, Action lie • for this tends to the ruine of A, Mich. 14 Jac. Re • Sydenham & May. Q. tamen, for the words a • very incertain.

A calls B Thief, and juſtifies that he ſtole ſheet B pleads the General pardon after the words ſpoken, the Action lies, for by the Pardon the wo •• Thief is taken away, Mich. 13 Jac. Com. B •• Cuddingtons caſe, and Wilkens. Q. for it ſee •• hard Law, there being good cauſe to juſtifie at the time of the words ſpoken.

Thou didſt ſert on me on the High-way, and didſt take away from me my Purſe, and I will be ſworn to it, Action lies, Paſch. 9 Jac. Ban. Regi • Stoner & Holland; for it implies Felony, que • tamen.

1. For calling one Leper or Leprous Knave Action lies,Leper. Intr. Taylor & Baggs; for thereb men will avoid his company, & homo eſt anims ſociabile.

For Leproſus extra communionem poſitus petere non poteſt, Bracton, lib. 2. fol. 12. A.

1. For calling one Murtherer, Action lies,Murtherer. 6 Eliz. Dyer 236. pl. 26. Q.

2. Thou haſt killed my Wife, no Action lies, becauſe it appears to the Court that ſhe is alive, Coke 4. part. 16. A. and ſo no damage can be by ſpeaking of the words.

3. Thou didſt poyſon thy Husband, Action lies; and yet it was objected, 1. that ſhe ought to ſhew that he was dead, 2. that he died within the year, 3. that it was voluntary, Mich. 15 Jac. Ban. Regis, Gardiners caſe. Q

4. Thou didſt poyſon S, and it ſhall coſt me a 100 l. but I will hang thee for it, Action lies, No. Lib. Intr. 25. C. ſect. 23. The latter words enforce the former.

5. A ſaid, that C gave counſel to B to kill me, it lies not, becauſe a man is not puniſhable without an action done in purſuance of the Counſel given, Coke 4. part. 16. caſe 10.

1. For calling one perjured,Perjured. 2 Hen. 8.22. Kitchin 173. yet an Indictment lies for Perjury.

2. But for ſaying that he had Forſworn himſelf, it lies not; for it might be againſt his will, or not in a Court of Record, Coke 4. part. 15. A, & B.

Unleſs he had ſaid in ſuch a Court of Record, Coke 4. part. 15. B. and then it implies he is perjured, and the words amount to as much.

3. A hath gotten a Mannor by Swearing and Forſwearing, Action lies not, becauſe the words are too general, and fix no offence upon the party, Coke 4. part. 15. A, & B. No. Lib. Intr. 21. B. Sect. 18.

4. W is forſworn and perjured in Swearing at the Common Pleas bar, upon the Deed which he then had in his hand; this ſhall not be intended that he ſwore upon the Deed, but upon the Book, ergo the Action lies, Hill. 35 Eliz. Ban. Regis, Rot. 56. Crowe; for words muſt have a reaſonable conſtruction, according to occaſion of the ſpeaking of them.

H is a perjured old Knave in the Court of T, Action lies, for perjury in a Court Baron is puniſhable per the Statute of 5 Eliz. for the right comes in debate there, & perjurium eſt jus alie. num pervertere, Paſch. 40 Eliz. Com. Ban. Hatchman & Southcotte. But before the Statute quaere whether the words were Actionable or not.

A ſays to B, thou haſt an old Creeple whore to thy Mother; for which words he ſued him in the Spiritual Court, and produced B for a Witneſs; A takes exception to him becauſe he was perjured at the Aſſizes of D in ſuch a cauſe; W for this brought his Action againſt A, which juſtifies as aforeſaid, 1. this was a legal courſe, viz. to take exception to a Witneſs; ergo the Action lies not; 2. the Eccleſiaſtical Court may puniſh perjury, therefore it lies not here, Trin. 15 Jac. Ban. Regis, Weſtover verſus Dabener.

Thou art perjured, and I will prove it, Action lies, No. Lib. Intr. 26. A. Sect. 24.

For ſaying that A was detected of perjury in the Star-chamber, it lies not, becauſe an honeſt ma • may be detected, but not convicted, Coke 4. part. 16. caſe 8. Note the difference.

1. For ſaying of an Innholder,Plague. that he had buried divers of the Plague that died in his houſe in his Garden, Action lies, Regiſt. orig. 173. B. for by the ſpeaking ſuch words he is in danger to loſe his Gueſts. But quaere if he ought to alledge, that he is damnified thereby.

M is a Whore and hath the Pox,Pox. and they have made ſuch holes in her that you may turn your finger in them, and K the Chirurgion hath given her a Diet drink to heal them, take heed how you drink with her, Action lies; 1. for calling her Whore, and this is the cauſe of the Pox, 2. the cure is publiſhed, to wit the Chirurgion and the Drink, 3. the contagion, take heed how you drink with her: Ergo it ſhall be intended the French Pox, and not the Small Pox, Trin. 15 Jac. Ban. Regis Milner and his Wife againſt Reeve.

1. A ſaid of B, Profeſſion. being a Barreſter, that he had no more Law than a Jack-an-Apes, an Action lies, becauſe it is an unreaſonable Creature not having any Law, and it ſcandals him in his profeſſion, Mich 36, & 37 Eliz. Ban. Regis, Palmers caſe, and it is as much as if he had ſaid, he hath no Law.

For ſaying of a Counſellor, he will deceive you,Revealer of a cauſe. he was of my Counſel and revealed my Cauſe, No. Lib. Intra. 22. B. ſect. 19. for this may hinder him from Clients.

For calling a man Rogue it lies not,Rogue. Kitchin 173. B. But quaere if he call him branded Rogue.

A ſays of a Preacher,Sedition. thou haſt made a ſeditious Sermon to day and moved the people to it, Action lies, becauſe he is ſcandalized in his profeſſion, Coke 4. part. 19. caſe 15. and he might then have been puniſhed for preaching Sedition.

An Action. de ſcandalis magnatum was brought for ſaying, you like of thoſe that maintain Sedition againſt the • Queens proceedings, Coke 4. part. 12. B. Cromwells caſe. Q. if it lie, for the words are general, and it may be he did not know it.

L ſaid E did report,Sorcery. that your wife ſacrificed her Child to the Devil to make away my Mother, Action lies, becauſe ſorcery is felony, per 11 Jac. Regis, and there is an evil intention and an act joyned together, Paſch. 15 Jac. Locke verſus Locke.

It lies for calling one Traytor,Traytor. 27 Hen. 8.14.30 Aſſize 29. Coke 10. part. 130. B. Osburns caſe.

Thou diddeſt ſpeak Treaſon, Action lies, 9 Jac. Brereford & Preſton; for ſpeaking of Treaſon is Treaſon, and puniſhable.

Walter ſaid P did ſay, that Mr. Lewis did ſay there was no Prince in England, an Action lies, for it cannot be intended but that he meant Prince Charles was not Prince; and becauſe it toucheth the Plaintiff in his Alleageance it ſhall be taken in the favourableſt ſenſe as is, Fama, fides, oculus non patiuntur ludum, Hill. 14 Jac. Ban. Regis, Lewis & Walter; for it is not lawful for me to ſay what I hear another ſay, if it tends to a third perſons prejudice.

For calling one Uſurer it lies not,Uſurer. becauſe it meerly belongs to the Spiritual Court, 27 Hen. 8.17. and Uſury is tolerated by the Law. But Q. if one call another Extortioner.

It lies not for calling one Whore,Whore. Mich. 9 Jac. Ban. Regis, Hudſons caſe, Coke 4. part. 18. A. but it doth by the late Act.

But in London by cuſtomes it did lie before, but if it be removed to Weſtm. no Procedendo ſhall be granted, for ſuch cuſtomes to maintain actions for brabling words is againſt the Law, Coke 4. part. 18. A. caſe 13. Q. tamen, for Roll Chief Juſtice held it ought to be granted; but Bacon Juſtice to the contrary, 23 Car. B. R. Izack againſt Green, & 24 Car. B. R. Kings caſe.

For ſaying of a Maid that ſhe had a Baſtard, an Action lies, 1. becauſe it is puniſhable by our Law, viz. the Statute; 2. if ſhe be to be married it hinders her preferment, Coke 4. part. 16. caſe 11. Davies & Gardiner.

For doing of wrong to the damage of another, touching Suits in Law.

Admiralty.For ſuing me in the Admiralty for matter about neque ſuper altum mare, neque ultra mare, per 2 Hen. 4. cap. 11.5 Mariae, Dyer 159. pl. 27. and ſo not belonging to the Juriſdiction of the Admiralty.

But if one which is only Baily in the Admiralty, and is arreſted, when the principal matter is not determinable, there this Action lies, quaere, for it was argued at the Bar, Mich. 11 Jac. Com. Ban. Rot. 1127. Rowe verſus Alporte.

Againſt him that diſturbs an Officer to make Attachment. Q. whether by the Officer,Attachment. or the Plaintiff, or both.

Againſt a Baily of a Franchize, that fraudulently delivers to the owner his goods attached, Nat. br. 93. F. 2 Edw. 3.43. for the Law creates a privity, and here is breach of truſt.

1. Againſt an Attorney that makes default,Attorney. by which my land is loſt, Lib. Intr. 2. Aſect. 1. vide the count there, viz. by negligence or collation.

2. For ſuing debt in my name without my aſſent, 7 Hen. 6.43.45. for it may prove to my prejudice.

3. For Appearing without warrant, and imparling where the party is miſnamed, becauſe his Client loſeth the advantage of the plea, 15 Hen. 7.14. of Miſnoſmer.

For taking an Obligation in his own name, where it ought to be taken in his Maſters, 20 Hen. 6.25. for this is apparent wrong.

5. It lies for not executing his office, 20 Hen. 7.9. A. King ſmell. viz. for Nonfeaſance as well as for Misfeaſance.

6. It lies for Utlawing me in the name of B, that was dead at the time, Coke 7. part. 1. A. Bulwers caſe; for there was no warrant for ſuch Utlawry.

7. It lies for pleading Non ſum informatus without warrant, 20 Eliz. Dyer 361. pl. 13. Q. for it ſeems he may do it in ſome caſes.

8. It lies for appearing in default of the Tenant, and confeſſing the Action without warrant, 9 Edw. 4.13. 43 Edw. 3.20. Regiſt. orig. 113. A. for hereby the Defendant is condemned.

9. Againſt him that will be my Attorney without my aſſent, 42 Edw. 3.14. for my election is thereby taken away, which the Law will not permit.

Againſt a Counſellor retained for a certain ſum,Counſellor. and he diſcovers his counſel, and was of Counſel with the other party, and good, although he doth not ſhew for what ſum he was retained, 11 Hen. 6.2.18. Action upon the Caſe 7. Lib. Intr. 2. B. ſect. 2. for the Retainer is the principal, and the ſum for what is not material.

Againſt a Counſellor that is an Ambodexter, Lib. Intra. 2. B. ſect. 3. or on Counſel on both ſides, which is not lawful but in ſome caſe, by the conſent of the parties.

Chriſtian Court.Againſt him that ſues me for Tithes in Court Chriſtian, although I ſhew him a Compoſition by me time out of memory, 8 Edw. 4.13. for he ought to ſue at the Common Law.

1. Againſt a Sheriff that ſuffers one to eſcape upon a Capias ad Computandum; Eſcape. for he ſhall not have an action of debt, becauſe there is no duty certain, 15 Edw. 4.19. 16 Edw. 4.2.3. eſcape 37. and ſo, if he may not have this Action, he would be without remedy.

2. Againſt a Goaler that lets one eſcape that was committed upon the Statute of Labourers, 14 Hen. 6.8. viz. by the Maſter of the Servant committed.

3. Againſt a Goaler that ſuffers one to eſcape taken upon a Capias upon a Statute Merchant, viz. by the Conuſee of the Statute at whoſe ſuit the proſecution is, Nat. br. 93. A.

4. Againſt a Goaler that ſuffers one to eſcape upon Execution, Lib. Intra. 8. C. Sect. 1. for thereby the Plaintiff is deprived of his remedy to recover his debt.

5. Againſt a Priſoner that breaks priſon and eſcapes, Nat. br. 95. C. 130. B. viz. by the Goaler, who is to anſwer for the eſcape.

6. Againſt an Officer that arreſts one at my ſuit, and ſuffers him to eſcape, Regiſt. 111. A, & B. for I am thereby retarded in my ſuit.

Againſt a Sheriff that quaſhes eſſoyns in Reply erronice without aſſent of the Suitors, 20 Aſſize 45.Eſſoyn.

1. A having goods of B in his houſe,Execution. the Sheriff comes and takes the goods in execution, and A him diſturbs, 1. if the Sheriff gives notice to A, and after he diſturbs him, the Plaintiff ſhall have this Action againſt him, otherwiſe not; 2. A may keep his houſe faſt till notice; 3. the Count is not ſufficient, that A. praemiſſorum non ignarus, &c. but it ought to be alledged preciſely that he had notice, Coke 5. part. 93. A. Semaines caſe, for the other is but by way of argument.

2. By hindering Execution by removing the Record by attaint, Regiſt. orig. 113. A. viz. where there is no cauſe.

Againſt him that ſues out Execution upon a Statute, as Executor of the Conuſee where he is not, or where the Conuſee is alive, 2 Rich. 3.8. for this is deceitful.

Falſe Return, no Return.1. Againſt a Sheriff that returns quarto exactus, where it ſhould be quinto exactus, 9 Hen. 6.60.81. for by this falſe return the Plaintiff is hindred in his proceedings.

2. For returning Cattel eſtrayed, which are dead, 32 Hen. 6.27. which is a falſe return, and may prejudice the party.

3. For making other return than the Baily made, 36 Hen. 6.1. 30 Aſſize 5. viz. the Baily of a Liberty.

4. For returning a man of the enqueſt where he ſhews him a Charter to be priviledged to the contrary, 18 Hen. 8.5. for thereby he is wrongfully moleſted and put to charge.

5. Againſt a Comiſſary that returs a Jure patronatus otherways than it is found, 22 Hen. 6.30. to the hindring the due courſe of the Law.

6. Upon a devaſtavit returned falſly, Lib. Intr. 11. A. ſect. 11 Hen. 6.37. B. viz. where there was none, whereby the Executor is chargeable de bonis propriis.

7. For returning a man ſummoned where he was not, 26 Aſſize 48. 1 Hen. 6. pl. 4. or where he was not ſummoned by a reaſonable time, 39 Edw. 3.7. for that is all one in Law as if he were not ſummoned at all.

8. The ſame Law upon Garniſhment, 2 Edw. 3. cap. 14. Regiſt. orig. 112. B.

9. For returning non eſt inventus where the party was ſufficient, and ought to be ſummoned, 31 Edw. 3. Proceſs 55. Nat. br. 39. B. for ſuch return is to his diſcredit, and the Law is tender of mens Reputations.

10. For returning a cepi Corpus, and had not the body at the day, the Plaintiff ſhall not have an Action upon the caſe, but ſhall ſue him upon an account, 7 Hen. 4.31. Proceſs 120. Q. for it ſeems it lies.

11. For delivering a Diſtreſs, and returns not the Writ, 21 Edw. 3.43. viz. of Replevin, whereby the proceedings are hindred.

Againſt a Deputy of a Sheriff, 20 Hen. 6. deceit 11. for the Law takes notice of ſuch an Officer.

12. For returning a Nihil where the party had ſufficient, Lib. Intr. 11. C. ſect. 2. Nat. br. 39 B. for this is to his diſgrace.

13. Againſt an eſcheator that certifies an office otherways than it is found, or that certifies one where there is none found, 21 Edw. 23. 9 Hen. 6.60. Regiſt. orig. 115. B. for though it may be traverſed, yet this puts the party to charges and trouble to do it.

14. By the new Sheriff againſt the old Sheriff for returning one ſufficient, which is not, by which the Plaintiff, viz. the new Sheriff, is charged in iſſues, 19 Hen. 6.38. B. Paſton.

15. Againſt a Sheriff that makes a precept to one that is not Baily of a Franchize, 38 Aſſize 13. as if he were Baily of a Franchize.

16. If the Sheriff returns not a cepi Corpus, ſed languidus, when the Defendant was in good health, he, viz. the Defendant, ſhall have an Action of falſe Impriſonment, 11 Hen. 6.42. pl. 39. 2 2 Hen. 6.5. A. And the other, viz. the Plaintiff, an Action upon the caſe, 21 Hen. 6.5. A. for it is falſe return.

17. In a falſe Judgment, if the Sheriff returns that there is no ſuch things, &c. if it be falſe Action lies, 10 Edw. 3.389. pl. 35. pro falſitavit.

18. For the Sheriff ſhall not be amerced, 44 Edw. 3.3. pl. 11. for it is no contempt to the Court, and they will take it for a good execution of the Proceſs till the contrary Appeal.

19. If the Sheriff make a falſe return upon an enqueſt, the party hath no remedy, Coke 5. part. 32. B. Pettiſors caſe. Q. for me ſeems an Action on the Caſe lies.

20. For not returning a Writ delivered by Bill by the old Sheriff, Weſtm. 2. cap. 39. 42 Aſſize 12. But note 8 Edw. 3.3.298. pl. 26. Herle.

21. It lies againſt a Sheriff for a falſe Return, Doct. & Stud. 134. B. 19 Hen. 6.29.5.72.

22. For returning ſummoned where he was dead, Action lies. 8 Edw. 3.330. pl. 1. for the Plaintiff is thereby deceived.

23. Againſt a Summoner that returns a man ſummoned where he was not, by which he was excommunicated, Mich. 12 Jac. Ban. Regis, Pole and Godfrey, the Count and pleadings in the Reports; for the Common Law takes notice of Excommunications.

For ſuing one upon a forged Obligation,Forgery. Goke 4. part. 18. B. Q.

Againſt a Cuſtos brevium for embezeling a Writ to him delivered,Imbezeling. 7 Hen. 4.6.

For inciting another to imbezel a Writ, 19 Hen. 6.29. if the Writ be thereupon imbezeled; for the Law favours not encouragers to do wrong.

If my Attorney or Deputy of the Sheriff imbezel a Record, Deceit lies, 10 Hen. 6.30. in reſpect of Truſt deceived, which the Law creates betwixt the parties.

For ſuing me before the Steward or Marſhal,Marſhal. where I am not of the Houſhold, 3 Hen. 6. Eſtoppel. 18. 10 Hen. 6.13. for every one ought to be ſued in the Courts at the Common Law, and which are proper to try the Action.

1. Againſt a Baily of a Franchize that diſcontinues his plea, Nat. br. 93. F. the Writ there,Plea. where it ought not to be.

2. Againſt a Baily of a Franchize that ſues after the plaint removed, Nat. br. 93. E. 14 Edw. 3. Action upon the Caſe 39. for then he hath no power to hold plea.

3. Againſt a Guardian which pleads a falſe plea, or vouches one that is not ſufficient, 9 Edw. 4. Action upon the Caſe 118. by the ward, for it is to his prejudice.

Againſt him that procures one to ſay,Procurement. he is A.B. the Plaintiff in the fuit, and confeſſes the Action, &c. Regiſt. orig. 113. B. for this is deceit.

Againſt him in Court Chriſtian that proceeds after Prohibition delivered,Prohibition. Nat. br. 92. E. the Writ ſhall ſay contra pacem, becauſe it is in diſturbance of the Common Law.

Againſt him that throws the Prohibition in the dirt, Nat. br. 92. E. Regiſt. orig. 92. the Writ ſhall ſay contra pacem; for this is in contempt of the Common Law.

Againſt him who gets a Protection of the King for one,Protection. and gives it to another of the ſame name, 30 Hen. 6.18. viz. by him who is thus deceived in the truſt repoſed in the party.

Againſt a Tenant in a Praecipe that hath a Protection to come to Weſtm. and ſtays at Glouceſter, 15 Edw. 4.19. Regiſt. orig. 119. B. 20 Hen. 6.10. for this is an abuſe to the Law, and prejudice to the party.

Againſt him that gets a protection, where he was not in ſervice of the King, Lib. Intr. 49 • . D. the Count 493. Sect. 2, 3. and ſo abuſe the King and the party.

Purchaſe of a Writ.Againſt him that purchaſes a Writ, whereby I am ſued to pay a fine without my privity, Regiſt. 112. A.

Quare Impedit, 112. A, & B.

3. Againſt an officer in Ban. Regis, which purchaſes a ſuperſedeas for one that I have a Plaint againſt in London, upon a falſe ſurmiſe that the Defendant is his Servant, 21 Edw. 4.23. and ſo abuſeth the Court to the prejudice of the Plaintiff.

But upon ſurmiſe that he hath an Action depending there it lies not, becauſe the Court cannot have notice, ibidem. Q.

4. Againſt an Officer in Chancery, which purchaſeth a Superſedeas for his Servant, where he was not his Servant retained before the time, 11 Hen. 6.8. for this is abuſing his priviledge to anothers hurt.

1. By a Goaler againſt Reſcouſſors of one in Execution,Reſcous. Dyer 241. pl. 47. for he is liable to the debt thereby.

2. A being arreſted upon a Latitat at the ſuit of B, and Reſcouſſed by C, B ſhall have an Action againſt C, and ought to ſhew that he intended to declare againſt A in debt; for there are no other Proceſs in this Court, Paſch. 7 Jac. Ban. Regis, Kemps caſe, viz. the Latitats upon which one may declare in what action he pleaſeth.

Againſt him that acknowledged a Statute in my Name without my privity,Statute. 112. B. Regiſt. orig. for this may be very miſchievous to the party.

Againſt him that ſues me on purpoſe to vex me,Vexation. 8 Edw. 13.43. 1 Edw. 3.20. for the Law hates vexatious Suits.

But for cauſeleſs Suits no Action, 11 Eliz. Dyer 285. for, pro falſa actionis proſecutione nulla ſequatur poena, 2 Rich. 3.9. pl. 22. ſo that there was probable cauſe.

2. Againſt him that ſues me for a thing arbitrated before that the day come to perform the award, Regiſt. 111. A. for this is unjuſt vexation.

For the not doing of a thing which ought to be done by the Law, touching a thing hereditary to the damage of another.

A Copyholder by Cuſtome that may nominate him which ſhall ſucceed him, and names one,Admiſſion. and prays to be admitted, and offers reaſonable fine to the Lord which reſuſeth; the Copyholder ſhall not have an Action of the Caſe againſt the Lord, becauſe before admittance he had no right, Paſch. 13 Jac. Ban. Regis, Forde and Hoskins.

A Beadle of a Hundred brought his Action o • the Caſe againſt many Brewers;Beadle of a Hundred. and preſcribes to have three gallons of the beſt Beer of even Brewer for 7 d, and good, for it is not unreaſonable; 1. He need not ſhew what eſtate he hath▪ 2. It is good againſt many, becauſe all in common are acceſſory, 19 Rich. 2. Action upon the Caſe 51.

Againſt him which ought to encloſe againſt me,Encloſure. and doth not, by which my graſs is conſumed. 11 Rich. 2. Action on the caſe 36. be it by his own Cattel or a Strangers.

But if it be between two houſes, a Guria cl •• denda lies, ibidem. a Writ to enforce him to encloſ • his own Yard.

A ſold Land to B, Feoſment. and he will not enſeoff him, Action lies, 22 Hen. 6.44. Newton. Q. for he may make him another Conveyance.

Againſt an Archdeacon which refuſeth to •• duct,Induction. wh • ch is as much as to give poſſeſſion of a Living,Inſtitution. 26 Hen. 8.3. Nat. br. 47. becauſe here the Archdeacon is in place of the Sheriff, Mich. 12 Jae. Ban. Regis, Poole and Godfrey. But in this caſt by Doderidge and Coke, it lies not againſt the Ordinary for not inſtituting a Clerk, becauſe this is meerly Spiritual; in the caſe above ſpecified; and the Clerk may be unfit, which they are to judge of.

A hath a nomination,Preſentation. and B the preſentation; A names one, B will not preſent; yet an Action lies not by the Court, Paſcb. 13 Jae. Ban. Regis, in the caſe of Forde and Hoskins; for B hath a greater intereſt than A, or equal.

Againſt one that ought to find a Prieſt,To find a Prieſt. and will not, viz. to ſay Maſs, ſing Dirges, &c. 21 Hen. 7.5.22 Hen. 6.46. Lib. Intra. 2. D. ſect. 5. this was Law in the time of Popery, but not now.

But if he ſhall be found by the Lord, and his Tenants of his Mannor, no ſuch Action lies, Coke 4. part. A. Williams; but it ſhall be in the Court Chriſtian, for the incertainty where the fault is that he is not found.

1. Againſt a Leſſor that refuſes to repair his houſe,Reparations. Dyer 36. pl. 37. viz. where he promiſed to do it. But quaere, if he do not promiſe.

2. Againſt him that ought to repair a Bridge, by which I have a way to my Mannor, 11 Hen. 4.82.45 Edw. 3.17. for I am hindred in my eaſement.

3. But if a Highway be not repaired, by which my Horſe is mired, I ſhall have an Action, by Heiden, 5 Edw. 4.3. Q. viz. for my particular miring.

4. Againſt him which ought to repair a Mound or Bank, by which my Land is drowned, 29 Edw. 3.32. 12. Hen. 4.7. Nat. br. 93. G. 7 Hen. 4.31. pl. 13.

5. So of the Banks of a River, Nat. br. 93. G. 15 Edw. 4.18. 45 Edw. 3.17. 7 Hen. 4.8.31. 11 Hen. 4.82, 83. 33 Hen. 6.26. 29 Edw. 3.32. pl. 49. for in all theſe caſes I am damnified, and am to be repaired by him that is the cauſe thereof.

But if they be broke by Tempeſt, no Action lies, 29 Edw. 3.32. pl. 49. for this could not be foreſeen nor prevented, and ſo there is no fault in any body.

6. For not ſcouring Ditches, 11 Rich. 2. an Action upon the Caſe lies, 36. Nat. br. 93. G.

7. For not repairing of a Gutter, Lib. Intra. 10. D. ſect. 1. whereby another is damnified.

For not repairing a houſe that is ready to fall upon my houſe, Crooke 22 Hen. 7.98. pl. 4. per Fineux & Brudnel; for I am like to ſuffer damage, and an Action may ſometimes be brought to prevent a wrong.

Againſt him that is retained to purchaſe Lands and doth not,Retain. 11 Hen. 6.18. Q. for it may be it i • not to my prejudice, yet here is breach 〈◊〉 truſt.

But if he doth his endeavour it ſufficeth, ſo ultra poſſe non eſt eſſe.

But if he be a Counſel with the other partyr Action lies, 11 Hen. 6.18. pl. 10. Babinton, & 55 pl. 26. for then he is retained againſt me to my prejudice.

Againſt a Lord in Ancient demeſn which 〈◊〉 not hold his Court,To hold Court, 11 Edw. 2. Action upon the •• j. 46. lies; for the Tenants may be prejudiced thereby.

Toll. 1. Againſt a Millar that refuſeth to grind To • free for one that is Toll-free, 43 Edw. 4.24. Cr ••• 130. pl. 100 l. per Keble; for this is appare • wrong to take my goods where I am exemp • e • by the Law from being charged.

2. Againſt him that bought or ſold in 〈◊〉 Market or Fair without paying Toll, 7 Hen. 4.4 • . pl. 11. for this is my loſs, and to the ill example • others.

3. But if one paſs over my paſſage or po • where I have Toll, and doth not pay it, qu •• what remedy, 21 Hen. 7.16. pl. 25. It ſeems 〈◊〉 Action on the Caſe doth lie, if it be demanded.

For not doing of a thing which ought to be done by the Law, to the damage of another, concerning Chattels.

A borrowed a Horſe of B, Borrowed. which died ſuddenly without his default, Action lies not, 40 Edw. 3.36. for this is the act of God, and not the faul • of the borrower.

It lies not againſt an Attorney that will not do his office unleſs he be retained,Attorney. 20 Hen. 7.9. for he is but in the nature of a Servant, and is not bound to be retained.

Againſt a Baily that hath money to bail my Attorney,Bailment. and doth it not, 20 Hen. 6.9. B.

Againſt my Servant, becauſe he pays not money for bailing and ſaving harmleſs, 20 Hen. 6.9. for I may be damnified thereby.

S being a Dutchman,Cocket. his Parents being ſubjects to the King, brought an Action againſt a Cuſtomer for not putting a Cocket upon his Merchandize, and avers that he tender'd the Cuſtomes. Coke Ch. Juſt. ſaid, that inſomuch that the Dutchmen here aſſembling are not of our Nation, nor free of any company of Merchants, that the Action lies not, Paſch. 14. Jac. Stephens his caſe.

Farrier & Smith. 1. Againſt a Smith that refuſeth to ſhooe my Horſe, 14 Hen. 6.18. Crooke. 18 Hen. 7.50. pl. 4. for this is for the publick good as well as private.

2. But then he ought to have all neceſſaries, and his wages tendered, 2 Hen. 6.55. Q. for the wages are not due till the work is done.

3. Againſt a Farrier that applies medicine, and cures not my Horſe. But if no default be in him, it lies not, 19 Hen. 6.49. 43 Edw. 3.33. 48 Edw. 3.6. for he doth his beſt according to his skill.

Againſt an Innkeeper that will not lodge me,Innkeeper. 39 Hen. 6.18. Crooke. 18 Hen. 7.50. pl. 4.14. Hen. 7.22. B. Higham, for it is againſt the good of the weal publick.

Pledge. 1. Againſt him that will not deliver my Pledge upon tender of the money borrowed, Nat. br. 86. C. Regiſt. 91. B. Lib. Intra. 8. B. Sect. 1. for the Pledge is judged to be more worth than the Money.

Servant. 2. Againſt a Servant that will not do his ſervice, 2 Hen. 7.11. B. Q. for the Maſter is damnified thereby.

For his Wages is certain by the Statute, and he hath his Action to recover it, 3 Hen. 6.36. B. So note, it muſt be a Covenant-Servant hired according to the Statute.

3. Againſt one that will not ſerve not having Land, Regiſt. orig. 101. A. & B. for ſuch are bound by the Law to ſerve.

4. Againſt one that will not ſerve in Summer, Regiſt. orig. 101. B. In time of Haryeſt it ſeems more eſpecially.

For the not doing of a thing which ought to be done by the Law, to the damage of another touching his Body.

Againſt an Innkeeper that refuſeth to lodge me,Innkeeper. 39 Hen. 6.18.

A good bar that his houſe was full,Bar. and had no room, 5 Mariae, Dyer. 158. pl. 32. for he is not bound to provide lodging out of his own houſe.

Againſt a Chirurgion that takes upon him aChiturgion Cure, and neglects it, 48 Edw. 3.6. whereby the Cure is become impoſſible, or is retarded.

Againſt a Victualler that refuſeth to ſell to me,Victualler. 39 Hen. 6.18. for his profeſſion is for the publick, and he ought to make no diſtinction of perſons.

For not doing of a thing which ought to be done by the Law, to the damage of another touching Suits in Law.

1. It lies againſt an Attorney that is retained,Attorney. and makes default; Lib. Intra. 2. A. ſect. 1: Regiſt. orig. 113. A. if his Client be prejudiced by it.

Clerk of Aſſize.Againſt a Clerk of Aſſize that takes a Fee, and enters not the Jury, 34 Hen. 6.4. for thereby the Cauſe is delayed by his nonfeaſance.

Feoffee to uſe.Againſt a Feoffee to uſe, which doth not plead according to the directions of the Feoffor, 14. Hen. 8.24, B. pl. 2. Q. for the pleading is for his advantage or diſadvantage.

To hold Court.Againſt a Lord of a Mannor that will not hold his Court, 11 Edw. 2. Action upon the Caſe 46. for the Tenants of the Mannor are thereby prejudiced, and the Lord is as well bound to hold his Courts duly, as the Tenants are to do their ſervices.

1. Againſt a Sheriff that will not execute Proceſs,Sheriff. 14 Hen. 7.23. the party being ſhewed to him, 8 Edw. 4.14.17. for Juſtice is thereby delayed.

2. For the Plaintiff againſt a Sheriff that will not return his Writ, 2 Hen. 6.5. 8 Edw. 4.14.7. for he is thereby hindred in his Suit.

3. Againſt a Sheriff that will not return an Outlawry, 42 Aſſize 12. for though it properly concerns the King, yet the party may receive prejudice by not returning it.

4. For delivering a diſtreſs upon a ſecond deliverance, and not returning the Writ, 2 Edw. 3.43. for thereby the further proceedings of the Avowant are hindred.

Aſſumpſit.
For the not doing of a thing which ought to be done by the agreement of the party to the damage of another, touching things hereditary.

Aſſumpſit. Quid. Quotuplex. ASſumpſit is either by word, or deed Poll.

If it be by Covenant it lies, and needs not any conſideration to be averred, 2 Hen. 7.11. 21 Hen. 6.55. for a Covenant ſuppoſeth a conſideration, becauſe it is a ſolemn act.

If it be by word, then it ought to be upon a conſideration, otherways it is but Nudum pactum unde non oritur actio, for the other hath no wrong, though the promiſe be not performed.

A Conſideration is a cauſe or occaſion meritorious, Conſideration. Quid. Quotuplex. requiring mutual recompence in deed or in Law; in Deed expreſſed in words; in Law not expreſſed, but created by Law, 16 Eliz. Dyer 336. B. pl. 34.

The Conſideration is either expreſſed in words, or implied by Law; in every Contract there is an Aſſumpſit or promiſe implied by Law, Coke 4. part. 94. Slades caſe.

If it be expreſſed it ought to be ſhewed in the Count or Declaration, 3 Hen. 6.36. 11 Hen. 4.33.

A Conſideration of a thing paſt is not good, Doct. & Stud. 104. B. except it be a continuing conſideration and benefit to the party.

An Aſſumpſit may be made in the abſence of another, if he will agree to it afterward, 27 Hen. 8.24. and it ſhall be all one as if it were made to the party. Quaere, whether he that aſſumed may not refuſe before the other conſent.

General Bar.

1. Concord pleaded, viz. after the Aſſumpſit made, Lib. Intr. 6. C. ſect. 6.

2. Non aſſumpſit, and this a man may plead although there is no conſideration, Paſch. 26 Eliz. Ban. Regis; for if there was no conſideration for the promiſe, it is all one as if there had been no ſuch promiſe made.

But if the former were upon an entire ſum upon two Aſſumpſits, then no bar, Trin. 14 Jac. Ban. Regis, Paine and Selley.

A good Bar that he promiſed upon Condition, which is not performed, Lib. Intr. 5. D. ſect. 1. and ſo he is not bound to perform his promiſe, for the Condition is to be precedent.

Non emiſſes the Land of him, a good bar, Lib. Intra. 6. B. ſect. 5. viz. an Action brought for moneys promiſed to be paid upon a purchaſe of lives.

That the Plaintiff diſcharged him of the bargain, a good bar, Lib. Intr. 685. C. ſect. and ſo there could be no money due upon it.

To make an eſtate.The Action lies, 1. againſt him that ſells Land to me, and promiſes to make an eſtate, and doth it not, 3 Hen. 7.14. 14 Hen. 8.15. 21 Hen. 7.41. 2 Hen. 7.11, 12. 20 Hen. 7.9. 22 Hen. 6.44. 20 Hen. 6.34. Lib. Intra. 5. D. Sect. 1. and 685. B. ſect. 1. the Writ, Lib. Intra 6. A. Sect. 2. for I am thereby prejudiced in my title to the Land.

2. Againſt him that ſells Land to me, and promiſes to give me ſeiſin of it, and does not, Regiſt. 112. A. for he hath conſented to paſs the Land by that kind of Conveyance.

3. A promiſes to convey Land to ſuch a perſon as B ſhall name, and the Defendant ſhews, that he conveyed it to B, this is good; for it ſhall be intended a nomination in B, inſomuch that he did accept of it, Mich. 13 Jac. Com. Ban. Huligo and Wilde; for he might nominate himſelf as well as another.

4. Againſt him that firſt ſells Land to me, and afterwards ſells it to another, Lib. Intra. 685. B. ſect. 1. Nat. br. 98. F. 20 Hen. 6.34. for I may be thereby troubled in my poſſeſſion.

5. The ſame Law is, if he grant a Rent, and afterwards infeoff me, not giving me notice of the Rent, 20 Hen. 6.34. for thereby my Land is charged.

Againſt one that promiſes to ſcour his Ditch,Ditch. and doth not, by which my Land is drowned, 3 Hen. 6.36. and I damnified.

Againſt an Alien that brought Salt to London, Cranage. and promiſes to the Major to pay ſo much as ſhall be due for Cranage, 18 Eliz. Dyer 352. pl. 27: and doth it not, for here is damage by the loſs of the profit.

Againſt the Leſſor that promiſes,Leſſor. that the Leſſee ſhall enjoy pacifice & quiete, and is expulſed by a Treſpaſſor, 16 Eliz. Dyer 328. pl. 8. Q.

1. Againſt him that promiſes to amend his houſe,Houſe. 19 Hen. 6.49. and doth it not. Q. whoſe Houſe.

2. For not building a Houſe according to his promiſe, 2 Hen. 6.55. 21 Hen. 7.41. 20 Hen. 7.9. 14 Hen. 6.18. Nat. br. 145. G.

3. Againſt him that promiſes to cover a houſe, and doth it not, 3 Hen. 6.36. 14 Hen. 6.18.

4. A Leaſes a Houſe to B at will, and in conſideration that he will permit him to enjoy it till ſuch a day, he promiſeth to keep A harmleſs from all damage, ratione inhabitationis & occupationis Meſſuagii praedicti, and for every farthing hurt he will ſatisfie 2 d. upon requeſt: The Servant of B ſuffers the houſe to be burnt, 1. the Aſſumpſit extends to negligent waſte, becauſe it is a damage to the Leſſor; 2. the Plaintiff ought to ſhew how many farthings he is damaged, or elſe he cannot recover two pence for every farthing; 3. he ought to requeſt ſo many farthings due to him, and to demand two pence for every one in a groſs ſum; 4. upon the promiſe to the Tenant at will; 5. he needs not to averr, that he did there inhabit at the time, &c. for if he occupied it, it is ſufficient; 6. by the aſſumpſit that B ſhould have it until, &c. And it being a Leaſe for years, ergo the Action lies not, Mich. 9 Jac. Ban. Regis, Coventry & Woody. Q.

Againſt him that promiſes to purchaſe Land for me of B, and doth not do it,Purchaſe. he is not excuſed though B will not ſell it, 11 Hen. 6.18. 3 Hen. 7.14. for by his promiſe he is bound to do it at his peril.

But if he be retained and do his endeavour he is excuſed, 16 Hen. 6. Action upon the Caſe 44.

Againſt him that promiſes to make B. to releaſe to me,Releaſe. and doth not, 14 Hen. 6.18. pl. 58.

For not doing of a thing which ought to be done by the agreement of the parties touching Chattels.Aſſumpſit.

1. Againſt him that puts in Cattel without paying for the Agiſtment,Agiſtment. Nat. br. 86. B. Regiſt. orig. 92. A. the Writ there; for here is not quid pro quo in recompence.

Annual payment.Againſt him that promiſes to pay 10 l. a year for Land for four years, and fails of the firſt payment, Action lies preſently, Coke 3. part. 22. A. Walkers caſe, 3 Mariae. Dyer 113. pl. 54. pro tanto.

Trees cutting.Againſt him that promiſes to cut Trees and carry them to my houſe, Regiſt. 109. B.

Againſt him that promiſes an agreement,Arbitrement. and doth it not, Coke 5. part. 77. B. Sammons caſee. Ne. Lib. Intra. 3. B. ſect. 4. for the other thereby is delaied in his right.

A grants his term to B, if C agree, B promiſes 20 l. to C for his aſſent,Aſſent. this is a good aſſumpſit, Trin. 12 Jac. Com. Ban. in the caſe of Grieſly and Louther; for the aſſent ſhall be intended to be for his benefit.

1. Againſt one that promiſes to re-deliver money, and doth not, Lib. Intr. 10. ſect. 1.

2. Againſt a Baily that takes upon him to keep Cattel ſafe, and doth not, Lib. Intra 9. A. ſect. 1. & fol. 3. B. ſect. 1. but they are loſt by his negligence.

3. But if he promiſe to guard the goods, and after refuſes, no Action lies, Doct. & Student. 102. B. if there were no conſideration taken to do it.

1. Againſt a Carrier that undertakes to carry goods ſafe, and doth not,Carrior. 2 Hen. 7.11. Lib. Intra. 2. D. ſect. 1. the Carrier is chargeable without ſuch a promiſe per legem terrae.

2. Againſt him that promiſes to carry Wine, and breaks the Pipe by negligence, Regiſt. 110. A. for one man muſt not be prejudiced by anothers negligence.

So if Oyl be carried, Regiſt. orig. 112. A.

Charitable deeds.Againſt him that promiſes 10 l. for the curing a poor man, Doct. & Student. 104. A. and pays it not.

For upon every promiſe, if the party be charged with it, an Action lies, although the other have no benefit, Doct. & Student. 104. A. but there muſt be a benefit to ſome body.

Againſt him who promiſes to make a Coach,Coach. and doth not, Nat. br. 94. A.

But the Plaintiff ought to count, that he did give money for the doing it, other ways it is but Nudum pactum, unde non oritur actio, 3 Hen. 6.36. pl. 33. for there was not reaſon why he ſhould do it.

Gathering Tithes. A promiſes, if B will aſſiſt him in the gathering of the Tithes of Cheeſe, and Apples, and other Tithes till ſuch a time, he ſhould have 20 s. and B ſhews, that he did aſſiſt him ſo long in the gathering the ſaid Tithes, and good; for non conſtat that there are other Tithes, if there be they ought to be ſhewed by the other party, Mich. 7 Jac. Ban. Regis, Baker & Secker.

Againſt him that takes upon him to repair my Dove-houſe,Dove-houſe. and doth it ill, Regiſt. orig. 110. B. whereby my houſe becomes of leſs profit. A work ill done is accounted as not done.

Againſt him that promiſes to make a Croſs,Croſs. and doth not, Regiſt. 109. B. This Action it ſeems lies not at this day. Q.

Delivery of a deed. A promiſes to deliver a deed upon requeſt, the requeſt ought to be ſhewed preciſely, otherways if it be of a thing due before, or upon a ſale; for in the former caſe the requeſt is traverſable, but not in the latter, Paſch. 28 Eliz. Com. Ban.

Diſcharge of a Priſoner.Againſt him that promiſes to pay me as much as the other owed him, if I will diſcharge him of the Priſoner, 27 Hen. 8.24.

Farrier & Smith.1. Againſt a Smith that takes upon him to ſhoe my Horſe, and doth not, 14 Hen. 6.18.

2. Or to cure him, 19 Hen. 6.49. Regiſt. orig. 119. B. but here muſt be a conſideration precedent.

It is not ſufficient to do all he can, but he is bound to cure him: But upon a general retainer, without taking upon him the Cure, it is not ſo; for there the Law implies only, that he would do his beſt endeavour to do it, 43 Edw. 3.33. 45 Edw. 3.17. 48 Edw. 3.6. 27 Aſſize 56.

And the Writ ſhall not ſay contra pacem, 43 Edw. 3.33.

3. Quare tam negligenter & improvide impoſuit medicinas, &c. quod equui mortuus eſt, 43 Edw. 3.33. pl. 38. 19 Hen. 6.49. for the Law punniſheth negligence.

1. Againſt a Ferryman that takes upon him to carry one over the water,Ferryman. and doth it not, and this without conſideration, becauſe his fare is certain, 22 Aſſize 41. and recoverable by Law; for the Law makes the Contract.

2. For ſurcharging his Boat, by which my Beaſt is drowned, 22 Aſſize 41. Action upon the Caſe 40. for this is a misſeaſance.

An Adminiſtratrix deſires to be forborn till ſuch a time, and then ſhe will pay the debt;Forbearance. this is a good aſſumpſie, Coke 9. part. 94. A. Banes caſe; and the Plaintiff needs not ſay in the Count that ſhe hath aſſets, for it ſhall be intended; but it ought to be given in evidence, for ſhe is not chargeable if ſhe have not quid pro quo, Coke 9. part. 92, 93, 94. Banes caſe, & fol. 90. B. Pinchons caſe.

The ſame Law is of a Strangers promiſe,Forbearance. Coke 9. part. 94. A. for though the Stranger it may be hath no benefit, yet the Plaintiff may be prejudiced.

But then he ought to ſhew that the Plaintiff agreed to it, Mich. 39 Eliz. Com. Ban. Milwards caſe.

Then the Count ought to ſhew how the debt grew due, Coke 10. part. 77. A. Marſhalſea; for if there were no debt, there can be no cauſe of Action.

A counts that B was indebted to him in 20 l. but ſhews not how long; and that the 10. of September 7 Jac. B. promiſes, if the Plaintiff would not arreſt him, but forbear till the 21. of September he would pay him; and ſets forth, that he did forbear ſo long per Curiam: if the Plaintiff counts of the forbearance for a certain time, there it is good, without ſhewing when the debt grew due; but otherways when the forbearance is for a time uncertain, Trin. 9 Jac. Ban. Regis, Dean & Nuby. Q. differentiam.

The Count was, that the Inteſtate was indebted to him in a 100 l. and the Adminiſtrator in conſideration of forbearance for a reaſonable time aſſumes to pay, and upon non aſſumpſit pleaded it was found for the Plaintiff; 1. Coke Chief Juſtice ſaid, foraſmuch as the Inteſtate was indebted, and the Adminiſtrator promiſed, &c. and pleaded non aſsumpſit, it ſhall be intended he had notice of the debt, therefore good; to which there was no anſwer: 2. forbearance by a reaſonable time is a good conſideration, becauſe the Court may judge of it: but forbearance per paululum temporis is not good, to which the Court agreed, Trin. 14 Eliz. Ban. Regis, Lingill & Broughton; for the Court cannot judge of it, becauſe it is incertain.

The Count was, that where A. was indebted to him in 32 l. for which he ſued A. and that it was agreed between him and A. to ſtay the ſuit, and if he payed it not before Mich. he ſhould give ſecurity; 1. he need not ſhew how the debt grew due, becauſe the forbearance is the cauſe of Action, but otherways when the Teſtator is indebted and promiſes, for there the debt is the cauſe of the Action; 2. Coke Chief Juſtice, that he needs not ſhew, that he did ſurceaſe his ſuit, becauſe it was but a reciprocal agreement; but if A. in conſideration that the Plaintiff ſhall ſurceaſe his ſuit promiſes to pay it, then he ought to ſhew that he did ſurceaſe, Paſch. 14 Jac. Ban. Regis, Fullers caſe; for that is the ground of the Action.

W indebted to B, delivers goods to L to pay him, L prays B to ſtay 2 or 3 days, and he will pay him, L pays it not, B ſhall have an Action againſt L; for it is a good conſideration, inſomuch that L had goods to ſatisfie, Mich. 7 Jac. Ban. Regis, Brande & Liſter, by his own confeſſion implied in his aſſumpſit.

A pledges goods to B for money, and if A pay not at ſuch a day, that B ſhall have the goods after and afore the day, &c. C requeſts B to forbear till another day and he would pay it, B may have an Action againſt C, if he pay it not; for if C pay the money, then he may have a Detinue againſt B for the goods, for by the payment C had a ſpecial property, Trin. 13 Jac. Ban. Regis, Capper & Dickinſon; per Coke Chief Juſtice.

Againſt a Goaler that promiſes to the Sheriff to keep ſafe his Priſoners, and lets them eſcape,Goaler. Regiſt. 110. A, & B. for the Sheriff is anſwerable for the ſafe cuſtody of the Priſoners within his County.

Againſt him that warrants for 10 l. that my Boat ſhall come ſafe upon the Thames, Warranty. 34 Hen. 8. br. Action upon the Caſe 107. and it doth not; for there ought to be quid pro que.

A Leaſes to B rendering Rent,Leſſor. and paying all out-Rents and making reparations; the Leſſor in conſideration of this, promiſes defendere & ſuſtentare ſtatum & poſſeſſionem of the Leſſee, quiete & pacifice abſque interruptione; 1. here is a good conſideration: 2. the ſaid Clauſe amounts to ſo much as if he had ſaid, that the Leſſee ſhall quietly enjoy his Term, Mich. 7 Jac. B. R. Gamble & Terrell.

Marriage money.1. Againſt him that promiſes in Marriage 10 l. if he marry his daughter, No. Lib. Intr. 2. B. ſect. 2, & 4. B. ſect. 1. Doct. & Stud. 104. A. 16 Hen. 3. Prohibition 22. for the Marriage is a good conſideration.

2. A being to marry B, C living with A. ſays to B, if ſhe ſhould marry A and his Father do not make ſuch a Joynter to her, he would give her a 100 l. B marries A, the Joynture is not made, A and B ſhall have an Action againſt C; for peradventure the marriage had not taken effect, but in regard of the promiſe of C, Mich. 29 of Eliz. Ban. Regis.

3. A promiſes to B 100 l. in conſideration that B marrie his Daughter; this is a good conſideration, inſomuch that the advancement continues, being even as in Frank-marriage after the marriage is good, Trin. 29 Eliz. Ban. Regis, Marche & Rayneforde.

4. A promiſes to B, that whereas his Son was a Suiter to his Daughter, if B would give his aſſent A would give to B 50 l. This is a good conſideration, 1. becauſe the Daughter ought to have the conſent of her Parents; 2. becauſe the Son of A was to have advancement by the marriage, Trin. 12 Jac. Com. Ban. Greicely & Louther. Q. whether a man ſhall be intended to be advanced by marriage, except it be ſhewn.

5. A promiſes 50 l. to C, if he marries B. In an Action upon the caſe for the 50 l. he is not bound to ſhew that he did give notice of the marriage, neither to make requeſt, Mich. 7 Jac. Ban. Regis, Brently & Tod; for A might as well take notice of the marriage as B, and the bringing of the Action is a requeſt in Law.

6. A having ſpeech with El. Stukely about marriage with her, promiſeth to M. the Daughter of the ſaid Eliz. that if ſhe marry him without diſpoſing of her eſtate, he will give to M in marriage 40 l. and in an Action brought upon this, inſomuch that ſhe did not averr in his count, that ſhe had not diſpoſed of her eſtate, it was not good, Mich. 15 Jac. Ban. Regis, Kings caſe; for that was the ſole conſideration.

Obtains a Leaſe.Againſt him that promiſes to obtain a Leaſe for me for 10 l. and gets it for himſelf, 3 Hen. 7.14. Quaere, whether an Action of Deceit doth not lie.

A in conſideration of divers ſums received of divers perſons to the uſe of the Plaintiff amounting to 24 l. aſſumes to pay this,Payment. and adjudged a good count, though he doth not ſhew of whom he received the ſums, becauſe this is not traverſable, for it is a conſideration executed, Trin. 14 Eliz. Ban. Regis, Beckingham & Lambert; for the Account is confeſſed by the promiſe to pay.

Counts that upon an in ſimul computaſſet the Defendant was indebted to him in 20 l. and promiſed to pay it, &c. Crook Juſtice ſaid it was a good conſideration; and Doderidge ſaid, that in every Action of debt an Action of the caſe is implied, and when it appears how the debt grew due, then it is a good Aſſumpſit, Trin. 14 Jac. Ban. Regis, Cullimore and Eyniſon.

Againſt him that takes upon him to plant Thorns, and doth not do it,Planting. Lib. Intr. 13. C. ſect. 1. for the planting may be for my benefit.

Save harmleſs.1. My Servant being in priſon, I requeſt his enlargement, and promiſe to ſave A harmleſs, an Action lies if I do it not; but without requeſt not, 10 Eliz. Dyer 272. pl. 31.

2. If one become Bail for the Servant, and after the Maſter promiſe to ſave him harmleſs, an Action lies not; for here is no conſideration continuing Quaere, if he continue his Servant.

3. A being Bail for B in Ban. Regis, B promiſe to ſave him harmleſs; yet A ſhall not have a • Action againſt B although he pay the money, i • no Capias be awarded againſt the Principal, 〈◊〉 Scire facias againſt the Bail, Trin. 7 Jac. Ban. Regis. Bolles & Jones error upon Judgment in Com. Bu • for here is no due proceedings in Law againſt either.

4. A being indebted to B, prays C to be bound to B for the debt, and he will be bound to C, & C is bound to B, &c. A refuſeth to be bound to C, C ſhall have an Action againſt A, for it is a goo • conſideration inſomuch that C is liable to the d •• Mich. 9 Jac. Ban. Regis, Knyvet & Pledall, and it 〈◊〉 reaſon A ſhould ſecure him.

5. A promiſes to B to diſcharge him, and ſ •• him harmleſs from all bonds in which he w ••• bound for the Son of A, at the requeſt of the ſ ••• Son B. brought his Action, and ſhews that he 〈◊〉 fidei juſſor was bound. 1. It is a good conſideration. 2. He ought to ſhew preciſely that his S ••• requeſted him to be bound, for although fidei ju ••• imply a requeſt, yet it is not ſufficient, Paſch. 9 Jac. Ban. Regis, Somerſton & B • rnby, & poſtea Mich. 〈◊〉 Jac. it is ſhewed that it was alledged, and for th • judgment was given for the Plaintiff, Lib. Intr. 〈◊〉 C. Sect. 1.

6. An Infant borrows money,Infant. B is bound 〈◊〉 pay it, at full age the Infant promiſes to ſave his harmleſs, Action lies upon it; for although th • Infant was not liable in Law, yet in Conſcience 〈◊〉 was, and this ſufficeth to maintain an Action upo • the Caſe, which is an equitable Action; for the conſideration is good, Trin. 29 Eliz. Ban. Regis adjudged.

A Widow promiſeth for following her Suits to pay 200 l. this is not good;Sollicitor. for it is maintenance per 2. Juſtices, but Dyer againſt them; becauſe it did not appear that they were Suits in Law, 19. Eliz. Dyer 356. and they may be Suits in equity, or at the Court.

A promiſes 10 l. to B, Sufferance if he ſuffer C to enjoy the Land • ; there although C enjoy it not, yet if A agree and do not interrupt C the Action lies, Paſch. 15 Jac. Ban. Regis, Taylor & Wilks; for he hath performed the conſideration on his part.

A being a Copyholder makes B his Executor, and intends to ſurrender, to the intent that B ſhould ſatisfie a debt to D; the Son of A promiſes A that if he do not ſurrender, but ſuffer the Land to deſcend, he will ſatisfie the debt, A dies, B ſhall have an Action againſt the Son; for it is a good conſideration, Hill. 9 Jac. Ban. Regis, Gray verſus Gray, yet continuing.

Tabling & Lodging. A promiſes to pay to B, for his reaſonable board for ſuch a time as he ſhall be with him; B ſhews that he was with him ten months, and that 5 s. the month is reaſonable, amounting in all to 50 s. this is good, Paſch. 30 Eliz. Ban. Begis, Floyd & Iriſh.

A being ſick in an Inne, B promiſes to pay as much as ſhall be due for all neceſſaries that the Inn-keeper ſhall provide for A; yet in the Action the Inn-keeper ſhall ſay generally in the Writ and Count, that he did provide neceſſaries from ſuch a day, until, &c. in all to the value of 20 l. foraſmuch as the promiſe was general, the Writ and Count is good though it be not particular. 2. It is inconvenient and dangerous to ſhew all things that he did provide, &c. the ſame Law is for: Phyſician per Doderidge Juſtice. Paſch. 13 Jac. Ban. Regis, Crips. & Baynton; for he may not remember all particulars, and ſo may miſtake.

1. For money upon the ſale of any perſonal things,Vendor. 33 Hen. 8 br. Action upon the Caſe 105, 110. 2 Rich. 3.14. Com. 102. upon an indebitatus aſſumpſit; for the Law creates a promiſe.

For in every Contract there is an aſſumpſit implied, Coke 4. part. 94. Slades caſe; the Count needs not ſhew, but ſaepius requifitus, Paſch. 28 Elis. Com. Ban. Q.

2. In an Action for money upon the ſale of a thing, he needs not count that he was poſſeſt ut de bonis propriis, Trin. 7 Jac. Ban. Regis, Fitz Willi •• & Blackman. viz. before the ſale; for the Law implies they were his, elſe he would not have ſold them.

3. Againſt a Purveyor or Servant that bought goods for his Maſter, and promiſes payment, Dyer 230. pl. 56. 12 Hen. 8.12. Q. if it lies not alſo againſt the Maſter.

4. Againſt him that promiſes to a Baker to pay ſo much as he ſhall deliver in Bread to B, 29 Hen. 8.25. for it may be intended he gave B the Bread.

5. Upon a promiſe to pay for Cloth bought, i • B doth not, 12 Hen. 8.12. for there he becomes i • the nature of a Surety for the payment for it.

6. A brought an action, and ſhews that he ſold a Horſe to B at ſuch a day, year, and place, to be payed at a day to come, and the Defendant ad tunc & ibidem ratione praemiſſorum aſſumes to pay, if, &c. B did not; this is nought, for the Contract, and the giving of day to B, ne fuit ad inſtantiam of the Defendant; but the Contract was compleat before, Paſch. 28 Jac. Ban. Regis, Farmer & Field, without any relation to the Defendant and his promiſes ex poſt facto, and grounded upon no conſideration.

7. A promiſes to pay to B ſuch ſums of money as B ſhall disburſe of his own money for Cloth, to the uſe of A the Defendant, this is a good conſideration: for by the buying of the Cloth the property was in A forthwith, Trin. 9 Jac. Ban. Regis, Moore & Moore; for it was bought for him.

8. A ſold to B two ways of Barley for as much as he ſold to others, the Plaintiff in the Action ought to count, 1. For what price he ſold to others; 2. he ought to give notice of this to B. So if A promiſe to B 20 l. if he marry C, yet B ought to give notice of the marriage; but a Tayler may have an Action for as much as he ſhall deſerve, and is not bound to give notice what he ſhall deſerve, becauſe it is not incertain, Hill. 13 Jac. Ban. Regis, Hall & Heminge. Q. for he muſt demand a certain ſum, and this is notice.

1. Againſt a Seller of Corn to be delivered at a certain day, and doth not,Vendee. 21 Hen. 6.55. 20 Hen. 7.9.28 Hen 8. Dyer 22. pl. 138. & fol. 113. pl. 55. Coke 4. part. Slades caſe 94. B. Quaere, it no damage appear.

2. For delivering good and merchantable Corn, and doth not, 6 Edw. 2.6. Dyer 75. pl. 23. Lib. Intra. 4. B. ſect. 2. but ſpecial dammage muſt be alledged.

The Judgment.

For not delivering of grain yearly, quaere if the Plaintiff ſhall recover dammage as well pro tempore futuro quam pro praeterito, 3 Mariae, Dyer 113. pl. 56.

Adminiſtratrix promiſes to pay a debt, &c. and the Action is brought againſt Baron and Feme, then the judgment againſt him ſhall be general, & praedictus P. & M. uxor ejus in miſericordis, Coke 9. part. 93. Banies caſe, No. Lib. Intra. 2. C. Sect. 3.

But upon plea, that the Teſtator did not aſſume, coſts and dammages ſhall be de bonis propriis, if the Teſtator had not ſuffici • nt, No. Lib. Intra. 1. B. ſect. 1. for the falſe plea.

The Writ.

Upon aſſumpſit by the Husband and Wife, made to the Wife dum ſola fuit, the Writ ſhall ſay, ad dampnum ipſorum; for the Husband ſhall have the dammages, ideoque fuit ad dampnum ipſorum, Hill. 9 Jac. Ban. Regis, Wolverton and his Wiſe againſt Day.

For not doing a thing which ought to be done by Agreement touching the body.

1. Againſt a Barber that takes upon him to raze the Beard,Barber. and doth it with an unwholſom Razor, Lib. Intra. 2. C. ſect. 1. for the body is endangered to be hurt thereby.

Phyſician or Chirurgeon.2. Againſt a Phyſician or Chirurgeon for not curing a malady, or not applying a medicine, 14 Hen. 6.18. 43 Edw. 3.33. 21 Hen. 6.55. 48 Edw. 3.6. pl. 11. Regiſt. orig. 105. B. 112. A.

3. For adviſing his patient to apply a certain medicine to cure him, and it did not, 19 Hen. 6.49. quaere.

For commanding his Servant to apply a medicine, and he doth it not, 11 Edw. 4.6. Q.

4. For applying a medicine that impairs the Mayheme, 11 Rich. Action upon the Caſe 37.11 Hen. 6.18. pl. 10. 21 Hen. 6.55. B.

But note in all theſe caſes he ought to take upon him the Cure abſolutely, 19 Hen. 6.49. 48 Edw. 3.6. elſe the Action lies not.

The Writ.

The Writ ought to ſhew the place where he took upon him the Cure, 48 Edw. 3.36. for it is iſſuable.

If A promiſe to cure me in London, and apply unwholſom medicines in Middleſex, the Action ſhall be in Middleſex, becauſe there was the wrong, 11 Rich. 2. Action upon the Caſe 37, and where the wrong is there muſt the trial be.

For not doing of a thing which ought to be done by agreement of the parties touching Suits in Law.Aſſumpſit.

Againſt a Clerk that promiſes to enroll a Deed,Clerk. and doth it not, 34 Hen. 6.4.

Serjeant. Counſellor.Againſt a Serjeant or Counſellor that promiſes to plead for me, and doth it not, 14 Hen. 6.18. if I retain him and give him his fee, elſe not.

For not doing of a thing where a man is bound to do it in one manner, and he doth it in another.

Plough my land.Againſt him that promiſes to plough my land, and doth it in unſeaſonable time, 14 Hen. 6.18. 3 Hen. 6.36. for the Law implies he muſt do it for my beſt advantage.

Againſt an Attorney that takes an obligation in his own name,Attorney. when it ſhould have been in mine, 20 Hen. 6.25. Q. if an Action of Deceit do not lie.

Againſt a Carpenter that undertakes to build a houſe in ſuch a form,Carpenter. and builds it in another, Nat. br. 145. G. 2. Hen. 4.9. 21 Hen. 7.41. 20 Hen. 6.35. Q. if he build it in a better form, and more for the benefit of the Owner, and to his own loſs.

Againſt him that hath a Crane, and ſpoils my Merchandize,Cranage. Lib. Intr. 3. C. ſect. 1. this is miſfeaſance.

Againſt a Farrier that takes upon him to cure my Horſe,Farrier. and applies unwholſom Medicines, &c. 19 Hen. 6.49. whereby my Horſe is made worſe.

For pricking my Horſe, 46 Edw. 3.2, 3.10. Nat: br. 94. D. 18 Edw. 3 6. pl. 11. for it is the duty of an Artificer to do his office well and truly; and this is implied in Law upon his undertaking to uſe his art.

For miſuſing a Licenſe,Licenſe. 21 Edw. 4.76. quaere what.

Againſt a Serjeant at Law that is retained to plead, and miſpleads,Miſpleader. 14 Hen. 6.18. for this is misfeaſance, and to his Clients prejudice it may be, but if it be not tunc quaere. To miſplead is to plead otherwiſe than he is inſtructed by his Client.

For negligent ſuffering of a thing to be done to the damage of another.

A borrowed a Horſe of me, which dies ſuddenly,Borrowed. an Action lies not, 40 Edw. 3.6. for the borrower was in no fault.

But if the thing be uſed in other manner than it was lent to be uſed, and dies, an Action lies, Doct. & Stud. 29. for this is miſuſing of it, and contrary to the agreement.

But if it be but in the ſame manner that it was lent, and dies, no Action lies, Doct. & Stud. 29. for it was lent to be uſed, though not miſuſed.

A borrowed a Horſe, and a Houſe fell upon him; there if the houſe fell upon him being feeble, Action lies, otherwiſe not, Doct. & Stud. 128. for he might have foreſeen the danger, and prevented it.

Burning a Houſe.Againſt him that keeps not well his fire, by which my houſe is burned, being adjoyning, 2 Hen. 4.18. 8 Edw. 4.19. pl. 30. Choke; for we muſt ſo uſe our own that we hurt not another.

Although his own houſe be burned, 33 Hen. 6.1. Lib. Intr. 8. A. ſect. 1. for his own harm is no recompence to his Neighbour.

3. It lies although his Servant do it: but not if a ſtranger do it of malice, 33 Hen. 6.1. 2 Hen. 4.18. Doct. & Stud. 137. for the Maſter muſt be anſwerable for the actions of his Servants in civil matters, though not in criminal.

4. If a Servant bring fire in the ſtreet and buro a houſe, his Maſter is not chargeable; for when the Servant is out of his houſe he is not under his government.

5. It lies not if it be burned ſuddenly, and the cauſe not known, 42 Aſſize 8.2 Hen. 4.18. for the Law delights in certainties, and doth things upon juſt and ſure grounds, and not upon probabilities and ſurmiſes.

Barr.

That it was not burnt in default of good cuſtody of the fire of the Defendant, Lib. Intra. 8. A. ſect. 1.

But by 28 Hen. 6.7. this is but a negative pregnant; for he might have pleaded non culp. which the other plea doth but imply.

That he guarded his fire well, abſque hoc that he guarded it negligently, Lab. Intra. 8. B. ſect. 2. for here is a direct affirmative, and a traverſing of Plaintiffs declaration.

Againſt a Baily of Cloth, that ſuffers it to be conſumed with Moths.Baily. 27 Hen. 8.25.13 Hen. 7.1.18 Edw. 3.23. viz. by negligent keeping, which the Law implies he ought not to do.

Againſt a Baily of a horſe that ſuffers him to periſh, 12 Edw. 4.13.26 Hen. 8 br. Action upon the Caſe 103. Lib. Intr. 3. B. ſect. 1. Regiſt. orig. 107. A. for the former reaſon.

For loſing a Releaſe, 34 Hen. 6.4. for the Releaſee may be prejudiced thereby.

So of a box, Lib. Intra. 9. A. ſect. 1.

Againſt him that ſuffers his Dog to bite my ſheep,Dog. 28 Hen. 8. Dyer 25. pl. 102. & fol. 29. pl. 195. 28 Hen. 6.7. pl. 7. Lib. Intr. 616. B. ſect. 1. Regiſt. orig. 110. B.

But then the Maſter ought to know that he would bite them, ibidem; for then he might have prevented it, and ſo is puniſhable for not doing it.

But ſciens is not traverſable; but may be given in evidence, Coke 44. part. 188. for if he did not know it he may plead Not guilty, and the Plaintiff muſt prove he knew it.

If the owner of the Dog brings him to the Maſter of the ſheep to do juſtice upon him, it lies not, 7 Edw. 3. bar 290. viz. upon the firſt notice or knowledge of it, otherwiſe not.

The Plaintiff declares, that the Defendant was poſſeſſed of a Dog 8. Octobris 7 Jac. uſing to bite, &c. and that the Dog 12. October in the ſame year did bite his Lambs, &c. this is not good; for he ought to have ſhewn, that he continued his Dog at the time of the biting; for it ſhall not be preſumed that he continued it without ſhewing it, Paſch. 9 Jac. Ban. Regis, Louder verſus Sounds, 21 Edw. 4.22. 15 Eliz. Dyer 320. for the Law will not preſume any one will do an unlawful act, except it be proved.

4. For ſuffering his Dog to bite my Servant, Regiſt. orig. 111. A. per quod ſervitium amiſit, elſe not, as it ſeems.

5. For hurting of an Ox, Regiſt. orig. 111. A. whereby he loſeth his work, or is hindred in his fatting.

6. For hurting of a Horſe after warning given, Regiſt. orig. 106. A. for the Maſter ought to have kept him up.

1. Againſt a Warden of the Fleet,Eſcape. that ſuffers one to eſcape that was taken upon a Capias ad computandum, 15 Edw. 4.19. Lib. Intra. 8. C. Sect. 1. for thereby the Plaintiff is put to more trouble and charge, and is delayed in his Suit.

2. Againſt a Sheriff, that ſuffers one to eſcape that was taken upon a Statute Merchant, Reg •• . orig. 98. B. Nat. br. 93. A. the Writ there, upon the ſame reaſon.

Againſt an Inn-keeper,Innkeeper. that ſuffers the goods of his gueſts to be ſtole, Coke 4. part. 32. Calyes caſe, Nat. 94. B. Regiſt. orig. 104. A, 105. A. 22 Hen. 6.21. 42 Aſſize 17. for the Law of the Land binds him to keep them ſafe at his peril.

1. But note, 1. this ought to be a common Inne, and it ſhall be ſhewed in the Count, but not in the Writ, 11 Hen. 4.45. 22 Hen. 6.21. pl. 38. Coke 8. part. 32. Calyes caſe, Dyer 206. pl. 9.2 Hen. 4. Not in the Writ, becauſe that is more ſhort, & ren breviter enarrat; but the Count ought to expreſs things more fully.

2. It ought to be a Traveller that lodges there, otherwiſe the Action lies not, Coke 8. part. 32. Calyes caſe; for the Law looks upon an Inn only in reſpect of Travellers, for in reſpect of others it is no more than a private houſe.

4. He ſhall declare of nothing but what was within his Inn; for if he bid the Inn-keeper put his Horſe to paſture, or put him to paſture of his own accord, unleſs the Inn-keeper requeſt him to do it, it lies not, Coke 8. part. 32. A. Calyes caſe; for he is an Inn-keeper in reſpect of his Houſe, and not of his Land.

4. He ought ſafely to keep the goods within his Inn at his peril, 42 Aſſize 17. for it is no excuſe that he delivered the Key to the Gueſt, 42 Edw. 3.11. pl. 13. 11 Hen. 4.45. 22 Hen. 6.38. or that the Gueſt did not acquaint him with his goods, 42 Edw. 3.11. except the Gueſt will not truſt the Inn-keeper, but will have the Key. Quaere.

Or that he knew not the Felons, 22 Hen. 6.38. A; for he muſt keep them ſafe againſt all perſons, except forein Enemies.

But if the Companion or Servant, or any other that the Gueſt deſires to lie with him, rob him, the Inn-keeper ſhall not be accountable, Coke 8. part. 33. A. Calyes caſe, 22 Hen. 6.38. B. 22 Hen. 6.22. A. for that was his own fault to admit of ſuch Company.

Or if he ſay his houſe is full, and the other ſays he will make a ſhift, and be robbed, 5 Mariae, Dyer 158. pl. 32. for in ſuch caſe he is not properly his Gueſt, nor takes any charge of him or his goods.

Or if he command him to put his goods in ſuch a place, and he will not, but ſuffer them to lie in the open Court, 10 Eliz. Dyer 266. pl. 9. for if he cannot be Maſter to order his houſe as he deſires, it is no reaſon he ſhould be puniſhed for the diſorder committed in it.

And although the Writ is but bona & catalla, yet Evidences and all other Deeds are included: the Writ in this caſe ſhall be general, but the Count ſpecial, Coke 8. part. 33. Calyes caſe. Deeds and Evidences are bona & catalla, though not valuable to any perſon but the owner of them.

But an Inn-keeper ſhall not be accountable for wrong done to the perſon of his Gueſt, Coke 8. part. 33. A, & B. Calyes caſe; for this is a criminal matter, and hath no relation to him as an Inn-keeper.

1.Servant. Againſt a Shepherd, that ſuffers my ſheep to be drowned, 2 Hen. 7.11. pl. 9. Coke 5 part. 13. B. Salops caſe. 12 Edw. 3.4.13. Dyer 121. pl. 17. B. Salops caſe. 12 Edw. 3.4.13. Dyer 121. pl. 17. by negligence.

2. Againſt a Ploughman that ſuffers my Corn to be ſpoiled, 7 Hen. 4.14. by negligence, or ignorance, as it ſeems. Q.

For Deceit in bargains and agreements with Warranty.Deceit in Bargains.

1. The Warranty of a thing ſold is the cauſe of an Action in caſe of vendition, as well as of corruption, 19 Hen. 6.9.

2. And the Warranty ought to be at the time of the ſale, 15 Hen. 7.41, Nat. br. 98. L. and not afterwards, 6 Edw. 6. Dyer 75. pl. 28. elſe not good.

3. It ought to be by the owner of the thing, and not by a Stranger; and upon the ſale by the owner, and not by a Servant, 11 Edw. 4.6. for Warranty relates immediately to him that warrants.

It is not material whether the price be paid or not, for debt lies for it, 9 Hen. 7.21. pl. 2.

Againſt the Seller of a Horſe that is ſick,Horſe. and is warranted ſound, Nat. br. 94. C. 7 Rich. 2.42. Regiſt. orig. 108. A. Lib. Intr. 9. B. ſect. 1. for this is deceit.

Or a lame Horſe warranting ſound, 31 Hen. 6.11. Statham.

A ſtrained Horſe it lies not, becauſe the buyer hath the view, 13 Hen. 4.1. pl. 4. Hank ford. Q. if he warrant him ſound.

Againſt a Seller of Cloth,Cloth. that warrants it well ſulled when it is raw, 11 Hen. 6.221.

Againſt him that warrants it of ſuch a length, and this upon ſale and warranty of the Servant, it lies againſt the Maſter, 11 Edw. 4 6. for it lies not againſt the Servant, ibidem, for the Cloth was the Maſters.

Againſt him that ſells grain,Grain. and warrants it to be good, Lib. Intra. 9. B. ſect. 1. Regiſt. orig. 111. A. whereas it is muſty or corrupted.

Againſt him that warrants Herrings,Herring. Regiſt. orig. 96. A. in the number and the goodneſs.

Againſt him that ſells a Saphire inſtead of a Diamond,Saphire. Kitchin 174.

Againſt a Seller of wood,Wood. and ſhews part, and warrants the reſt to be good, 14 Hen. 6.22. pl. 66.

Againſt a Seller of corrupt Wine with warranty,Wine. Nat. br. 94. C. 9 Hen. 6.35. 7 Hen. 4.14. pl. 19. that it is ſound and wholſom.

If the Servant ſold it by covin of the Maſter, Action lies againſt the Maſter, 9 Hen. 6.53. pl. 37. for it is the Maſters act.

For deceits in Bargains and Agreements, without Warranty.

Deceit in bargain.1. Againſt him that ſells a Horſe not ſound, knowing him to be ſo without warranty, 20 Hen. 6.34. 13 Hen. 4.2. Kitchin 174. Q. for it ſeems it lies not; yet if it doth, it is becauſe the Law hates deceit in Contracts, for it hinders Commerce, which is beneficial to the Commonwealth.

For ſelling an Horſe to another that was not his own,Horſe. 42 Aſſize 8. Coke 4. part. 18. B. for this is fraud.

For ſelling Cloth that is nought,Cloth. knowing it to be ſo without warranty, 21 Hen. 7.91. pl. 16. Crooke.

Againſt him that promiſes to deliver good Gum,Gum. and doth not, Mich. 7 Jac. Ban. Regis, Weſton & Deighton.

Againſt him that ſells Wine mixed with water,Wine. Nat. br. 88. F. for this is but part Wine, and ſo the buyer hath not what he paid for.

For uttering Corrupt victual,Victual. knowing it to be ſo, 19 Hen. 6.53. 22 Hen. 7.91. pl. 16. Crooke. 11 Edw. 4.6. B. Brian & Neal.

Againſt him that ſells good Wax and delivers ill,Wax. 6 Edw. 6. Dyer 75. pl. 18. Q. whether in all theſe caſes an Indictment at the Common Law will not lie: It ſeems it will.

Trover and Conversion. In Law. In Deed. 1. Delivery as to persons unknown, 33 Hen. Trover Quid & Quotuplex. 8. Br. Action upon the Case 109. Trover for a Hawk with bells reclaimed and sold, knowing it to be the Plaintiffs, 14 Eliz. Dyer 306. pl. 66. for he cannot recover it against the Vendee. Q. The Sale here makes the Conversion. Sold as to persons unknown, Lib. Intra. 5. A. Sect. 1. 2. Wasting the goods, 34 Hen. 8. br. Action upon the Case 103. for this a Conversion in Law. 3. Denial to re-deliver. A brought an Action for Plate and Jewels, and shews, that upon request the Defendant refused to deliver them, this is good evidence to a Jury; but to find it at large, viz. without a request, is not a sufficient Conversion to warrant the Action, Coke 10. part. 46. B. Oxfords case, Hill. 12 Jac. Ban. Regis, Isack & Clarke, per 3 Justices, 33 Hen. 6.27. for the Count is in usum suum proprium convertit & disposuit; but a nude denial is not a Conversion, Q. viz. that he hath the goods.

But if it be for money out of a bag,Money. then it is a good Conversion, if he deny it, because it cannot be known, Pasch. 14 Eliz. in Le chequer, and so the Plaintiff cannot prove that it was his money which was denied.

Note, if the Plaintiff have not property in the things, it lies not, 20 Hen. 7. B. pl. 18. Q. what property he must have.

1 Pasch. Note. 43 in Eliz. Bushopps case it was a doubt, if A takes goods to the use of B, and afterwards B agree to the taking; quaere, if such Action lies against B. quia A divests the property by the taking, and not B by the consenting, as it seems.

2. The count ought to shew the place of conversion, Mich. 26, 27 Eliz. Ban. Regis, Stranhams case; because it is traversable and issuable.

So the day of the Conversion, Hill. 7 Jac. Ban. Regis; for the same reason, and without shewing that the Defendant knows not how to plead in bar.

If the count be of Trover, and the Jury find upon Bailment; yet good, for the Conversion is the point of action, Hill. 12 Jac. Ban. Regis, Isack & Clark, and not the Trover, for it is no fault to find a thing, for no property is gained by the bat finding, but by the Conversion.

Of what things it lies.

1.Money. It lies for money out of a purse upon special matter, that he lost it and the other found it, Trin. 43 Eliz. Com. Ban. Hall & Wood; Pasch. 24 Eliz. in the Exchequer; but not generally, for money cannot be known, and so the Plaintiff can fix no property in himself.

2. The Master delivers Corn to the Servant to fell, and brings his action for the money and goods; 1. the possession of the Servant is the possession of the Master. 2. It lies of money, Mich. 4, & 41 Eliz. Ban. Regis, Holliday & Higges; for the money comes in lieu of the Corn.

It lies for 20 Sheep,Sheep. Coke 5. part. 109. Foxleys case.

It lies for a Chain-door, sound and sold,Chaindoor. Horse. 3 Mariae, Dyer 121. pl. 14.

It lies of a Horse.

But it is no plea for the Defendant that a person unknown stole them, and left them, & waiviavit, without shewing the circumstances when and where, Coke 5. part. Foxleys case 109. A. but if he had said, quidam ignotus waiviavit them, without saying any more, this is good; for the circumstances shall be intended; for waiviavit est vecabulum artis, and implies all, Mich. 15 Jac. Ban. Regis, Leader & Paschall.

1. To traverse the sale is a good plea, 3 Mariae Dyer 121. pl. 16. viz. to say, he did not sell them.

2. That he distrained them for a Rent charge absque hoc, that he converted them, this is nought; for it is no Conversion at all, ideoque it amounts but to the gneral issue, non culp. Mich. 9 Jac. Ban. Regis, Davies & Knap.

That he is a Horse-breaker, and the Plaintiff delivered it for him, &c. Absque hoc, &c. this amounts but to the general issue, non culp. Mich. 9 Jac. Ban. Regis, Lovelace & Martyn, and not good.

Husband and Wife shall have this Action for a Deed by which an Annuity was granted to the Wife;Deeds. for the Wife should have it, if she survive the Husband, Trin. 40 Eliz. Com. Ban. Russel & Catesby; and the Husband is to have it during his life, viz. to make use of upon occasion.

It lies for twenty Pooks of Corn,Frument and Grain. Trin. 38. Eliz. Com. Ban. Price versus Sr. Walter Sands.

It lies of four bushels of Wheat, Trin. 12 Jac. Ban. Regis, Hill & Hawkes.

The Defendant shews a prescription in the Baily of L. to elect a Belman, which ought to repair the street of the Market-place, and to cleanse it, and that he shall have of every bushel there brought to sell, one pint of Wheat, &c. and justifies, &c. this is good, because the custome is doubtful and may be put in issue, therefore a good bar; otherwise this plea would amount unto the general issue; Trin. 12 Jac. Ban. Regis, Hill & Hawks, and then it would not be good.

For delivering of Jewels, &c. in a Box to B, who dies,Jewels. and they come to C, who breaks the Box and converts them, 20 Hen. 7.4, pl. 13.

That he did not convert them to his own use is a good bar; for the Trover and breaking of the Box are but conveyances to the Conversion, 20 Hen. 7.4. pl. 13. per Fineux, and not the ground of the Action.

It lies of Quinquaginta pondus of Wool ad valentiam, Wool. &c. for per Curiam pondus shall be taken one pound weight, because this weight is more certainly known throughout all the Countrey, Mich. 9 Jac. Ban. Regis, Roe & Lloyd; & loquendum est ut vulgus.

It lies of a 100 load of wood, and 40 Beeches,Wood. No. Lib. Intr. 41. B. sect. 33. Q. whether loads be not incertain.

Of three Monkeys,Monkey. and error brought because that they did not ſay they were tame, Mich. 9 Jac. in Exchequer Chamber, Shackley & Porter, if tame. Quaere, whether they are valuable and considerable in Law, being only Creatures of pleasure.

It lies of forty measures of Pippins, scil. Bushels,Pippins. Mich. 9 Jac. in Exchequer. Err. inter Claydon & Taylor. Q. for they are perishable things, and may be rotten before they can be recovered, and so not to be recovered in kind; yet dammages may be recovered, and so it may lie.

Covenant. Conventio est quasi Transactio. Covenant is either by Common Law, 1. Exprest 1. By word 1. Personal touching Chattel Real, Personal 2. A Real thing. 2. By deed 1. Indented. 2. Poll Real 1. Warranty de qui non est bact. 2. Covenant de que non est hact. be seized to use. 3. Covenant to levy fine. 2. Implied. 1. Personal. 2. Real. Statute Law, 31 Edw. 3. cap. 11. Administrator shall have it, and be subject to a Covenant 32 Hen. 8. cap. 34. Grants against Lessees & è converso.
1. Court. 2. Plaintiff. 3. Defendant. 4. Things. 5. Count. 6. The Writ. 7. Process. 8. Barr. 9. Judgment. 10. Execution.
In what Court Covenant lies, 1. Personal; 2. Real.

1. IT lies in the County or Hundred Court, Nat. br. 145. E.

2. It lies in any Court of the Lord of a Mannor, Nat. br. 145. E.

3. In London, Nat. br. 146. A. and other Corporations.

1. Marshalsey between two of the Houshold of the King, Coke 10. part. 74. A. otherwise not.

2. In the Court of the Lord of a Mannor by special grant, 44 Edw. 3.28. pl. 18. & fol. 37. pl. 30. Lib. Intr. 296. A. sect. 1. 50 Assize pl. 9.

A Fine levied in the County Palatine of Lancaster, good, 37 Hen. 8. cap. 19. which is in nature of a Covenant.

In Banco Regis, 36 Hen. 6.34. A. Forteseue, but it shall be avoided by Writ of Error. Q. except it be meant of a fine.

In Ancient demesn, quaere per 6 Edw. 3.207. pl. 20. it seems it should lie.

But 44 Edw. 3.37. 50 Assize 9. Knivet, it is not good. Q.

But 22 Hen. 7.90. B. pl. 14. Crooke, a fine may be levied in Ancient demesn, per petty Writ of Right close.

In Eire, good, 1 Edw. 3.10. pl. 34. 8 Edw. 3.27. 18 Edw. 3.40. pl. 33. that is, before Justices in Eire or Itinerantes.

In Communi Banco.

Before the Justices of the grand Sessions in Wales, 34 Hen. 8. cap. 26.

Who ſhall have Covenant, 1. Perſonal; 2. Real.

If a man Covenant with another to enfeoff him, or to ſerve him, &c. the other ſhall have covenant, although he do not agree, Nat. br. 145. A.

But then it ought to be by deed, Regiſt. orig. 165. B. Nat. br. 145. A, & G. 7 Rich. 2. deeds 160. which is an eſtoppel to ſay the other did not agree.

Yet in London a man ſhall have covenant to levy a fine without deed per cuſtome, Nat. br. 146. A. 22 Edw. 4.2. pl. 6. Vaviſor. 21 Hen. 6.10. Covenant 11.

Adminiſtrator ſhall have Covenant by the equity of the Stat. Adminiſtrator. de 31 Edw. 3. cap. 11. Coke 9. part. 40. A. Henſloes caſe, made for Executors.

But not before, 19 Edw. 3. Covenant 24.

Aſſignee ſhall have Covenant,Aſſignee. where it is made to one and his Aſſigns, Nat. br. 145. C. Regiſt. orig. 165. B. for the Aſſignee is in place of the Aſſignor.

Aſſignee ſhall have Covenant without ſhewing the deed of covenant,Aſſignee. for he may not have it, Trin. 36 Eliz. Banco Regis, Noke verſus Ander. But there, if the Leſſee for years by eſtoppel grant over his term, the Aſſignee ſhall not have Covenant, becauſe the Aſſignor had nothing in the land, but only an eſtoppel againſt the Leſſor not to out him.

A, Prior with the aſſent of his Covent by deed, covenants for him and his ſucceſſors with B and his heirs, that he and his Covent ſhall ſing in the Chappel of B, which is parcel of the Mannor of B, for the Lords of the ſaid Mannor. The Aſſignee of B ſhall have covenant, becauſe it is a ſervice annexed to the Mannor, 42 Edw. 3.3. pl. 14. Coke 5. part. 17. B. Spencers caſe, 45 Edw. 3.3. 28 Hen. 8. Dyer 24. pl. 149. 2 Hen. 4.6. pl. 25. and who ſo hath the Mannor, or is intereſſed in the Covenant.

But if the ſervice is to be made in the Chappel of another, then the Aſſignee ſhall not have covenant, becauſe it is not annexed to the Mannor, 2 Hen. 46. pl. 25.

And ſo if one covenant with a Tenant by the Courteſie to ſing in his houſe, although that he ſurrender and take for years he ſhall have Covenant, becauſe it was annexed to his eſtate, 6 Hen. 4.1. pl. 5. viz. for life. Q.

Aſſignee by word ſhall have covenant, Coke 3. part. 63. A. Lincoln Colledges caſe; for ſuch an aſſignment is good.

Aſſignee of Aſſignee ſhall have covenant, Coke 5. part. 71. B. and ſo in infinitum, as it ſeems, ſo long as the eſtate aſſigned continues, if the Covenant go with the eſtate.

Aſſignee of one Coparcener ſhall have covenant againſt the other coparcener to acquit him of the ſuit, becauſe the covenant goes with the land, Coke 5. part. 18. A. Spencers caſe, 42 Edw. 3.3.

Leſſor covenants to repair the houſe lett, the Aſſignee ſhall have covenant againſt him, becauſe this is annexed to the eſtate: ſo the husband of the wife that is a Termor, and a Tenant per Statute Merchant ſtaple, and every one that comes to the land Coke 5. part. 17. Spencers caſe, to which the Covenant is annexed.

So in all caſes where it is annexed to the eſtate, Nat. br. 146. C. 48 Edw. 3. and not to the perſon otherwiſe than in relation to the Land.

Aſſignee of a reverſion ſhall have covenant as well as the Leſſor ſhall have it, per 32 Hen. 8. cap. 34. but this is when it concerns the things demiſed, and not collateral Covenants, Coke 5. part. 18. A. Spencers caſe; for in reſpect of Reverſion of the thing lett, he comes in room of the Leſſor in privity of eſtate.

Aſſignee of a Reverſion for years when, the Tenant for years hath a greater Term, his Aſſignee ſhall have Covenant within, 32 Hen. 8. although the Leſſor grant over his Term, Trin. 40 Eliz. Ban. Regis, Rot. 123. Natures verſus Weſtwood, quaere.

Aſſignee ſhall have covenant, upon covenant in Law, Coke 4. part. 80. B. 9 Eliz. Dyer 257. pl. 13. where it goes with the eſtate.

Leſſee covenants with the Leſſor and his heirs to repair the houſe, the Aſſignee of the Leſſor ſhall have covenant, Mich. 9 Jac. Ban. Regis, Beſtwicke & Wilborne; for it goes with the houſe.

Husband and Wiſe.Leaſe for years to the Husband and Wife, the Leſſor outs them, they may joyn in covenant, becauſe after the death of the husband ſhe ſhall have a term, if he grant it not over, 47 Edw. 3.12. pl. 11. and ſo ſhe hath a poſſibility of intereſt.

The Commonalty of D Covenants with the Major and Commonalty of L, Corporation. that they ſhall be quit of Toll, &c. in D, and after one Burgeſs in D takes toll of one in L, Covenant lies for one Corporation againſt another, 48 Edw. 3.17. pl. 2. It may be brought by the Major and Commonalty of one Corporation againſt the Major and Commonalty of the other Corporation.

Executor ſhall have Covenant for Covenant made to his Teſtator for a perſonal thing,Executor. for the perſonal eſtate is his to the uſe of the Teſtators will, Nat. br. 145. D. and orig. Regiſt. 165. B. Note, de conventione pro executoribus non invenitur breve in Regiſtr. ſed pro aſſignatis, tamen poteſt fieri pro executoribus tam bene quam pro aſſignatis, nam eadem eſt ratio de utriſque.

A leaſes to B for life for 12 years, and B dies within the 12 years, the Executors of B ſhall have it until 12 years, &c. B dies, A outs the Executors within 12 years, they ſhall have Covenant, 19 Edw. 3. Covenant 24.

Executor of an Executor.Executor of an Executor ſhall have Covenant by the Common Law, 19 Edw. 3. Covenant 24. pol. Com. 290. Chapmans caſe, Lib. Intr. 134. B. ſect. 1. and ſo forwards, for the right dies not.

The Heir ſhall have covenant,Heir. if the deed be made to him and his heirs, Nat. br. 145. C. 16 Eliz. Dyer 338. pl. 39. but this was to enfeoff him and his heirs: ſo that this holds not generally, but where the heir is intereſſed in the Covenant.

A enfeoffs B in ſee, rendring for 8 years one Roſe, and afterwards 20 Roſes, B dies, his heir within Age, the Lord recovers the Land by reaſon of Colluſion, the Heir at full age ſhall have covenant, 18 Edw. 3 Covenant 7. in reſpect of his privity to the Covenant.

A covenants with B and C and their heirs,Joynttenant. & eorum utri que to make an eſtate to the heir of him which firſt dies (being Parcener) the heir of one ſhall have covenant ſole, 16 Eliz. Dyer 338. pl. viz. of him that firſt dies.

When any of the Covenantees ſhall have ſeveral intereſts or eſtates, and the covenant is made with them & cum quolibet eorum, they ſhall have ſeveral covenants, otherways not, Coke 5. part. 22. A. Matthewſons caſe, in reſpect of their ſeveral intereſts.

Leſſee for years by deed Poll is outed by the Leſſor,Leſſee. he ſhall have covenant, Nat. br. 145. L. 21 Edw. 4.30. pl. 25. for the leaſe implies a covenant to enjoy during the term.

But if a ſtranger outs him without title he ſhall not have Covenant, Nat. br. 145. L. 22 Hen. 9.52. pl. 26. But if he had a colourable title and ouſts him. quaere.

Although it be by verdict, Coke 4. part. 80. B. Nokes caſe; for the verdict may not be according to Law. Q.

And although the Leſſor warrant to him during the term, 26 Hen. 8.3. pl. 11. for the warranty is not ſo general: but if he warrant it againſt all men. Q.

But if a ſtranger that hath Title out him, then it lies, Nat. br. 145. 32 Hen. 6.32. pl. 27. Nedham; for that proves he had no power to lett.

But Leſſee for life ſhall not have Covenant upon ſuch outing, for this cannot diveſts him of the Freehold, 26 Hen. 16. Covenant 10. Nat. br. 145. M. if in the covenant it be not expreſt.

But 13 Edw. 3. ſines 165. per Shard, if a leaſe be to A without impeachment of waſte, and waſte be brought againſt him, A ſhall have Covenant; for the leaſe implies a Covenant, that he ſhall not be ſued for waſte.

Tenant for life ſhall not have the benefit of warranty, if he be not in poſſeſſion, 26 Hen. 8.3. pl. 11. viz. at the time of the warranty.

Leſſee for years ſhall have Covenant upon a demiſe and grant, Coke 4. part. 80. B. Nokes caſe, & 5. part. 17. A. that is, if the leaſe runs, that Leſſor doth demiſe and grant. Q.

If the land be evicted, Paſch. 7 Jac. Ban. Regis, Winchombe & Rigge. A leaſe made to A. per dedi & conceſſi, the land is evict for years, A ſhall have Covenant againſt the leſſor, for judgment was ſo entered, Mich. 9 Jac. But Williams & Yelverton ſaid, that it was without their privity; and Williams ſaid, that it lied not: quaere ergo.

Recuſant ſhall not have an action of covenant for any thing ſeiſed into the Kings hands,Recuſant. 1 Jac. cap. 5. by vertue of the Leſſors recuſancy; for the Common Law takes no notice of Recuſancy.

Succeſſor ſhall have covenant upon a covenant made and broken in the time of his predeceſſor,Succeſſor. 4 Edw. 3.130. pl. 71. quaere what Succeſſor, or whether any kind of Succeſſor.

A covenants to levy a fine,Fine. the party to whom this covenant is made ſhall have covenant, Nat. br. 146. F.

Againſt whom Covenant lies, 1. Perſonal, 2. Real.

Adminiſtrator is ſubject to it,Adminiſtrator. 13 Edw. 3. cap. 11. Coke 9. part. 40. A. Henſloes caſe, upon a Covenant made by the Inteſtate.

Aſſignee of a Termor ſhall be liable without naming how the condition of the thing extendsAſſignee. to the things in eſſe parcel of the demiſe, Coke 5. part. 16. A. Spencers caſe, & fol. 24. Worceſters caſe.

This extends to him that comes to the demiſe any way, Coke 5. part. 17. B. Spencers caſe; viz. any legal way: but quaere, if the Leſſee be outed by one who hath no intereſt.

So if the Covenant extends to a thing to be newly made, if it ſhall be made upon the demiſed land, the Aſſignee ſhall be bound by expreſs Covenant to the Leſſor and his Aſſigns, Coke 5. part. 16. B. Spencers caſe, 25 Hen. 8. br. Covenant 32. Leſſee covenants for him and his Aſſigns to repair a houſe, Covenant lies againſt the Leſſee, and then againſt the Aſſignee alſo for the ſame breach, and no remedy but an Audita querela, per Brook. Q.

A leaſes for years to B, and covenants to ſuffer him to enjoy; there the Aſſignee of A of the Reverſion is liable, though not named, 9 Eliz. Dyer 255. pl. 4. for he comes in intereſt of eſtate in the room of A, who covenanted.

When the Covenant extends to a thing which had not eſſence at the time of the demiſe, the Aſſignee is not liable without naming him, Coke 5. part. 16. B. as where the Leſſee Covenants to build a new houſe upon Land lett. Q. rationem.

When the demiſe is of a perſonal thing the Aſſignee is not liable by expreſs name, Coke 5. part. 16.17. becauſe the Covenant goes to the perſon and not the eſtate.

If the demiſe be of Land and a perſonal thing the Aſſignee is not bound by expreſs name for the perſonality, for there can be no privity between the Leſſor and Aſſignee, Coke 5. part. 16, & 17. but for the realty he ſhall be bound.

The Statute of 32 Hen. 8. cap. 34. extends to Covenants, which touch the thing demiſed, and not to collateral Covenants which concern it not, for the Statute looks at the eſtate.

It lies againſt Executors,Executors. Regiſt. orig. 165. B. Nat. br. 145. H. and this is although they be not named, 28 Hen. 8. Dyer 14. pl. 69. 45 Edw. 3.17. pl. 4. 47 Edw. 3.22. 48 Edw. 3.2. pl. 4. 9 Eliz. Dyer 255. pl. 4. for they repreſent the perſon of the Teſtator, and come in his ſtead.

But all the Executors ought to be named, 47 Edw. 3.22. pl. 20. in the Writ and Declaration.

A Leaſe is made to A, the Leſſor covenants to pay the quit Rents, &c. divers dues likewiſe; this is a perſonal thing, and binds not the Executor, 2 & 3 Mariae 114. pl. 6. of the Leſſor. Q. for it is paid ratione terrae.

A Leaſe is made to the Husband and Wife,Feme. the Husband covenants to make aſſurance for the Rent, this binds not the wife, becauſe it is collateral, 45 Edw. 3.11. pl. 7. for the Leſſor hath remedy for the Rent without ſuch aſſurance.

But if they covenant, that they will not aſſign without his conſent; there the Wife is bound, if the husband die, 18 Hen. 8. Dyer 13. pl. 66. Shelſey; for elſe the Leſſee is without remedy.

Heir ſhall be bound by covenant of his Anceſtor,Heir. if be named, Regiſt. orig. 165. B. elſe not.

And although it be broken by his Anceſtor, 4 Edw. 3.130. pl. 71. as well as if broken by himſelf.

But not if he be not named, 28 Hen. 8. Dyer 14. pl. 69. 32 Hen. 6.32. p. 27. for then the Law will intend only, that the Executor or Adminiſtrator ſhall be bound.

Infant cannot be bound by his Covenant to be an Apprentice per the Common Law,Infant. but by Cuſtome of London he may, 21 Edw. 4.6. pl. 17.

But then he ſhall be of the age of 14 years, 21 Hen. 6.31. which are accounted years of diſcretion, to diſtinguiſh what may be for his benefit, and what not.

But an Infant of 12 years ſhall be bound by his Covenant to ſerve in husbandry, Nat. br. 168. D. 7 Hen. 4.5. pl. 29. 9 Hen. 6.10. pl. 28. 21 Hen. 6.31. Newton. for husbandry is for the good of the Commonwealth, and the knowledge and maintenance of it are much favoured in Law.

But if he be within 12 years, he ſhall not be bound, 2 Hen. 4.18. pl. 7. 29 Edw. 3.27. pl. 29. 41 Edw. 3.17. pl. 1. for under thoſe years he is indeed incapable of learning the Art, by reaſon of diſability of body and underſtanding alſo.

Leſſee covenants to leave the houſe in good caſe,Leſſee. it lies not againſt him till the end of the Term, Nat. br. 145. K. 12 Edw. 2. Covenant 2.

But if he covenant ſuſtentare & reparare, it lies preſently, 45 Eliz. Dyer 324. pl. 34. and whenſoever it ſhall be out of repair, during the term.

So if he covenants to leave the Timber in good plight, this is void for the impoſſibility, Coke 5. part. 21. A. Mains caſe, 7 part. 15. A. Englefields caſe, Fitzberbert covenant 29. Nemo tenetur ad impoſſibile.

For if the Trees are thrown down by Tempeſt, it lies not, 40 Edw. 3.6. A. Coke 1. part. 98. A. Shelleys caſe; for this could not be prevented.

But if the houſe be waſted by Enemies or Tempeſt, he ought to repair by reaſon of the Covenant, or build it, 40 Edw. 3.6. A. Moris. Doct. & Stud. 66. B. 29 Hen. 8. Dyer 33. pl. 10. if there be an expreſs Covenant to do it.

Leſſor is bound by expreſs Covenant or Covenants in Law.Leſſor.

It lies againſt a Leſſor, if he outs his Termor, Nat. br. 145. L. 21 Edw. 4.30. pl. 25. Coke 9. part. 80. A. 32 Hen. 6.32. pl. 27. without cauſe, and during the term.

A Parſon leaſes his Glebe,Parſon. and reſigns during the term, covenant lies againſt him, becauſe it is his own act and wrong, 12 Hen. 4.3. and the Succeſſor may avoid the Leaſe.

Where a Parcener upon partition covenants to ſue a Writ of Partition,Parcener: the other aſſigns his eſtate to B, which covenants againſt the Covenanter and good, Coke 5. part. 17. B. 42 Edw. 3.3.

If one become pledge for another to perform ſuch a Covenant, the Action lies againſt the pledge,Pledge. Nat. br. 146. B. for he is in the place of the Principal.

But then he ought to charge him as principal, 39 Edw. 3.9. pl. 14.

Or ſhew that the Principal is not ſufficient, 40 Edw. 3.5. Covenant 16.

It lies againſt a Succeſſor,Succeſſor. Lib. Intra. 136. B. Sect. 2. quaere what, or whether againſt all.

It lies againſt him that ſhould make a Deed,Deed. Nat. br. 146. F. that covenants to do it, and does it not.

For what things Covenant lies, 1. Perſonal; 2. Real.

Guardian in Soccage.Guardian in Soccage grants the cuſtody of the Ward to A, who covenants to render an Accou •• to the Heir at full age, Covenant lieth for not doing of it, Regiſt. orig. 165. B. Nat. br. 145. H. ſo the Guardian. Q. whether an Account lies no • for the heir.

Covenant lies againſt him that doth not according to his Covenant by deed, Nat. br. 145. A. th • is, doth not perform the whole covenant.

But if it be not by deed, it lies not, Regiſt. orig. 165. B. Nat. br. 145. A & G. 7 Rich. 2. deeds 16. Nat br. 168. F. 14 Hen. 4.26. but an Action up •• the Caſe upon the Aſſumpſit.

Unleſs it be in London by Cuſtome, Nat. br. 146. A. 22 Edw. 4.2. pl. 6. Vaviſor, 27 Hen. 6.10. C • venant 11.

Doctor Hector had a Patent,Patent. that none ſho ••• bring over Spaniſh Wool but himſelf, &c. he by his Indenture grants this to another, which by the ſame Indenture covenants to pay yearly 100 l with this Proviſo, that if he pay it not the I • denture to be void; yet covenant lies for the money that was due before the avoiding of the I • denture, Mich. 9 Eliz. Ban. Regis, Dr. Hectors ca •• .

A gives a Mill to B, Mill. &c. and that with a Proviſo, quod nec ego, nec haeredes mei conſtru ••• molendinum, in, &c. Covenant lies again •• the Heir, if he or his Father erect a Mill there, 〈◊〉 Edw. 3.130. pl. 71. for the Heir is bound by his Fathers covenant.

A Termor deviſeth the term by will to his wif • Termo • during her Widowhood, the remainder to C, and dies, the Leſſor ſells the Fee to the wiſe, and covenants that he would diſcharge all former Titles, &c. ſhe marries C in the mean time, Covenant lies againſt the Bargainor by the Baron and Feme, if C do ouſt them during the term; for it was his own folly to make ſuch a Sale and Covenant. Coke 10. part. 51. Lampets caſe.

A leaſes to B for years, if C lives ſo long,Leaſe. and covenants that he had power to do it, C being dead at the time, Covenant lies, if A had not a good eſtate in it, Coke 9. part. 60. Bradſhaws caſe, though C was dead; for if he had no good eſtate, he had no power to lett, and ſo his Covenant implied in Law is broken.

A leaſes to B for years Lands in which C had a Copyhold eſtate, and covenants that the Leſſor ſhall ſuffer him quietly to hold the ſame, without trouble either of the Leſſor or any other. B enters, C outs him, Covenant lies not, becauſe all the ſequel depends upon this word [ſuffer,] the which extends only to the Leſſor, and his Executors and Aſſigns, 9 Eliz. Dyer 255. pl. 4. and not to the Copyholder, who hath a diſtinct intereſt from the Leſſor.

A leaſes to B for years, and covenants, quod pacifice gauderet, &c. ſine interruptione alicujus, Covenant lies, if any interrupt him, 16 Eliz. Dyer 328. pl. 8. for the word alicujus is a general word, and includes all perſons.

Leſſor covenants, that the Leſſee ſhall quietly and peaceably have, &c. without the diſturbance or hindrance of the Leſſor, the Leſſor ſues the Leſſee in Chancery, and ſuppoſes that the Leaſe 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 the • 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 elect •• & 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 Law, for they have a joynt truſt and intereſt.

The Proceſs in Covenant, 1. Before appearance; 2. After.

Covenant Perſonal.1. By the Common Law the Proceſs before appearance was but a diſtreſs infinite, 22 Hen. 6.13. Br. exigend. 29. 48 Edw. 3.29. pl. 15. and no Capias.

2. After appearance the parties appear, and day is given over; (ſalvis partibus, &c.) the Defendant makes default at the day, a diſtreſs was awarded againſt him, Lib. Intra. 134. B. Sect. 1. and not a Capias.

Quia non fit breve de Attachiamento, Covenant Real. quia oporteat quod partes compareant perſonaliter in Curia, Regiſt. orig. 165. A. and here was day given over ſalvis partibus, which was no perſonal appearance.

The Bar in Covenant, 1. Perſonal; 2. Real.

1. When a certain duty accrues by the Covenant at the time of the making of it,Accord. an Accord with ſatisfaction is no plea, Coke 6. part. 44. A. Blakes caſe; for ſuch an Accord cannot diſcharge the duty. But a releaſe may be pleaded in bar.

But where no certain duty accrues until the ſubſequent act or wrong, there Accord with ſatisfaction is a good plea, Coke 6. part. 44. A. Blakes caſe; for he may make ſatisfaction for the wrong by the agreement of the Covenantee.

Covenant to a Parſon for the enjoying his Benefice, and the Parſon deſerts, the Cure is void, if he deny it after ſuch deſertion, 14 Eliz. cap. 11. Raſtall, Leaſes 244. D. 23 Eliz. Dyer 372. pl. 11. This is after the Parſon is abſent forty days in the year, and not otherwiſe; for that is a deſertion in Law whereby he may be deprived.

A covenants to gather the Rents in D, Diſturbance. and he pleads, that he was interrupted by the Plaintiff, and ſo could not do it; this is a good bar, Crooke 13. Hen. 7.34. pl. 2. for the Plaintiff ſhall not take advantage of his own wrong.

Leſſee covenants to ſurrender before the term ends, and a Stranger that hath right enters upon the Leſſee, this is a diſcharge, becauſe the Leſſee is diſabled by an act in Law, Hill. 41 Eliz. Com. Ban. Andrews verſus Nedham, 45 Edw. 3.48.

Performance generally a good plea,Performance. 6 Hen. 4.8. pl. 34.

In a Covenant upon a demiſe by Indenture and an eviction by a Stranger, by a higher Title, it is no Bar to traverſe the poſſeſſion of the Plaintiff without particular cauſes ſhewing how the other had title, becauſe it is by Indenture, Trin. 3 Jac. Ban. Regis, Stile verſus Hearing, which is a general eſtoppel without ſhewing of ſpecial matter to avoid it.

A covenants to make a good eſtate in Copyhold land to B before Eaſter, during the life of Cox; it is no plea to ſay, that it was ſurrendred to the Lord by his procurement to the uſe of C, if he ſhews not that he was admitted; for nothing veſts in him to whoſe uſe it is till admittance, Mich. 15 Jac. Ban. Regis, Stiles verſus Smith, and ſo the Lord was not diſabled to perform the Covenant.

Releaſe is no Bar before the Covenant is broken,Releaſe. viz. generally, Coke 4. part. 71. Hors caſe, 5 Eliz. Dyer 217. pl. 2. Coke 1. part. 99. A. Shelley • caſe.

If it be not by expreſs words, Coke 5. part. 71. A. 35 Hen. 8. Dyer 57. pl. 24. Bramly; for ſo the Covenant may be releaſed.

Judgment in Covenant, 1. Perſonal; 2. Real.

Judgment againſt an Executor for a Covenant broken after the death of the Teſtator, is of the Teſtators goods, 15 Eliz. Dyer 324. pl. 34. for he is in the Teſtators ſtead, and truſted with his eſtate.

If a Leſſee recovers being outed by the Leſſor, he ſhall recover his term, viz. the remainder unexpired, Nat. br. 145. M. 47 Edw. 3.24. pl. 61. 20 Edw. 3. Judgment 177. and alſo Dammages, Nat. br. 145. M.

Execution in Covenant, 1. Perſonal; 2. Real.

1. Per Common Law; 2. Per Statute Law.

By the Common Law it is but a Levari facias, Perſonal. Lib. Intra. 133. D. ſect. 2. & fieri facias, Lib. Intra. 138. A. ſect. 1. extending but to goods and Chattels.

But no other Execution, Coke 3. part. 12. A. Harberts caſe.

And this only within the year; for if the year be paſt it was an Action of debt upon the Judgment, Coke 3.12. A.

Unleſs the Proceſs were continued, 33 Hen. 6.49. pl. 33. for the continuance of it made it, as if no time were paſſed, but continued a preſent Judgment.

By the Stat. by Weſtm. 2. cap. 45. a Scire facias was given after the year, Coke 3. part. 12. A. to revive the Judgment, and ſo the party is not now forced to bring an Action of debt upon it.

And per Weſtm. 2. cap. 18. Elegit is given, Coke 3. part. 12. A. which extends to lands as well as goods.

By the Stat. of 23 Hen. 8. cap. 14. Capias ad exigend fuit given in Proceſs, and by conſequence a Cap. ad ſatisfaciond. in execution againſt the perſon.

By the Common Law it was but a Writ de fine facto; 2. Real. or to pay a fine, as it ſeems, which was but a Writ of Covenant in its nature, 43 Edw. 3.12. B. Belknap. Glanvil. lib. 8. cap. 4. vide the Writ there.

But entry was congeable to execute it, 8 Edw. 3.277. 24 Edw. 3.40. pl. 49. Coke 7. part. 32. and to hold till ſatisfaction made, as it ſeems.

If Land be tailed to one by fine,Fine. he ſhall have a Formedon in Remainder, 6 Edw. 3.185. pl. 9. Herle to execute the Fine.

But when the King levies a find, he ought to make Letters Patents to the Conuſee to enter, Coke 7. part. 32. for the King paſſeth nothing but by Record.

A Fine levied of an Advowſon, this may be executed by a Quare Impedit, 24 Edw. 3.69. pl. 78.

But if an uſurpation be, no Scire facias lies, 33 Edw. 3. Quare Impedit 193. Knivet, againſt the Uſurper.

Fine levied of Services, there ſhall be a per que ſervitio, 29 Edw. 3.46. pl. 9. to execute the Fine.

If a Fine be levied of Rent, there may be 〈◊〉 Writ of Covenant, 22 Edw. 4.2. pl. 6. to execute the Fine.

Tenant grants to do his ſervices, there ſhall be but a Diſtreſs, 10 Edw. 3.371. pl. 3. for that is the proper remedy to recover them, and there needed no Covenant. Tamen quaere.

Fine levied of a Reverſion, there ſhall be a quid juris clamat to execute this.

And if the Tenant alien, yet the Writ ſhall be againſt him, and his Aſſignee ſhall be bound by his Attornment, 8 Hen. 6.17. B. 18 Hen. 6.3. B. pl. 2. by the Judgment given againſt the Aſſignor and himſelf.

Conuſor of a Fine dies, there ſhall be no quid juris clamat againſt him that claims; but if the Conuſee only die, quaere if his Heir ſhall have the Writ, 34 Hen. 6.7. B. Moyle, againſt the party that hath the particular eſtate.

Fine levied before memory, there ſhall be no Execution, 1 Edw. 4.6. pl. 13. for it ſhall be intended there was Execution formerly, or that there was to be none.

By Weſtm. 2. cap. 44. Scire facias is given after the year to revive the Fine, which is a Judgment in Law; but within the year ſuch Execution as in other Judgments.

Detinue.1. Quid.2. Quotuplex. Detinue is either by Common Law, 1. Upon Bailment. 1. To the Defendant himſelf. 2. To another. 1. Of Chattels Perſonal. 1. Alive. 2. Dead. 2. Upon a Devenerunt. 1. General. 2. Upon Trover. 2. Of Deeds. 1. Certain, Chattels. 2. Incertain in a Bag. Box. Cheſt. 1. Sealed. 2. Unſealed. Reals. Statute Law, Weſtm. 2. cap. 2. Againſt a Sheriff and the Avowant. 27 Hen. 8. cap. 7. Againſt Forreſters in Wale • . 2 & 3 Mariae, cap. 7. For the owner of a Horſe ſtole and ſold, not according to the Statute.
1. Court. 2. Plaintiff. 3. Defendant. 4. Thing. 5. The Count. 6. The Writ. 7. The Proceſs. 8. The Garniſhment. 9. Enterpleader. 10. Barr. 11. Judgment. 12. Execution.
In what Court Detinue lies, 1. of Chattels; 2. of Deeds for Land.

In Comitatu.1. IT lies in the County Court Nat. br. 138. B.

In any other Court, Nat. br. 138. C.

In the Common Bank, Nat. br. 138. B.

It lies not in the Marſhalſey, Coke 10. part. 76. A. 72. A. Marſhalſey, Q. if both parties be of the Kings houſhold, if it lie not.

2. In the County Court, Nat. br. 138. B. Regiſt. orig. 159. B.

It lies not in any Court without a Writ, and if it be ſued ſo a Prohibition lies, Nat. br. 138. C. Regiſt. orig. 159. B. viz. upon a plaint as is uſed in inferiour Courts.

Who ſhall have a Detinue, 1. of Chattels; 2. of Deeds.

An Avowant ſhall have a Detinue againſt a Sheriff upon a return. Habend. Avowant. where he returns quod Averia elongata ſunt, per Weſtm. 2. cap. 2.9 Hen. 6.42. where they are not eloigned. Q.

But this ſhall not be until it be returned quod plegii nihil habent nec ſunt inventi; for the pledges are liable to anſwer the diſtreſs, if the principle doth not proſecute or eloign.

Goods taken out of the poſſeſſion of the wife,Husband. a Feme ſole, which marries and dies, the Husband ſhall not have a Detinue, unleſs his wife make him Executor, 38 Hen. 6 26. pl. 38. for the Husband gained no property by the marriage, becauſe the wife was out of poſſeſſion at the time.

Executor ſhall have a Detinue for the goods of the Teſtator.Executor.

A Woman ſhall have a detinue after divo •• for the goods given in marriage with her,Woman. Nat. 〈◊〉 139. M. 16 Hen. 8.7. pl. 1. 28 Hen. 8. Dyer 〈◊〉 pl. 61. for the divorce deveſts the property out 〈◊〉 the husband, which he only had by virtue of 〈◊〉 Marriage.

But the 13 Hen. 3. Prohibition 21. the wife 〈◊〉 ſue for them in Court Chriſtian. Q.

A Woman ſhall have a Detinue for a rati •• bile parte bonorum, where the Cuſtome gives 〈◊〉 part, Nat. br. 122. L. for ſuch Cuſtome doth ve •• property in her.

The Heir ſhall have a Detinue upon Bailm •• to rebayl to him,Heir. viz. the Anceſtor, and his Hel • ▪ although it be but a Chattel, 15 Edw. 3.159. pl. 2 • for the Heir is privy in Law to the bailment, and 〈◊〉 intereſſed in the property.

Cuſtome that the Heir ſhall have the princip • goods of his Anceſtor, he ſhall have a Detinue for them, 30 Edw. 3.2. pl. 9. 39 Edw. 3.6. pl. 24. • gainſt the Executor.

And ſo the Heir of a Copyholder ſhall have▪ Detinue for the Copy before his admittance, C •• 4. part. 22. B. 3. for he is intituled from his A • ceſtor.

A leaſes a houſe with implements to B 〈◊〉 years,Leſſor. A ſhall have a Detinue for the implement at the end of the term, although they are waſled, 20 Hen. 6.16. pl. 2. for by the Leaſe the proper • y was not altered.

The Plaintiff in a Replegiare ſhall not have • Detinue for Cattel taken in Withernam, Proprietor 6 He • . 7.8. B. 2 Hen. 4.9. Br. Debt. 51. for by the Withernam he is deveſted of the property.

Becauſe he that brings a Detinue ought to have property, 6 Hen. 7.9. Nat. br. 138. 2 Hen. 4.9. which here he hath not.

In a Repleg. the Avowant hath return irrepleviſable; yet if the Plaintiff tender amends, he ſhall have a Detinue, Coke 8. part. 147. A. for it was but conditional, as the Law implies.

• or he which returns Irrepleviſable had not property in them, 10 Eliz. Dyer 280. pl. 14. but only to keep them till amends made.

Quaere, if the Avowant after appearance claims property, he ſhall have a Detinue for the goods taken in Withernam, 11 Hen. 4.10. pl. 21.

If a Horſe be ſtole and ſold in a Market overt, and be not tolled according to the Statute, 2 & 3 Mariae, cap. 7. the Owner hall have Detinue by the ſame Statute; for by ſuch ſale the property is not altered, for it is no ſale in Law, becauſe the Statute is not purſued.

In Wales, if Cattel or goods be ſtole and ſold in a Fair or Market, there the property is not altered, although tolled, therefore the Owner ſhall have a Detinue, 34 Hen. 8. cap. 26. Nota & quaere rationem.

The King ſhall have Detinue for Cattel of an Outlawed perſon, 4 Hen. 7.17. pl. 3. bre. King. Outlawry 41. againſt him that diſtrains them; for the property is veſted in the King by the Outlawry before ſeiſure.

The Lord ſhall have a Detinue for a Heriot cuſtome, if it be taken before ſeiſure,Lord. becauſe he had the property before ſeiſure, 13 Edw. 3. Br. Hariot, Trin. 9 Jac. Ban. Regis Creſſes caſe, per Curiam in a Prohibition, vide 10 Hen. 4. 4 Hen. 6.

But the 14 Edw. 3. Bar 277. (Wilby) a than ſhall not have an Action for a Harriot. Q • erg • , not a Detinue.

If a thing be delivered to A to deliver to B, Uſe. yet B ſhall have a Detinue, 18 Hen. 6.9. A. Newton; for the property is adjudged in B, becauſe it was delivered to A for his benefit only.

Husband and wife may joyn in Detinue for a deed of Lands,Husband and wife. 38 Hen. 6.25. Lib. Intr. 209. D. ſect. 3. & fol. 217. A. ſect. 2. viz. concerning Lands of the wife.

But this is when the Defendant comes not to the Deed by bailment, for if the Husband bail them he ſhall have it alone, ibidem. 8 Edw. 4.15. 38 Hen. 6.25. A. for the privity lies betwixt the Bailor and the Bailee.

Vide tamen, Lib. Intra. 217. A. ſect. 2.

If Bailment be before coverture they ought to joyn, 21 Hen. 7.29. for conformity: But upon bailment during the Coverture the Husband ſole ſhall have a Detinue, 8 Edw. 4.16. for that is adjudged his bailment only.

The Donor in tail ſhall have a Detinue for the Indenture after the death of the Donce withou • Iſſue,Donor. Nat. br. 138. F. in reſpect of his reverſio • which depends upon the 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 hav • an Action upon the Caſe, 33 Hen. 6.26. pl. 1 • Priſot, if the Deeds do concern him.

If one have Deeds and ſome concern warrant • ſome not,Feoſ • ee. and enfeoff B with warranty, B ſha •• not have a Detinue for the deeds, which ſerv •• 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 Tertenant of any part happen upon the deed, he may detain it, becauſe he hath an intereſt, 4 Hen. 7.10. pl. 4. 2 Eliz. Dyer 183. pl. 57. and it is reaſon he ſhould have the deeds to maintain it as well as any other.

Recuſant ſhall not have an Action for any thing ſeiſed into the hands of the King,Recuſant. 3 Jac. cap. 5. By Stat. vid.

22 Hen. 6.1. A Tenant for life dies,Remainder. he in the Remainder ſhall have Detinue for the deed, 9 Hen. 6.54. pl. 39. for now his title is come in poſſeſſion, and ſo the deed that created it belongs to him.

But if the Donor releaſe to the Tenant for life, he in the Remainder ſhall not have a Detinue, 9 Hen. 5.54. pl. 39. Q.

If Tenant for life die, he in the Remainder of a Copyhold ſhall have it, Coke 4. part. 22. B. for Copyholds are in many things governed by the rules of the Common Law, and ſo no difference betwixt them and other eſtates.

Land is given to A for the life of B, the Remainder to C in Fee, B dies, C ſhall have a Detinue againſt A without requeſt; becauſe he had intereſt in the deed during the life of B, 33 Hen. 6.30. B. 35 Hen. 6.9. A. Moyle, in reſpect of his Remainder.

But there quaere, whether it lies againſt the Huſband, when the wife is dead without iſſue, without requeſt and poſſeſſion, becauſe he is 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. Quaeret • 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 He • 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. Littleton, ſo that the bale be not broken.

But otherwiſe it lies not, Nat. br. 138. A. 22 Hen. 8. Dyer 22. pl. 137. for then the money cannot be known.

Note, a Detinue was brought for one piece of Dornex of the value of 22 s. and tried at Glouceſter Aſſizes, 5 Martii 15 Jac. Q. what Judgment.

Vide tamen 21 Hen. 7.82. pl. 3. Detinue brought of a piece of ſilver. Quaere what piece.

It lies of Rationabile parte bonorum, Rationabile parte bonorum. Heir. 17 Edw. 3.9. pl. 29. by cuſtome. See before.

Cuſtome, that the Heir ſhall have the principal goods. Detinue lies for them, 30 Edw. 3.2. pl. 9. 39 Edw. 3.6. pl. 24. & fol. 9. pl. 15. See before.

Land leaſed with implements,Implements. at the end of the term Detinue lies for them, although waſted, 20 Hen. 6.16. pl. 2. See before.

Goods loſtIf goods are loſt Detinue lies, Nat. br. 138. E. againſt him that finds them, or a Trover.

Goods bail.Goods bailed to deliver over, Detinue lies, Nat. br. 138. A. 18 Hen. 6.9. A. againſt the bailee, by the party to whom they ſhould have been bailed over. See before.

A. bails goods to B. which are ſtole, Detinue lies againſt B. for them, Coke 4 part. 84. Southcots caſe. Vid. antea.

But if he receive them to keep, as he doth his own goods, and they are ſtole, it lies not, Coke 4. part. 83. Southcots caſe, 9 Edw. 4.40. pl. 22. Danby. Antea.

Carrier loſeth goods.Carrier loſeth goods, or is robbed, yet Detinue lies againſt him, Coke 4 part. 84. 2 Hen. 7.11. B. Townſend. Antea.

A. contracts for Corn to be delivered at a day to come,Corn. he ſhall have a Detinue at the day for this, No. Lib. Intra. 169. B. ſect. 1. for by the contract he had a property in the Corn.

After divorce it lies for goods given in marriage,Divorce. Nat. br. 139. A. 26 Hen. 8.7. pl. 1. 28 Hen. 8. Dyer 13. pl. 61. Vid. antea.

It lies of a Horſe, Cow, &c. or more Cows o • Horſes, Nat. br. 138. A. be the number what it will.

It lies for the Plaintiff in Replevin,Replevin. for goods taken in Withernam, becauſe he from whom they were ſo taken had not the property in them, 2 Hen. 4. br. debt 51. 6 Hen. 7.8. B.

Quaere, if the Avowant ſhall have a Detinue for his goods taken in Withernam after appearance and claim of the property, 11 Hen. 4.10. pl. 21. for he claim makes not the property.

Tender amends in Replevin.The Plaintiff in a Replegiare after return irrepleviſable upon tender of amends ſhall have a Detinue for the goods, Coke 8. part. 147. A. for he had the property in them, 10 Eliz. Dyer 280. pl. 14. notwithſtanding ſuch Writ. Vid. antea.

Corn. Wine. A delivered B Corn and Wine, &c. and they periſh, yet Detinue lies for them, Doct. & Stud. 129. A. Q. what ſhall be recovered, dammages • t videtur.

But if it be a thing that be to be redelivered,Horſe. as a Horſe, &c. if it be uſed in other manner than was agreed, and if it periſh in default of the party to whom it was delivered, and Action lies, Doct. & Stud. 129. A. Vid. antea.

But if it be uſed but in ſuch manner as it was agreed, and it periſh, but not by default of the party to whom it was delivered, Action lies not, Doct. & Stud. 129. A. Vid. antea.

Note,Note. in brevi de chartis reddendis ſemper debet poni cerius numerus chartarum vel ſcriptorum, Regiſt. orig 159. B. Nat. br. 138. B. Et ſic (ut videtur) eſt de aliis bonis & catallis.

The Count in Detinue, 1. Of Chattels; 2. Of Deeds.

The Count ought to name all things certain,Count. and the value, 1 Rich. 3.20. A. 3 Hen. 6. viz. time and place.

The Count was,Bailment. that ſuch a year day and place A bailed to B bona & catalla, &c. ſcilicet, one Cup of Silver, &c. ad valentiam, &c. ſalvo cuſtodiend. & eidem querenti cum inde requiſitus fuiſſet redeliber and. &c. Lib. Intr. 212. B.

A counts de bailment of Spoons,Spoons. &c. ad valentiam, &c. Lib. Intr. 211. D. ſect. 2. naming the number.

The Count was, Devenerunt Ag. Executors. quod cum ipſe, the year, day and place, deliberaſſet W. in vita ſua, catalla, &c. poſteaque praedictus W. obiit, &c. & poſt ejus mortem praedictam, &c. devenerunt ſuch a day, year and place, to the hands of the aforeſaid Executors, praedictus W. nec praedicti Executores, &c. Lib. Intra. 212. C. Sect. 4. This againſt an Executor.

Per Executor.Count per Executor, Com. 275. A. Foxes caſe. vid. the Count there.

Count upon bailment to B, Trover. which loſes it, and that the Defendant found it, and yet detinet lies, Lib. Intra. 212. B. ſect. 3. for neither by the bailment, nor by the loſing and finding it, is the property altered or diveſted out of the Bailor.

Count of a Horſe found, No. Lib. Intr. 169. D. Sect. 2.

A counts upon a bargain for Corn to be delivered at a day to come,Contract. that ſuch a day, year and place he bargained for eight quarters of Corn, ad valentiam, to be delivered, &c. No. Lib. Intra. 169. B. ſect. 1. Vid. antea, by the contract the property was diveſted out of A.

For two Obligations,Obligation Lib. Intra. 220. A. Sect. 1.

Husband and Wife for box with deedsThe Husband and Wife count, that they were poſſeſſed of a Box ſealed with Deeds concerning Lands of the Wife, &c. and loſt them, and they came to the hands of the Defendant ſuch a year, day and place, per Trover, &c. Lib. Intra. 209. B. Sect. 3.

Count of a box with Deeds, Lib. Intra. 202. B. Sect. 7. Though unſealed, yet it lies. Q. whether he muſt not ſhew what deeds particularly.

Heir againſt huſband and wife.Counts that his Brother, whoſe Heir he is, was ſeized of Land in Fee, and of a box ſealed with Writings touching the Land, and he loſt the box, and it came to the hands of the wife dum ſola f • it, and that his brother dies without iſſue and the Lands deſcended to him, and that the woman takes a Husband per quod, &c. Lib. Intra. 209. D. ſect. 4. the Action lay againſt them; for the marriage gains no property where the wife had none before.

Heir againſt Executors,Heir. Lib. Intra. 210. A. ſect. 5. of the Anceſtor for things touching the Lands he inherits.

The heir in a Detinue for a box with deeds ought to count that it was ſealed, for otherwiſe it belongs to the Executors, 36 Hen. 6.27. pl. 26. 39 Edw. 3.7, 8. 41 Edw. 3.2. 11 Hen. 49. A. Paſton. Q. how the ſealing ſhould make a difference.

And yet the ſealing is not traverſable, 41 Edw. 3.2.

The heir ought to count of the certainty of the Land, and alſo how it was conveyed to him, 3 Hen. 6.19. pl. 31. 19 Hen. 11. pl. 29. or elſ it cannot appear the deeds belong unto him.

He ought to count as heir, if he claims as heir, 7 Hen. 6.31. pl. 25. for every one ought to make his caſe as it is.

But if he counts upon Bailment to rebail to him and his heirs, he need not to ſet forth the Title to the Land, 19 Hen. 6.41. pl. 84. for there the Action is meerly founded upon the bailment and detainer.

If a Feoffee with warranty make a Feoffment with warranty, his Heir ſhall have a Detinue, and count ſpecially, Coke 1. part. 2. A. Buckburſts caſe, as his caſe is.

The heir counts that his Father was ſeiſed in fee, and demands the deed of the eſtate tail, and good; for his Father may diſcontinue and take it again in Fee, 38 Hen. 6.24. pl. 11. and therefore his count ſhall be preſumed to be good.

Count per Feoffee,Feoffee. Lib. Intra. 210. ſect. 6.

Note,Note. if the Writ be of bona & catalla the Count cannot be of Charters, 22 Edw. 4.12. pl. 32. for bona & catalla are not proper words generally to expreſs Charters by, becauſe they belong to the real, and not perſonal eſtate, and Goods and Chattels are uſually intended perſonal things.

And needs not ſay in the Count how the Defendant came to them, 9 Hen. 5.14. pl. 22. 4 Edw. 4.9. pl. 11. Lib. Intra. 213. A. ſect. 2.

If the Writ be of a box with Deeds, the Count ſhall be accordingly, and not of a deed certain, 41 Edw. 3.2. pl. 5. 14 Hen. 6.4. A. Pleading ought to be plain and certain.

The Plaintiff in a Detinue for Deeds for Land ought to make title to the Land in the Count, 33 Hen. 6.26. pl. 12. Priſot; for otherwiſe he ought to make requeſt for the deeds, and then an Action upon the Caſe lies, if they be detained from him.

The Writ in Detinue, 1. Of Chattels; 2. Of Deeds.

1. In Comitatu dicitur injuſte detinet, Regiſt. orig. 139. B. that is, in the County Court.

Si quis rem mobilem vendicaverit, ex quacunque cauſa oblatam vel commodatam, debet in actione ſua definire pretium, & ſic proponere actionem ſuam; quia ille à quo res petitur non tenetur precitè ad rem reſtituendam, ſed ſub disjunctione, vel ad rem, vel ad pretium, Bracton Lib. 3. fol. 102. B. Where you may recover dammages for the thing detained, the value of it muſt be ſet forth, that the Jury may judge of them.

If it be againſt an Executor it needs not name him Executor, becauſe he is only charged with the Detainer, 29 Edw. 3.38. pl. 12. quaere tamen, for the Detainer is not in his own right.

Rex, In Comitatu. praecipimus tibi quod juſticies L. quod juſte, &c. reddat T. quandam chartam, vel duas chartas, vel quoddam ſcriptum obligatorium, vel conventionale, vel acquietantiae, vel quiete clamantiae, vel teſtamentarium, vel quoddam Chirographum, quod, quas vel quae, ei injuſte detinet, ut dicit, ſicut rationabiliter monſtrare poterit, ne amplius, &c. Regiſt. orig. 159. B. Nat. br. 138. B.

Rex, In Banco. praecipe F. quod reddat W. quandam chartam, &c. quam ei injuſte detinet, ut dicit, & niſi fecerit, &c. Regiſt. orig. 159. B. Nat. br. 138. B.

The Writ for Deeds in a Bag, Box, or Cheſt. vid. Regiſt. 159. B. Lib. Intra. 209. C. Sect. 1.

Note, when a man demands Writings in a bag, box, or cheſt, he needs not make mention in the Writ or Count what Writings they were, Regiſt. orig. 160. A. becauſe they were together and entire; but if looſe it is otherwiſe.

If one ſue for Deeds in any Court without a Writ, a Prohibition lies; vide the Writ, Regiſt. orig. 159. B. Nat br. 139. C. for men muſt proceed as the Law directs, and they are compellable ſo to do.

A bails Deeds to rebail to him and his Heirs, there the Heir need not mention that he is Heir in the Writ, 5 Edw 3.159. pl. 24. for the Action is grounded upon the bailment. Yet quaere, for here is a ſpecial bailment.

The Proceſs in Detinue, 1. Before appearance. 2. After.

Detinue for Chattels.By the Common Law it was but a diſtreſs infinite, Nat. br. 139. A. 14 Hen. 6.1. that is, • o diſtrain him by his goods and Chattels until he appear.

But per 25 Edw. 3. cap. 17. a Capias was given to arreſt the body of the party, to bring him in.

But lies not in a Detinue for deeds, 5 Eliz. Dyer 223. pl. 24. viz. a Capias. Q. rationem, it may be, becauſe that may not be ſatisfactory to the party to have the perſon.

Detinue for deeds.The Proceſs at Common Law was a Summons, Attachment and Diſtreſs, Nat. br. 139. A. 14. Hen. 6.1. viz. for deeds.

But if the Deeds are in a box a Capias lies, 20 Edw. 4.3. pl. 12. 7 Hen. 4.2. pl. 8. 14. Hen. 6.1. pl. 1. 40 Edw. 3.25. pl. 28. Quaere rationem.

But then it ought to count of a Deed in certain, 14 Hen. 6.1. pl. 12 and not generally.

The Garniſhee may be ſummoned by word,Garniſhee. • Hen. 5.13. as well as by Writ.

The Garniſhor may have a Soire facias to iſſue out againſt the Garniſhee, and if he make default, judgment ſhall be given againſt him, Lib. Ietra. 217. B. ſect. 3. upon a nihil dicit.

The Garniſhment in Detinue, 1. Of Chattels. 2. Of Deeds.

Garniſhment is granted for ſaving the Condition,Garniſhment. if it be not performed; only upon this, whether the Defendant did perform it or not, and for no other cauſe, 40 Edw. 3.11. pl. 24.

The Defendant in Detinue pleads, that the Plaintiff and B delivered this upon condition, and prays Garniſhment, 〈…〉 and had it allowed for a good plea, without ſhewing what the conditions were, 3. Hen. 4.18. for that will appear upon the Interpleader of the parties.

And alſo the reaſon is ſaid to be, becauſe the Conditions come not in debate between the Plaintiff and Defendant.

Garniſhment was prayed of the Heir and Executor of B, and accounted good; becauſe it did not appear whether the Deeds in the box were real or Chattels, 14 Edw. 4.1. pl. 3. 21 Edw. 3.41. pl. 44. 48 Edw. 3.30. pl. 19. and ſo not certain, whether the Heir or Executor was to be ſued.

Garniſhment granted againſt an Executor, becauſe it was ſuppoſed that the Teſtator was one that delivered the deeds, 14 Hen. 6.11. pl. 42.

The Defendant ſhall have Garniſhment, although the Garniſhee was a ſtranger to the Delivery, 14 Edw. 4.2. Q.

If the the Garniſhee be returned dead, then his Heir or Executor ſhall be Garnie, and if it be for a Chattel, and it is returned that he is dead inteſtate, the Ordinary ſhall be Garnie, 48 Edw. 3.3. pl. 19. viz. before letter of Adminiſtration granted.

So of the Succeſſor of a Garniſhee, Lib. Inter. 217. C.

Executor ſhall have Garniſhment upon a delivery to his Teſtator, Lib. Intra. 216. D. Sect. 1. and an Action thereupon brought againſt him.

Enterpleader in Detinue, 1. Of Chattels. 2. Of Deeds.

Note,Enterpleader. that there ſhall be no Enterpleader vnleſs the Defendant pray it, 18 Edw. 3.22. pl. 3 for the Enterpleader is to ſecure him againſt both parties, and if he deſire not relief, the Court will not put him upon it.

If the parties are by Attorneys, day ſhall be given over, becauſe they ſhall not enterplead be in perſon, 9 Edw. 3.334. pl. 12. 24 Edw. 3.24 pl. 3. which they cannot then do, becauſe they appear by Attorney.

And if one come at his day by Attorney, the other ſhall not have Judgment againſt him, • Edw. 3.334. pl. 12. for there is no default in him.

Upon ſeveral Bailments there ſhall be no Enterpleader, 19 Hen. 6.2. pl. 6. for there is no privity between the parties.

But if the Deſendant ſaid that he was Joynttenant, abſque hoc that it was ſeveral, 19 Hen. 6.3. pl. 6. then it ſeems there ſhall be an Enterpleader.

In Detinue the Defendant pleads another Writ, hanging by another, and prays Enterpleader, and it was granted for the miſchief that might be; for other wiſe both might recover the Deeds, and ſo the Defendant be twice charged, 3 Hen. 6.43. pl. 20. which is unreaſonable; for nemo his pu • iri debet pro uno ſolummodo delicto.

But there ought to be two ſeveral Writs depending at one time, for the ſame thing, 3 Hen. 6. 35. pl. 31. and theſe ought to be returned at one day, 9 Hen. 6.36. pl. 9. Q.

If the Defendant and the Garniſhee do not agree in plea, there ſhall be no Enterpleader, 14 Hen. 6.11. for then the garniſhment will be to no purpoſe to determine the queſtion.

There ſhall be no Enterpleader unleſs the Defendant alledge, that both demanded one thing, 8 Edw. 4.6. for the Enterpleader is to determine, who hath the right to that one thing.

If the Defendant after Garniſhment make default, yet there ſhall be an Enterpleader, 2 Rich. 2. Enterpleader 13. for his default ſhall not prejudice a third perſon.

If it be returned at ſeveral days, then a day ſhall be given over, at which day they ſhall Enterplead, 33 Hen. 6.25. pl. 8. viz. two Writs of Detinue for the ſame thing.

But if two Writs bear the ſame date, then he that firſt comes and demands anſwer, ſhall be anſwered, 19 Hen. 6.4. Lib. Intr. 213. A, & B. ſect. 1. Vigilantibus, non dormientibus jura ſubveniunt.

Otherwiſe he that the Court aſſigns, 19 Hen. 6.4. that is, where they demand anſwer at the ſame time; for where the parties have equal right, it is in the diſcretion of the Court which Cauſe they will firſt proceed in, for they cannot proceed in both together, and ſuch favour is no Injuſtice.

Barr in Detinus; 1. Of Chattels. 2. Of Deeds.

Accord is a good plea in Detinue of any goods perſonal,Accord. Coke 9. part. 78. B. Petoes caſe; but not of real.

Barr that the goods were attached and delivered to him,Attachment. only the cuſtome of the City, Lib. Intr. 112. C. ſect. 5. of London can warrant this plea in London.

A lent Sheep to a Woman ſole,Command. which took a Husband, which commanded the owner to take them again, who refuſed; this is a good barr as to the bailment in Detinue, 43 Edw. 3.21.10. for by the intermarriage the husband had power to redeliver the goods.

A good barr that they were lent to deliver over,To deliver over. of the which he had a deed, Nat. br. 138. M. to prove it. Quaere, whether he ought not to plead in Curia hic prolat.

A good plea by the Executor upon bailment to the Teſtator, that he, viz. the Executor, had delivered them to him that had the right in the goods, 9 Hen. 6.58. A.

Detinue is no plea, that the Plaintiff gave him the goods, becauſe he may wage his Law,Given. 22 Edw. 4.29. pl. 10. that the goods were not delivered to him to redeliver.

Detinue upon Trover, the Defendant pleads,Diſtreſs. that he did diſtrain for Rent reſerved upon a Leaſe, a good barr, 27 Hon. 8.22. pl. 15. for here can be no Trover.

In Detinue of a Horſe,Eſtray. a good plea that he did eſtray into his ground, and that he proclaimed him and offered the Horſe to the owner, if he would pay for his meat, which he refuſed to do, No. Lib. Intr. 169. D. ſect. 2. for ſuch a detainer is lawful.

A good barr to ſay,Malady. the Horſe was ſick in Detinue at the time of the demand, 21 Edw. 4. Detinue br. 42. and ſo could not be delivered without danger of his death; and the Law loves the preſervation of things, and not their deſtruction.

Non detinet a good barr, Lib. Intra. 211.Non detinet. D. ſect. 1. & 2. fol. 112. C. ſect. 4, & 5. for it is directly contrary to the ſuppoſal of the Writ, and ſo a good iſſue is tendred.

And this may be by the Countrey, Lib. Intra. 211. D. Sect. 1, and 112. Sect. 4. C. viz. tried by a Jury as matter in fact.

Or by wager of Law, 22 Edw. 4.29. pl. 10. Lib. Intra. 112. C. Sect. 5. 5 Edw. 3. 145. pl. 4. 27 Edw. 3.83. pl. 6. 4 Edw. 3.41. by the Oath of the Defendant.

Although the bailment be by deed, for the Detinet is the ſubſtance of the Action, 27 Hen. 8.22. pl. 14. and not the bailment.

An Executor may wage his Law, 11 Hen. 6.40. pl. 25. 3 Hen. 6.38. Martin, of a bailment made to the Teſtator. Quaere, or whether upon the detinet.

Non detinet by the Law gager, although the bailment be by others hands, 8 Hen. 6.10. pl. 26. 33 Hen. 6.8. B. Moyle, is a good barr.

If an Executor pays a debt of the Bailors to the value of the goods,Payment to the value. and dies, this is a good barr in Detinue brought againſt the ſurviving Executor, 3 Eliz. Dyer 187. pl. 6. Q

The Defendant ſaid,Pledge. that the Plaintiff pledged them for money, which is not paid; this is a good barr, 34 Hen. 6.42. pl. 13. for here is no bailment, but the goods are in cuſtody of the Law.

Corn is lent, &c. and it periſheth; this is no barr,Periſh. Doct. & Stud. 129. A. in a Detinue for the Corn, for the Borrower ought to make it good at his own peril.

A Horſe uſed in other manner than was agreeds no barr if he periſh. Vid. antea; for he is a truſt abuſed, which the Law hates.

But if he be uſed in the ſame manner, if he periſh not in deſault of the party to whom he was lent, it is a good barr, Doct. & Stud. 129. A. for here was no truſt deceived, nor fault in the Bailee.

No plea for a Carrier or Ferryman, that he was robbed,Robbery. Coke 4. part. 84. Southcots caſe, 〈◊〉 Hen. 7.11. B. Townſend, but they muſt take their remedy againſt the Thieves, and they are by Law anſwerable to the owners of the goods.

So if goods are delivered to keep, Coke 4. part. 83. B. for ſuch an acceptance implies a warranty to keep them ſafe, and to redeliver them.

But it is a good plea, if they are taken to keep as my own, Coke 4. part. 83. for there is no ſuch warranty implied. Vid. antea.

Recovery in Treſpaſs a good barr in Detinue,Recovery. 20 Hen. 7.58. B. Crooke; for there ſhall not be a double recovery for one thing.

The bailment is not traverſable where he may wage his Law,Travers. 8 Edw. 4.3. pl. 7. for there his Oath that he detains not is ſufficient; for if he detains not, there could be no bailment.

No barr that the Horſe was ſold in a Market overt, unleſs it were tolled,Vendee. according to the Statute, 1 & 2 Phil. & Mariae, cap. 7. for no property is altered by ſuch a ſale. Vid. antea.

Detinue for Deeds as Heir,Baſtardy. Baſtardy is a good plea, 35 Hen. 6.9. pl. 12. for if a Baſtard, he is no Heir.

A bailed to B to rebail, and dies,Feoſtment having two Sons, which makes partition, he which had the Land comprehended in the deed delivered enfeoffs B; this is a good barr, 17 Edw. 3.12. pl. 45. for by the purchaſe the deed belongs to B.

Warranty and Aſſets is no barr againſt the iſſue in Tail in Detinue,Warrant, 9 Hen. 6.15. pl. 5. 4 Hen. 7.10. pl. 4. for he comes in by the Donor.

Rebailment in another County a good barr,Rebailment. becauſe he cannot wage his Law, 22 Hen. 6.15. pl. 27. becauſe the bailment was in one County, and the Action is brought in another County.

Releaſe per the Plaintiff a good barr,Releaſe. Lib. Intra. 290. B. Sect. 1. for by the Releaſe the property was altered.

The Defendant pleads bailment of deeds by the Plaintiff,Retainer. upon condition, that if his wife the Plainteſs ſurvive the Plaintiff, that the Defendant ſhould retain it, and that his wiſe is alive, a good barr; but then he ought to ſhew what Lands they concern, 18 Edw. 4.18. that it may be known unto whom the deed belongs.

Infancy is no plea,Infancy. becauſe he may avoid an obligation in debt, 14 Hen. 6.11. pl. 41. by pleading deins age.

A good bar that the Garniſhee brought a Detinue againſt the Defendant,Recovery. and prays Garniſhment againſt the Plaintiff, which makes default, and he had judgment, 34 Hen. 6.47. pl. 13. 21 Hen. 6.35. pl. 2. per Newton.

Garniſhee pleads releaſe between the time of this Action brought,Releaſe. and the delivery, & quaere, 20 Hen. 6.28. pl. 23. 49 Edw. 3.13.

But 39 Edw. 3.13. adjudged, that it is a good barr, and ſo it ſeems the Law to be.

The Judgment in Detinue; 1. Of Chattels. 2. Of Deeds.

Againſt the Defendant. 1. Quod praedictus W. recuperet verſus praefat. J. praedicta octo quarteria frumenti, vel valorem eorundem, No. Lib. Intra, 169. C. Sect. 1. Lib. Intra. 218. B. Sect. 4. & dampua ſua, &c. and upon the return of the Writ, if it appears that W. did not deliver the Corn, then the judgment ſhall be for the value with dammages and coſts. So ſee the difference, where the Plaintiff himſelf delivers the thing, and where another.

The Plaintiff ſhall have judgment to recover the thing named,Plaintiff 17 Edw. 3.45. 1 Rich. 3.1. & 2. or the value of it, and dammages for detaining of it, as appears above.

The judgment was, that he ſhould recover his Chattels, and his dammages, 21 Hen 6.36. A.

Bracton, Lib. 3. fol. 102. B. non tenetur preciſe ad rem reſtituend. ſed ſub disjunct. vel ad rem, vel ad pretium; either the thing, or the value of it indammages.

Againſt the Defendant.The judgment was, that he ſhould recover the deeds, if they are found, and alſo d • mmages for the detainer; and if not found, then all in dammages, 7 Hen. 6.31. pl. 25. 22 Hen. 6.41. pl. 17. as well for the deeds as for the detainer of them.

And this ſhall be, although it be proved that the Defendant burnt the deed, 17 Edw. 3.45. pl. 1. for that ſhall not excuſe.

Ideo confideratum eſt, quod praedictus. A. recuperet verſus praefat. B. pyxidem praedictam cum chartis, &c. Lib. Intra. 218. A. Sect. 1. the box with the writings.

The Heir in Detinue had judgment to recover one box, with as much as was in it contained that belongs to him, 5 Edw. 3.159. B. intended to be of writings.

Againſt the Defendant and the Garniſhee.The judgment was, that he ſhould recover the deeds againſt the Defendant, & haberet liberationem verſus the Garniſhee, 21 Hen. 6.36. A. Lib. Intra. 219. D. ſect. 17. 9 Hen. 6.38. pl. 13.7. Hen. 6.45. pl. 27. This is a double judgment, viz. of the right, and of the poſſeſſion.

But if Judgment be given upon default of the Garniſhee before appearance, no dammages ſhall be given, 20 Hen. 6.4. pl. 27. for this is not the Defendants fault.

If the Plaintiff and Defendant make default, the Garniſhee ſhall have Judgment, and the Plaintiff and Defendant in miſericordia, 40 Edw. 3.39. pl. 15. for his unjuſt vexation.

Execution in Detinue; 1. Of Defendant. 2. Againſt the Garniſhee. 3. Of what Lands. 4. Of what Goods.

Execution againſt the Defendant by diſtreſs for the thing detained and recovered,Chattels. Nat. Lib. Intr • . 169. C. ſect. 1. 20 Edw. 4.3. pl. 12. No. Lib. Intr • . 170. D. 17. A. 6 Rich. • . Execution.

But if the thing be not delivered to the Plaintiff, then he ſhall have execution for the dammages by Capias, Lib. Intra. 216. B. ſect. 6. 20 Edw. 4.3. pl. 12. againſt the perſon of the Defendant.

For a Capias was given in the main Proceſs per 25 Edw. 3. cap. 17. and by conſequence a Capi •• ad ſatisfaciend. in execution by the equity of that Statute.

At the Common Law execution was for dammages by fieri facias, and alſo for the goods, Lib. Intra. 216. B. ſect. 8. to be levied upon the goods of the Defendant.

For dammages by fieri facias, and for the thing by diſtreſs of the Goods and Chattels, 6 Rich. 2. Execution 45.

The Plaintiff and Defendant make default, Garniſhee had Judgment and diſtreſs againſt the Defendant, 40 Edw. 3.39. pl. 15. Vid. antea.

Diſtreſs iſſued forth in execution, Lib. Intra. 215. C. ſect. 1. 20 Edw. 4.3. pl. 12. 22 Hen. 6.41. pl. 17.

But Capias lies not, 5 Eliz. Dyer 223. pl. 24. 21 Hen. 6.42. vid. antea.

If the deeds concern Lands, 8 Hen. 6.29. pl. 24. 14 Hen. 6.1. pl. 1.

But for the dammages, if they will not deliver them, a Capias lies, 22 Hen. 6.41. pl. 17. 20 Edw. 43. pl. 12.

If deeds are in a box, then a Capias ad ſatiſfaciendum lies in execution againſt the perſon, 7 Hen. 4.2. pl. 8. 14 Hen. 6.1. pl. 1. 40 Edw 3.25. pl. 28.

But for dammages at the Common Law it was but a fieri facias, Lib. Intra. 216. B. ſect. 7. upon the goods and Chattels.

Or a levari facias, Coke 3. part. 12. A. upon Lands and goods.

And this only within the year, for after the year the party had but an Action of Debt, Coke 3. part. 12. A. vid. antea.

Unleſs the Suit be continued, 33 Hen. 6.49. pl. 33.

But by Weſtm. 2. cap. 450. a Scire facia • is given after the year to revive the judgment, and by Weſtm. 2. cap. 18. an Elegit is given, antea, upon the Lands.

And by the twenty fifth of Edw. 3. cap. 17. Capias is given in Proceſs for deeds in a Box, and by conſequence a Capias ad ſatisfaciend. in execution, Lib. Intra. 216. A. Sect. 3.40. Edw. 3.25. pl. 28. antea.

If dammages ſhall be recovered againſt a Garniſhee,Deeds. the execution ſhall be of the goods and Lands of the Garniſhee, 7 Hen. 6.45. pl. 27. 9 Hen. 6.38. pl. 13. 19 Hen. 6.4,

But not of his body, becauſe he was not party to the Writ, 7 Hen. 6.45. pl. 27. 9 Hen. 6.38. pl. 13. upon which the Action was brought, but comes in by Garniſhment.

But the Book of Entries 216. B. ſect. 6. Capias ad ſatisfaciendum was a warded againſt a Garniſhed for dammages recovered againſt him. Quaere, if as well for the detainer as for the thing detained.

DEBT. Debt is by Common Law Upon Judgment, 1. General in Court 1. Of Record. 1. Superiour. 1. Parliament. 2. Ban. Regis. 3. Chancery. 4. Com. Ban. 5. Exchequer. 2. Inferiour. 1. Preſcription. 1. Pypowders in a Village. 1. Pypowders. 2. Tourn of the Sheriff. 3. Leet. 2. Patent. 3. Parliament. 4. Common Right. 2. Not of Record 1. County Court. 2. Court Baron— 1. Ancient Demeſn. 2. Hundred. 3. In any Mannor. 1. Of Record. 2. Special 1. In Court, 2. Out of Court, 1. Statute Merchant. Staple. 2. Recognizance, according to 23 Hen. 8. 3. Account, Common Law. 4. Arbitrement. 5. Ordinance, or by-Law. 2. Not of Record. Upon matter in the County, Upon a deed 1. Indented, 1. Inrolled. 2. Not Inrolled▪ 2. Poll, 1. Obligation, 1. Simple. 2. Conditional. Finite, as for 1. Years. 2. For life. 3. Anothers life. 4. Eſtate Tail. Infinite, 1. Abſolute. 2. Conditional. 3. Limited 1. general. 2. ſpecial. 2. Grant, 1. Caſual, hac vice. 2. Certain, to have continuance for a time. Without a Deed 1. Lent. 2. Bailment to Bail over. Pledge. Rebail. 3. Contract real. 4. Upon Tail. 5. Matter in Law. Relief. Aid. Toll. Fees. Sallary for 1. Counſellor. 2. Attorney. 3. Servant for one day, as Labourer. 4. Retainer as for one or more years. Robbing. Eſcuage. Rationabili parte bonorum. 2. Perſonal. 1. Chattels Rent upon a Leaſe for life during the Leaſe. Leaſe at Will. Leaſe for years. 2. A real thing After the Leaſe ended 1. Effluxion. 2. Limitation. 3. Condition. Incident. Collateral. 2. Perſonal. 1. Rent reſerved. 2. Agiſtment. 3. Partition. 4. Tabling and Phyſick. 5. Vendition 6. Marriage money. 7. Chirurgery. 8. Taylor for general Contract. A Garment, ſpecial. Contract. Statute Law, Weſtm. 2. cap. 11. Upon an eſcape of an Accountant in Execution. 1 Rich. 2. cap. 12. Upon an eſcape of a Debt, or in Execution. 33 Hen. 6. cap. 1. Againſt a Goaler which ſuffers a Servant to eſcape, which was committed by the Chief Juſtice. 23 Hen. 6. cap. 15. Againſt a Sheriff, for no • returning a Knight of the Parliament. 2 Edw. 6. cap. 13. For a Parſon againſt him that will not ſet forth his Tithes. 7 Edw. 6. cap. 6. Againſt a Receiver that takes more than he ought,By the party grieved. forfeits 6 s. 8 d. for every peny to the party grieved. 1 Edw. 6. cap. 14. Debt againſt a Seller of Lands given to the King by the ſaid St • ture. 1 Mariae cap. 9. Goaler which refuſes or ſuffers a perſon committed by the Colledge of Phyſicians to eſcape. 13 Eliz. cap. 4. Upon a fraudulent Conveyance to defeat Creditors. 3 Jac. cap. 7. If an Attorney ſuffers another to practiſe in his name in Court, he forfeits 20 l. and the other that follows the Suit in his Name 20 l. 4 Jac. cap. 3. The Defendant ſhall have the ſame remedy for his Coſts, as the Plaintiff ſhould have had, if he had recovered. 1 Jac. cap. 21. Debt againſt a Broker, for double the value of the thing, if he refuſe to diſcloſe the truth. 1 J • c. cap. 15. Creditor of a Bankrupt ſhall have an Action of Debt to him aſſigned. 5 Eliz. cap. 13. The Owners of the ſoil againſt the Surveyors of Highways, which dig in a mans Ground, and not fill it up again within one Month, the forfeiture is 3 l. 6 s. 8 d. The Lord of the L • et for erecting a Cottage,To a perſon certain. or Inmate, ſhall have an Action of Debt, per 31 Eliz. cap. 7. 14 Hon. 8. Phyſicians in London, for practiſing without Licenſe. 17 Edw. 4. cap. 2. A Steward of Pypowders forfeits 5 l. if they hold plea,Action popular. unleſs the Plaintiff, or his Attorney, ſwear that the thing was within the Juriſdiction, and in the Fair, 1 Rich. 3. cap. 6.
Debt, in what Court it lies.

IN the County Court, •• o •• Nat. br. 119. G. Regiſt. orig. 139. A.

In a Village, City, and Burrough Liberty, Nat▪ br. 119. K.

In Pypowders, viz. a Court held in a Fair.

But by the 17 Edw. 4. cap. 2. the Plaintiff or his Attorney ought to ſwear that it was in the Fair, and within the Juriſdiction, 1 Rich. 3. cap. 6. and if he refuſe, the Defendant ſhall go quit by the Statute; for it appears not that the Court had Juriſdiction to hold plea.

It lies in the Marſhalſey, if both are of the houſhold of the King, otherwiſe not; but the Plaintiff needs not ſhew this in his Count, and the proceeding there is by bill, Coke 10. part. 61. Caſe of Marſhalſey; for if it be not ſo the Defendant may demur to the juriſdiction of the Court.

In Chancery, for a perſon priviledged de •• lies, viz. in that Court; for the Chancery to ſome purpoſes is a Court of Law as well as of equity.

In the Exchequer by quo minus, Coke 8 part. 6 • A. Trollops caſe; but then the Plaintiff 〈◊〉 make himſelf an Accountant to the King.

So if one uſurp upon a Franchiſe of the King where the Plaintiff had Fee Farm, the Fee Far • e • ſhall ſue by a Quo minus, 32 Hen. 6.24. pl. 7. 〈◊〉 the Exchequer; for he is an Accountant to 〈◊〉 King.

An Executor ſhall have a Quo minus, when 〈◊〉 is a debtor to the King by his own act, 8 Hen. 4.10. pl. 19. as Executor.

In Com. Ban. Nat. br. 119. G.

Debt lies not for a popular Action,Note. or upon penal Law, but in one of the four Courts of Record at Weſtm. per Statut. 18 Eliz. cap 5. G • k •• part. Gr • gories caſe; for thoſe Courts are fine to interpret Statutes, and not inferiour Courſs.

Who ſhall have Debt.

If a Baily account for his Maſter,Accountant. and ſurpluſage be found due to his Maſter, he ſhall have debt for it, Nat. br. 121. I. the Count, Lib. Intra. 150. D. ſect. 1. quaere, if it be not meant where the Baily accounts with his Maſter.

But a Receiver ſhall not, Nat. br. 121. I. 38 Hen. 6.5. pl. 14. Mich. 12 Jac. Ban. Regis, Counteſs of Suffolke & Floyde; for the Law takes not ſo much notice of a Receiver, as of a Baily.

Adminiſtrator ſhall not have debt until,Adminiſtrator. 31 Edw. 3. cap. 11. Nat. br. 120. D. Coke 9. part. 39. A. Henſloes caſe; for the Common Law takes no notice of an Adminiſtrator.

1. An Adminiſtrator ought to count, that he which committed the Adminiſtration, was the Ordinary of the place where the inteſtate died, 31 Hen. 6.23. pl. 5. Com. 277. A. per Dyer. If it be a particular Juriſdiction, he muſt ſay, cui adminiſtratio pertinuit.

2. he ought to name the place where the Adminiſtration was to him committed, 35 Hen. 6.31. pl. 39. Danby & Moyle; becauſe it is traverſable.

3. He needs not name the Ordinary by his Chriſtian name, 7 Hen 4.10. pl. 18. for the place where makes it certain enough who it is.

But in a Writ de Colligend. he ſhall be named. Q. de ceo brief.

An Adminiſtrator ſhall have debt upon, 1 Edw. 2. cap. 14. for money given to Chantery.

If the Ordinary releaſe a debt to a Debtor of the Inteſtate, and afterwards grants Adminiſtration to A; yet A ſhall have debt againſt the Debtor, for the Releaſe is void in Law, 18 Hen. 6.23. Coke 9. part. 39. A. vide Crooke 127. pl. 90. for the Debt is not the Ordinaries.

Attorney ſhall have Debt for his Fees,Attorney. and Fees of Counſel, and coſts of Suits, Nat. br. 121. L. 21 Hen. 6.4. Quaere of Counſells Fees, if not expended by his Clients direction.

If J. deliver money to bail over,Bailor. or to a Merchant to trade with for me, or to be given is Alms, or upon a condition to rebail, if he break the truſt, J. ſhall have debt againſt him, 28 Hen. 8. Dyer 22. pl. 135. 11 Hen. 6.39. pl. 3. 42 Edw. 3 9. pl. 7. Crooke, 21 Hen. 7.69. pl. 2. per Fro • icke; for if the truſt be not performed, the money belongs to the Bailor.

A is bound to the Husband and Wife,Husband. the Husband alone ſhall have the Action, 3 Hen. 6.37. pl. 35. 12 Rich. 2. bre. 637. in his own name only, if he will.

Or in both their names, 39 Edw. 3.5. pl. 19. 43 Edw. 3.10. pl. 31. 3 Hen. 6.37. pl. 35. 12 Rich 2. bre. 639. 16 Edw. 4.8. for the Husband may intereſt his Wife in the debt.

Husband and wife.Husband and Wife aſſign Auditors to receive 〈◊〉 debt due to the Wife dum ſola fuit, and brought debt for the Arrearages in both their names, and good; becauſe the wife was the cauſe of the Action, 16 Edw. 4 8. pl. 4. becauſe the debt was due to her dum ſola.

Husband and wife leaſe for years Lands of the wife rendering Rent. the Husband dies, and the ſecond Husband brought debt, and good, 28 Edw. 3.90. pl. 4. for the Law creates a privity in him.

A Woman leaſes at will rendering rent, and takes a husband, the Rent is behind, they joyn in debt, and good, Coke 5. part. 10. Henſteads caſe; for the marriage ſhall not determine her will ſo as to extinguiſh the debt.

A Woman ſhall not have an Action againſt her husband, although ſhe is Executrix, 8 Edw. 3. 330. pl. 48. for ſhe cannot ſue her ſelf, and the husband and wife are but one perſon in Law.

A is bound to the husband and wife, and they are divorced cauſa prae-contractus, and they brought debt in both their names, No. Lib. Intra. 121. ſect. 5. for the divorce makes the marriage void ab initio, and ſo the obligation is void, and therefore the Action not well brought, as it ſeems.

B had a Rectory in right of his wife for years, and they both joyned in debt upon the Statute of 2 Edw. 6. for not ſetting forth of Tithes, Hill. 39 Eliz. Ban. Regis Rot. 699. and good; for the Action is grounded by reaſon of the wife.

Leaſe for years rendering Rent by the husband and wife, husband may have debt in his own name, 7 Edw. 4 5. pl. 16. for the Rent belongs to him.

The ſame Law is, if the Reverſion be aſſigned to the husband and wife, although that the huſband count as Aſſignee, Trin. 12 Jac. Ban. Regis, Wyats caſe. Quaere, whether in both caſes the Action may not be brought in both their names.

Husband and wife ſold the Land of the wife, the husband alone ſhall have debt, 48 Edw. 3.18. pl. 4. for the money belongs only to him.

Husband and wife recover dammages, the husband alone ſhall have debt for them, 16 Hen. 6. bre. 939. for the husband ſhall have them.

A woman Tenant in dower of Rent takes a husband and dies, the husband ſhall have debt for the Arrearages during the Coverture, Nat br. 121. C. 14 Hen. 6.26. A. 10 Hen. 6.11. 22. Hen. 6.25. 26 Edw. 3.64. for the Rent was due to him.

And by 32 Hen. 8. Ca. 37. the husband ſhall have debt for the Arrearages before the Coverture, Coke 5. part. 51. A. Ognels caſe, elſe the Rent would be loſt.

Annuity to the wife that takes a husband, Arrearages incurr, the wife dies, the husband ſhall have debt, becauſe it is more than a thing in Action, Hill. 29. Eliz. Com. Ban. St. Legers, for it is a duty incurred.

But if it be but for a thing in action before the Coverture, as an Obligation, the husband ſhall not have it, Nat. br. 121. C. 39. Hen. 6.26. pl. 38. becauſe of the incertainty, whether it were due to the wife, or not.

But during the Coverture the husband may releaſe it, 17 Edw. 3.66. pl. 78. Hill; for that paſſeth nothing but by way of extinguiſhment of his right, if he have any.

Husband makes his wife Executrix, which takes a husband, and makes him Executor, and dies; the husband brought debt for the debt to the former husband, and good, 4 Hen. 6.31. for now it is become due to him as Executor of an Executor.

Clerk of the Peace.It lies in the name of the Clerk of the Peace for the Hundred againſt the Village, where default is made in Hue and Cry, by the Statute of 27 Eliz. cap. 13. and reaſon, becauſe thereby the Hundred becomes liable to pay the money robbed.

Colledge in Oxon. A Colledge ſhall have debt for Commons of any Student, Paſch. 9 Jac. Ban. Regis, Colledge of St. Johns in Oxford verſus Brickeden. Q. if the Student be of the Foundation.

Colledge of Phyſicians.Colledge of Phyſicians, for practiſing without Licenſe ſhall have debt upon the 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.

ExecutorExecutor 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 capacity being a dead perſon in Law.

A is bound to an Abbot ſole, the Succeſſor ſhall have debt, 47 Edw 3.23. pl. 57. the Count, Lib. Intra. 179. A. ſect. 7. for it was to the uſe of the houſe.

An Obligation made to Churchwardens, their Succeſſors ſhall not have an Action being their Executors, for this is but an Office and cannot be derived to others; but as their Succeſſors 〈◊〉 ſeems it may. Q

If A contracts for B with the Chirurgeon ſ •• ſo much as to cure him,Chirurgeon. if B die the Chirurge •• ſhall have debt againſt A, for it is a good contract 37 Hen. 6.9. A. Moyle, to bind it. Q.

If J ſell a Horſe, and earneſt is given or ••• ſet, J ſhall have debt for the money, 14 Hen. 8.19. br. Contract. 15. Coke 3. part. 22. A. Walken caſe, and the loſing of the Earneſt will not avoid the Contract, as the vulgar opinion is.

If J ſell a Mannor,Vendor. debt lieth for the money, and yet the Vendee cannot enter before livery, 37 Hen. 6.8. pl. 18. Priſott, upon the Contract, 〈◊〉 the Vendee may force him to make livery.

The Sheriff ſhall have debt for his Fees,Sheriff. Tris. 14 Jac. Ban. Regis, Sheriff of London againſt • lichel, per le Stat. 28 Eliz. cap. 14. for the La • creates the duty, when he hath performed his office.

If A gives money to B to carry to C, Uſe. yet C ſhall have debt, count, Lib. Intr. 159. ſect. 1. for the delivery was for his benefit.

Outlawed perſon ſhall not have debt,Outlawed perſon. 16 Eds. 44.7. Hen. 4.1. pl. 6. nor other Action; for he that will not obey the Law, ought not to recei •• benefit by it.

Againſt whom Debt lies.

An Abbot ſhall be charged for Debt due by him which enters into Religion,Abbot. Nat. br. 121. O. • Hen. 5.8. pl. 18. into the houſe whereof he is Abbot; for the perſon himſelf cannot be charged, and the Abbot takes into the Covent cum caret • iſua.

But the 45 Edw. 3.10. pl. 1. to the contrary; • rere: but it ſeems here as not Law.

If Accountant be found in Arrearages,Accountant. debt lies againſt him; for here is a duty created by adjudging him in Arrear.

Debt at the Common Law lay againſt the Committees of the Ordinary;Adminiſtrator. but this was by the name of Executors, and only for goods which came to their poſſeſſion, 38 Edw. 3.26. 42. Edw. 3.2. Coke 9. part. 39. B. Henſloes caſe.

But by 31 Edw. 3. cap. 11. they are chargeable by the name of Adminiſtrators, in the ſame manner as Executors are, 38 Edw. 3.2. pl. 3. 41 Edw. 3.2. pl. Còke 9. part. 39. Henſloes caſe, viz. by ſhewing how.

Plenè adminiſtravit ſpecial, No. Lib. Intra. 269. B. a good plea for Executors or Adminiſtrators.

A Recovery againſt one Adminiſtrator upon a nihil dicit is no plea in debt againſt all, Hill. 38 Eliz. Com. Ban. Furthow verſus Furthow; for they are all liable, and it may be there was no ſatisfaction upon the recovery.

If an Adminiſtrator waſte the goods, and after the Adminiſtration is diſſolved and granted to another, D • bt lies againſt the former, Coke 6. part. 18, & 19. Packmans caſe; for at the time of the waſting he was Adminiſtrator, and chargeable.

A being Executor of his own wrong takes Adminiſtration, quaere how he ſhall be ſued, Greeke 127. pl. 91. It ſeems as Adminiſtrator, for in the other condition he was but a tort Feoffor upon the matter.

Termor aſſigns his term to another,Aſſign. the Leſſor ſhall have debt againſt the Aſſignee, Coke 3. part. 25. B. Walkers caſe; for by the Aſſignment here is a privity created.

If there be two Joynt-tenants of a Term,Joyntenant. the one aſſigns to B, the other dies, debt lies for the rent againſt the Aſſignee, and the Executor of the dead for rent after his death by ſurvivor; for it ſhall be miſchievous to compel the Leſſor to bring ſeveral Actions for one thing. Mich. 14. Jac. Ban. Regis, Bayl • ffes and Burgeſſs de Ipſwich's caſe.

If an Attorney ſuffer another to follow any matter in his name,Attorney. he forfeits 20 l. and the party grieved ſhall have Debt per the Stat. of 3. Jac. cap. 7. This Statute was made to prevent ſoul practice.

Debt lies againſt a perſon attainted,Attainder. Mich. 38, & 39 Eliz. Com. Ban. Baniſter & Truſſels câſe, No. Lib. Intra. 148. A. Quaere, what Attainder; for it ſeems not to be general.

Bailee.If J. deliver money to deliver over for Merchandizing, or to give in Alms, or upon a Condition to be performed to redeliver, if the party breaks the truſt, debt lies, 28 Hen. 8. Dyer 22. pl. 135. 11 Hen. 6.39. pl. 31. 42 Edw. 3.9. pl. 7. Crooke 21 Hen. 7.69. pl. 2. per Frowicke. Vid. entea.

Husband.If the husband give authority to his wife to make a Contract, he ſhall be charged by the contract made by her, otherwiſe not, Nat. br. 120. G. for ſuch authority makes it his own contract.

Unleſs it be for Apparel convenient for his wife, 11 Hen. 6.30. B. for for that he is chargeable, though he give her no authority to contract for it.

But unleſs it be convenient he ſhall not, 7 Eliz. Dyer 234. pl. 17. that is, Apparel neceſſary and • eting for her degree to wear.

The husband alone ſhall be charged for Arrearages of Rent-ſervice Arrear in his time, Nat. br. 121. C. Crooke 125. pl. 83. for the Land of his wife after her death.

And ſo of a Rent-charge, Coke 4. part. 49. B. • 6 Edw. 3.64. iſſuing out of his wives Land.

But for an Obligation made by the wife afore coverture, he ſhall not be charged after the death of the wife, Nat. br. 121. C. 120. F. 49 Edw. 3. 25. B. 20 Hen. 6.22. for that is but a thing in action.

Unleſs recovery be had upon it during the life of the wife, Nat. br. 121. C. for by the recovery it becomes a duty.

A woman covert being a ſole Merchant, may be ſued in London by the cuſtome of the City without the husband; but not in Com. Ban. 9 Edw. 4.3. becauſe that Law extends not out of the City.

If A and his wife covert by the name of his wife ſole are obliged, it lies not againſt the wife, becauſe it is a void obligation as to the wife, 14 Hen. 4.30. pl. 39.

Husband and wife are bound, the husband alone ſhall be ſued, becauſe it is void againſt the wife, 43.Edw. 3.10. pl. 31. 45. Edw. 3.11. pl. 7. 3 Hen. 4.1. pl. 4. but good as to the Huſband.

Husband and Wife.Debt lies againſt the husband and wife, for rent upon a Leaſe made to the husband and wife, 45 Edw. 3.11. pl. 7. in reſpect of the intereſt the wife may have in the term.

So if it be covenanted or agreed that they double the rent, 45 Edw. 11. pl. 7. for this is, as it were a new rent reſerved.

But not if it be with a nomine poenae, 45 Edw. 11. pl. 7. for then he muſt hold him to the penalty, which ſhall not fall upon the wife. Q.

When a woman in debt takes a husband they both ſhall be ſued, Coke 5. part 36. A. 12 Hen. 4. 1. pl. 1. Nat. br. 120. F. for the marriage makes it both their deeds.

Conuſor.Debt lies againſt a Conuſor of Statute Merchant, Staple or Recognizance, Nat. br. 122. D. 11 Hen. 6.49. pl. 7.Coke 3. part. 15.Harberts caſe, 36 Hen. 6.2. pl. 2. 22 Elix. Dyer 369. pl. 52. 39 Hen. 6.3. pl. 5. for here is a duty. vid. antea.

Cuſtomer.Debt lies againſt a Cuſtomer after Liberate delivered to him pay the ſum to the party, if he hath Aſſets, Nat. br. 121. F. elſe not.

So after a Tallee delivered to pay the party, 27 Hen. 6.9. pl. 1.

So againſt a Collector of Tenths and Fifteens, 37 Hen. 6.15. pl. 5. granted by Parliament.

Debt lies againſt an Enfant for Tabling and Apparel, 18 Edw. 4.3. A. Enfant. for theſe are neceſſary for the ſupport of the Enfant.

For Rent upon a Leaſe for years, 21 Hen. 6.31. B. upon the words yielding and paying, which make it a duty.

For a Eſcape, if he be a Goaler, Doct. & Stud. 147. B. for the ſum for which the priſoner was committed to him.

For a thing due to one as Executors Coke 5. part. 27. B. Ruſſels caſe.

Debt lies againſt an Executor although he be not bound, 45 Edw. 3.17. pl. 4.Executor. becauſe he is in place of the Teſtator, who was bound, and hath the eſtate chargeable.

Debt by the Daughter againſt the Executor of her Father, which had levied aid to marry her, per Weſtm. 1. cap. 35. Nat. br. 83. A. & 122. G. and had not paid it to her to whom it properly belonged.

Debt lies againſt Executors of the Ordinary, which will not deliver the Adminiſtration to another, Nat. br. 120. D. Com. 280. A. vid. ante to whom they belong.

Debt lies againſt an Executor of an heir, Lib. Intr. 172. C. ſect. 4.18 Eliz. Dyer 344. pl. 1. where the heir is bound.

Againſt an Executor of a Sheriff, for not returning a Knight of the Parliament duly elected, 23 Hen. 6. cap. 15. for dammages are to be recovered, with which the Executor is chargeable, if be have Aſſets.

Debt againſt an Executor of his own wrong, Coke 5. part. 30. Coulters caſe, & 33, & 34. Reads caſe, for he hath made himſelf liable by meddling with the eſtate, which was chargeable.

And the Count was general, although he took Letters of Adminiſtration afterwards. Quaere, & vid. antea.

Executor ſhall not be charged upon a ſurpluſage of an account made by the Teſtator, Coke 9. part. 87. A. Pinchons caſe, becauſe the Teſtator may wage his Law, 29 Edw. 3.26. 22 Hen. 6.41. 38 Hen. 6.6. 14 Hen. 6.24. that he owed nothing upon the Account, which would have been a good bar to the Action.

But if an Executor aſſign Auditors they ſhall be charged in debt for the ſurpluſage, 10 Hen. 6.24. pl. 84. becauſe there they ſubmit to the Account, and ſtand upon their juſtification.

If an Executor account before Auditors, debt lies for the Arrearage, 2 Hen. 4.13. pl. 2. 19 Hen. 6.5. A. Forteſcue; for by his Accounting he ſubmits to pay what ſhall be found arrear.

An Executor ſhall not be charged for Arrearages found due upon an account before the ſame party to whom he is to account, Lib. Intra. 149. B. ſect. 3. for this is as if no account had been, and is but a voluntary act, and not binding.

But for Arrearages before Auditors he ſhall, becauſe Auditors are Judges of Record, per Weſtm. 2. Lib. Intra. 149 B. Sect. 5. ſee the Count there.

Debt againſt an Executor for Arrearages of an Annuity due in the uſe of the Teſtator after it is determined, Lib. Intra. 151. C. ſect. 1. 45 Edw. 3. Execution 71. becauſe then he cannot diſtrain.

In Debt againſt an Executor the pleading of an Outlawry in the Teſtator no good bar, 14 Hen. 6.14. 21 Hen. 6.3. quaere, 3 Hen. 6.17. for to plead it generally is not good, for it might be reverſed before his death.

But an Outlawry at the time of the death is a good bar, or where he was a Villain to the King, 8 Edw. 4.6. pl. 7. Doct. & Stud. 11, 12. 36 Hen. 6.27. pl. 38. for there he died in a diſability to ſ • e.

Debt lies not againſt an Executor upon an Eſcape ſuffered by the Teſtator, unleſs Judgment be given againſt the Teſtator, 10 Eliz. Dyer 271. pl. 26.15 Eliz. Dyer 322. pl. 15.41 Aſſize 15. Coke 9. part. 87. A. for that proves the eſcape, and makes a duty to the Teſtator.

It lies not againſt an Executor upon a Tailee enſealed by the Teſtator, 12 Hen. 4.23. 25 Edw. 3.40. pl. 9. for this makes a duty acknowledged.

It lies not upon a ſimple contract of the Teſtator; but if he plead in barr, and it be found againſt him it ſhall, Com. 182. A. 10 Hen. 6.24. for there he wants his advantage which the Law gives, and ſtands upon his juſtification.

But in London by Cuſtome 1 Edw. 4.6. it lies.

Leſſee for years grants his Term, his Executor ſhall not be charged for Rent due after his death, Coke 3. part. 24. A. Walkers cafe; for he died not poſſeſſed of it. Quaere tamen.

Debt for one retained according to the Statute of Labourers lies againſt the Executor without ſpecialty, for the detainer makes the duty, 2 Hen. 4.14 4 Hen. 6.19.

Goaler reſuſing to receive one committed by the Colledge of Phyſicians forfeits double the Fine,Goaler. per Marlebridge 1. cap. 9. Q. the Stat.

If a man levy Aid for the marrying of his daughter,Heir. and dies, if his Executors have not ſufficient, Debt lies againſt the Heir, Nat. br. 83. A. per Weſtm. 1. cap. 35. Nat br. 122. G. for this is for the advancement of the Family.

Debt lies againſt an Heir upon the obligation of his Father, if he hath Aſſets by deſcent, and be bound, Nat. br. 120. C, & I. otherwiſe not; for generally Executors are to pay debts.

But if he alien the Aſſets before the Action brought, he ſhall not be charged, Coke 5. part. 60. A. Regiſt. orig. 140. A. 27 Edw. 3.7. B. 10 Hen. 4. pl. 14 19 Hen. 6.46. pl. 95. 42 Edw. 3.10. pl. 1 • . 48 Edw. 3.32. pl. 22. for it was the Latches of the party that brought his Action no ſooner.

Unleſs it be fraudulent to deceive Creditors, Coke 5. part. 60. Geoches caſe; for the Law will not countenance fraud.

And if they be heirs in Gavel-kind, they ſhall all be charged as one heir, 7 Eliz. 239. pl. 39. Dyer vid. the Count, Lib. Intra. 208. D. 11 Edw. 3. Debt 7.

But if all alien but the eldeſt, he ſhall be charged ſole; for he is chargeable in reſpect of his Aſſets.

The Count againſt an heir, Lib. Intra. 172. B. ſect. 1. No. Lib. 126. B.

The Count needs not ſhew that he hath 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 ſ • 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 F • 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 Brick • 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. Ʋghtreds 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. B. ſect. 6. vid. antea.

A Counſellor ſhall have debt for his fees, 3 Hen. 6.33. pl. 26. 21 Hen. 6.4. pl. 6. but then he ought to count that he was of his counſel, or was ready, 37 Hen. 8. B.. Q. for a Counſellors ſee is not certain; and is rather honorarium than mercenarium.

But 31 of Hen. 6.9. B. Forteſcue. Serjeant at Law ſhall not have debt for his fees, and is not bound to be retained without. Q. for he is bound to be of counſel till he receive his fee.

A Servant ſhall have debt for his ſalary,Servant. Coke 9. part. 87. 3 Hen. 6.42. 11 Hen. 6.48. although it be to do his ſervice beyond the ſea, Nat. br. 120. E. for the labourer is worthy of his hire whereever the work be done. And beyond ſea it is done with more hazard to the ſervant.

The Count, Lib. intra. 201. D. ſect. 1.

Steward of a Court retained by word ſhall have debt,Steward. 8 Eliz. Dyer. 248. pl. 79. Coke 4. part. 30. A. for his ſalary.

Count for a Chaplain for his ſee promiſed, Lib. intra. 153. B. ſect. 11.

Count for a Prieſt, Lib. retained circa ſacra, intra. 202. B. ſect. 5.

Count for one retained, &c. Lib. intra. 203. B. ſect. 12. viz. a ſervant according to the Stat.

If I. promiſe to a Chirurgeon 40 s. to cure R, he ſhall have debt,Surgery. becauſe it is a good contract, 37 Hen. 6.9. A. Moyle. for it ariſeth from charity, and is for the preſervation of man.

Debt lies againſt him that tables with me,Tabling. 37 Edw. 3.87. pl. 37.9. Edw. 4.1. The count lib. intra. 153. B. ſect. 10. & 177. D. ſect. 1. viz. upon a contract as a ſojourner, but not as a gueſt as it ſeems. Q. tamen if not upon a quantum meruit.

Goaler ſhall have debt for tabling of a priſoner, Coke againſt the priſoner. 9. part. 87. B. 28 Hen. 6.4. pl. 21.

Inn-keeper ſhall have debt for Lodging or Victual, 39 Hen. 6.18. pl. 24. provided for his Gueſts; for here the Law makes the contract.

Tabling & Phyſick.A Phyſician ſhall have debt for tabling and phyſick, Lib. intra. 187. B. ſect. 1. vide the count there, upon a quantum meruit, if there be no ſpecial contract.

If I. put my Cloth to a Taylor to make a garment,Taylor. he, viz. the Taylor, ſhall have a ſpecial action for making the garment, for the putting of the cloth is a ſufficient contract in Law, Coke 8. part. 147. Carpenters caſe, to bring the action upon

But not a general action of debt without declaring upon a contract in deed, ibid.

If I ſells a Mannor,Vendition Debt lies for the money, yet I. ſhall not have it before Livery, 37 Hen. 6.8. pl. 18. Priſot. Q. for before the Livery the contract is not perfect.

I bargain for a Horſe, Debt lies for the money, 14 Hen. 8.19. br. contract, 15. Coke 4. part. 〈◊〉 B. Slades caſe. upon the contract in Law.

If a man makes an obligation for a Debt due by contract, debt lies not upon the contract, Nat. br. in. M. Coke 6. part. but upon the Obligation; for by the taking of it the contract is gone.

Becauſe the obligation drowns the contract, for the obligation is of a higher nature.

Upon an emiſſet ſeveral ways, the count, No. Lib. intra. 125. B.

If I. give authority to my Bayliff or Servant to buy for me, debt lies againſt me,Servant. Nat. br. 120. G. Doct. & Stud. 137. A. 6. Eliz. Dyer. 130. pl. 56. 2 Rich. 2. Debt 13. otherwiſe not; but with my authority the act of the Bayliff or Servant is accounted the Maſters act.

And ſo if he bought it without command, if it come to the uſe of the Maſter by his aſſent, Doct. & Stud. 137. A. for the aſſent afterwards doth make it his own act ab initio.

And likewiſe if he bought it in his own Name, and it comes to the uſe of his Maſter, it lies againſt his Maſter, ibidem. for the Maſters making uſe of it ſhews his aſſent, and that it was for his benefit.

So if the Bayliff which uſed to ſell, fold 〈◊〉 Horſe for twelve buſhels of wheat, this is good▪ and the Maſter ſhall have debt, 27 Aſſiz. pl. 5. for it is accounted the maſters ſale.

The Servant ſells, the Maſter agrees, this i • the ſale of the Maſter, and debt lies. 27 Hen. 8.25. B. Fithams. otherwiſe not, except he uſed 〈◊〉 ſell; for it is not incident to a ſervant, as a ſervant only, to buy or ſell for his Maſter.

A Factor receives money, and gives a bill of exchange, if the Maſter accept the Bill, by it • e becomes debtor by the cuſtom of Merchants. Tr •• 43 Eliz. com. ban. per legem mercatoriam, 〈◊〉 for the advancement of Trade.

The wife buyes a thing,Wife. the husband agrees, this is the emption of the husband. 27 Hen. 8.25. B. Fittiams. but if he aſſent not, he is not bound, for ſhe is no more than a ſervant in this reſpect.

One condemned taken in Weſtminſter-Hall,Voluntary per Crier. kep • by a Crier aſſigned, which ſuffers him to eſcape, debt lies not, 1. becauſe it was no priſoner▪ 1. becauſe he had no command by Writ, 33 Hen. 6.55. pl. 50. and ſo not chargeable by Law; for he is not an Officer to ſuch intent.

If a Priſoner eſcape by aſſent,Sheriff. although the Sheriff take him again, yet debt lies. Coke 3. p •• 44. Boytons caſe. 19 Hen. 4.10. viz. aſſent of the Sheriff or Gaoler; for thereby the debt is diſcharged as to the priſoner.

Unleſs the Sheriff brought one per habeas C •• pus, then if he had him at the day, it ſufficeth Coke 3. part 44. Boytons caſe. yet he ought not 〈◊〉 ſet him at large in the mean time.

Unleſs the party be in execution, Coke 5. part. • 9. Froſts caſe. 7. Hen. 4.30. for then debt lies againſt him; but if it be but upon mean proceſs, • n action of the caſe only lies to recover what the party is damnified.

Or upon a capias ad ſatisfaciendum, although the Writ be not returned. Coke 3. part. 52. Rigw • yes caſe. If the party be taken upon it; for then he is in cuſtody.

And if it be returned, and he had not the body, debt lies, 7 Hen. 4.11. br. retorn 107. for it fall be intended that he let him eſcape.

A writ of priviledge for a Burgeſs of Parliament, the Sheriff ſuffers him at large, debt lies not, 36 Hen. 8. Dyer 6. pl. 17. 1 Jac. for this is but a mean proceſs.

Negligent eſcape per Sheriff.If one be taken by a capias utlagat. after the year and eſcape, debt lies. Coke 5. part. 89. Froſts •• ſe. 88 B. Garnons caſe. vide 7 Hen. 6.5. in forgery; for the proceſs is well executed as to the Sheriff, and he ought not to ſuffer the eſcape.

The ancient Sheriff makes no mention of one in execution in his indenture delivered to the new Sheriff, of priſoners in his cuſtody; this is an eſcape in the old Sheriff, but not in the new; for the new is not charged with him: but if the old Sheriff die, the other ought to take notice of the priſoners; but if the eſcape be in the vacancy, viz. before the new Sheriff is elected and ſworn, debt lies not. Coke 3. part. 71 & 72. Weſtbyes caſe. 10 Edw. 3.375. pl. 28. for before he was not chargeable, for he was no offender in Law.

If one be in execution, yet debt lies againſt the Sheriff, 7 Eliz. Dyer. 241. pl. 47. 16 Edw. 4.3. pl. 7. Q. de hoc.

The Plaintiff and chief Juſtice aſſent for • oe time that the priſoner ſhall go at large, and after he ſuffers an eſcape, debt lies. 10 Eliz. Dye • . 275. pl. 46. for this was not a finall diſcharge d • the priſoner. Q.

A capias upon a recognizance in Chancery, the party taken eſcapes, debt lies, Coke 8. part. 142. Druries caſe; for this is in nature of an execution.

The Writ was that 6 were in execution and eſcaped, and the doubt was whether they might count for one only, and by the better opinion 〈◊〉 was good, Crooke. 26 Hen. 7.67. pl. 11. Q.

If one be Marſhal of the priſon, whether it be by right or wrong,Marſhal. debt lies againſt him, 39 He • . 6.33. A. for the Plaintiff is not to examine his Title.

Count that he was in execution in C, and removed to the upper Bench priſon, and committed to the Marſhal, which ſuffers him to eſcape, debt lies, 38 Hen. 6.28. pl. 10. for it is all one as I he had been originally committed thither.

Deputy of a Marſhal ſuffers an ceſcape, • eputy. debt lies againſt him, 11 Eliz. Dyer. 278. pl. 5. viZ. the Marſhal himſelf. Q. if not againſt the Deputy.

Debt lies againſt a Mayor of the Staple upon▪ recognizance taken before him.Mayor de Staple. 5 Hen. 6.11. He • 6.49. B. 12 Hen. 6.2. pl. 9. if he ſuffer 〈◊〉 Priſoner to eſcape.

The count, Lib. intra. 171. D. ſect. 6.

Dean and Chapter of Pauls having return 〈◊〉 Writs,Lord de Franchize and making a Bayliff that ſuffers an eſcape Action lies not againſt the Dean and Chapter, becauſe cauſe they are not Bayliffs, Paſch. 14 Eliz. Com. Ban. but againſt the Bayliff, for he is the Officer the Law takes notice of. Q▪ tamen.

For a Nomine poenae granted, this is caſual; yet debt lies for it, Nat. br. 120. M. 2 Hen. 8.8. Dyer, Grant penalty. 24. pl. 149; for it is a duty ab origine, if forfeited.

And this is but hac vice, if there be no other words to ſhew the continuance of it, 32 Hen. 6.10. A. Billinge.

And ſo upon any grant hac vice certain or uncertain. Q.

2. Annuity or Rent-charge granted for years,Annuity. debt lies not during the term. But the 5 Edw. 4. 42 B. debt lies; and it ſeems this is Law; if it lie not, it ſeems it is becauſe the Grantee may diſtrain and charge the Land.

But againſt a cuſtomer it lies, if it be to be paid out of the cuſtoms of London after delivery of a Liberate, Nat. br. 121. F. for then it is a duty veſted.

It lies for Executors or adminiſtrators of the Grantee per Stat. 32 Hen. 8. cap. 37. viz. of an Annuity or Rent-charge.

And after the term ended, it lies for the Grantee, Lib. Intra. 151. C. ſect. 1. for then there is no other remedy for it.

3. Annuity for life,For Life. debt lies not for this during life, 19 Hen. 6. 42 A. 37 Hen. 6.35. A. But a Diſtreſs or a Writ of Annuity, and the Land is chargeable.

But againſt a cuſtomer it lies, Nat. br. 121. F. • ntea▪ for his perſon is chargeable ratione officii.

Alſo if a Parſon or Prebend, &c. hath ſuch annuity and reſigne or be diſpoſſeſſed, it lies for the arrerages, Coke 4. part. 48. B. Ognels caſe. For by his reſignation it is meerly a perſonal thing, and the Land is not chargeable.

So his Executors ſhall have debt by the common Law, Coke 4. part. 49. A 22 Eliz. Dyer. 37. pl. 62. Coke 10. part. 61. B. For it is accounted part of the Teſtators perſonal eſtate.

But if it be a Rent-charge ſeck or ſervice, debt lies not for any ſo long as the Eſtate continues, Coke 4. part. 49. A. Ognels caſe. For there the perſon is not chargeable.

Although it have continuance but to a ſpecial intent, Coke 7. part. 39. B. For the Law takes not notice of ſuch intents, but looks on it as upon a continuing Eſtate.

But after it be determined, debt lies for the party or his Executor, Coke 4. part. 49. Ognels caſe. Nat. br. 121. E. Coke 4. part. 49. Ognels caſe. 27 Hen. 6.1. pl. 4. becauſe the realty is reſolved into the perſonality, and ſo the perſon chargeable.

4. Annuity in Tayl general or ſpecial, debt lies not during the annuity, Coke 4. part. 48. B. for the former reaſon.

So of a Rent-ſeck, ſervice or charge, vid. antea.

But if the eſtate be determined, quaere at the common Law.

But by the 32 Hen. 8. cap. 37. the Executor or Adminiſtrator ſhall have debt for the Arrerages.

Annuity in fee during the annuity, debt lies not,Annuity or Rent in Fee. Coke 4. part. 48. B. 6 Hen. 4.7. pl. 33.

Unleſs it be in a ſpecial caſe, as when a Parſon or Prebend reſignes, Coke 4. part. 49. A. Nat. br. 121. D. 19 Hen. 6.41 & 42. Nat. br. 121. H • ntea. For there the eſtate is determined as to him that reſignes.

So if a Parſon dies, his Executors ſhall have debt, Nat. br. 120. L. Coke 4. part. 49. A. 37 Hen. 6.8. pl. 18. For there is no other remedy for to recover it.

And by the 32 Hen 8. cap. 37. the Executors or Adminiſtrators of every one ſhall have debt.

But after the Annuity determined every one ſhall have debt by the common Law. Coke 4. part 49. A. 45 Edw. 3.45. execution 71.

Judgment given. In Court of Record. Superior Parliament. Ban. Regis. Chancery. Com. Ban. Exchequer. Preſcription. Inferior by Cuſtom. Patent. Common-Right. Not of Record. Court Baron For principal. County. For dammages and loſſes. Ancient Demeſn. in any Mannor. For Fine or Amerciament. Out of Court Statute. Marchant. Staple. According to 23 Hen. 8.
Recognizance. Account at common Law. Arbitrement. By Law or Ordinance.

Judgment given in debt for the principal.If a man brings debt upon a recovery in com. Ban. he ought to bring it in Middleſex, where the Record is, becauſe it is the Original, upon the which the Action is brought; but a ſcire facias to execute a Judgment ſhall be where the original Action was brought, becauſe it ought to follow it. Hil. 9 Jac. Ban. Regis, Muſgrave verſus Wharton; for the ſcire facias is in purſuance of it, and to have execution upon it.

Upon Arrerages recovered in a ſcire facias upon a Judgment in Annuity brought againſt the predeceſſors, debt lies upon it, Nat. br. 122. E. 22 Edw. 4.1. pl. 6. for by the recovery it is become a Duty.

A Debt was recovered in a Court of Pypowders, and debt brought upon it in com. Ban. ſuper tenorem recordi, and good, 7 Hen. 6.19. The record muſt be mentioned in the Count.

For damages and coſts.If a man recover dammages in waſte, he ſhall have an action of debt for the dammages, Nat. br. 122. C. 43 Edw. 3.2 pl. 5. the count Lib. Intra. 197. C. ſect. 15. for the recovery of them hath made them duty.

Debt lies for dammages recovered in Aſſize, 32 Hen. 6.29. pl. 23. but then this debt ſued for ought to agree with the Record. See the count Lib. Intr. 194. D. ſect. 7.

So for dammages in a Mort-daunceſler, 46 Edw. 3.25. pl. 10.

If the Plaintiff in com. ban. is non-ſuited, and the Record removed by Writ of Error before the Coſts paid upon the Nonſuit, the Defendant in the Writ of Error ſhall have debt for his coſts, 29 Hen. 8. Dyer 32. pl. 5. for the Law makes them a duty.

Dammages recovered in ancient d meſne, and the tenour of the Record was removed by Certiorari, debt lies upon it for the dammage, 39 Hen. 6.3. pl. 5. count Lib. intra. 195. C. ſect. 11. for they are become a duty.

Dammages recovered before the Mayor of Hull, debt lies there, 11 Hen. 4.12. but not in another Court.

Debt lies for a Fine,Fine. Coke 8. part. 41. B. Greiſleys caſe. 7. Hen. 6.2. B. Q What fine and where.

Debt lies for an amerciament in a Leet,Amerciament. Lib. Intra 151. B. ſect. 1. 23. Hen. 8. br. Leet. 37. The count Lib. intra. 151. B. for it is a duty.

Debt lies in a Court Baron, No. Lib. intra. 118. B. ſect. 1. for a debt grown due within the juriſdiction thereof.

Judgment out of Court as Statute.Debt lies upon a Statute Merchant, or Staple, according to the Stat. 23 Hen. 8. Nat. br. 122. C. 11 Hen. 6.49. pl. 7. for the Statute makes it a duty.

Debt lies upon a Recognizance it ſelf,Recognizance. Nat. br. 122 C. 11 Hen. 6.49. pl. 7. Eliz. Dyer 306. pl. 63. The count Lib. intra. 192. B. ſect. 1. for it is in the nature of a Judgment.

Or upon the tenour of the Recognizance, 39 Hen. 6.3. pl. 5. 22 Eliz. Dyer. 369. pl. 52.

So upon a Recognizance taken before the Mayor of Hull, 36 Hen. 6.2. pl. 2. In Hull. Q. if elſewhere.

Debt brought upon a Recognizance after the Recognizance taken, and afore the enrolment of it, and good, Paſch 43 Eliz. Com. Ban. For the Enrolment makes not the duty.

Account at the common Law.Debt lies upon Arrerages of Account at the Common Law, the count Lib. intra. 149. A. ſect. 1.

Alſo a Bayliff ſhall have debt upon the ſurpluſage of account, Nat. br. 121. I. 38. Hen. 6.5. 19 Edw. 2. Debt 176. againſt his Maſter, for the Law makes it a duty in the Maſter.

He ought to count the place and day where the Auditors were aſſigned, Hil. 32. Eliz. Com. Ban. Lord Dacres caſe. before whom accompted, and the Accompt ſtated; for they are traverſable.

But if the Lord will not hear his Accompt, he hath no remedy for the ſurpluſage, 7 Edw. 3.12. per Herle. For then it appears not whether any thing be due to him or not.

But it lies not by a Receiver, 38 Hen. 6.5. pl. 14. Mich. 12. Jac. Ban. Regis. Counteſs de Suffolk verſus Floyde. For a receiver is not to lay out for his Maſter.

But a receiver for Merchandize ſhall have it, 38 Hen. 6.5. Priſott & Moyle; becauſe he receives it for to be employed, and the Maſter is to ſtand to the gain and loſs if there be any.

Debt lies upon an Arbitrement,Arbitrement. Nat. br. 121. G. Coke 9. part. 92. B. the count Lib. intra. 153. C. ſect. 1. For an Arbitrement is a judgment by conſent of both parties, and by it a duty is created.

By-laws or Ordinances.Debt lies upon an Ordinance, or by-Law, Coke 5. part. 64. A. Q. What Ordinance.

A Pain is laid upon one in a Leet to reform a Nuſance, and afterwards it is preſented that it is not done, the Lord ſhall have debt, 23 Hen. 8. br. Leet 37. for the ſame, for it is a duty conditionally upon the non-feaſars.

For a Penalty inflicted upon one in London per the Common Council, debt lies for it in Ban. Regis. Mich. 9. Jac. Ban. Regis. by the cuſtom of the City, as it ſeems.

Matter in Law, as for Aid.Debt lies for the Daughter for Ayd to marry her, Nat. br. 83. A. & 122. G. vid. antea. For the Ayd is for her advancement.

For an Annuity againſt a Cuſtomer, &c. after delivery of a Liberate. A man having an Annuity of the King, delivers a Writ to a Cuſtomer to pay it, who hath aſſets, he ſhall have debt, Nat. br. 121. F. againſt the Cuſtomer, elſe not.

So if he deliver a Tally to a Cuſtomer. 27 Hen. 6.9. pl. 1. For that is a ſufficient warrant to him to pay it.

So if he deliver a Tally to a Collector of Tenths and Fifteens, 37 Hen. 6.15. pl. 5. for the ſame reaſon.

Debt lies pro rationabili parte bonorum, where the cuſtom gives ſuch part,Pro rationabili parte bonorum. Nat. br. 122. L. 3 Edw. 3. Debt 156. for him that is to have ſuch part.

The count was that the Son or Daughter which is not heir, nor preferred in the life of the Father ſhall have a reaſonable part, and ſhews the things to the value, &c. Lib. intra. 564. B. ſect. 1. The value is to be ſhewed to reduce it to a certainty.

But ſhall not have this Writ, but where ſuch cuſtom is, 40 Edw. 3.38. pl. 13. Mowbray. 7 Edw. 4.20. pl. 23. for the common Law takes no notice of ſuch reaſonable part.

For it cannot be founded upon Magna Charta cap. 8. becauſe it is but only forepriſed, Regiſt. orig 141. B. 30 Edw. 3.26. A. Seton. and not ordained or enacted.

But other Books ſay it lies at Common Law, Nat. br. 122. L. Glanvil Lib. 12. cap. 20. 17 Edw 3 9. pl. 29. Q. tamen; for cuſtom makes Law in many caſes.

And the account is upon the Common Law, No. Lib. intra. 565. A. ſect. 2. viz. per legen terrae.

So debt lies where the cuſtom is that the heir ſhall have the principal goods, 30 Edw. 3.2. pl. • . 39 Edw. 3.6. pl. 24. & fol. 9. pl. 15. for thereby they are a duty veſted in him.

For a relief per Executor.Executor ſhall have debt for a relief, becauſe it is but an improvement of a rent-ſervice, Coke 4. part. 49. B. 34 Edw. 1. Avowry, 233. 11 Hen. 6.15. pl. 4. and is not a rent-ſervice.

And it is a chattel to the Executor, 34 Edw. 3. Avowry, 233. and ought to be aſſets in his hands.

But the Lord ſhall not have debt, Coke 4. part. 49. B. 7 Hen. 6.13. For it is no Chattel to the Lord, 34. Edw. 1. Avowry 233.

Toll ſhall be recovered by debt, 20 Hen. 7.1. pl. 2. but vide librum & quaere, for it ſeems it is a duty certain.

For Eſcuage.Debt lies for Eſcuage after that it is aſſeſſed per Parliament, for then it is a duty certain, Crooke 133. pl. 111.

Simple Obligation conditional.Debt lies upon a ſimple Obligation; Count, Lib. Intra. 178. B. ſect. 1. for there is a duty certain.

Or upon an Obligation with a Condition.

Vide per Attorney vel ſervientem ad legem, fol. 174. D. Sect. 5 & 6. Q.

Debt upon a Bill to pay within a month after that the Plaintiff ſhall come from Jeruſalem, he needs not give notice, to the Defendant of his return, becauſe he is bound to pay it at his peril, Hill. 9. Jac. Ban. Regi • , Edmonds. Q.

Obligation with condition to perform Covevants, No. Lib. Intra. 130. B. Sect. 14.

Obligation to diſcharge and ſave harmleſs the Sheriff of all eſcapes of perſons in Execution, a good breach to ſhew that one was in execution, per Capias, &c. and that he ſuffered him to go at large; without ſhewing, 1. that he was at large; 2. without giving notice of it, and requeſt to ſave him harmleſs; 3. without ſhewing that the Capias was returned, Trin. 12 Jac. Com. Ban. Norton verſus Smyth, for the Capias ſhall be intended to be well executed.

Upon a ſingle Bill obligatory and the Count, Lib. Intra. 178. B. ſect. 1, 2, 3.

Upon a Bill obligatory with condition, Lib. Intr. 178. C. Sect. 4. antea.

Debt upon an obligation made in England to be paid in Flanders, Lib. Intra. 158. C. Sect. 1.

Debt lies upon a Tallee ſealed, Nat. br. 122. I. 2 Rich. 2. Debt 4. vide 44 Edw. 3.24. pl. 23. antea.

The Writ in Debt; 1. In the County. 2. In Com. Ban.

Rex, &c. praecipimus tibi quod juſticies A, quod juſte & ſine dilatione reddat B 20 l. quas ei debet, County. ut dicit, & ſicut rationabiliter monſtrare poterit, quod ei reddere debeat, ne amplius inde clamorem audiamus pro defectu Juſtitiae, &c. Regiſt. orig. 139. A. Nat. br. 119. H.

In Comitatu. Pro debito ſemper dicitur quas ei debet tantum, & pro catallis detinet tantum, Regiſt. orig. 139. B. & non ut dicit ſen ut dicitur.

But for Executors it is always in the detinet, ibidem; for the debt is due to the Teſtators eſtate, and is only detained from the Executors, in retardationem teſtamenti Teſtatoris.

If Debt be by Adminiſtrators,Adminiſtrator. all of them muſt be named, Regiſt. orig. 140. A. for they have a joynt Authority, which muſt be purſued.

The Writ ſhall be in the Detinet only, Regiſt. orig. 139. B. for the former reaſon.

If one recover againſt Adminiſtrators, and bring debt upon the Record, the Writ ſhall be detinet only, 11 Hen. 4.56. pl. 2. vide 11 Hen. 6.7. 16.39. For by Newton, fol. 37. debet imports his proper debt, being upon his own Contract, 20 Hen. 6.5. A. Forteſcue; for they owe nothing themſelves, but only do detain in anothers place.

Husband and Wife.If Husband and Wife bring Debt, the Writ ſhall be debet & detinet eis, Coke 5. part. 36. A. Walkots caſe, 12 Hen. 4.1. pl. 1. 7 Hen. 7.2. B. debet in reſpect of the wife, and detinet in reſpect of the husband, from whom the debt is withheld.

But the Count ſhall be ſpecial, 7 Hen. 7.2. B. and ſhew how, and to whom the debt became due.

So in debt againſt them for debt due before Coverture, 7 Hen. 7.2. B. in the debet in reſpect of the wife, and detinet as to the husband.

Againſt a Collector.Bill againſt a Collector, after that he hath accounted there ought to be nuper Collector, 15 Edw. 4.27. for after his account he is out of his office, and cannot be called Collector.

By Executors.Debt per Executors, the Writ ſhall be detinet only, although the duty accrue in their time; for it is due to the Teſtators eſtate only, and not to them, Coke 5. part. 31. B. Hargraves caſe, Nat. br. 119. M. Regiſt. orig. 140. A. So for goods of the Teſtators ſold by them, 19 Hen. 8.8. 11 Hen. 6.36. A. 20 Hen. 6.5. B. and ſo for Rent due in their time, for the ſame reaſon.

So if they ſell a thing, and take an obligation for the money, 17 Edw. 3.64. pl. 78. 25 Edw. 3.40. pl. 7. for this is to the uſe of the Teſtator.

Et Regiſt. orig. 138 B. 9 Hen. 6.11. B. 20 Hen. 6.4. B. Paſton.

In ancient time in ſuch caſe it was in the debet & detinet; but not at this day, becauſe that debet ſuppoſeth a property which the Executor hath not; ſo that it is to be noted, that ancient Preſidents may be altered upon good grounds.

All Executors ought to joyn in Debt, although that ſome refuſe the Adminiſtration, Regiſt. orig. 140. B. 22 Edw. 3.19. pl. 8.7. 41 Edw. 3.22. pl. 10. 21 Edw. 4.24. 36 Hen. 6.8. Coke 9. part. 37. Henſloes caſe, 24 Edw. 3.40. B. Thorpe, 19 Hen. 6.31. quaere, if they refuſe to prove the Will, for then it ſeems they were not Executors.

Vide tamen, 38 Edw. 3.9. pl. 7. L. where an Executor ſold goods and brought Debt ſole for the money, and it was awarded good without his Companions; it ſeems it was, becauſe he ſolely made the ſale. Quaere tamen.

An Executor and an Executor of his Fellow Executor joyned in debt, and good, 7 Edw. 3.26. pl. 22. Q.

But the 28 Edw. 3.92. pl. 11. Wilby, this is not Law; for 29 Edw. 3.49.23. the ſurviving Executor ſhall have it ſold, and ſo I conceive the Law to be.

Wife Executrix.A Wife executrix in debt, by her and her huſband the Writ ſhall ſuppoſe both Executors, • 2 Hen. 6.49. pl. 8. for conformities ſake; for the wife cannot ſue without her husband.

Feme covert Executrix ſhall not have debt without the husband, 8 Edw. 3.330. pl. 48. 10 Edw. 3.381. pl. 63. 21 Hen. 6.30. pl. 17. Markeham, Regiſt. orig. 140. for the aforeſaid reaſon.

Againſt ExecutorsThe Writ ſhall be detinet only, Nat. br. 119. M. Regiſt. orig. 139. B. antea.

But for Rent due in the time of the Executor, it ſhall be in the debet & detinet, Coke 5.31. Hargraves caſe, 7 Edw. 6.81. for it may be for the benefit of the Executor.

A man being Executor of his own wrong takes Adminiſtration, quaere how he ſhall be ſued, Crooke 127. pl. 91. A. it ſeems as Adminiſtrator, for that is his beſt condition.

It ſufficeth to name them only that be Adminiſtrators, Regiſt. orig. 140 A, & B. 19 Hen. 6.31. Coke 9. part. 37. Henſloes caſe, 33 Hen. 6.38. pl. 15. in the Writ and Count.

Debt againſt an Executor, which pleads joynt executorſhip with another; they both may plead ſo, but the former only cannot, 29 Edw. 3.11. pl. 32. for they are but one Executor.

Debt lies againſt an 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, & praedict •• 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, int. 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 Law no barr, becauſe Auditors are Judges of Record, 2. cap. 11. Coke 103. A. Denbounds caſe, 4 Hen. 6.17. 8 Hen. 6.5. 14 Hen. 19. pl. 21. 9 Hen. 5.3. pl. 9. and they have adjudged him to owe.

But the Plaintiff may be examined by the Auditors, and if it be not found that the Defendant is in Arrearages, the Defendant may wage his Law, per the Statute, 5 Hen. 4. cap. 8. Coke 10. part. 103. A. 8 Hen. 6.10 & 15. 19 Hen. 6.43. pl. 90. 20 Hen. 6.32. Aſhton, for then he is not concluded by the Auditors.

And if the Plaintiff or his Attorney refuſe to be examined, the Defendant ſhall wage his Law, 33 Hen. 6.24. pl. 5. for then the Defendant may be believed as well as the Plaintiff.

But if the Executor brings Debt for Arrearages of account in vita teſtatoris, he ſhall not be examined; but his Attorney ſhall, but not upon Oath, 3 Hen. 6.40. pl. 2. 19 Hen. 6.8. 10 Hen. 6.20. 34 Hen. 6.32. Aſhton, 20 Edw. 4.3. pl. 24. for the Executors ſhall not be intended to be privy to the contracts of the Teſtator.

But 21 Hen. 6.4. pl. 10. the Executor was examined, but not preciſely, which ſignifies little; for in generalibus non eſt certitudo.

So if another brought ſuch Action againſt an Executor, he ſhall not be examined, 20 Edw. 4.3. pl. 14. viz. the Plaintiff.

So if it be found that they ſubmit themſelves to Arbitrement, ſo that they were not Auditors, but Arbitrators, they ſhall wage their Law, 22 Hen. 6.41. pl. 13. for Arbitrators are not Judges of Record.

The Lord ſhall ſay that he owes nothing,Lord. and waged his Law, Weſtm. 2. cap. 11. doth not extend to the Lord, 14 Hen. 6.24. 22 Hen. 6.41. 38 Hen. 6. A. 29 Edw. 3.26. pl. 20. Coke 9. part. 87. A. Pinchons caſe. Q.

The Defendant alledges before Auditors, that he delivered to the Plaintiff one Statute Merchant in lieu of the ſum, the Plaintiff wages his Law, 30 Edw. 3.4. pl. 19. upon the delivery. Quaere.

Lending: to Predeceſſor.Succeſſor ſhall wage his Law upon a thing lent to his predeceſſor, 13 Edw. 4.4. pl. 9. becauſe not privy to the contract.

To the party.That he owes nothing by the Law, a good barr, Lib. Intra. 152. C. ſect. 5. although the thing lent be by others hands, 29 Edw. 3.26. pl. 24. for the Law wager is upon the receipt, and not the delivery.

Debt upon bailment,Bailment. the Defendant pleads that they were delivered to be redelivered to B, the which he had done, a good barr, Nat. br. 138. M. for the truſt was performed, and the contract thereby diſcharged.

Contract Real, 1. for years. 2. for life. 3. at will.Arbitrement of Rent, Treſpaſs, and payment of the thing awarded, a good barr without ſaying he owes nothing, 10 Hen. 7.4. pl. 4. Q. for thereby the agreement is waved.

An Accord, a good plea, 10 Hen. 7.24. 2 Rich. 3. Debt 100. Coke 9. part. 97. A. Peytoes caſe, for the ſame reaſon.

Acquittance of the laſt day ſhall diſcharge all Arrearages, 11 Hen. 4.24. 10 Eliz. Dyer 271. pl. 26. due before; for it ſhall be intended there was nothing due when the Acquittance was given.

The Leſſee pleads the command of the Leſſor to repair the houſe with the rent, becauſe it was decayed; this is no good plea, becauſe it is waſte, 34 Hen. 6.17. 14 Hen. 4.27. pl. 35. 11 Rich. 2. Barr, in the Leſſee to ſuffer the houſe to decay, if he was not Leſſee at will.

But if the grand Timber be in decay, perchance it may be a good barr, ibidem; becauſe Leſſee at years is not bound to repair them, except he be tied by ſpecial Covenant, as it ſeems. Quaere.

The Leſſee was Advocate in the Spiritual Court, the Leſſor promiſes that he ſhall keep the Rent for his Fees, this is no barr, for ſteppage is no plea, but he hath a good ground to have an Aſſumpſit to recover his fees, Mich. 9 Jac. Ban. Regis, Jarvis verſus Lea, and here is no conſideration for the promiſe, for he was his Advocate upon another ground.

The Leſſee pleads, that the Leſſor entred before the day of payment, and ejected him, a good barr, 27 Hen. 6.10. pl. 6. 46 Edw. 3.1. pl. 1. Lib. Intra. 175. D. ſect. 10, 11, 12. for then the Rent could not be due, for it was payable for the whole term, and cannot be apportioned, for it is entire.

A good barr to ſay, that the Leſſor entred before his day without any more, 34 Hen. 6.21. pl. 40. for the entry implies an ejectment; for both cannot be in poſſeſſion.

So if the Leſſor enter but in part, a good barr, Coke 3. part. 22. B. Walkers caſe; for the Rent is payable for the whole thing lett, and is entire.

But if the Leſſee enter again before the day of payment, no barr; for then he regains the poſſeſſion, and hath elected to wave this advantage of the entry made upon him.

So if the Leſſor cuts the Trees, no barr, becauſe the Leſſor ejects not the Leſſee, 33 Eliz. but is only a Treſpaſſer.

Entry by a Stranger which hath a better title, a good barr, Perkins 163. Lib. Intra. 176. A. Sect. 13. 45 Edw 3.8. pl. 10. for that makes void the Leaſe.

But not for Arrearages due before the entry, 9 Hen. 6.17. B. Cotteſmore, 19 Hen 6.42. B. Paſton, 20 Hen. 6.20. pl. 15. for ſo long the Leaſe continues in being.

Debt for Rent in com. M. where the Land is in com. E. levied by diſtreſs is a good plea, without ſaying more, 4 Hen. 6.5. pl. 12. 22 Hen. 6.31. pl. 19. 28 Hen. 6.6. pl. 2. Although the Leaſe be by Indenture, 4 Hen. 6.5. pl. 12. 18 Hen. 6.17. A. per 2 Juſtices, 11 Hen. 7.4. pl. 16. for it ſhall be intended to be levied where the Land lies, which cannot be tried where the Action is brought.

But if it be in the ſame County where the land is, then it ought to conclude that he owed nothing, becauſe the Countrey may have notice whether he did or not, 28 Hen. 6.6. pl. 2. 33 Hen. 6.4. pl. 12. and may try the iſſue.

But the 9 Edw. 3.33.4. pl. 16. Herle, it is good without ſuch concluſion. Q. It ſeems, he thought levied by diſtreſs doth imply that he owes nothing.

Debt upon a Leaſe for Tithes, levied by diſtreſs is no barr, becauſe there is nothing ſubject to diſtreſs, 22 Hen. 6.35. pl. 53. 11 Hen. 4.40. br. debt 234. and ſo the plea is impoſſible.

A good barr that the Leſſor diſtrained, and ſold the diſtreſs for the Rent by the aſſent of the Defendant, 2 Rich. 2. Debt 235. for ſo he might do, but not without his conſent.

Payment in another County, a good barr without ſaying more, 22 Hen. 6.36. pl. 1.34. Hen. 6.17. B. Moyle, 9 Hen. 5.2. pl. 6. 11 Hen. 7.4. pl. 16. 1 Hen. 5.6 & 7. 20 Hen. 6.16. B. 22 Hen. 6.35. pl. 53. for the payment is the ſubſtance, and the place it not traverſable.

For otherways it ſhall be tried where the Writ is brought, 4 Hen. 6.5. pl. 12. viz. if he plead payment generally, for that ſhall be intended to be where the Action is laid.

To ſay, that the Leſſor covenanted to repair the houſe, or that the cuſtome is that he ſhould repair it, and did not do it; this is no barr, becauſe it is but a Covenant upon which the Defendant may take his remedy: but if the Leaſe be that the Leſſee repair • d it, and paid the rent for Reparations, this is a good barr, that the Leſſor did not repair it, 27 Hen. 6.10. pl. 6. Q.

But upon a leaſe by Indenture, and that the Leſſee ſhould repair the houſe at the coſt of the Leſſor, it is a good plea to ſay, that he did expend the Rent in repairing of the houſe, 2 Rich. 2.235. for this agrees with the Leaſe.

That the Leaſe was upon a condition, and upon the breach of the condition the Leſſor entred before there was any thing in arrear, no plea, for he ought to anſwer the debet, Crooke 153. pl. which he doth not by this plea, which is no more but a negative pregnans.

Surrender before the day a good barr, Lib. Intr. 176. C. ſect. 17. for thereby the Leaſe was drowned before the rent due.

Contract perſonal.Accord a good plea, Coke 6. part. Blakes caſe, Lib. Intra. 205. C. Sect. 11. And ſo, that the Plaintiff had an obligation for the ſame duty, 3 Hen. 4.17. for this is ſuch ſatisfaction as the Leſſor accepted of in lieu of the payment of the Rent.

Payment to the Servant no barr,Servant. unleſs the Servant was commanded by his Maſter to receive it, or that the money came to the uſe of his Maſter by his aſſent, Doct. & Stud. 138. A. for a Servant is not a Receiver without ſpecial warrant.

Rent upon a perſonal thing.Upon a Leaſe for years of a ſtock of Cattel, or other perſonal thing rendring Rent at ſeveral days, debt lies not till the days be incurred, Coke 3. part. 22. A. Walkers caſe; becauſe the Rent is entire, though the days of payment be ſeveral.

That he owes nothing by the Law a good barr, 1 Hen. 6.1. pl. 3. 9 Edw. 4.1.

Salary for a Counſellor.That he owes nothing a good barr, although the Plaintiff be a Serjeant at Law, 3 Hen. 6.33. pl. 26. 21 Hen. 6 4. pl. 6. who ſues for his Fees; for ſuch payments uſe to be private.

The Defendant ſhall not wage his Law againſt an Attorney,Attorney. becauſe the Court compels him to be Attorney for the party, and ſo no voluntary retainer; otherways, if it be upon ſuit in a baſe count, 21 Hen. 6.4. pl. 5. Forteſcue Newton; for there he is not bound to be his Attorney.

That he departs his ſervice within the term,Servant. a good barr, 40 Edw. 3.25. pl. 27. againſt a Servant that ſues for wages; for the wages is due for the whole time.

That he diſcharged him of the ſervice within the term to which he agreed, is a good barr, 10 Hen. 6.23. pl. 78. for this diſcharge is accepted in ſatisfaction.

That he retained him not modo, ſorma, &c. a good barr, 38 Hen. 6.22. pl. 41. viz. according to the Statute.

Payment without ſpecialty is not a good barr in debt, brought by a Servant retained in husbandry, 40 Edw. 3.21. pl. 27. becauſe he is retained by Statute.

And ſo if one be retained, but not according to the Statute, the Maſter may wage his Law in debt for the ſalary, elſe not, Coke 9. part. 87 & 88. Pinchons caſe, 3 Hen. 6.42. pl. 13. 11 Hen. 6.48. 4 Hen. 6.19. B. 2 Hen. 4.14. 39 Hen. 6.18. pl. 24. 38 Hen. 6.22. B. for ſuch retainer is but a private agreement, whereof the Law takes no notice.

But he may not plead, that the Servant demands 40 s. per annum, and the Statute allows not this, becauſe he was not retained according to it, 11 Hen. 6.10. pl. 20.

So if he be retained in all occupations, although that husbandry be comprehended within it; but he muſt be retained particularly in husbandry.

If a general receiver retain one by deed, yet the Maſter may plead that he owes him nothing by the Law, 28 Hen. 8 Dyer 20. pl. 12.4. for he hath no authority to retain him.

If one be retained in husbandry, although he be not compellable to ſerve, yet his Maſter ſhall not wage his Law, 38 Hen. 6.22. B. pl. 4. becauſe the Retainer is by Statute.

A retains B to be his Steward of his Court for one year or more,Steward. he ſhall have debt although the retainer be by word; but not for an Annual penſion, unleſs the retainer be by deed, Crooke 1 Hen. 8.158. pl. 6. becauſe that is of longer continuance, and therefore the contract ought to be more ſolemn than by parol.

Infancy no barr, • abilng. 18 Edw. 4.3. A. Vaviſor, 10 Hen. 6.14. A. Perkins 4. in debt for diet and neceſſaries, becauſe the Law makes ſuch Contracts good.

That he owes nothing by the Law, a good barr, 9 Edw. 4.1. B. 19 Hen. 6.10. pl. 25. 39 Hen. 6.18. pl. 24. Moyle & Danby, 27 Edw 3.87. pl. 37. for the payment may be private as well as the contract.

So if a contract for tabling be made with B. 22 Hen. 6.13. pl. 18. for a third perſon.

So if an Inn-keeper brings debt for Diet or Lodging becauſe they cannot depart till they pay for it, 39 Hen. 6.78. pl. 24. therefore it is reaſon to wage their Law to gain their liberty, if the Debt be paid.

But debt brought by the Lieutenant of the Tower for a priſoners diet, the Defendant ſhall not wage his Law, becauſe the Lieutenant ought to find him ordinary Diet, Coke 9 part. 87. B. and therefore here ſhall be ſuppoſed a ſpecial contract which muſt be ſpecially pleaded to.

The Defendant ſaid that it was in another place,Vendition viz. the ſale upon which the action is brought, and that it was made upon condition, and that the condition was not performed; a good bar to the Action, 34 Hen. 6.6.42. pl. 13. 44 Edw. 3.28. pl. 6. vide 47 Edw. 3.20. pl. 44. becauſe the condition not being performed, the ſale was null and void.

Debt upon a ſimple Contract, the Defendant pleads that the Plaintiff took an obligation for it, a good barr, Coke. 6. part. 45. Heggins. 3 Hen. 4.17. 11 Hen. 4.79. 9. Edw. 4.50, 51. For this amounts to a diſcharge of the Contract.

Payment without an Acquittance no plea, 1 Hen. 5.6. B. in debt upon a ſpecialty, becauſe it muſt be diſcharged by a thing of as high a nature.

He cannot plead to the Country for part, and wage his Law for the other; but if it be for 20 s. that the Action is brought, the Defendant may ſay that the contract was for 10 s. without this that it was for 20 s. and as to the 10 s. he wages his Law: but quaere if he may tender part, and wage his Law for the remnant, Crooke. 17 Hen. 7.40. pl. 12. It ſeems not, for there may be more due, and therefore it ought to be put in iſſue.

In debt upon a ſale that he owes nothing by the Law, a good bar, although the Defendant bought it of the ſervant of the Plaintiff; for the contract of the Servant is the contract of the Maſter, 30 Edw. 3.19. pl. 27. If the Servant had authority to buy and ſell, or that the thing bought came to the Maſters uſe.

Unleſs the Contract be by deed, 39 Hen. 6.35. pl. 46. Which muſt be avoided by Deed, and not by the Oath of the party.

Debt againſt the Husband and Wife upon a contract of the wife dum ſola fuit, the Husband wages his Law, as now he may, for now it is his debt; but if at the day of the doing of his Law, the Wife be not there, the Husband ſhall be condemned, 33 Hen. 6.43. pl. 23. For the debt originally was hers, and therefore ſhe muſt join.

That he recovered in an Action upon the Caſe, upon an Aſsumpſit, a good bar, Coke. 4. part. 94. B. Slades caſe. in debt upon a Contract; for it was in his election to bring his Action upon the Caſe.

The breaking of the Priſon by Enemies or a Tempeſt,Eſcape. a good bar, 33 Hen. 6.1. pl. 3. in debt againſt a Gaoler upon an eſcape; for he could not prevent it, nor can have ſatisfaction.

But not by Rebels, 33 Hen. 6.1. pl. 3. For Rebels may be compelled to make the Gaoler ſatisfaction.

The Sheriff pleads that his predeceſſor ſuffered him at large, and that he did take him again, &c. a good b • r, 2 Edw. 6.67. pl. 17. in debt brought againſt him for an eſcape in his predeceſſors time.

Enfancy no plea, becauſe the Statute is general. Doct. & Stud. 147. B. In debt for neceſſaries vid. antea.

Debt againſt a Bayliff, becauſe the Sheriff had not made out his Warrant for apprehending one in execution, and yet returns that he was taken, and was not, quaere whether the Bayliff ſhall ſay no ſuch Warant againſt the return of the Sheriff, 5 Edw. 4.1. It ſeems not, but muſt have his remedy againſt the Sheriff.

Non permiſit ire ad largum, a good bar, 10 Hen. 4.10. 38 Hen. 6.29. 3 Mariae, Dyer. 121. pl. 18. in debt brought upon an eſcape; for this is a direct tender of an iſſue that there was no eſcape.

A Return by a Bayliff of a Liberty, that the Precept was not come to him at the time, and that afterwards he was not in the Liberty, 18 Edw. 3.35. is a good bar in debt againſt him.

Taken again before the Action brought, a good bar, if that he agree not to the eſcape, and make freſh ſuit, Coke 3. part. 52. Rigwayes caſe. 34 Edw. 1. debt. 162. Otherwiſe not; for then he is particeps criminis.

That he owes nothing, is no Plea, becauſe this Action is brought, not upon a contract, but upon a ſpecial clauſe of the Statute, 2 Rich. 2. Iſſue 160. Which cannot be diſcharged by a plea parol, but he muſt anſwer to the Statute.

Account upon a recovery of dammages, and the party committed in execution, Nul tiel record, a good bar, 30 Hen. 6.6. For the Action is grounded upon the Record, and if there be no ſuch Record, there can be no Action.

Judgment in Court.Debt upon a Judgment in Pypowders, a good bar that he was taken in execution, 7 Hen. 6.18. upon the Judgment given in the Court of Pypowders.

Upon a recovery in a Court Baron, if an Action of debt be brought, the Defendant ſhall ſay that he owes nothing by the Law, 49 Edw. 3.3. A. Hanmer. 13 Hen. 7.3. B. Conesby. For ſuch recoveries are of an inferior nature.

Debt for dammagesDebt for Dammages recovered in Aſſize of the Plaintiff after Verdict, and before Judgment pleaded, quaere 2 Mariae, Dyer. 107. pl. 24.

Levied by the Sheriff, a good bar, 11 Hen. 4.58. pl. 8. For that is ſatisfaction in Law, as to the party.

Elegit pleaded in Bar good, 13 Eliz. Dyer. 299. pl. 34. For by the Elegit he hath elected his Execution.

Upon a recovery of Dammages in ancient demeſne, debt is brought againſt the Defendant, he ſhall not ſay that he owes nothing, but ſhall plead Non tiel Recovery, quare 34 Hen. 6.49. A. pl. 15. Littleton. For it ſeems he may as well here as upon debt brought upon a recovery in a Court Baron. vide antea.

For an Amerciament in a Leet, that he owes nothing,For fine, or amerciment. by the Law no plea. 12 Rich. 2. Law 33. For a Court-Leet is the Kings Court, and not a baſe Court.

For an Amerciament in a Court-Baron, that he owes nothing, by the Law a good plea, 12 Rich. 2. Stathan, debt 35. No. Lib. intra. 119. A. ſect. 1. vid. antea.

In Debt upon a Statute Merchant with a defeaſance, the Defendant ſaid that he was a Lay-man, and not Learned, and that the condition ſhould have been but to bind him to pay 40 l. and it was made 60 l. This is a good plea; for the Action is brought as upon an Obligation with a condition; but otherwiſe if execution be ſued upon it as a Statute, Hil. 9. Jac. Banc. Regis. Fox verſus Brooke. For then ſuch plea comes too late; for the Statute is extended as a Judgment.

Arbitrement is no Bar in debt for arrerages of account before Auditors,Arbitrement. becauſe the ſum being due by matter of Record, ought to be anſwered by matter of as high a nature, 3 Hen. 4.5. pl. 23. 6. Hen. 4.6. pl. 28. 8 Hen. 5.3. pl. 13. H • ll. 3 Hen. 6.55. A. quaere. 4 Hen. 6.17. pl. 3. 10 Hen. 7.4. A. which an Arbitrement is not.

Debt upon an in ſimul computaverunt that he was not accountable by the Countrey, no bar; for where the Defendant may wage his Law, the Contract is not traverſable, Crooke. 13 Hen. 7.39. pl. 4. For the Action ſuppoſeth that he aſſented to the accompt, ſo that that is not to be put in iſſue.

Nullum fecerunt arbitrium, a good Bar, becauſe this lies in notice of the Countrey, Crooke. 13 Hen. 7.39. pl. 4. In action of debt upon a Bond, to perform an award.

But if he plead ſuch a plea, he cannot rejoyn afterwards, and ſay that the Arbitrators gave no notice, but muſt plead it in Bar, and not by way of Rejoynder, Crooke. 7 Hen. 8.155. pl. 8. For ſuch a Rejoynder confeſſes an Award, and the Bar denies it; ſo that the Bar and the Rejoynder cannot ſtand together.

The Arbitrators gave no notice, no Bar unleſs the ſubmiſſion be ſo, viz. that the Arbitrators ſhould give notice; for elſe the parties are to take notice at their peril.

The Defendant ſaid, that before the Arbitrement made, he diſcharged the Arbitrators; this is a good Bar, 21 Hen. 6.30. 28 Hen. 6.6. Coke 8. part. 82. B. Ʋniors caſe, and needs not to aver that the Arbitrators had notice; for they muſt be diſcharged without notice.

Debt upon an Obligation, 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, for it was implied before, Mich. 15 Jac. Ban. Regis, per Montague Chief Juſtice, Woolridge & Banbury; for ſuch a Leaſe could be made but conditionally.

A Condition to deliver ſuch a Leaſe as ſhall be deviſed by the Judge of the Court of Audience, Non deviſavit aliquid, &c. is no barr, for he ought to procure him to make one at his peril, Coke 5. part. 23. B. Lambs caſe, the Pleading. No. Lib. Intr. 130. A. for the Condition is for the Obligors benefit, and therefore he muſt do his beſt to ſee it performed.

Impoſſible condition. A is obliged to B in 20 l. upon Condition to pay 10 l. to ſuch a perſon, at ſuch a place and time as B ſhould name in his Will, B makes his Will and names none, the Executors ſhall not have it, for the Condition is become impoſſible, for he ought to be named in deed, Trin. 12 Jac. Com. Ban. Peaſe & alii verſus Mead, Mich. 11 Jac. Rott. 945.

The Defendant ſaid that he made another obligation to the Plaintiff, the which he did accept in ſatisfaction of the former; this is no barr, becauſe it is but a thing in Action, Mich. 12 Jac. Com. Ban. Rand. & Strut. Trin. 6 Jac. Com Ban. Rott. 10001. Lovelace, and one thing in action cannot be diſcharged with another thing in action.

Payment according to the Condition a good barr, Coke 8. part. 58. A. Beechers caſe;Payment. but he muſt ſhew the place where he made the payment, 9 Edw. 4.141. B. becauſs it is material.

Payment of parcel hanging the Writ, is not good to abate the Writ without an Acquittance, 3 Hen. 7.3. pl. 12. 5 Hen. 7.10. pl. 15. 7 Edw. 4.15. Vide 28 Hen. 8. Dyer 6. pl. 3. becauſe the duty was by ſpecialty.

A is bound to B in 10 l. and after the date is a clauſe that he ſhall pay him 5 l. the Obligation is void as to the 10 l. payment there without Acquittance is good, 30 Edw. 3.3. pl. 12. Q. becauſe the Obligation is void.

But payment after the day is not good without Acquittance, 46 Edw. 3.29. pl. 23. 47 Edw. 3.13. pl. 14. 5 Hen. 7.41. pl. 5. becauſe then it is a duty veſted.

A is bound to pay 20 quarters of Maule, and if he pay it not at the day, then 40 quarters; in Debt for the 40 quarters he may plead payment of the 20 quarters without Acquittance, becauſe it is to ſave a penalty; but not in debt for the 20 quarters, 28 Hen. 8. Dyer 24. pl. 154. 1 Hen: 5.7. A. becauſe that was the original duty.

Three are bound to pay their Rent, one pays it, the other pleads payment without Acquittance, 45 Edw. 3.4. pl. 9. and good; for the payment of one is the payment of all, and he may not have an Acquittance.

A is bound by an Obligation dated 17th of November, 12 Jac. with condition of payment the 19th November next enſuing, per Curiam payment 19th November 13 Jac. is ſufficient, for it ſhall not be intended 19th November in the ſame month, Mich. 13 Jac. Com. Ban. Price & Coe; for it ſhall not be intended that an Obligation ſhould be made for two days, and the next enſuing ſhall relate to the month and not the day.

Conuſee of a Statute had Execution for 20 l. and by Indenture grants, that if the Conuſor pay 8 l. at a day to come, the Statute ſhall be void; this is a good diſcharge, 20 Aſſize pl. 7. Quaert, whether the Statute or the Execution ſhall be void.

Payment to a Deputy a good barr, 42 Edw. 13. pl. 35 Q. what Deputy.

Payment to the Baily of a Biſhop without his command is a good barr, 22 Edw. 4.25. pl. 5. for it is payment to the Biſhop.

But payment to a Servant without command is no barr, unleſs it comes to the uſe of his Maſter, Doct. & Stud. 38. A. for a Servant as a Servant is no Receiver.

Payment to a Creditor of the Obligee by his command is a good barr, 46 Edw. 3.33. pl. 45. Perkins 145. A. for it is a payment to himſelf, being for his benefit.

But then he ought to ſhew that the Creditor was the Creditor of the Obligee, 27 Hen. 6.6. pl. 1. viz. in his plea.

In debt upon an Obligation with a Condition to pay 20 l. to B aſſoon as he comes to the Age of 21 years. 1. The Defendant ought to ſhew in performance of the Condition, that B is of full Age. 2. He ought to ſhew the place where he paid it, for otherwiſe there cannot be any traverſe, Mich. 12 Jac. Ban. Regis, Halſe.

Condition to permit one to enjoy,Permit. &c. he pleads that he did permit him, and good, 10 Eliz. Dyer 279. pl. 6. for that anſwers the Condition fully.

The Defendant ſaid that the Plaintiff was indebted to him,Retainer. and that he commanded him to retain it, a good barr, 22 Edw. 4.25.65. for ſuch retainer is ſatisfaction in Law.

Barr general to an obligation. Acquittance.Acquittance a good barr, from the party himſelf.

But an Acquittance by a general Receiver without receipt of the money by his Maſter, is not good, unleſs he be Receiver by deed, and hath authority to make Acquittances, Doct. & Stud. 137. B. for then his Maſter ſhall be eſtopped by the deed, to ſay he was not his Receiver.

A brought debt in Ban. Regis againſt B, and that depending brought debt for the ſame debt in London, and had goods attached in the hands of C, and had judgment upon them; this is a good barr in debt, brought by B againſt C for the goods attached: but if A brings debt againſt B, and after the debt is attached in London, and Judgment given there, if the Creditor ſue B he cannot plead the Attachment in barr, becauſe he might have pleaded it to the Action brought againſt him in Com. Ban. Mich. 39 & 40 Eliz. Com. Ban. Jaques verſus Lewkner, in barr of the Action brought in London, and ſo have avoided the Attachment.

A Debt is attachable before the day in which it is payable, becauſe it is a duty, and the debtor debet, although non detinet; but an obligation made to perform Covenants is not attachable, Mich. 39 & 40 Eliz. Com. Ban. Beacher verſus Minors; for this is incertain whether it may ever become a duty.

Coverture a good barr,Coverture. Lib. Intr. 168. B. ſect. 1. in an Action of debt brought againſt a Feme Covert, upon an obligation made during Coverture.

Infancy a good barr,Infancy. Lib. Intra. 163. A. ſect. 1. for an Infant cannot be bound, nor contract to his prejudice.

Non eſt factum. Non eſt factum a good barr, but not if the deed be inrolled, 16 Hen. 5. B. 9 Hen. 6.60. A. Babington, 39 Hen. 6.32. pl. 45. becauſe the party hath acknowledged it to be his deed before the Judge or Maſter of the Chancery.

When a deed is but voidable, non eſt factum no plea, Coke the 5. part. 119. A. Whelpſdales caſe, 11 Hen. 7.15. for non eſt factum is a plea to deſtroy the deed, and to make it abſolutely void, and not ad libitum.

When an obligation is once good, and after and before the plea becomes void, non eſt factum may be pleaded, Coke 5. part. 119. A, B. Whelpſdales caſe; for the Plea was true at the time of the pleading of it, which ſufficeth to make the Plea good.

When 3 are bound ſeparatim, and the Seal of one is broken, the other cannot plead non eſt factum, becauſe they are ſeveral Obligations, Coke 5. part. A. Mathewſons caſe; otherwiſe it is where they are joyntly bound.

But it is not ſo when 3 are bound without any more, Coke 11. part. 28. B. Pigots caſe; 3 Hen. 7.5. Coke 5. part. 23. A. for there they ſhall be intended to be joyntly bound.

But if two be bound in debt againſt one only it cannot be pleaded, Coke 5. part. 119. A. Whelpſdales caſe; for it is the debt of both of them.

A Recovery in an inferiour Court of Record with Execution a good barr,Recovery. Coke 6. part. 45. B. Higgins caſe; but not, if it be not in a Court of Record, or if there be no Execution.

But without Execution not, Coke 6. part. 45. A. for that is all one as if there were no Recovery had, and ſo there is no ſatisfaction.

A Recovery is a good barr ſo long as it is in force, viz. if it be in one of the Courts at Weſtminſter, Coke 3. part. 44 B. Higgins caſe.

Releaſe a good barr:Releaſe. A Releaſe deſtroys the duty, and conſequently the remedy to recover it.

Two bound to B, who makes the wife of one of them his Executrix, and deviſes his goods to her; this is a good releaſe of the debt, for the debt is part of his goods; for if the obligee make the wife of the Obligor his Executrix; this is a Releaſe in Law to the husband, becauſe the Obligation is ſuſpended pro tempore by the act of the party himſelf, Trin. 12 Jao. Com. Ban. Fryer verſus Gildridg; for the wife cannot ſue the husband to recover the debt.

A Releaſe of all advantages in account, a good barr in debt upon an account, 9 Edw. 4.49. Coke 8. part. 152. A. Althams caſe; for Arrearages are advantages ariſing upon the account.

A is bound to B to the uſe of C, the releaſe of C is a good barr, 36 Hen. 8. br. Obligation 27. becauſe the Obligation was for the benefit of C, and ſo upon the matter he was bound to C.

The Defendant ſaid that the agreement was for the obtaining a Benefice;Simony. this is nought, 1. Becauſe the Statute makes the contract void, becauſe Simoniacal. 2. It cannot be averred out of it, being a matter dehors and not appearing, Mich. 40 & 41 Eliz. Com. Ban. Gregorie verſus Olden.

The Defendant pleads that the Obligee accepted of a Statute for the Obligation after the day of payment;Statute. this is no barr, becauſe the Obligation is in force notwithſtanding the acceptance, for ought appears to the contrary, Coke 6. part. 44. B. Higgins caſe.

The condition of a Counter-bond was to ſave the Surety harmleſs; it is no plea that the former Bond was uſurious,Statute-Law. becauſe the Counter-bond was not for payment of money, but to ſave harmleſs, Mich. 40 & 41 Eliz. Com. Ban. Dowman verſus Button, and ſo it matters not to him upon what conſideration the former Bond was entred into.

The Judgment in Debt.

Againſt an Executor.The Judgment, Lib. intra 173. B. ſect. 1.

Arrerages of account, the Executor pleads no ſuch account, or nothing in arrear or outlary in the Plaintiff, and it is found againſt him, the Judgment ſhall be de bonis Teſtatoris, 34 Hen. 6.22. A. Danby, and not de bonis propriis, for here is no devaſtavit. Q.

A Covenant broken after the death of the Teſtator, the Judgment ſhall be de bonis Teſtatoris, 15 Eliz. Dyer. 324. pl. 34. For the Covenant concerns him only as Executor.

Nothing in Arrear in Debt for rent due in vita Teſtatoris, or no ſuch Leaſe, the Judgment ſhall be de bonis Teſtatoris, 34 Hen. 6.22. A. Danby. For ſuch pleas an Executor may plead.

An Acquittance or a Releaſe pleaded and found againſt him, if it be pleaded made to the Executor, the Judgment ſhall be general. 11 Hen. 6.8. A. Danby. 34 Hen. 6.24. A. Priſot. Quod recuperet de bonis propriis.

Non Aſſumpſit of the Teſtator to pay the debt, the Judgment is of coſts and dammages of ſuit de bonis propriis, if the Teſtator had not ſufficient. No. Lib. intra. 1. B. ſect. 1. for putting the Plaintiff to a needleſs ſuit, which it is likely the Teſtator would not have done.

The Executor found in a Cheſt a Grant of the next avoidance of an advowſon made to the Teſtator, and preſentation thereupon in a Recovely in a quare impedit, againſt him, the Judgment ſhall be of his proper Goods, 34 Hen. 6.22. B. Priſot. For he ſhall not prejudice the Teſtators Eſtate by his own wrong.

Co-executor pleads, and found againſt him, the Judgment ſhall be de bonis Teſtatoris, 9 Hen. 6.44. 11 Hen. 6.7. 34 Hen. 6.32. A. as well as where both are ſued; for one Executor may anſwer if he pleaſe.

Confeſſion of the Action by the Executor, where he ought not to have done it, the Judgment ſhall be general againſt him, viz. de bonis propriis, becauſe he ought to have pleaded that he had not more than 20 s. and againſt the other Executor it ſhall be de bonis Teſtatoris, 14 Hen. 4.12. pl. 1. Hull; for he is in no fault, and ſhall not therefore be puniſhed for his companions ill pleading.

And by 33 Hen. 6.2. it ſhall be of the goods of the Teſtator, if the Executor hath none for the dammages of the goods of the Executor that confeſſes the action; becauſe the Plaintiff may otherwiſe loſe his dammages.

But 4 Eliz. Dyer. 210. pl. 23. it ſhall be but de bonis Teſtatoris in both caſes, 28 Hen. 6.3. pl. 13. 40 Edw. 3.2.7. pl. 3. Q. Ergo.

So in a rationabili parte bonorum upon confeſſion of one Executor, 28 Hen. 6.4. pl. 20. 33 Hen. 6.24. pl. 1.

Ne unques Executor found againſt him ſhal be general, 11 Hen. 4.5. 11 Hen. 6.8. A. Danby. de bonis propriis for his falſe plea; for his falſhood ſhall not prejudice the Teſtators Eſtate, if he can make ſatisfaction.

But the Judgment ſhall be de bonis Teſtatoris, 〈◊〉 &c. and if not de bonis propriis, 9 Hen. 7.15. pl. 1. 2 Edw. 4.4. 33 Hen. 6.23. 11 Hen. 6.10. B. Q.

One pleads ne unques Executor, the other plenè adminiſtravit, all but 40 s. and found againſt the former, and Judgment given that there ſhould be recovered againſt both as much as there was in their hands, and the reſidue againſt the other, 11 Hen. 6.37. B. Paſton. 46 Edw. 3.9. B. for his falſe plea, and it ſhall be intended that he hath aſſets, elſe he would have pleaded ſo, and not a ſhifting plea.

One dies inteſtate, and Adminiſtration is committed to D, by the Ordinary, and the Defendant pleads that he comes as ſervant to D. to adminiſter, abſque hoc that he did adminiſter in any other manner; this is no plea, becauſe he did not ſhew that it was the Ordinary of the place, and Judgment de bonis Teſtatoris, 31 Hen. 6.13. pl. 5. as he ought, becauſe it is traverſable. This is an unskilful, and not a falſe plea, therefore the Judgment ſhall not be de bonis propriis.

17 Edw. 3.20. pl. 58. where one Executor pleaded non factum, and found againſt him, there the Judgment was againſt him of the goods of his own, as well as of the goods of the Teſtator, and againſt the other, of the goods that he had at the day of the Writ, vide 17 Edw. 3.20. pl. 1. ſtat. 9 Edw. 3. cap. 3. ſtatute 1.17 Edw. 3.46. pl. 3. becauſe by the Deed the Teſtators Eſtate is chargeable, and by the falſe plea his own.

In Plenè adminiſtravit pleaded, the Judgment was for ſo much of the principal debt as they had, and for the dammages de bonis Teſtatoris, ſi, &c. if there were ſufficient, and if not, then for dammages de bonis propriis, and for the reſidue, as much as they had, Coke 8. part 134. Shipleys caſe. 34 Hen. 6.32. B. Priſot. com. 440. B. Pepyes caſe. vide 17 Edw. 3.66. pl. 83. 46 Edw. 3.9. pl. 6. Judgment ſpecial for the debt.

Upon ſuch a plea of the Defendant the Plaintiff may pray execution forthwith, becauſe it is a confeſſion of the debt; but no execution ſhall iſſue, until the Defendant hath goods of the Teſtators, Coke 8. part. Shipleys caſe. vide 21 Hen. 6.40.

But if it be found for the Plantiff, no ſcire facias lies againſt them, 4 Hen. 6.4. pl. 8. Q.

Unleſs he prays Judgment upon the plea.

But yet 33 Hen. 6.24. pl. 1. is, That a ſcire facias lies; yet Coke 8. part 53. A. Syms his 04 caſe, that if it be for Land, he ſhall not have a ſcire facias, becauſe there is no Record upon which it may be founded. Q.

Againſt an heir.In debt, if the heir confeſs the Action for as much as did deſcend, then there ſhall be a ſpecial Judgment againſt him of ſo much as did deſcend, Com. 440. A. Pepyes. caſe. 22 Eliz. Dyer. 373. pl. 4. the Judgment Lib. intra. 172. D. and he ſhall be charged for no more.

But if he plead any other plea, and it be found againſt him, the Judgment ſhall be general, Com. 440. Pepyes caſe for the whole, for his falſe plea.

So if he confeſs the Action, and ſhew as much as deſcends, if it appear to the Court that the profits of the Land from the time of the deſcent, until the time of the execution, are ſufficient for the debt, the Judgment ſhall be general, elſe not. per Dyer. 18 Eliz. Dyer. 344. pl. 1.

Execution in debt. 1. For the Plaintiff. 2. For the Defendant. 3. Of what Lands. 4. Of what Goods.

At the Common Law it was but a fieri facias, Coke 3. part. 12. or a levari facias, Coke 3. part. 12. A. and this is of Chattels and Profits of Lands and Rents, com. 441. A. Pepyes caſe.

And this only within the year; for if the year were paſt, the party was put to his action of debt upon the Indictment, Coke 3. part 12. A. Herberts caſe, unleſs the proceſs be continued, 33 Hen. 6.49. pl. 33. For if it be continued, then is the cauſe ſtill freſh before them, otherwiſe the Court will take no notice of it.

But for a recovery againſt an heir, then it was but a Liberate of the Land, Com. 441. A. Pepyes caſe. Lib. Intra. 172. D. 173. A. 3 Edw. 3. Execution, 107. For the heir is only bound in reſpect of the Lands deſcended to him.

But by Weſtm. 2. cap. 45, a Scire facias was given after the year, and per Weſtm. 2. cap. 18. an Elegit was given, Coke 3. part. 12. A.

If a man have an Elegit filed on Record, and there be a Nichil returned, he ſhall never have any other Execution, 19 Hen. 6.4. 5 Edw. 4.41. 15 Hen. 7.15. Fairfax. for it is the laſt and higheſt Execution; and the Court cannot deſcend à majore ad minorem executionem. But if it be not filed, it is otherwiſe.

And by the Stat. of 25 Edw. 3. cap. 17. a Capias was given in debt; and per conſequence a Capias ad ſatisfaciendum in execution of a Judgment, in debt, Coke 3. part. 12. A. Harberts caſe. Fo • it is reaſon an Execution may be of as high a nature as the mean proceſs in the Action was, and 〈◊〉 the ſame nature.

Mich. 41 & 42 Eliz. com. Ban. if the Plaintif • die after Execution, yet the Sheriff may levy 〈◊〉 and if there be no Executor or Adminiſtrator, the Moneys ſhall remain in Court until Adminiſtration. Q. whether the Ordinary may not ha •• it. But if the Defendant die before Execution, there the Sheriff cannot make Execution; 〈◊〉 the words of the Writ are, That it ſhall be levied of the Goods of the Defendant. Thoroughgu •• caſe. Q if it may not be againſt the Executor, becauſe the Teſtators Goods in their hands may be ſaid to be the Defendants Goods.

Upon a non eſt inventus returned of the Principal upon a Capias upon a Judgment in com. Ban. the party ſhall have Execution againſt the Ba •• , becauſe the debt being by Original is certain; 〈◊〉 it is mentioned particularly in the Writ, and there the Lands of the Bail, which they had 〈◊〉 the day of the taking the recognizance, ſhall be liable, but quaere in ban. Regis, if more Lands a •• liable than they had the day of the Judgment, becauſe the debt is uncertain, Mich. 15. Jac. Ban Regis, Baskervile & Brocket. ſpecial verdict.

The Defendant for Dammages and Coſts ſhall have the ſame execution as the Plantiff ſhould have had, if he had recovered againſt the Defendant, per 23 Hen. 8. cap. 15.

Viz. Of the Lands which he had at the 〈◊〉 of the Judgment, and not before, Coke 8. pa •• 171. Fleetwoods caſe. 42 Edw. 3.11. pl. 13. • Edw. 193. pl. 14.

But if the Judgment be the laſt day of the Term, the Lands which he had the firſt day of the Term are liable, becauſe all the Term is but one day in Law, 42 Aſſiz. 17. as to the Judgment; for a Judgment given the laſt day is a Judgment of the firſt day.

If two Joint-Tenants are for life, and one of them and againſt whom the Judgment is given, dies before execution, this ſhall not be put in execution, 13 Hen. 7.22. A. viz. againſt the other, becauſe he was not party.

Land in ancient demeſne ſhall be put in execution, Coke 5. part. 105. A. Aldens caſe. Hill. 11. Jac. Com. Ban. Rot. 2541. Cox & Barneſly. upon a Judgment in debt given at Weſtminſter; for the judgment is well given.

The Goods that he had at the time of the execution ſhall be only liable to execution, Coke part. 171. A. Fleetwoods caſe. 2. Hen. 4.14. 9 Hen. 6.58. 11 Hen. 4.7. 34 Hen. 6.23. B. Priſot. 21 Hen. 7.87. pl. 1. Crooke.

Unleſs it be in caſe of Executors, 34 Hen. 6.23. B. Priſot. For they may have other goods of the Teſtator come to their hands afterward.

But ſale by covin after Judgment cannot hinder the execution, 22 Aſſiz. 72. 13 Hen 4.4. pl. 9. Q. if ſale be made pending the Suit before Judgment by covin.

Hill. 40. Eliz. Com. Ban. per Curiam, if a Writ of execution be awarded for debt or dammages, and between the Teſt of the Writ and Execution, the party ſold the goods bona fide, yet theſe are liable to the execution. Q. If ſo, where the Vendee knows not of the Judgment; for it ſeems hard, and yet it ſeems as hard on the other ſide alſo.

Ejectment.
In what Court it lies.

IT lies not in the Marſhalſey, Coke. 10. part. 72. A. Marſhalſey. For no Title for Land could be tried there.

In Ban. Regis it lies. In Com. Ban. it lies. In the Exchequer it lies for a party priviledged, Coke 1. part. 3. A. Pelhams caſe; and this was by Bill. It ſeems it lies as well on the Pleas ſide, and more properly than by Bill.

But if it be for ancient demeſne-Land, it lies not in the Court of the King, Coke. 5. part. 105. A. Aldens caſe. 9. part. 77. B. but in the Court of the Mannor by their priviledge; but by conſent it may be, as it ſeems, tried elſewhere.

Becauſe the poſſeſſion is to be removed in ſuch action, per Hobart Chief Juſtice, Hill. 11. Jac. com. Ban. Rot. 25.41. Cox verſus Barnibee.

But none can plead this out ter-tenant of the Land in ancient demeſne, becauſe the poſſeſſion doth only concern him, 2 Hen. 7.17. pl. 1.

But if the Plaintiff do not put in his declaration until the end of the Term, the Defendant cannot plead ancient demeſne the next Term, but muſt move the Court that the Plaintiff put in his declaration ſo late, and pray no advantage may be taken againſt him, and then the advantage ſhall be ſaved, Trin. 12. Jac. Ban. Regis. and he ſhall have liberty by rule of Court to plead ancient demeſne the next Term.

But he may plead this after view, becauſe by this he may confeſs if it be frank fee or not, 50 Edw. 3.9. pl. 20. Q.

Who ſhall have an Ejectione firmae.

Leſſee for years only ſhall have it,Poſſeſſion. Nat. br. 120. F. becauſe this action is only to recover the preſent poſſeſſion, and concerns not the Title, but ex obliquo, or collaterally.

And this only upon the poſſeſſion in deed; for he ſhall not have it upon a poſſeſſion in Law, 23 Hen. 8. br. quia ejecit, infra, &c. 5. For that is not an actual poſſeſſion, and ſo there is no preſent diſturbance.

Nor upon a Leaſe to commence in futuro, 37 Hen. 6.18. A. For the ſame reaſon, and it may be it may never come in eſse.

Note that Tenant for years needs not count that he entred,Note. but that a Leaſe was made to him, by virtue of which he has poſſeſſed, com. 503. B. Grendons caſe. For the Word Poſſeſſed ſuppoſeth an Entry, or at leaſt a taking of the Profits.

Tenant for years leaſes to B. at will, who is outed by a ſtranger, tenant for years ſhall not have an action, becauſe he had not the actual poſſeſſion, Paſch. 11 Jac. in the Exchequer inter Sir Richard Grebham & Stone. Q. if Tenant at will may for the feebleneſs of his eſtate; it ſeems he may.

Tenant for years.Tenant for years leaſes for one year, or a Leaſe is made for years, the remainder for years, a ſtranger enters, none ſhall have an ejectment but the Tenant in poſſeſſion, Crooke 130. pl. 99. for none elſe is diſturbed.

Leſſee ſhall have an ejectment after the term ended,Leſſee. and recover all in dammages, 21 Edw. 4.30. pl. 25. Brian. 7 Edw. 4.6. B. Fairfax: For other remedy he hath not to recover them.

Leſſee which may have a real Action, cannot have an ejectione firmae, Com. 419. B. Bracebridges caſe. For real Actions are to be preferred before poſſeſſory and perſonal, becauſe of a higher nature, and thereby juſtice is more ſpeedily done.

Husband and wife.Husband and Wife ought to to join, if it be in right of the Wife, 21 Edw. 4.10. pl. 1.30. pl. 25. 7 Edw. 4.6. B. Fairfax. Com. 418. B. Bracebridges caſe. For the Husband cannot declare of a Leaſe made to himſelf, though he be intereſſed in it by reaſon of the Marriage; and the Leaſe may come again to the Wife by his Death.

But if the term be ended, the Husband alone ſhall have it, becauſe nothing ſhall be recovered but dammages, 7 Edw. 4.6. B. Fairfax. Which do only concern the Husband.

Leſſee for one year of a Copy-holder ſhall have an ejection firm, Coke 4. part. 26, For he is a poſſeſſor for a term of years, becauſe the time is certain, and of leſs term certain than for years the Law takes no notice.

Leſſee of a Copy-hold for more years,Copy-hold. ſhall have an ejection firm, although that ſuch Leaſe be a forfeiture, for it is a good Leaſe againſt all but the Lord, Trin. 36 Eliz. Ban. Regis. Downings caſe; and it may be the Lord will take no advantage of it.

Executor of a Leſſee ſhall have it,Executors No. Lib. intra. 195. D. ſect. 6. becauſe the poſſeſſion is come to him, and he is damnified by the diſturbance.

Executor Plaintiff, Husband and Wife Coexecutors, Defendants, and the Count. Lib. intra. 252. B. ſect. 6.

Executor ſhall have an ejection firm in vita Teſtatoris, per the equity of the Statute, 4 Edw. 3. cap. 6. Coke 9. part. 78. B. Peytoes caſe. elſe he ſhould loſe the term.

Churchwardens ſhall have it of Land leaſed to them, 15 Hen. 7.8. in right of the Church,Church-wardens. for it is their poſſeſſion pro tempore. Q. If new be elected before the trial, what ſhall be done.

Tenant by Elegit. Tenant by Elegit ſhall not have an ejectione firmae, Crooke 109. pl. 29. For he hath no certain term; for the Owner may redeem the Land when he will.

Tenant in common.Tenant in Common ſhall have it againſt his Companion, Littleton. 73. A. For they have diſtinct intereſts in Law.

Father and Son having ſeveral inheritances in divers Lands, the Father levies a Fine of it all, the Son being beyond ſea at the time, dies, his Iſſue enters and leaſes it (being within Age) to A, without rendring any Rent, A. enters, the Conuſee of the Fine enters, and leaſes it to B, yet B. ſhall not have an ejectione firmae againſt A, if he be outed, without expreſs outing of A, becauſe as to the moyery the Plantiff had not title; for of that the Father might levie the Fine, and the Defendant had none, becauſe there was no Rent reſerved, and ſo had for the preſent nothing in the Land, Paſch. 32 Eliz. com. ban. Rot. 1017. Smye verſus June, and others.

Againſt whom Ejectment lies.

Husband and wife.It lies againſt Husband and Wife, Lib. intra. 253. C. ſect 11. Coke 9. part. 77. B. Petoyes caſe. Com. 187. Wortleyes caſe. Where the Husband outs one by colour of his Wifes Title.

It lies againſt a ſtranger that wrongfully outs one,Eſtranger. 6 Rich. 2. Ejection. firm. 2. 21 Edw. 4.30. pl. 25. Brian. Nat. br. 220. F. Coke 9. part. 80. A. 32 Hen. 6.32.27. S. to gain the poſſeſſion, and to recover dammages for the diſturbance.

It lies not againſt a Feoffee of a Leſſor,Feoffee. becauſe he cannot do wrong, Nat. br. 198. A. 21 Edw. 4.10. pl. 1. Choke. 21 Edw. 4.30. 32 Hen 6.32. pl. 27. 38 Edw. 3.33. pl. 44. For he comes in lawfully as to the reverſion.

Unleſs the Feoffee make a Deed preſently upon the outing, to paſs the poſſeſſion to another, then it lies againſt him, Nat. br. 198. A.

Or if he enter upon the Leſſee, afterwards that the Leſſee had entred upon him, to regain his poſſeſſion, Nat. br. 198. A.

Leſſor grants a Reverſion to A, the Leſſee attornes,Grantor. A outs him, the Leſſee ſhall have an ejectione firmae, Nat. br. 221. A. 1 Hen. 5.3. pl. 3. For by the Attornment only the Rent and the Reverſion paſſed, and not the poſſeſſion.

It lies againſt the Heir of the Leſſor,Heir. Nat. br. 198. K. if he out the Leſſee, in caſe his Anceſtor had power to leaſe.

It lies againſt the Leſſor that outs the Leſſee,Leſſor. Nat. br. 220. F. 21 Edw. 4.10. pl. 1. Choke 30. pl. 25. 38 Edw 3.33. pl. 44. Coke 9. part. 80. A. Nat. br. 198. K. without lawful cauſe, and he ſhall make title by the Leſſor.

Leſſor ſuffers a Recovery,Recoverer the Recoverer outs the Leſſee, he ſhall have an Ejectione firmae againſt the Recoverer by the equity of the Statute, 21 Hen. 8. cap. 15. Nat. br. 220. J. 198. E. For the Recovery ſhall not deſtroy the Leaſe, except the Leſſee be party to it.

It lies againſt the Lord per Eſcheat,Lord. which outs one, Nat. br. 221. I. B. 198. K. For the Leſſees Title was para •• ount the Lords.

It lies againſt the Lord of a Villain which enters upon the Termor, Nat. br. 221. C. 198. K. that had a Leaſe of the Land before the Villain purchaſed it.

Tenant in common.It lies againſt Tenant in common per his companion, Littleton 73. A. vid. antea.

Of what things an Ejectmont lies.

It lies upon a Leaſe for Cattel,Cattel. becauſe it is a perſonal thing, 1 Hen. 6.1. Cotteſmore. granted for a certain time.

It lies of a Wood leaſed for years,Wood. Com. 223. B. Barkleyes caſe, the count there.

It lies of a Chamber,Chamber. Mich. 30. Eliz. Ban. Regis. Brand againſt Cage.

It lies of Tithes,Tithes. per 32 Hen. 8. cap. 7.2, 3 Mariae, Dyer. 116 pl. 17. the count ought to ſhew the nature or quality of the Tithes, Coke 11. part. 24. B. Harpers caſe. vid. antea.

It lies of a Garden,Gardon, &c. Barn and Tithes, 9 Eliz. Dyer. 258. pl. 16. together, for they are all perſonal things.

But if all the Tithing conſiſts of a modus decimandi, and a Leaſe be made thereof, an ejectione firmae lies not, Coke 11. part. 25. B. Harpers caſe. For there is no poſſeſſion of any thing lett but things which lie in prender.

It lies of a Water-courſe,Watercourſe. Com. 288. B. Brown. Regiſt. orig. 227. B. viz. of the ſoil where the water runs, or for the water to paſs through.

It lies of a Hundred,Hundred. becauſe it is liberum tenementum, 15 Hen. 7.8. pl. 1. and ſo it may be lett for years.

It lies of a Mannor,Mannor. and the Writ Regiſt. orig. 227. B. Nat. br. 220. G. Com. 229. A. Barkleyes caſe. which conſiſts in demeſnes and ſervices. Q. of a reputative Mannor.

The Count. Lib. intra. 252. A. ſect. 4.

Count of a Demiſe of 300 Acres by the name of a Mannor: habendum Manerium cum, &c. and good, 13 & 14 Eliz. Dyer. 340. pl. 5.7. for this is a good deſcription of the thing lett.

It lies of a Meſſuage,Meſſuage. Coke 11. part. 55. A. Sauls caſe. For that is a thing certain.

The Count No. Lib. intra. 184. A. ſect. 1.3.197. C. ſect. Lib. intra. 252. B. ſect. 5.6. Coke 1. part. A. Pelhams caſe.

It lies of a Houſe, Goods and Chattels altogether.

The Count lib. intra. 252. B. ſect. 7. For they are all perſonal things.

It lies de medietate Meſſuagii, Lib. intra. 256. D. ſect. 14. The Count, Com. 459. B. Studs caſe. For it is certain enough what it doth mean..

It lies de tribus partibus duorum Meſſuagiorum, No. Lib. intra. 195. D. ſect. 6.

It is not formal to have it of a Chappel,Chappel. but it ſhall be called a Houſe, Coke 11. part. 25. B. Harpers caſe. For the Plaint in Aſſize ſhall not be of • o Hoſpital, but ſhall ſay Meſſuage, 8. Aſſize 29. For the Law takes no notice of Leaſes of ſuch things, not what is meant by them as to lay uſe.

It lies of a Mill,Mill. No. Lib. intra. 192. A. ſect. 5. But it ſeems he muſt ſhew what kind of Mill it is.

It lies of 300 Acres of Paſture,Paſture. the Count Lib. intra. 251. D. ſect. 2.

It lies of a Leaſe of paſturing of an Oxe,Oxe. Com. 228 B. Brown. Regiſt. 227. B.

It lies of 100 Acres of Meadow,Medow. Lib. Intra. 252. A. ſect. 13.

It lies of a Rectory,Rectory. 15 Hen. 8. pl. 1. 16 Hen. 7.8. pl. 6.13 & 14 Eliz. Dyer. 304. pl. 25. The Count Lib. intra. 253. A. ſect. 9, 10. For it ſeems that is certainly known. Q.

It lies not of a Reverſion.Reverſion. Com. 159. B. Thracies Caſe per Dyer. For of that there can be no poſſeſſion recovered.

It lies of 100 Acres of Land:Land. The Count Lib. intra. 251. C. ſect. 1. For it ſhall be intended arable Land; terra dicitur à terendo, becauſe broken up by the Plough.

But it lies not of a Cloſe containing three Acres, but ſhall be of ſo many of the Acres by name. Coke. 11. part. 55. Savels Caſe. to wit, 3 Acres called Crowlands, or the like; for the word Cloſe is uncertain.

For by Crooke Juſtice, Mich. 15 Jac. Wicks & Sparrow, the Land of every man is encloſed, and therefore an Ejectione firmae cannot lie of it for the uncertainty of the word Cloſe.

But Coke 11 part. 55. Savels Caſe was, it ſeems, that if it be of a Cloſe containing three acres of Paſture, it is good; becauſe the quantity is ſhewed, and alſo the quality which makes it more certain, and ſo it was adjudged, Mich. 15. Jac. Banc. Regis. Q. 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 & ad • 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 Leſſ • 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 ••• 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 al •• ys ſuppoſeth breach of the publick Peace.

But Hill. 36 Eliz. Ban. Regis, Rott. 610. Griffin ••• ſus Eliot & Wilkins in Error, that it may be without Vi & armis, 7 Hen. 6.4. 17 Edw. 3.1. It ••• ms it was ſo held, becauſe the Defendant might ••• er by colour of title to the Land.

Fuit ad terminum qui nondum praeteriit, 2 & Marie, Dyer 116. pl. 71. but theres 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 •• e Defendant terminum ſuum praedictum venturum 〈◊〉 in, &c. ac dampua ſua occaſione &c. & quod ••• end. capiatur, this ſuppoſeth a Vi & armis, 〈◊〉 • liz. Dyer 258. pl. 16. 7 Edw. 6. Dyer 89. pl. 109. 〈◊〉 420. A. Bracebridges caſe, 5 • 5 Snowes caſe. 〈◊〉 Intra. 253. A. ſect 8.256. C. ſect. 13.259. C. 〈◊〉 15. No. Lib. Intr. 188. A. pl. 7. • 03. A. Sect. 8. 〈◊〉 D. Sect. 11.216. B. Sect. 13. Com. 526. A. ••• nthams caſe.

But note, this is when the term is not ended,Note. 〈◊〉 9. part. 80. A. Peytoes caſe, 4. part. 104. Lam •• 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 be recovered, but only dam ••• 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 ••• mages, 7 Edw. 4.6. Fairfax, No. Lib. Intra. •• 5. D. Sect. 9. Vid. antea.

Judgment upon demurrer; Firſt for the Plain ••• , 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 • ther Evidence delivered to the Jury. No. Lib. •• 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. qui • 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, Bract •• , 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. Ʋtile, 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 • 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 co • rcionem non haberet, quia Epiſcopus ad alterius mandatum quàm 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. 501. A. and ſhew how he is to preſent.

If Lapſe accrue to the Metropolitan, he may put his Clerk in without the Ordinary of the place, Doct. & Stud. 125. B. becauſe he is ſupream Ordinary. Yet quaere in that caſe, whether he ſhall do it without the King, who is caput Excleſiae.

The Ordinary is deprived after Lapſe accrues, quaere who ſhall have it, 7 Edw. 6. Dyer 87. pl. 203. it ſeems the King, or it may be the Metropolitan, yet be an inferiour Ordinary.

In quo caſu Ordinarius loci providebit Eccleſie viduitati, Bracton, Lib. 2.34. fol. 76. B.

But Bracion ſays, Lib. 3. that Lapſe was but by the Council of Lateran, and before that the Patron might preſent at any time Eccleſia vacante.

If it be ſound for one Patron in a jure Patronatus, and the Preſenter prays not to be admitted, the Ordinary ſhall preſent by Lapſe, 34 Hen. 6.12. pl. 22. for the Ordinary is to take care to have the Church provided in convenient time.

Although a Ne admittas be ſued, yet the Ordinary of the place ſhall preſent by Lapſe, Nat. br. 48. L. for he only looks upon the vacancy of the Church.

Lapſe is, when the Patron doth not preſent in ſix Months, then the Ordinary preſents by Lapſe, Doct. & Stud. 124. B. by the Council of Lateran; by Bracton.

Although the Patron be an Infant or Feme covert, Nat. br. 34. T. 3 Edw 3. Quare Impedit 41. for the Law takes care of the infancy of the Church above all other infancy, in reſpect of the Cure of Souls.

But this rule of Lapſe admits divers exceptions, Scil.

1. So long as the Church is void the Patron may preſent, Doct. & Stud. 126. A. for the Title by Lapſe is not a Chattel veſted in the Ordinary, though after ſix months, if the Ordinary have not preſented.

2. It ſhall not be a Lapſe of a Chappel Donative or Chantry, unleſs the Patron make it preſentative, and then it ſhall, for then the nature is altered, Nat. br. 35 E. 6 Hen. 7. br. Preſentment 43. Paſch. 3 Jac. Ban. Regis, Fairefield verſus Gaire, or be ſo expreſſed in the foundation, 13 Edw. 4.3.

3. An Advowſon approprlate ſhall not be Lapſed, Nat. br. 35 F. for there the Church ſhall be intended to be otherwiſe provided for, and not by preſentation.

4. If the Ordinary be named a Diſturber in the Quare Impedit, 5 Edw 3.2. B. 22 Hen. 6.28. And at this day he is named in the Writ to prevent the Lapſe, 39 Edw. 3.15. pl. 4. Statham.

For otherways the Lapſe incurrs, 5 Edw. 4.115. for then he can take no notice of the Suit; but it ſeems that the Ordinary cannot collate him that was the Incumbent, and made Defendant in the ſuit; for this would be to prevent the trial of the Right.

5. In many caſes Lapſe ſhall not incurr without notice, viz. where the Patron cannot take notice of the Avoidance of the Church. As,

In what caſe Lapſe cannot incurr without notice.1. Upon a Reſignation, Nat. br. 35. H. 1 Hen. 7 9. 5 Edw. 4.116. A. for this is a private act.

If the Ordinary dies his Succeſſor ought to give notice, Crooke 18 Hen. 7.41. pl. 2. Quaere of what; it ſeems of the Churches being void.

2. Upon privation, Nat. br. 35. H. 1 Hen. 7.9. 5 Edw. 4.118. A. for this is alſo a private act, which the Patron is not bound to take notice of without notice.

Although the Incumbent be meerly Laicus, 13 Eliz. Dyer 293. pl. 3. Q.

And although the party be party to the Suit, Coke 6. part. 29. Greens caſe, 22 Eliz. Dyer 369. pl. 54.

And although the Title of Lapſe be devolved to the King, per Lapſum temporis, 18 Eliz. Dyer 348. pl. 12. 22 Eliz. Dyer 369. pl. 54.

3. If it be Litigious, 34 Hen. 6.40. B. Priſot. Lib. Intra. 511. D. whether the Church be void or not.

4. If the Church be void by any clauſe of the Statute, 13 Eliz. cap. 12. for ſuch Statute it ſeems is not a general Law. Quaere tamen, for it ſeems Patrons ought to take notice of it.

5. Where he ſhall loſe his Benefice, per 2 Edw. 6. cap. 20. for refuſing to pay Tithes, 12 Eliz. Dyer 294. pl. 3. for of ſuch a miſdemeanour the Patron is not bound to take notice, for it ſhall not be preſumed the Incumbent will commit ſuch an offence.

6. If one have a Benefice within 8 l. per ann. and takes another, and be Inducted, Coke 4. part. 79. and ſo forfeit the former.

7. If the former be of 8 l. without Induction, no Lapſe without notice, Coke 4. part. 79. B. Digbies caſe.

But after Induction no notice is requiſite, Coke 4. part. 75. 7 Eliz. Dyer 237. pl. 29. 8 Eliz. Dyer 255. pl. 5. for that is a notorious act, whereof the Patron may take notice.

And the value of the Living ſhall be according to the true value, and not according to the Book of Tithes and Firſt-Fruits, 7 Eliz. Dyer 237. pl. 29. which is at an undervalue.

8. Upon refuſal of a Clerk to be admitted, Nat. br. 35. I. 15 Eliz. Dyer 327. pl. 7. for of this the Patron cannot take notice, nor ſhall he preſume it.

But Crooke 18. Hen. 7.49. pl. 2. per Frowick, if it be a Spiritual Patron, then it is not requiſite to give notice, becauſe he is preſumed better knowing in ſuch matters than a Lay-Patron.

So for Avoidance per Creation of the Incumbent to be a Biſhop, Ceſſion, or Death, Doct. & Stud. 116. B. 5 Edw. 4.115. Quaere of Death.

After privation the Patron grants the Advowſon to A, the Ordinary collates A; he cannot be removed, for notice ought not to be given him, for it was void to all but the Grantor; for the Ordinary is not bound to take notice of the Grant to A, becauſe it is a private act, Mich. 42 & 43 Eliz. Com. Ban. Rot. 3579. Leake againſt the Biſhop of Coventry.

Notice is to be given as to the Lapſe only, for as to the preſentation, the Patron may be put out of the poſſeſſion of the preſentation for ſome other cauſe, although no notice is given him, Paſch. 39 Eliz. Com. Ban. Scriven verſus Epiſcopum Lincoln.

A Parſon ſhall have a Quare Impedit for the Vicarage,Parſon. for of common right it belongs unto him to preſent, Nat. br. 33. Ʋ.

For if the Vicarage be void, and the Parſon be made a Biſhop, yet he ſhall preſent, for it was a Chattel veſted in him whilſt he was Parſon, Nat. br. 34. N. 24 Edw. 3.26. Q.

A Parſon Imparſonee or Incumbent, ſhall have a Quare Impedit, 17 Edw. 3.51. pl. 25. for the Vicarage.

For a Prebendary,Prebendary. although the Prebend reſign after uſurpation upon him, 26 Edw. 3.3. Q.

Dean and Chapter.The Chapter brought a Quare Impedit againſt the Dean, and good; for their poſſeſſions are ſeveral, though they be one body Politick, 9 Edw. 3.134. & fol. 354. pl. 33. 17 Edw. 3.64. 40 Edw. 3.28. B. Finchden, 7 Edw. 3. Quare Impedit 72. Lab. Intra. 500. A.

An Hoſpital which hath no Spiritual poſſeſſions,Aggregate nether are a Colledge, nor have a Seal, yet the Maſter ſhall have a Quare Impedit.

Corporation mixt.For a Corporation mixt, as in caſe of the King, 1. In right of the Crown, Nat. br. 32. E. the Writ.

2. By reaſon of Lapſe incurred, for this makes him Supream Patron, Doct. & Stud. 124. B. Com. 498. 18 Edw. 3.19.

Therefore after Lapſe accured to the King, the Patron cannot preſent, Doct. & Stud. 126. A. 10 Eliz. Dyer 277. pl. 55. for the Kings Title ſhall be preſerved and preferred above all other Titles.

Nor the Ordinary collate after Lapſe is accrued to the King, 17 Eliz. Dyer. 339 pl. 47. for the ſame reaſon.

In his own right.But in caſe, where notice is requiſite, the King cannot preſent without notice, 18 Eliz. Dyer 348. pl. 12. 22 Eliz. Dyer 369. pl. 54. for the King ſhall not take advantage againſt one, where there was no negligence in the party.

If the Dean of the Chappel Royal preſents not within ſix months, the King ſhall preſent, Nat. br. 34. F. 27 Edw. 3.84. Chappel-Royal is the Kings Chappel, or of his foundation, and he is inſtead of the Ordinary.

A Parſon created is a Biſhop,Creation. the King ſhall preſent, 21 Edw. 3.31. pl. 14. & fol. 41. 11 Hen. 4.37. vide 6 Eliz. Dyer 228. for the Patron could not have preſented till the death of the Parſon, and ſo here is but putting in one perſon for another, and ſo he hath no injury.

Ratione temporalium.21 Edw. 3.5. pl. 13. the Writ was, quia pertinet ad Regem praeſentare ratione. Epiſcopatus nuper vacantis, and good, when a Living fell, which belonged to a Biſhoprick, ſede vacante.

The Count, Lib. Intra. 530. C. ſect. 15.

And the King needs not ſay in the Count, for that the Temporalties were ſeized, 42 Edw. 3.7. pl. 27. for that ſhall be ſuppoſed; for by the death of the Biſhop the Temporalties are immediately in the Kings hands.

If a Church be void during the time that the Temporalties are in the hands of the King, although he makes reſtitution of the Temporalties, yet the King ſhall preſent, Nat. br. 33. N. Stanford 44 Edw. 3.17. pl. 8. 18 Edw. 3.22. pl. 39. for it was veſted in the King by the vacancy, whilſt the Temporalties were in his hand.

If the Church become void, and the Biſhop dies, the King ſhall have it, and not the Executors, Nat. br. 33. Q. 9 Edw. 3.2. Quare Impedit 11. becauſe the King is now Patron, and finds the Church empty.

And although the Biſhop collate, Nat. br. 34. K. 11 Hen. 4 9. A. 24 Edw. 3.30. 44 Edw. 3.3. for that makes not the party collated to be Incumbent, but his Induction.

But if he die after Induction, although it be the ſame day, the King ſhall not have it, 44 Edw, 3.3. for then the Church was full.

If a Lapſe accrues to the Biſhop, who dies, the King ſhall preſent, 25 Edw. 3.53. pl. 20. for he is in place of the Biſhop.

It a Lapſe accrues after the death of the Biſhop, the King ſhall preſent, Nat. br. 34. G. in reſpect of the Temporalties in his hands.

So if he have judgment to have the Temporalties,Outlawry. 21 Edw. 3.29. for that is all one as if he were in poſſeſſion of them.

By Outlawry, of, the Patron in a perſonal Action, the King ſhall preſent, Nat. br. 34. R. 8 Rich. 2. Quare Impedit 200. 21 Hen. 6.56. if the Church become void during the Outlawry. Quaere, if afterwards the Outlawry, be reverſed before the King preſents.

A enfeoffs. B of a Mannor, to which, &c. and before was outlawed, and preſents per permiſſion of B, the King ſhall preſent, becauſe the preſentation is a Chattel, 5 Hen. 5. pl. 4. and was forfeited to the King by the Outlawry.

For Simony, upon 31 Eliz. cap. 6.

The Pleadings, No. Lib. Intr. 405. C. ſect. 516. B. 531. D.

Note per 25 Edw. 3. cap. 1. the King ſhall not preſent in anothers right,Note. but for the Avoidance in his own time, 11 Hen. 4.7. pl. 16. which is in his own right.

Note, if the King preſents one that dies before Induction, the King ſhall preſent again, for he had not a compleat preſentation before, Coke 9. part. Holts caſe, vide Regiſt. orig. 31. B. for his Clerk was never in.

But if the King have title hac vice, and another preſents A, which dies, the King hath loſt his turn, Coke 7. part. 28. Baskerviles caſe, No. Lib. Intra. 489. A. for he was to have but this numerical preſentation, and is not like the having of the next preſentation.

Yet if one qualified to have two Benefices takes another incompatible, the firſt is void by two years; the Patron preſents where the King ought to have preſented, and after Induction his Clerk refuſes to pay his Tenths, and this is certified according to the Statute of 26 H. 8. the Biſhop being Patron collates, the King ſhall preſent notwithſtanding, for this refuſal is as it were a Reſignation to the Biſhop, which ſhall be intended a Colluſion betwixt him and the Biſhop, to take away the Title of the King, Mich. 29 & 30 Eliz: Com. Ban. Rot. 22 99. the King againſt the Biſhop of Lincoln.

12 Eliz. Dyer 292. pl. 70. 25 Edw. 47. the King preſents to a Prebendary ratione temporalium, and revokes it before the Inſtallment of the Prebend; and yet he is Inducted, and the King confirms it, and after he is made a Biſhop, the Prebend dies, the King ſhall preſent again, and not the Biſhop, for the confirmation of the King was void, becauſe the Prebend was not in ex praeſentatione Regis, for that was revoked before the Confirmation.

Nat. br. 38. D. the King recovers a Prebendary, and gives it by Letters Patents to A, who dies, the King gives it to B, he ſhall have Writ to the Juſtices to make execution for him, viz. of th •• Court where the Prebendary was recovered.

Diſſeiſee ſhall have a Quare Impedit before his entry into the Mannor,Diſſeiſee. to which the Advowſon belongs, 21 Hen. 6.9. B. 19 Hen. 6.33. 33 Hen. 6.33. B. Nat. br. 33. Q. 24 Hen. 8. Dyer 5. pl. 6. Crooke 6 Hen. 8.169. A. Pollard; for the Advowſon was not diveſted by the diſſeiſin.

Diſſeiſor preſents, Diſſeiſee enters into the Mannor to which, &c. and preſents, he ſhall have a Quare Impedit, if it be within ſix months, 14 Hen. 6.24. Fulthorp; for by his entry he hath regained the Mannor, and avoided the Diſſeiſors preſentation.

Add if the Diſſeiſor preſents, and the Diſſeiſee enters into the Mannor, to which, &c. and enfeoffs B thereof, with the Advowſon, the Church voids, B ſhall have a Quare Impedit; for by the entry of the Diſſeiſee he was in the poſſeſſion of the Advowſon, 3 Hen. 4 7. pl. 33. 14 Hen. 6.16. pl. 52. and ſo it paſſed with the Mannor by the Feoffment.

But 33 Hen. 6.33. Priſot to the contrary; for there it is ſaid, that until Recovery the Diſſeiſee ſhall not have the Advowſon. Q.

Diſſeiſor dies ſeized of a Mannor to which the Advowſon belongs, the Diſſeiſee ſhall not have a Quare Impedit, 24 Hen. 8. Dyer 5. pl. 6. 33 Hen. 6.33. B. vide 19 Hen. 6.33. in reſpect of the deſcent, which takes away his entry into the Mannor, and ſo he muſt recover the Mannor before he can have the Advowſon.

But if it void in the time of the Diſſeiſor, the Diſſeiſee ſhall have it, although the Diſſeiſor died ſeized afterwards of the Mannor, to which, &c. 24 Hen. 8. Dyer 5. pl. 6. for there was no deſcent barr when the Church became void, and ſo it was a Chattel veſted.

A Diſſeiſor ſuffers a Uſurpation, Diſſeiſee enters into the Mannor, Diſſeiſee ſhall have a Quare Impedit, Nat. br. 36. F. 14 Hen. 6.14. 3 Hen. 4.7. for the uſurpation is defeated by the entry of the Diſſeiſee.

Executor of the King ſhall not have a Quare Impedit, Executor. but the Succeſſor of the King, for this is a Chattel Royal, 7 Hen. 4.25. pl. 3. 1 Edw. 3.17. pl. 8. 5 Edw. 3.149. pl. 15. which ſhall not go to an Executor, for it is veſted in the Crown.

Executor of a Common perſon ſhall have a preſentment to a Church, which was void in the time of the Teſtator, although the Teſtator were but Tenant in tail, Nat. br. 33. P, & Ʋ. becauſe it was a Chattel veſted in the Teſtator.

Although the Heir be in ward to the King, Nat br. 33. R. for the King in reſpect of the Wardſhip ſhall not be in a better condition, than the Heir ſhould have been, if he had been at full age at the death of his Anceſtor.

If one recover in a Quare Impedit and die, the Heir ſhall not have execution, but the Executors, 9 Hen. 6.57. A. Rolfe; for the recovery made it a Chattel veſted in the Teſtator.

At the Common Law the Infant was bound by ſuffering an Uſurpation,Enfant. 35 Hen. 6.6. that is, to ſuffer one to preſent in his ſtead, 31 Edw. 3. Quare Impedit 186. 10 Edw. 2. Quare Impedit 43. for the Common Law reſpects the Churches good, before Infants, Widows, or Orphans, although it be tender of all.

But at this day he is not, per Weſtm. 2. cap. 5. The Law before ſeemed too hard againſt Infants, who may be preſumed not conuſant of the Law, and ignorant of his title.

Unleſs he be a Purchaſer, 10 Edw. 2. Qu. Imped. 43. 35 Hen. 6.60. Nat. br. 31, & 34. It ſeems he is not within the Statute: He may, if a Purchaſer, be preſumed not ſo well conuſant of his title as if he had it by deſcent.

Or that the party that uſurps be remitted to an eigne title, Nat. br. 35. M. for then the preſentation did not belong to the Infant.

If he ſuffer Uſurpation, having it by deſcent, he is bound till full age, 16 Edw. 3.9. Quare Impedit 62. for he ſhall be judged better conuſant of ſuch eſtate than of a purchaſed eſtate; and he might have preſented himſelf.

And if in his minority he ſuffer Uſurpation, and at full age enfeoff B of the Mannor, to which, &c. yet B ſhall not be in, Nat. br. 34. X. becauſe it was out of the Feoffor at the time of the Feoffment, and ſo it paſſeth not.

But by 16 Edw. 3. Quare Impedit 67. Coke 6. part. Boſwels caſe, the Infant is alſo bound in all theſe caſes. Q.

Feme Covert.The Uſurpation at the Common Law ſhall bind a Woman Covert, 35 Hen. 6.6. Priſot, 31 Edw. 3. Quare Impedit 180. 10 Edw. 2. Quare Imped. 43. vid. antea.

The husband ſuffers an Uſurpation, where the Woman is the purchaſer, ſhe ſhall not have a Quare Impedit, but the husband; but if ſhe had it by deſcent, ſhe ſhall have the next turn, per Weſtm. 2. cap. 5. Nat. br. 34 S. to preſent.

The husband diſcontinues one Acre of his wives Mannor, to which an Advowſon is appendant with the Advowſon, the wife may not preſent, unleſs after the Alience ſever the Advowſon from the Acre, Nat. br. 32. 17 Edw. 3.5. pl. 12. for then the Advowſon is not appendant to any thing.

Feoffee or Grantee, 1. of the King; 2. of another.The King grants the Advowſon in Fee, the Church being void, the Grantee preſents, Nat. br. 33. N. for the grant ſhall be taken moſt beneficially for the Grantee.

But this is intended when the King hath but one Title to the Advowſon, 10 Eliz. Dyer 269. pl. 19. 9 Edw. 3.26. Stamford. Praerogat. 44. 16 Hen. 7.7. 18 Edw. 3.22. A. Pole. for if he have two, the Grant ſhall not be taken to two intents.

For if he had two Titles the Grantee ſhall not preſent, 13 Eliz. Dyer 300. pl. 36. 18 Eliz. Dyer 300. pl. 36 Eliz. Dyer 348. pl. 12. for it is incertain which Title was granted, nor can be known with what Title he preſents.

But 9 Edw. 3.348. pl. 24. the orders of the Templers were diſſolved, the Church belonging to them to preſent to voids, and after the Advowſons, &c. appendant to their mannors, were given to the Hoſpitallers per Parliament; the King ſhall not have the preſentation, for here the King had but one Title, and alſo acts of grace ſhall be conſtrued largely againſt the King.

A Common perſon grants the Advowſon in Fee when the Church was void, the Grantee ſhall not have the preſentation, becauſe it is a thing in action, 11 Hen. 4.54. which lies not in grant, but may paſs by Act of Parliament.

So of a Feoffment of Land, to which an Advowſon is appendant, 24 Eliz. Staffords caſe, the Church being void at the time of making of the Feoffment.

But if the Feoffment be upon condition, and the Church becomes void, and afterwards the Feoffor enters for the Condition broken, the Feoffee ſhall preſent, becauſe it is a Chattel veſted in him, 24 Edw. 3. before the entry of the Feoffor.

If there be a Feoffment of the third part of a Mannor, the Feoffee ſhall not have the third preſentment, 6 Edw. 3.215. A. for the Advowſon is not appendant to it, for it cannot be appendant by parcels.

Unleſs it be with three preſentments, 9 Edw. 3.341. pl. 31. viz. where three preſent to the Advowſon by turn. Q.

Grantee of the next Avoidance ſhall have a Quare Impedit, 39 Hen. 6. Quare Imp. 95. for he hath a good Title to preſent hac vice.

The Count, Lib. Intra. 520. D.

And if the Grantee of a Mannor to which an Advowſon is appendant, levies a Fine of the Advowſon, yet this puts him not out of poſſeſſion of the Advowſon, 19 Edw. 3. Quare Imped. 154. becauſe it puts him not out of poſſeſſion of the Mannor to which it appertains.

Grantee by Parliament ſuffers a uſurpation; this doth not put him out of poſſeſſion, 16 Hen. 7.8. Keble, becauſe he is in by Title of ſo high a nature, which ſhall not be intercepted by an ordinary act of the party.

Grantor by Fine uſurps; this ſhall not trouble the Grantee, 31 Edw. 1. Quare Impedit 187. for a Fine is of a high nature, and barrs the Conuſor of all right.

Tenant in tail for life, or years, grants their Eſtate in an Advowſon, the Church voids, the Grantee ſhall preſent, becauſe it is a Chattel veſted, 9 Edw 3.366. pl. 4. in the Grantee during the eſtate tail, and for life.

If the Daughter ſuffers a Uſurpation,Daughter. the So • afterwards born ſhall not have a Quare Impedit 11 Edw. 3. Quare Impedit 138. for he was not 〈◊〉 rerum natura at the time of the uſurpation, and 〈◊〉 had no right.

A Founder of a Church ſhall have a Quare Impedit of common right,Founder. for he is preſumed Patron, and becauſe he enters upon the diſſolution 12 Edw. 4.30. A. Catesby. Q.

One of them,Joynttenants. viz. Joyntenants, ſhall not have a Quare Impedit againſt the other, Nat. br. 34. Ʋ. 14 Eliz. Dyer 304. pl. 54. 33 Hen. 6.11. B. in reſpect of their undivided and undiſtinguiſhable intereſt.

Nor againſt a Stranger; but they muſt joyn, or elſe the Diſturber might be twice ſued for one diſturbance.

But where one pleads Joyntenancy of part of the Advowſon, the Plaintiff ought to entitle himſelf to the whole Advowſon, or ſhew that he is Incumbent of all, 31 Hen. 6.51. B.

Joyntenancy of part is no Plea, 14 Hen. 6.14. 14 Hen. 4. Joyntenants 32. for it cannot be; for Joyntenants are ſeiſed per my & per tout.

Joyntenant preſents ſole; this ſhall not put his Companion out of poſſeſſion, 27 Hen. 8.13. for it ſhall be intended, he intended it not but to preſent ſo, as the Law requires.

But 11 Hen. 4.44. Hanford e contra. Ergo quaere.

If they make compoſition, and preſent accordingly, yet afterwards, if one be diſturbed, he ſhall not have an Action without his Companion, 20 Edw. 3.72. for that compoſition concerns not Strangers, but is only a private act betwixt themſelves.

Nominator to a Living.Nominator to a Living ſhall have a Quare Impedit againſt him that preſents, Nat. br. 33. A. becauſe by the Nomination he had the fruit of the Advowſon, 14 Hen. 4.11. pl. 9. 14 Edw. 4.2. pl. 2. 32 Hen. 8. Dyer 48. pl. 16. 22 Edw. 3.77. pl. 103. 24 Edw. 3.69. pl. 78. And the Writ ſhall be general, Nat. br. 33. A. 24 Edw. 3.69. pl. 78. as in caſe of Patronage.

For if it be [Nominare] this ſhall abate the Writ, 14 Hen. 4.11. 21 Hen. 6.17. A. for the Law takes no notice of ſuch a term; but the Count ſhall be ſpecial, Nat. br. 33. A. and ſet forth the whole matter how he is enabled.

For in 14 Hen. 4.11. per Hill. Nominator is in a manner the very Patron, and ſo taken notice of in Law as ſuch, 24 Edw. 3.69.

A grants to B that he ſhall have the next Nomination to the Church of D when it is void, and that he ſhall preſent his Clerk to the Biſhop, if the Grantee be diſturbed, he ſhall have a Quare Impedit, for he is the Patron hac vice by the words of the Grant, Crooke 2 Hen. 8.161. pl. 1. per Read.

The eldeſt Parcener ſhall have the firſt preſentment,Parceners. Nat. br. 33. L. 38 Hen. 6.9. pl. 19. Doct. & Stud. 115. B. Nat. br. 34. Ʋ. Crooke 12 Hen. 7.1. A. and ſo in order by turns, if there be more than two.

So the Husband of the eldeſt being Tenant by Courteſie, Nat. br. 33. L. 5 Hen. 5.10. pl. 24. for he is in upon his wifes right and title, originally.

So he that hath the eſtate of the eldeſt, for his intereſt paſſeth with the eſtate, Nat. br. 34. Ʋ. but Crooke 18 Hen. 7.49. pl. 5. by Frowicke, if he grant this when the Church is void before any preſentment by him; the Grantee ſhall not have the firſt preſentment, becauſe he is a ſtranger in blood, and the Feoffee cannot claim that priviledge in Law.

Where a Parcener grants his Eſtate to B (the Church being void) yet the Parceners ought to joyn in a Quare Impedit, 11 Hen. 5.54. in reſpect of their joynt right and title at the time of the Grant.

The pleading of a Partition between Parceners, No. Lib. Intra. 468. B, & C.

If they make partition to preſent by turn, and the youngeſt dies, his Heir in ward to the King, he, viz. the King, ſhall preſent during the Nonage, 21 Edw. 3.32. pl. 14. 22 Edw. 4. for his wardſhip ſhall not make him loſe his right to preſent.

Parceners agree to preſent by turn, this is a good partition as to the poſſeſſion, 20 Edw. 3. Quore Imp. 63, 65. viz. of the Advowſon.

But Nat. br. 33 L. è contra, becauſe the Inheritance is not. Quaere ergo.

Doct. & Stud. 11. the King ſhall have the firſt preſentment, the eldeſt the ſecond. Quaere in what caſe.

But 38 Hen. 6.9. pl. 19. the Iſſue of the eldeſt Coparcener was in ward to the King, there three others by their pleading ſhew a partition of the Mannor in Carvel, except the Advowſon, and ſue to the King to preſent, after the fourth ſues for the Advowſon; the Iſſue of the eldeſt ſhall preſent, becauſe the preſentment of the King was in right of them all, and not in right of the turn of the Iſſue.

Upon compoſition to preſent by turn, if it be inrolled in a Court of Record, they ſhall have a Scire facias one againſt the other, when their turn comes to preſent, Nat. br. 34. H. 21 Edw. 4.6. pl. 36. B.

So againſt a Stranger that uſurps in their turns, if the partition be of Record only, the Law takes no notice of it, Nat. br. 36. C. but they may joyn in a Quare Impedit againſt a Stranger, for the Law takes notice of their joynt title, and alſo preſent in common; but by this the compoſition is waved, Nat. br. 36. D. for it ſhews, they rely not upon the compoſition, but hold there to that way of preſentation that the Law gives them.

The ſurprize of one Parcener ſhall not put the other out of poſſeſſion, when his turn comes again, for he gains no title by it, Nat. br. 34. J. 6 Edw. 3.210. pl. 13. 7 Edw. 3.239. pl. 27.17 Edw. 3.38. pl. 10. 30 Edw. 3.15. pl. 15.

Although that it be made by the King in right of one Parcener, being in ward to the King, 22 Edw. 4.8. for the ſame reaſon.

My Procurator preſents as to his own Advowſon,Procurator. as Procurator to me, by this I ſhall have again the poſſeſſion, and out him, Nat. br. 35. O. 17 Edw. 3.60. pl 60. for by preſenting as my Procurator he acknowledgeth my right.

Recoverer in right of an Advowſon ſuffers an uſurpation,Recoveter. he ſhall not have a Quaere Impedit, 45 Edw. 3. Quare Imped. 139. becauſe he was not in actual poſſeſſion of it by the Recovery, and ſo hath 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. Ʋ. 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 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 forejudging 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 in the Donor or Donee, Leſſor or Leſſee, it is not double, becauſe the Preſentment of the Leſſor or Donor is only traverſable,Preſentation in him, by which he claims. and not of the Leſſee or Donee, Coke 5. part. 99. A. Northumberlands caſe.

For the Leſſee ought regularly to alleadge it in the Leſſor, Coke 5. part. 98. A.

Yet, if he alleadge Preſentation by himſelf it is good, 8 Hen. 25.4.

But in the Judgment of the Law this is the Preſentation of the Leſſor, Coke 5. part. 89. and ſo taken notice of what ever he alleadge.

A Purchaſer may alleadge it in him whoſe Eſtate he hath, becauſe he derives from him, 13 Hen. 8.12. pl. 2. 2 Edw. 3. pl. 29.1. 6 Edw. 3.204. pl. 7. Nat. br. 33. H.

He that brings a Quare Impedit ought to ſhew, ſpecially how the Church becomes void, 5 Edw. 4.72. B. for the Iucumbent may be removed out of poſſeſſion by Spoliation, Diſſeiſin, or be outed otherways, yet then the Church is full in the eye of the Law.

The Proceſs in a Quare Impedit, 1. Before appearance; 2. After.

Vide Lib. Intra. 52. B. Sect. 1, 2, 3, 4, 5, 6, 7, 8. At the Common Law it was but a Diſtreſs infinite, 11 Hen. 6.3. Martin.

But per le Stat. Marlebridge, cap. 12. if he appears not at the Grand Diſtreſs, a Writ ſhall iſſue to the Biſhop, 24 Edw. 3.37. 5 Edw. 4.115. 7 Eliz. Dyer 241. pl. 48. 7 Eliz. Dyer 241. pl. 1. Nat. br. 38. N.

The ſame Law in a Scire facias by the King, upon a Judgment in a Quare Impedit, 14 Edw. 3. Qu. Imped. 5.

So if the Sheriff returns a Nihil upon the Grand diſtreſs, 12 Hen. 4.4. Hankeford, 21 Hen 6.56. pl. 13. 11 Hen. 6.3. pl. 8. becauſe the Proceſs is determined, vide 27 Hen. 6.5. pl. 32. for the Sheriff hath done as much as he can in the executing of it.

And this is for the miſchief of the Lapſe, 24 Edw. 3.37. viz. in all the foregoing caſes wherein there is no Laches in the Patron, nor any delay cauſed by him.

But if a Nihil be returned upon the Summons, Attachment, and Diſtreſs, quaere 11 Hen. 6.3. if a Writ to the Biſhop 4. ſhall iſſue; yet the better opinion there is, that a Writ ſhall iſſue to the Biſhop. And this ſeems to be ſo upon the ſame ground, viz. for the miſchief of a Lapſe.

And if a Quare Impedit be againſt two, and one appears at the Grand diſtreſs, the other makes default, a Writ ſhall iſſue to the Biſhop pro querente againſt him that made default, N • t. br. 39. B. 14 Hen. 7.19. but not againſt the other becauſe he appears according to Law.

Quare Impedit againſt the Biſhop and B, 〈◊〉 makes default at the Grand diſtreſs, the Biſhop pleads that he claims nothing but as Ordinary, the Plaintiff ſhall have a Writ to the Biſhop againſt B, after the Count made againſt the Defendants upon the Biſhops appearing at the Grand diſtreſs, 10 Hen. 6.4. Writ to the Biſhop, 3.

In a Quare Impedit the Defendant appears, and after appearance makes default, the Plantiff ſhall have a Writ to the Biſhop, 2 Hen. 4.1. pl. 3. Nat. br. 38. S. becauſe it ſhall be intended he will not longer defend himſelf.

At the Grand diſtreſs the Defendant pleads to iſſue, and after makes default, a Writ ſhall iſſue to the Biſhop without more ado, for the Grand diſtreſs was iſſuable, 16 Edw. 3. Writ to the Biſhop 17.12 Edw. 2. Quare Impedit 168.

Upon a default at the Grand diſtreſs the Plaintiff ſhall have Judgment, Lib. Intra. 507. A. Sect. 1, 2, 3. Judgment, as upon a Nihil dicit.

The Plaintiff is Non-ſuited, the Defendant ſhall have a Writ to the Biſhop without making Title, as it ſeems; but the ſureſt way is to make Title, 33 Hen. 6.1. pl. 2. for that puts all without queſtion for the future.

T brought an Aſſize of Darrein Preſentment againſt P, and the Aſſize was taken by his, viz. P's default, and when the Aſſize was ſworn, T withdrawed himſelf; P ſhall have a Writ to the Biſhop, although he was not in Court, 9 Edw. 3. Darrein Preſentment 17. for ſome Judgment muſt be, and it cannot be for T. And although P •• de default, yet the enqueſt might have found for him upon ſomething of their own knowledge.

Barr in a Quare Impedit, 1. By the Ordinary. 2. By others.

Plea by the Ordinary the Church Litigious.The Church was Litigious, and he Collated after the ſix months, 34 Hen. 6.41. pl. 10. 5 Hen. 7.19. 34 Hen. 6.38. 2 Hen. 6.44. 18 Edw. 3.

It ſhall be accounted Litigious, where there are two Preſentations and two Commiſſions, and one Commiſſion is found for one,What ſhall be accounted Litigious. and another for another, 22 H. 6.44. A. Newton & Paſton; for no man here can judge whoſe the right is, for they are as it were in aequali jure.

But if the Title of one be found, and another preſent, and requeſt is made to admit the Clerk, for which it was found, it is not Litigious, 22 Hen. 6.28. Br. of Quare Impedit 80. for there is a Title found for one, and none for the other.

If two Joyntenants, or Tenants in common preſent ſeverally, it is not Litigious, Doct. & Stud. 116. A. for their right is one and the ſame.

If two preſent ſeverally, and neither the one nor the other pray a Commiſſion to enquire the right, the Church is Litigious, Lib. Intra 511, & 512. 35 Hen. 6.18. pl. 27.8. Edw. 3.289. pl. 49. becauſe the right of neither is put in iſſue.

Claiming nothing but as Ordinary, Judgment, ſi, &c. without ſpecial diſturbance; this is good, 5 Hen. 7.19. 22 Hen. 6.15. 33 Hen. 6. •• .32. viz. a good plea in barr for the Ordinary.

But the Plaintiff upon this may pray Judgment, and have it with Ceſſat Executio, until, &c. Crook 17 Hen. 7.43. pl. 9. the right determined.

Pleas in diſability of the perſon preſented, are as followeth:Refuſing the Clerk for default in the preſentee which is.

1. An Alien, 7 Rich. 2. and this although he be made Denizen after, ibidem; viz. after he preſented, for he was not idoneous at the time of the refuſal. 2. Baſtard, Coke 5. part. 58. A. 11 Hen. 4.8. A. 11 Hen. 7.12. 11 Hen. 4.37. but if he be admitted it is good. 29 Edw. 3.44. pl. 3. Q. whether, and by what Law it is a good plea, becauſe he is nullius filius. 3. Blind, Coke 11. part. 29. B. For he cannot ſee to ſtudy, nor can watch over his Flock. Q. tamen. For blind men have received Orders. 4. Heretick. Coke 11. part. 29. B. For he is not fit to inſtruct or guide his flock. 5. Homicide, 38 Edw. 3.2. For he is not fit to be a Miniſter of the Goſpel of peace. 6. Infant, Coke. 5. part. 58. A. 6. Edw. 3.184. pl. 6. Herle. For he is not fit to guide himſelf or his own eſtate, much leſs others ſouls. 7. Jew. Coke 11. part. 29. B. qua a Jew; but if a convert, it ſeems he may. 8. Illiterate, 12 Eliz. Dyer. 293. pl. 3. Coke 5. part. 58. A. Specotts caſe. 40 Edw. 3.25. pl. 31. For he is unfit to teach, and had more need to be taught. 9. Perjured, For he will make little conſcience of Religion. 10. Irreligious. 5 Hen. 7.6. Q. how. 11. Miſcreant, Coke 5. part. 58. A. Specotts caſe, viz. that believes not rightly the Articles of the Faith: For how will he maintain and inſtruct others in it? 12. Not able upon examination, 39 Edw. 3.1. pl. 5. viz. of the Ordinary in the principles of Religion, and other fit qualifications. 13. Premunire, 38 Edw. 3.3. pl. 9. In regard of the heinouſneſs of the offence and puniſhment. 14. Himſelf patron, 31 Hen. 6.621. For he ought not to preſent himſelf. 15. Saracen, Coke 11. part 29. B. or Turk, or Infidel, not acknowledging God and Chriſt. 16. Schiſmatick, Coke 5. part. 58. A. Specotts caſe. For he will make diſturbance in the Church. 17. Simoniſt. Lib. intra. 532. A. Q. By what Law. 18. Villain, 14 Hen. 7.28. B. for he is not ſui juris. 19. Utlaw, Coke 5. part. 48. A. Specotts caſe, For he is fit for no ſociety, and unfit to teach obedience to others, that hath none himſelf.
Theſe are good Cauſes of refuſal, viz. which are above ſpecified.

Where one having a Parſonage in Wales, Note. and could not ſpeak Welſh, and therefore excepted unto as inſufficient, it was demurred to Trin. 27 Eliz. Albany verſus Epiſcopum S. Aſaf. Q. Deley. as not a ſufficient cauſe.

Theſe are not good cauſes of refuſal.

That he hath another Benefice with Cure, 14 Hen. 7.28. B. For he may be qualified to have two Benefices by the Stat.

Hunter of Taverns and a player at unlawful Games, Coke 5. part. 57. Specotts caſe. 9 Eliz. Dyer. 254. For this makes him not unfit to watch, though it make him ſcandalous, for which he ought to be puniſhed.

Criminoſus, 34 Hen. 6.39. A. For that is a word of a very large extent, and uncertain.

Theſe are good cauſes of refuſal in the Preſenter.

Attainted, 15 Hen 5.17. B. Keble. viz. of Felony or Treaſon.

Preſenter which is.Excommunicated per 40 days 115 Hen. 7.7. B. Keble. and ſo ſtands excommunicated in contempt of the Church. This Law is now altered by the taking away the Eccleſiaſtical juriſdiction in that point, and now is again revived.

Infant not of the Age of 14 years, Perkins. 4. A. For he ſhall not be judged of ſufficient diſcretion to preſent a fit perſon. Q. tamen.

Joynt Tenant or Tenant in common not agreeing, Nat. br. 34. V. concerning their preſenting; for that is litigious.

The ſame Law is of one preſent alone, 14 Eliz. Dyer. 340. pl. 54. except it be by conſent.

A Maſter of a Colledge preſented by the Colledge, 14 Hen. 8.23. For that is like as when the Patron preſents himſelf.

Utlawed, 15 Hen. 7.17. B. Keble. For he can have no Title.

A Corporation ought to preſent in writing,Preſentation. 14 Hen. 8.2. and not by parol, for they cannot ill ſpeak at once, as they may by writing.

A Body natural may preſent by word, 14 Hen. • .22.

The King may preſent by word, 19. Edw. 3. Quare impedit. 60. For he is but one perſon numerical, though he hath a political capacity, and ſpeaks in the plural number.

It is no Bar to ſay that the other Writ was abeted,Abatement. if it were for form or falſe Latine, Coke • . part 27. B. Portmans caſe. For that is not the fault of the Plaintiff, but of the Clark.

But that it was abated, becauſe the 1 Plaintiff was made Knight, the Writ depending, this is 〈◊〉 good Bar, Coke 7. part. 27. B. Portmans caſe. For it was his own fault.

The Plaintiff counts of the preſentment to the Advowſon in Groſs,Appendant. and a Grant of it to him; the Defendant pleads it was appendant, he cannot traverſe that it was not in groſs, becauſe by intendment they are ſeveral Advowſons, Crooke. 19 Hen. 7.51. pl. 1. For one and the ſame Advowſee cannot be in groſs, and alſo appendant.

An Arbitrement is a good Bar,Arbitrement. Lib. intra. 498. C. ſ. 1.

A Confirmation or ratification by the King to the Incumbent is a good Bar againſt the King▪ 7 Hen. 4.13.14 Hen. 4.25.837. Lib. intra. 531. ſect. 22. by way of eſtopple.Confirmation.

But this ought to be after Induction, 11 He • . 4.9. For before he ſhall not be ſaid to be a perfect Incumbent, as to the King.

If the King be deceived, he may repeal the Confirmation, 31 Edw. 3. Quare impedit, 161 This by his prerogative; for the King ought 〈◊〉 be truly informed.

But then the repeal ought to be before Ind • ction or Inſtallation, 25 Edw. 3.47. for after 〈◊〉 is too late.

If the King recover and confirm the Incumbent, this is no Bar to the next avoidance, becauſe his Judgment cannot be executed, Nat. br. 34. F. 10. Edw. 3.389. pl. 32. 18 Edw. 3.57. pl. 87.

But if he Leaſe the Advowſons afterwards, • uare who ſhall have them?

Where one brought a Quare impedit, Diſcontinuance. and diſcootinued his Action, adjudged a good Bar, although that the Writ was purchaſed afterwards within the 6 Months, Coke 7. part. 27. B. Portnans caſe. For it ſhall be intended he hath no right.

A Fine levied by the Anceſtor of the Plaintiff of the Advowſon, is a good Bar,Fine. Lib. intra. 532. C. ſect. 3.

Warranty and Aſſets deſcended to the heir,Warranty is a good Bar againſt the Iſſue in Tail, 43. Edw. 3.24. pl. 31.

No Diſturber.That he did not diſturb, is a good bar, Lib. •• tra. 503. C. ſect. 2. 22 Edw. 3.17. pl. 71. For a good Iſſue may be taken upon it.

This may be pleaded to the grand Diſtreſs, 22 Edw. 3.17. pl. 71. as well as if he had appeared upon the firſt ſummons.

But 21 Hen. 6.45. A. 2 Edw. 3.32. pl. 7. It is held that it is no Bar, becauſe no Title is made. 14. Edw. 3. Judgment, 158. and before Title made there needs no plea; yet Q. For he may, as it ſeems, admit a Title.

But if it be a good plea before Iſſue, yet after Iſſue joyned it is not, becauſe it is a delay, and ſo a diſturbance in it ſelf in the eye of the Law, 3 Edw. 3.50. pl. 6.4. Edw. 3.97. pl. 31.17. Edw. 3.71.

But 18. Edw. 3.149. pl. 15. & fol. 359. 〈◊〉 è contra, after title made, this is no plea, 5 Hen. 4.20. Br. Quare impedit, 62. Q.

Againſt the King it is no Bar, becauſe the patty there ought to make a title, 7 Hen. 4.32. pl. 18.

Non-ſuit after appearance in another Quare impedit before for the ſame advowſon,Non-ſuit. is a good Bar: although the laſt be purchaſed within 6 Months, Coke. 7. part. 27. B. Portmans caſe. 21 Hen. 6.25.27. For that argues he had no right, and that his Suit was only vexatious.

And ſo if the former Writ were brought by the Plaintiff and another, and the Plantiff is nonſuit, 5 E. 157. pl. 10. For thereby he deſiſts in his Claim.

No ſuch Church.No ſuch Church in the ſame County, is no Bar, 8 Hen. 6.37. pl. 69. 9 Hen. 6.17. Q.

But 45 Edw. 3.36. pl. 2. è contra. Q.

Pardon of the King for alienation is no Bar,Pardon. if the Church be void before the pardon, 27 Edw. 3.38. For then the pardon works not upon the precedent right.

Plentary a good Bar,Plentary. though the Patron his no notice of the Avoidance; for this is to ſtop the Collation of the Ordinary, but not the Preſentation of the Patron, Paſch. 39 Eliz. Com. B •• . Seriven againſt the Biſhop of Lincolne.

Plenarty of a Frank Chappel is no Bar; for if he ſhall be put to his Quare impedit, then it ſhall be preſentative afterwards, 22 Hen. 6.25. B. Which is miſchievous to the Patron, in making it ſubject to the viſitation of the Ordinary.

The Church is ſaid to be full againſt a common perſon by Inſtitution, 22 Hen. 6.27. A. 14 Hen. 8 2. Brudenel. 12 Hen. 4.38. For by that the Clerk is approved, and Induction is but as it were giving of poſſeſſion.

And againſt the King by Induction, 22 Hen. 6.27. B. which makes him a compleat Incumbent to all intents and purpoſes.

He that pleads plenarty, ought to ſay that it is full of his own preſentment, and not of anothers; for if the Defendant be diſturbed, he ſhall not be puniſhed, and if he hath title, he ought to ſhew it, 3 Hen. 6.20. Br. plenarty 6. 16 Edw. 4.11.8 Edw. 3. Statham.

He ſhall plead that he was in per 6 Months of his Preſentment before the purchaſe of the Advowſon by the Plantiff.

But if it be of a preſentment of the predeceſſor of the Plaintiff, yet it is good, 8 Edw. 3. preſentment 5.

The 6 Months ſhall be accounted according to the Kalendar, Coke 6. part. 61, 62. Catesbyes caſe; and not after 28 days to the Month; for that is the ancient account uſed in Law.

Who ſhall plead Plenarty, and who not.

Incumbent pleads Plenarty of himſelf,Incumbent. ex praeſentatione B. viz. the Plantiff. Coke. 6 part 48.2 Hen. 6.14. pl. 22. No. Lib. intra. 265. A. abſque hoc that it was void; for the Incumbent is not able to plead it otherways, per 25 Edw. 3. cap. 7.

But 16 Edw. 4.11. pl. 6. Com. 501. A. Manwood è contra. Ergo Q.

Becauſe he that pleads this, ought to ſay, that the Incumbent is in of his own preſentation, 2 Rich. 2. Incumbent 4. Belknap. 46 Edw. 3.19. 18 Edw. 3. Quare Impedit 48. and not of anothers.

But per 4 Edw. 4.13. The Incumbent pleads that the Plaintiff, or his predeceſſor preſented him. Q. For it ſeems to be uncertain.

Parſon imparſonee cannot plead plenarty, becauſe that he cannot ſay, that he is in per ſix Months of his own preſentment, 38 Hen. 6.20. B. 33 Hen. 6.12. pl. 27. Com. 501. A. Manwood. 39 Hen. 6.20.46. Aſſize. pl. 4.

A Stranger, or he that claims nothing in the Patronage, cannot plead Plenarty, 7 Hen. 4.34. per Fitz James. For it lies not in his mouth to ſay whether the Church be full or not.

Againſt whom Plenarty is no Plea.

Againſt the Lord that enters for Mortmain, it is no Plea; becauſe the Lord hath liberty by the Law to enter at any time within the year, 21 Edw. 3.27. pl. 25. 29 Edw. 3.10. pl. 31. Thorpe. 47 Edw. 3.11. pl. 8.

But after the year it is a good plea, 25 Edw. 3.34. 26 Edw. 3. Quare Impedit. 163. For then he is in the condition of another Petron.

Quaere if it be good againſt the Lord by ••• cheat, •• Hen. 8.14. Brudenel. It ſeems it is, for he ſhall be in no better condition then, than the Patron that died without Heir.

It is no plea againſt the King, 35 Hen. 6.26. A. 1 Edw. 3.17. pl. 9. 8 Edw. 3.304. pl. 55. 43 Edw. 3.14. pl. 8. For it is not a Plea in chief to determine the right, but only delatory, and the King ſhall not be delayed.

But againſt the Queen, Mother or Conſort, it ſeems to be good, 18 Edw. 3.13. pl. 9. 44 Edw. 3. Br. Plenarty 4. For ſhe is but a ſubject, and ſhall be in no better condition in the eye of the Law.

A good Bar to ſay,Preſentation. that the Plaintiff preſented his Clerk, and that he was inducted before the Writ purchaſed, 12 Hen. 4.11. pl. 21. vide Crooke. 12 Hen. 7.20. pl. 6. For then he could have no cauſe of Action.

A Recovery in another Quare Impedit, Recovery. no Bar againſt the King, for he may make another Title, Nat. br. 35. P. than was made before, and a better it may be.

A Recovery by by the Plaintiff againſt another in a Quare Impedit for the ſame Advowſon, no Bar; for there might be two diſturbers.

Recovery by a Stranger in another Quare Impedit, no Bar, Crooke. 18 Hen. 7.49. pl. 4. For nothing concerns the preſent Plaintiff.

That the Plaintiff is a Recuſant Convict,Recuſancy a good Bar; for the Preſentment is given to the Univerſity, per 3 Jac. And therefore the Plaintiff can have no cauſe of Action.

Releaſe of Actions Perſonals a good Bar,Releaſe. 22 Hen. 6.25, vel 27. Littleton. fol. 116. A. 30 Hen. 6. Bar. 59. For this is a mixt Action, and ſo it is perſonal in part.

So of Actions real, Litteton 116. A. 9 Hen. 6.57. Martin: For being next, it is alſo real as well as perſonal.

If a Preſentment be alledged in the Anceſtry of the Plaintiff, it is a good Bar to plead a Releaſe and Quit claim of the Anceſtry, pro fine 8 Edw. 2. Quare Impedit 166. For thereby the Plaintiffs cauſe of Action is extinct.

If there be more Plaintiffs in a Quare Impedit than one, the Releaſe of one is no Bar, but for him only that releaſed, Coke 5. part 97. B. Nor. thumberlands caſe. 30 Hen. 6. Bar. 59. Forteſcue. For their Titles may be diſtinct and ſeveral.

Judgment in a Quare Impedit.
1. When he ſhall have Judgment. 2. Of what things he ſhall have Judgment.

Upon default after apppearance,Upon default. the Plaintiff ſhall have Judgment and Dammages, 2 Hen. 4.1. pl. 3. Nat. br. 38. S. For this is, as it were, the confeſſion of the Plaintiffs Title.

But upon default after a continuance, Diſtreſs ſhall iſſue out only, 6 Rich. 2. viz. before apparence make him to appear.

Upon Default at the grand Diſtreſs the Plaintiff ſhall have Judgment, Lib. intra. 507. A. ſect. 1, 2, 3. For that is the laſt proceſs to bring in the Defendant; and the Plaintiff can proceed no further upon mean proceſs.

In a Quare Impedit againſt two, and one makes default after appearance, the Plaintiff ſhall have Judgment againſt him that makes default, Nat. br. 39. B. But not againſt the other; for anothers default ſhall not prejudice him.

If in a Quare Impedit againſt three, one makes default after apparance, and it is found againſt the Plaintiff for the others that appeared, who make a title, and it ſeems they ſhall have a Writ to the Biſhop, 31 Hen. 6.15. pl. 5. Q.

One Defendant makes Title by himſelf, and others make default, the Judgment ſhall be to have a Writ to the Biſhop for him that makes Title; but this is not before the Plaintiff have counted, Nat. br. 38. J. 10 Hen. 6.4. pl. 13. For before that the cauſe of Action doth not appear.

Upon the Non-ſuit of the Plaintiff,Non-ſuit. the Defendant ſhall have a Writ to the Biſhop, but not before Title made, Nat. br. 38. K. 2 Hen. 5.6. pl. 28. 19 Edw. 4.9. pl. 10. 6 Edw. 3.23. Colluſion 5. 14 Hen. 4.11. That it may appear he hath a colourable right at the leaſt.

Unleſs the Non-ſuit be after a Bar pleaded, 33 Hen. 6.1. pl. 2. & fol. 55. pl. 48. againſt the Defendants Title.

Three ſue a Quare Impedit, and two are nonſuited, and one of the Plaintiffs was alſo one of the Defendants, therefore he cannot make Title, ideo quaere, if they ſhall not have a Writ to the Biſhop without Title made, 11 Hen. 6.8. pl. 13. Q.

A. ſued divers Writs of Quare Impedit againſt B, of the ſame Church, and is non ſuited in all exceptone, the Defendant ſhall not have a Writ to the Biſhop until that be determined, Nat. br. 38. R. For it may be the Plaintiff may clear his Title by that.

The Defendant makes Title to himſelf and another, the Plaintiff is non-ſuited, the Defendant ſhall have a Writ to the Biſhop only, 13 Edw. 3. br. Epiſe. 25. For his Title is a Bar to the Plaintiff which is not oppoſed.

The Sheriff returns a tardè, &c. the Plaintiff makes default, he ſhall be non-ſuited; Q. but the Defendant ſhall not have a Writ to the Biſhop, becauſe the Writ was not ſerved, 2 Hen. 5.3. pl. 14. Nat. br. 38. O. 2 Hen. 5.6. nor the other Non-ſuited, as it ſeems, becauſe the Writ was not duly executed.

If an Infant be non-ſuited, the Defendant ſhall have a Writ to the Biſhop, 2 Mariae Dyer. 104. pl. 13. to avoid a lapſe, and that the Church may ſpeedily be provided for.

A. brought a Quare Impedit againſt B, C and D, and is non-ſuited, B dies, C and D ſhall not have execution alone, 11 Edw. 3. br. Epiſcopo 55. becauſe the Action was joyntly brought againſt all.

If one of the Co-parceners who bring a Quare Impedit, be non-ſuited, yet the other may ſue, and the Defendant ſhall not have a Writ to the Biſhop upon this Non-ſuit, 38 Edw. 3.35. br. Epiſc. 12. becauſe they have ſeveral Inheritances, and the default of one ſhall not bind another.

The Plaintiff diſcontinued his Suit,Discontinuance. the Defendant ſhall have Judgment to have a Writ to the Biſhop, Coke 7. part. 27. B. For his diſcontinuance concludes he had no cauſe of Action.

A. brought a Quare Impedit againſt B, Compoſition. and ſued a Ne admittas, and then they compounded to preſent by turn, there ſhall be a ſpecial Writ out of the Chancery to the Biſhop, to admit the Clerk that ought firſt to be admitted. For a ſpecial Cauſe may have a ſpecial Writ, and varying from the uſual form.

In a Quare Impedit the Defendant diſclaims in the Advowſon, the Plaintiff ſhall have Judgment,Diſclaimer and a Writ to the Biſhop, 6 Edw. 3.7. Error 78. For by the Diſclaimer he acknowledgeth he hath no Title.

Where a Writ abates for form or falſe Latine,Abatement. there ſhall not be Judgment for the Defendant to have a Writ to the Biſhop, Nat. br. 38. H. 14 Hen. 4.11. 13 Hen. 4.7. For the Title is not determined, but only the Plaintiff is delayed.

The Defendant makes default, the Incumbent abates the Writ by plea, the Defendant ſhall not have a Writ to the Biſhop, becauſe he made default, Nat. br. 38. H, and ſo is not rectus in Curia.

If the Plaintiff being a Prebend, be made a Biſhop in Dublin, this ſhall abate the Writ, per Wilby, 24 Edw. 3.26. pl. 21. Q. how it ſhall be taken notice of here.

If the Writ abates for Miſnoſmer, or other non-ſufficiency in it, the Defendant ſhall not have a Writ to the Biſhop, Nat. br. 38. M. 31 Hen. 6.15. For the right is not determined.

If a Quare Impedit is brought in Com. M. and the Count is of a Church in Com. O, the Writ ſhall abate, but the Defendant ſhall not have a Writ to the Biſhop, 21 Rich. 2.29. for the former reaſon.

It was found by verdict that the Metropolitan collated where the Ordinary ought to have done it,Verdict. when the year is paſſed, the Plaintiff ſhall have a Writ to the Biſhop, Nat. br. 38. P. Q.

In a Quare Impedit between A and B, if the Title appear for the King, Judgment ſhall be given for him, Nat. br. 38. E. notwithſtanding he is not party to the Suit, that is, by his Prerogative. All the Judges are the Kings Counſel, and ought to give Judgment for him, where his Right appears, although he ſue not for it.

The Writ to the Biſhop, to whom it ſhall be directed.

If a man recover againſt another as well as the Biſhop, he ought to have a Writ to the Biſhop of the Dioceſs, Nat. br. 38. C. For a Biſhop is but a Miniſter to admit the party.

If the Writ be againſt the Biſhop, although he claim but as Ordinary, yet the Plaintiff ſhall have a Writ to the Biſhop, 8 Hen. 4.22. Lib. intra. 521. For he claims no right, nor doth any thing by executing the Writ in prejudice of himſelf.

If a man recover againſt the Biſhop, he ſhall have a Writ to the Biſhop or Metopolitan, Nat. br. 38. B. and Q. 18 Eliz. Dyer. 353. pl. 30. 38 Edw. 3.12. B. at the election of the party, as it ſeems.

If it be once to the Metropolitan, he ſhall never have it to an inferior Biſhop afterwards, ibidem, for it is not uſual in Law to deſcend from a higher authority to a lower.

Or to the Vicar general, if the Biſhop be out of the Realm, Nat. br. 38. Q. For the Vicar general • an Officer under the Archbiſhop.

Or to the Gardein of the Spiritualties of the •• ch-biſhop, 7 Hen. 4.36. for the ſame reaſon, 〈◊〉 it ſeems.

If there be no Biſhop of the Dioceſs, then to •• e Metropolitan; if no Metropolitan, then to •• e Gardein of the Spiritualties, but if before the accution the Archbiſhop be made, quaere if the power of the Gardein be not determined, 18 Eliz. Dyer. 350. pl. 19. It ſeems it is.

If it be againſt the Arch-biſhop of York, the Writ ſhall be to the Metropolitan, 15 Eliz. Dyer. 328. pl. 7. viz. of all England, viz. the Archbiſhop of Canterbury.

The King recovers a Prebendary or Sub-Dea ••• ry, or other Dignity againſt the Biſhop, and ••• es it by Letters Patents to A, yet A ſhall • uve a Writ to the Biſhop to be admitted to the • ings right. And if he die before induction, •• d the, King grants this to B, he ſhall have a Writ out of the Chancery, and a Writ to the Bi • hop, Nat. br. 38. D. It ſeems the Writ ſhall be pecial.

The King recovers a Prebendary, and hath 〈◊〉 Writ to two Biſhops, becauſe the Prebendary • as in one Dioceſs, and the Church to which •• e Prebendary belongs, is in another Dioceſs, 14 Edw. 3.37. pl. 56. and ſo it concerns both • he Biſhops.

If a man recover a Chappel donative, he ſhall have a Writ to the Sheriff, Nat. br. 48.8. For it is in the nature of a Lay Fee, and lies not wiſhin the juriſdiction of the Ordinary.

Proceſs in a Writ to the Biſhop.

The Proceſs is alias, plures, Attachment, or a Writ de quare non admiſit, Nat. br. 47. C.

Of what things a man ſhall have Judgment.

1. A Writ to the Biſhop, and no dammages. Coke 6. part. 51. A. Boſwels Caſe. At the Common Law were no dammages in a Quare Impedit. But by the Statute dammages are given, as the Statute following mentions.

Statute Weſtm. 2. cap. 5. is, Si tempus ſemeſtre tranſier it per impedimentum alicujus, ita quod Epiſcopus ad Eccleſiam conferat, & verus Patron 〈◊〉 ea vice praeſentationem amittat, adjudicentur da •• pna ad valorem medietatis Eccleſiae pro duob •• annis, & ſi non tranſierit ſed diſrationetur praeſentatio infra tempus praedictum tunc adjudicentur da •• pna ad valorem medietatis Eccleſiae per unum a • num.

The King is not within this Statute to have dammages, for at the Common Law the King was not in danger to loſe his preſentation per plenarty, Coke 6. part. 51. A. Boſwels caſe. 3 He • . 6. Dammges 17. 34 Hen. 6.51. 14 Edw. 3. Quare Impedit 54. 33 Edw. 3. Br. 916. vide 7 Edw. 6. Dyer. 236. pl. 28. And the Statute was made only for that intent▪

If it is found for the Plaintiff, and that the Church is full, the Plaintiff may have a Writ to the Biſhop, but then he ſhall recover no dammages, 24 Edw. 3.35. pl. 42, & 75. pl. 97. for he could not be damnified by reaſon of the ple •• rty.

It is found that the Ordinary preſented before • is time, the Plaintiff releaſes dammages, and had 〈◊〉 Writ to the Biſhop, 11 Hen. 4.79. pl. 22. for the Ordinary had no right to preſent.

The Ordinary claims nothing but as Ordinary, the Plaintiff had Judgment againſt him as Ordi •• ty, and the Diſturber and his Clerk dies, the Plaintiff ſhall have execution, but it ſeems no dammages, Crooke 17 Hen. 7.43. pl. 9. Quaere ••• en, for it ſeems not reaſonable that he ſhould be without remedy.

The Defendant comes the firſt day, and confeſſeth the Action, there ſhall be a Writ to the Biſhop, but no dammages, 4 Edw. 2. Dammages 9. 5 Edw. 3.133. pl. 13. 5 Edw. 3.139. pl. 44. in regard of the ſmalneſs of them, for de minimis 〈◊〉 curat Lex.

In a Quare Impedit againſt the Incumbent, the King revokes his preſentation, the Plaintiff ſhall have no dammages againſt the Incumbent, 44 Edw. 3.35. B. becauſe he came in upon the Kings preſentation, and is now ouſted by him.

The Plaintiff ſhall not have dammages againſt the Incumbent, if he pleads not, or is not proved 〈◊〉 Diſturber, 45 Edw. 3. Dammages 39. but ſhall recover only the preſentation, 5 Edw. 3.13. but by his pleading he is a Diſturber, and dammages are recoverable for the diſturbance.

A Writ to the Biſhop,Single •• mmages. and ſingle dammages, 17 Edw. 3.5. pl. 12. 24 Edw. 3.37. pl. 54.26 Edw. 3.75. pl. 25.

A ſues B and C, and it is found that B only had right, B ſhall have dammages againſt A and C, 45 Edw. 3.14. pl. 12. & br. Epiſcopo, for they are both Diſturbers as to B.

In a Quare Impedit againſt the Ordinary and B, the Ordinary confeſſes the Action, and it is found againſt B, and that the Church is full of the preſentment of B, the Plaintiff ſhall have a Writ to the Biſhop, and ſingle dammages, or double dammages, and no Writ to the Biſhop at his election, 39 Edw. 3.15. but ſhall not have both, 5 Edw. 3.150. pl. 10. for this would be double ſatisfaction for one tort.

The Defendant confeſſes the Action, the Plaintiff ſhews that the ſix Months are paſt, and had a Writ to the Biſhop and dammages, 21 Edw. 3.55. pl. 8. 20 Edw. 3. Colluſion 34. 6 Edw. 6. Dyer 76. pl. 35. by the Statute.

The Plaintiff and the Ordinary are at iſſue upon the ability of the Incumbent, the Ordinary admits him, the Plaintiff ſhall have a Writ to the Biſhop, and ſingle dammages; for the admittance proves him able, 40 Edw. 3.25. pl. 21. and conſequently the Ordinary a Diſturber, and to pay dammages.

A Writ to the Biſhop to admit the parties Clerk, and a Writ to the Sheriff to enquire of dammages, 19 Edw. 3. Quare Impedit 156. 24 Edw. 3.37. Lib. Intr. 507. C. Sect. 6, 7, 8. ſuſtained by the diſturbance.

It was found that the Metropolitan collated before his time, the Plaintiff ſhall have a Writ to the Biſhop, but then he ſhall have but ſingle dammages, 11 Hen. 4.80. Nat. br. 38. P. vid. le Stat.

The Biſhop grants proximam praeſentationem to B, and dies, the Church voids, the Succeſſor collates, B brings his Quare Impedit within ſix Months, two years paſs, the Plaintiff had judgment, and upon his prayer had a Writ to remove the Incumbent, and ſingle dammages, and a Writ to the Biſhop or Metropolitan at his election, 2 & 3 Mariae, Eliz. Dyer 194. pl. 33. to admit his Clerk.

Quare Impedit againſt the Ordinary who Collates, and pleads to the Plaintiff that the ſix months are paſſed, the Plaintiff recovers the preſentation and ſingle dammages; for where the Ordinary claims as Ordinary where he cannot maintain the right, he cannot collate as Ordinary for the time paſt, 5 Edw. 3.150. pl. 19. Coke 5. part. 58. B. 30 Edw. 3.15. pl. 4.

The ſame Law is upon a recovery againſt another man, if the Plaintiff will at his peril have a Writ to the Biſhop, 6 Edw. 6. Dyer 77. pl. 35. 11 Hen. 4.79. pl. 22.

Quare Impedit againſt the Biſhop of L. the Metropolitan, and againſt G his Clerk, they all three make default at the Grand diſtreſs, and a Writ of enquiry of the points in the Writ, and dammages was awarded, and thereupon found that the Church was void two years, and that the Metropolitan collated G; and Judgment was that the Plaintiff ſhall have a Writ to the Biſhop, and ſingle dammages; but becauſe the Church void ſo long, and the Defendants in miſericordia, 7 Eliz. Dyer 241. pl. 48.

A Writ to the Biſhop, and double dammages.

Quare Impedit againſt the Ordinary and B, the ſix Months paſs, the Plaintiff ſhall have double dammages, although the Ordinary did not collate, becauſe he had jus conferendi, and alſo a Writ to the Biſhop, 43 Edw. 3.10. pl. 33.

The Plaintiff recovers double dammages, becauſe the ſix Months were paſſed; and alſo a Writ to the Biſhop, and his Clerk inſtituted, becauſe the Biſhop did not collate; but this was not done by the party, 8 Edw. 3.280. pl. 9. Q.

A man ſhall recover double dammages, although he recover all before the ſix Months paſs, 13 Edw. 4.3. Littleton. by the Stat. of W. 2.

Single dammages, and no Writ to the Biſhop.

Before the return of the Writ to enquire of dammages, the ſix Months paſs, the Biſhop collates; yet but ſingle dammages, 24 Edw. 3.35. pl. 13. 27 Edw. 3. Dammages 106.

But the reaſon it ſeems is, becauſe of the former Judgment, that he ſhall have a Writ to the Biſhop; and this being of Record ſhall ſtop him from double dammages, for he is to have his Clerk thereby admitted.

22 Hen. 6.28. Dammages, but no Writ to the Biſhop. Quare Impedit againſt a Parſon imparſonee, and found for the Defendant, he ſhall have dammages, but no Writ to the Biſhop, Nat. br. 38. L. 26 Hen. 6. bre Epiſcopo 6. for ſuch Writ would be to no purpoſe.

Double dammages, and no Writ to the Biſhop.

Quare Impedit againſt the Ordinary and B, the Ordinary confeſſeth the Action, and it is found againſt B, and that the Church is full of the preſentment of B, the Plaintiff ſhall have double dammages, but no Writ to the Biſhop; or ſhall have ſingle dammages, and a Writ to the Biſhop at his election, 39 Edw. 3.15. but not both; for the double dammages are in recompence of his preſentation.

The Ordinary intitles himſelf by Lapſe, the Patron and Incumbent confeſs the Action, the Plaintiff ſhall have double dammages againſt the Patron and Incumbent, 34 Hen. 6.41. 34 Hen. 6.39. becauſe the Church is full.

Quare Impedit againſt the Patron and Incumbent, they traverſe the Title, the ſix Months paſs, the Plaintiff, if he recovers, ſhall have double dammages againſt both, 46 Edw. 3.15. pl. 5. Vid. the Stat.

Two Writs to the Biſhop.

The Defendant in a Quare Impedit brought a Darrein preſentment againſt the Plaintiff, the Plaintiff is nonſuited in the Quare Impedit▪ the Defendant recovers in the Darrein preſentment, the Defendant ſhall have Judgment to have two Writs to the Biſhop, but ſhall not have dammages twice, Nat. br. 39. D. viz. upon the Plaintiffs nonſuit one, and upon his own recovery another, for that would be double amends.

In what Court, and what Judges have power to award a Writ to the Biſhop.

Juſtices of Niſi prius have power, per Weſtm. 2. cap. 30, & 40. 14 Edw. 3. cap. 16. 9 Eliz. Dyer 260. pl. 21. 6 Edw. 6.76. pl. 34.

The Lords, it ſeems, of Mannors, Judges in Wales, have not power, 36 Hen. 6. B. Forteſ • ue, 35 Hen. 6.30. pl. 35. 3 Edw. 3.63. pl. 35. 8. Edw. 3.319. pl. 15. 24 Edw. 3.33. pl. 26. Regiſt. orig. 31. A. for the Biſhops are not tied to take notice of their Writs.

Lord in ancient Demeſn hath no power to award a Writ to the Biſhop, 7 Hen. 6.35. for this is an inferiour Court circumſcribed within its own Juriſdiction.

The Five Ports cannot award a Writ to the Biſhop, 21 Hen. 7.88. pl. 7. Crooke; for theſe are particular Franchiſes within themſelves.

Ne Admittas.
What Perſin ſhall have it.

The Plaintiff in a Quare Impedit, or Darrein Preſentment, ſhall have it, Nat. br. 35 F.

So the Defendant ſhall have it, Nat. br. 37. H.

In what Caſes it lies.

When a Quare Impedit or Darrein Preſentment is depending, and the Plaintiff or Defendant ſuppoſeth that the Biſhop will admit the Clerk of the other, then a Ne admittas lies, Nat. br. 37. F. Regiſt. orig. 31. A. 21. Hen. 44. Newton, Vet. Nat. br. 24. B. to hinder the Biſhop from admitting any Clerk till the right be determined.

If one of the Writs be not depending, then it Its not, Nat. br. 37. H. viz. a Quare Impedit or Darrein Preſentment, for this Writ ſuppoſeth a Title in queſtion, which muſt be by one of thoſe Writs.

For if the right of Advowſon is depending, it lies not, becauſe the Preſentation is not to be recovered in it, Nat. br •• 48. Q. and ſo the admittance of a Clerk is not in queſtion.

But note,Note. that this lies before any Certificate made, that a Quare Impedit or Darrein Preſentnent is depending, Nat. br. 37. H. for depending of the Writs reſts not upon the Certificate.

Yet the party grieved by the Ne admittas ſhall have a Writ to the Chief Juſtice, to certifie if any Writ be depending; and if he certifie none, then a Superſedeas ſhall be awarded, Nat. br. 37. H. to ſuperſede the Ne admittas.

Note,Note. that this Writ does not hinder the Ordinary, but that he may preſent by Lapſe, unleſs he be party, Nat. br. 48. L. Vet. Nat. br. 24, & 25. • iz. party to the Suit, for elſe it concerns him not.

Within what time this ought to be brought.

Within ſix Months, and not after by reaſon of Lapſe.

Locum habet infra tempus ſemeſtre, & non p • ſtea, quia Dioceſanus illam conferat per Lapſum temporis ad ſex menſes, quia Dioceſanus il • ud ſpectaliter • t indu • tum, Regiſt. orig. 37. F.

Yet for the King it always keeps place, Regiſt. orig. 31. A. Nat. br. 37. F, & G. vide Br. for nullum tempus occurrit Regi, the King is not tied to circumſtances of time or place, &c.

The Writ.

The Writ ſhall be alone, although the Biſhop be party, as where not; Tamen olim fuit, ne conferatis alicui Eccleſiam de N. quae vacat, Regiſt. orig. 31. A, B. Nat. 38. A.

The Proceſs.

Is Prohibition, Attachment, and Diſtreſs, Nat. br. 24, & 25.

Quare non admiſit.
Out of what Court this iſſueth.

It iſſueth out of the Com. Bau. becauſe it iſſueth out of the Rolls of the Court, Regiſt. orig. 32. A. Vet. Nat. br. 25. B. 12 Edw. 3. Quare non admiſit 6.

For this is a Judicial Writ, Vet. Nat. br. 25. B. Regiſt. orig. 32. A. 12 Edw. 3. Quare non admiſit 6. & per Nat. br. 47. C. grounded upon a Record of Court.

This may iſſue out of the Chancery in the Vacation alſo; for in the Vacation it cannot iſſue out of the Common Pleas.

If the King recover in Com. Ban. in Quare Impedit, he may have this Writ in Ban. Regis, Nat. br. 47. D. for this Writ is but to have the effect of his Suit, and he may ſeek for his right in any of his Courts.

What Perſon ſhall have it.

Every one that recovers, if the Biſhop will not admit, his Clerk ſhall have it, Nat. br. 47. C. Vet. Nat. br. 25. B. or elſe his Suit would be but fruitleſs, if it were not compulſory.

Againſt whom it lies.

It ſhall be brought againſt the Biſhop, although the Vicar general made the refuſal, Vet. Nat. br. 26. A. Nat. br. 47. J. 13 Edw. 36. Quare non admiſit 4. for the Law takes notice of him only as a more publick perſon concerned.

It was brought againſt the Gardein of the Spiritualties, upon refuſal of the Biſhop which is dead, Vet. Nat. br. 26. A. Nat. br. 47. J. and well, for he is now in the room of the Biſhop.

But it was denied againſt the Archbiſhops Gardein of the Spiritualties, vivente Archiepiſcopo, at videtur.

And yet quaere per 17 Edw. 3.27. pl. 9. if the Metropolitan of Common right be not Gardein of the Spiritualties. It ſeems not ſince Hen. 8. come.

It was maintained againſt the Official of the Biſhop, Nat. br. 47. N. who uſed, as it ſeems, to admit Clerks preſented.

In what Caſes this lies.

When a man recovers his preſentation, and the Biſhop will not admit his Clerk, the party ſhall have this Writ, Vet. Nat. br. 25. B. Nat. br. 47. C.

And this is although the Biſhop return cauſe, why he will not admit the Clerk. 9 Eliz. Dyer 260. pl. 21. Coke 6. part. 52. A. Boſwels caſe; for he muſt take notice of the Judgments given at the Law in ſuch caſes.

But if the Record be removed by a Writ of Error, it lies not till Judgment be affirmed, Nat. br. 47. E. for till then it doth not appear the Judgment was duly given, and this Writ doth ſuppoſe right Judgment given.

The Biſhop refuſes, and afterward admits him, yet the party it ſeems ſhall have this Writ, Nat. br. 47. L. Q. for it ſeems to little purpoſe, except it be to recover dammages for not admitting at firſt.

The Writ.

1. It ought to rehearſe the Recovery in the Quare Impedit, Nat. br. 47. C. becauſe that is the ground of the Writ.

2. It ought to be brought in the County where the refuſal was, becauſe he ſhall recover nothing but dammages, Vet. Nat. 25. B. Nat. 47. F. Coke 7. part. 3. A. Bulwers caſe, 38 Hen. 6 14 & 15.39 Edw. 3.2. pl. 5. 29 Hen. 8. Dyer 40. pl. 69. and the dammages can be beſt enquired and known there.

The Count.

The writ was againſt the Biſhop, and counted, though the Vicar general refuſed, and yet good, 〈◊〉 Edw. 3. Quare non admiſit 4. Vet. Nat. br. 26. 〈◊〉 rid. antea, why ſo.

The King counted not upon what original or •• t Title he recovered, and yet good, 20 Edw. 3. •• e non admiſit 10. for he is not bound to be 〈◊〉 punctual in pleading as a Common perſon, for •••• ceth if it be good in the ſubſtance.

The Barr.

That he admitted him, and made Letters to 〈◊〉 Archdeacon to induct him, a good barr, 38 〈◊〉 6.14. Nat. br. 47. H. for this doth diſaffirm 〈◊〉 Writ.

That the Biſhop collated by Lapſe is a good 〈◊〉 , Nat. br. 47. M. for by that the Plaintiffs Ti •• s deſtroyed hac vice.

Or that it was litigious by the preſentment of • anger, 9 Edw. 3. Quare non admiſit 12. 34 〈◊〉 6. Quare Impedit 89. 34 Hen. 6.41. pl. 10. 〈◊〉 alſo the Ordinary could not know who was to 〈◊〉 admitted.

But if A and B contend, by reaſon of which 〈◊〉 Biſhop collates by Lapſe, and after the King • overs in a Quare Impedit, this is no barr in a • ure non admiſit brought by the King, 23 Edw. 〈◊〉 12. Quare non admiſit 11. for the Kings Title •• dgne to the collating.

Excommunication cannot be pleaded in the Plaintiff, becauſe the Writ ſuppoſeth a contemp • in the Ordinary, in that the Plaintiff hath preſented his Clerk in the Writ named after Judgment given for him, which ſuppoſeth him not Excommunicated; but a good plea, that the Incumbe •• did not make requeſt after Judgment, 21 Hen. 7.71. pl. 14. Crooke; for without requeſt the Ordinary is not bound to take notice.

No ſuch Record is a good plea, Coke 8. part. Dreuries caſe; viz. as he pretends he hath Judgment upon.

A good barr, that the Church was full before the Recovery of one not named in the Recovery, Nat. 47. K. and ſo the Ordinary had no cauſe to admit his Clerk.

The Biſhop returned that the Advowſon is ſeiſed into the hands of the King, by reaſon of Wardſhip, and is ſo full of the Kings preſentment; this is good, 9 Eliz. Dyer. 260. pl. 21. tame • Coke 6. part. 52. A. Boſwels caſe, è contra. Q.

The Judgment.

The Judgment is but to have dammages, Nat. br. 47. G.

Quare Incumbravit.
In what Court it ſhall be brought.

It is a Writ Original, and therefore it ought to iſſue out of the Chancery, Nat. br. 48. G. as all Originals do; for the Chancery is Officina brevium.

But it ſhall be brought in Com. Ban. becauſe it a Common plea, Vet. Nat. br. 26. B. viz. made •• rnable there.

And although the Record be removed out of 〈◊〉 Common pleas, Nat. br. 48. F. becauſe it is an ••• ginal Writ, per Shard 17 Edw. 3.55. A.

But the King may bring this in Ban. Regis, al ••• gh the Record be in Com. Ban. But a Com ••• perſon ſhall not. Nat. br. 48. F. 17 Edw. 3.50. 〈◊〉 • 1. for the King may ſue in what Court he ••• ſeth, though a Subject in ſome caſes is con •• ed.

What perſon ſhall have it.

The Plaintiff or Defendant in a Quare Impedit, 〈◊〉 Darrein Preſentment, that recovers; for by the • ecovery it appears they have Title.

Againſt whom it lies.

It lies againſt the Biſhop, Vet. Nat. br. A.

In what Caſes this lies not.

It lies not in right of Advowſon, Nat. br. 48. Q. 〈◊〉 that concerns not the preſentation.

It lies not unleſs a Ne Admittas be firſt directed 〈◊〉 the Biſhop, a Quare Impedit depending, Vet. •• t. br. 26. B. Nat. br. 48. H. for by that he is to • ake notice of the Suit, which otherwiſe he is not •• und to.

Yet it was maintained, although no other Writ • as firſt attained, Vet. Nat. br. 27. A. Q.

It lies not, unleſs the party hath recovered before by Judgment of the Court, Nat. br. 48. 〈◊〉 17 Edw. 3. 50. pl. 21. and ſo cleared his Title.

The Incumbring by his Collation ought to b • alledged to be within ſix Months, Nat. br. 48. 〈◊〉 for after the ſix Months there can be no incumbrance in reſpect of the Lapſe.

And if he admit the Clerk of the other perſon after the ſix Months, which was preſente • before the Action, the Writ lies, Nat. br. 48. L. Quaere.

The Writ is Original and iſſueth out of the Chancery only, Nat. br. 48. G. 17 Edw. 3.74. B. vide the Writ Nat. br. 48. O. Regiſt. orig. 32 A.

It ought to be brought in the County where the Church is, becauſe the Clerk of the Biſhop ſhall by this be removed, and the Clerk of the other admitted, Coke 7. part. 3. A. Bulwers caſe, Nat. br. 48. D. 38 Hen. 6.14. pl. 32 and the wrong is done in the County where the Church is, and that County may have beſt conuſance of the cauſe.

It ought to make mention of the Recovery, Nat. br. 48. K. Regiſt. orig. 32. B. But 18 Edw. 3.17. by Wilby he ought not to mention it. Quaere.

The Writ needs not mention before wha • Juſtices the Recovery was, and yet good; for the Recovery is the ſubſtance, and the Court is not material, quaere tamen, 18 Edw. 3.17. pl. 19. 17 Edw. 3.74. pl. 109. the Writ; 1. It needs not mention where the Court was, when the Recovery • ad, becauſe it is an Original Writ, and the Court is fixt. 2. Nor that the Biſhop Incumbred it within the ſix Months, for it ſhall be intended ſo. 3. It is good, although it bore date within the ſix Months, for it ſhall be maintained after the Recovery, and the party ſhall have it. 4. It lies in C • n. Ba • . although that the Record be removed, becauſe it is an Original Writ. vid. antea.

The Count.

The Count ought to mention the Recovery, Nat. br. 48. K. becauſe it is the ground of the Action.

It needs not to recite all the Record of the Recovery, although that it was recovered by Darrein Preſentment, but the ſubſtance of it, 17 Edw. 3.55. pl. 34.

The Count mentions, that the Biſhop did Incumber (the Writ depending) the Church, yet good, 17 Edw. 3.74. pl. 109.

If one Writ be abated, the Plaintiff in another Writ may vary from the former Count, Nat. br. 48. M. for he now begins de novo, and is as if he had not counted before.

The Proceſs.

It is Summons, Attachment, and Diſtreſs, Vet. Nat. br. 26. B.

The Barr.

The Church was Litigious, and that he did Collate by Lapſe, 34 Hen. 6.38. Quare Impedit, 89. a good barr. antea.

No ſuch Record a good barr, Vet. Nat. br. 26. B. antea.

Error brought, and the Record removed in Ban. Regis, no barr, Vet. Nat. br. 26. B. Q.

Did not Incumber after the prohibition of the Court to him delivered, is a good barr, Nat. br. 48. M. for before he was not bound to take notice of the Suit.

The Judgment.

It is to have his Preſentment and his Dammages, Nat. br. 48. H. 38. Hen. 6.14. Coke 7. part. 3. A. Bulwers caſe, 21 Edw. 3.3. pl. 7.

If the Plaintiff be Nonſuited, yet it is not to him peremptory, Nat. br. 48. M. but he may commence a new Action; for he may be Nonfuit, and yet have a good Title.

Replevin.
In what Court it lies.

IN the County Court by plaint, per le Stat. dé Marlebridge, cap. 21.

And this may be before the day of the Court, 9 Edw. 4.48. 21 Edw. 4.66. pl. 46. For the conveniency of the people.

But by the Common Law the Sheriff cannot make a Replevin without a Writ, 8 Eliz. Dyer. 256. pl. 67. viz. out of the Chancery.

In the 5 Ports, Regiſt. Orig. 79. A. Nat. br. 67. A. By ſpecial priviledge.

In a Court-Baron by plaint, but this ought to be entred Sedente Curia, 21 Edw. 4.66. pl. 46.

In Ban. Regis, or Com. Ban.

An ancient Demean is a good plea to out the Court of juriſdiction, becauſe the reality may come in debate upon the Replevin, which ought to be tried there, Coke 5. part 105. Aldens caſe, tide 2 Edw. 3.32. pl. 10. 17 Edw. 3.52. pl. 28. & fol. 75. 40 Edw. 3.4. pl. 9. 29 Edw. 3.9. pl. 29. 4 Edw. 3.123. pl. 34.

It lies not in the Marſhalſey, Coke 10. part. 74. Marſhalſey. For that is a limited Court, and holds not plea of all Actions.

Who ſhall have a Replevin.

Adminiſtrator.Adminiſtrator ſhall have a Replevin de bonis Teſtatoris, vid. the Count. Lib. Intra. 560. B. ſect. 2. for the benefit of the Inteſtates Eſtate.

Husband and Wife.Husband and Wiſe join in a Replevin for a Diſtreſs taken upon the Land of the Wife, 2 Edw. 2. Replevin 42. Digeſt. brevium. 53. ſect. 2. For they are both concerned, the Husband in right of his Wife, and the Wife in her own right.

But for goods of the Wife ſole taken, which takes a Husband, the Husband alone ſhall bring the Action, Nat. br. 69. K. 33. Edw. 3. Repleg. 43. For by the Marriage the Goods and right to them are his.

If Goods be bayled to A, Baylee. he ſhall have a Replevin of them againſt a ſtranger, 21 Hen. 7.14. For he hath a property in them againſt all the world, but againſt the Bailor.

An Executor ſhall have it for Goods taken in the Teſtators time,Executor. 17 Edw. 3. Executors, 106. 24 Edw. 3. Avowry, 257. 21 Hen. 6.1. B. Markham. For the right and title to the Goods is come unto him by the Executorſhip.

Executors ſhall have it for the Goods in their hands that were the Teſtators. Regiſt. Orig. 81. B. 5 Edw. 3.133. pl. 14. 18 Edw. 2. Repleg. 24. 18 Edw. 3. Severance, 28. For now the intereſt is theirs in truſt.

And when he brings it of his own poſſeſſion, he ſhall have it before the Probat of the Teſtament, Com. 281. A. in regard of the property which is in him thereby.

Joint-Tenant or Tenant in Common may join in a Replevin,Joint-Tenant, or Tenane in Common, 11 Hen. 6.31. in reſpect of their joint intereſt.

But if two others join, the Writ ſhall abate, 11 Hen. 6.31. 3 Hen. 4.16. 21 Edw. 4.23. For one Writ cannot try diſtinct intereſts, but there muſt be ſeveral Writs.

But in a Homine Repleg. ſtrangers may join, Nat. 66. F. 8 Edw. 4.16. pl. 19. Propter favorem libertatis, and yet 8 Hen. 4.2. is, that they ſhall not join. Q. Ergo. It ſeems needleſs for two to join, becauſe the Writ may be as well proſecuted by one.

Parſon ſhall have a Replevin of a Mortuary after Seiſure,Parſon. but not before, Com. 281. A. Foxes caſe. 10 Hen. 4.1. For before he had no property in it, but a bare right.

For he had not property before Seiſure, 16 Hen. 7.5. pl. 3. Brian. The Seiſure gains a property in it.

1. He that hath not the property in a thing,Proprietor. ſhall not have a Replevin for it. 6 Hen. 4.2. pl. 17. 7 Hen. 4.18. 11 Hen. 4.17. pl. 39. 2 Hen. 6.14. pl. 10. 20 Hen. 6.18. A. 35 Hen. 6.22. A. 39 Hen. 6.35. pl. 47. 4 Edw. 2.1. pl. 2. 9 Edw. 3.340. pl. 19. Lib. intra. 568. C. ſect. 5. For a Replevin ſuppoſeth a property in the thing reple • led by one.

2. He that hath Cattel by way of Agiſtment, ſhall have a Replevin, becauſe he hath a ſpecial property againſt all ſtrangers, as it is upon a Bailment, 3 Edw. 3.71. pl. 36.42. Edw. 3.18. pl. 32. 21 Edw. 4.54. pl. 24.

3. So he that hath them to manure his Land, 42 Edw. 3.18. 11 Hen. 4.29. 21 Hen. 7.14. 21 Edw. 4.54. pl. 24. 2 Edw. 3.34. pl. 19. For he hath a property in them to that purpoſe.

4. So if one have Goods bayled to him, 21 Hen. 7.14. viz. to keep, or to bail over as it ſeems. Q.

The Lord of a Villain ſhall have it for Cattel of a Villain taken,Lord. for the bringing of the Action is a ſufficient claim of the Cattel, and there needs no ſeiſure, 42 Edw. 3.18. 33 Edw. 1.3. Repleg. 43. 30 Edw. 3. Repleg. 36. 19 Edw. 3. Repleg. 32. 9 Hen. 6.26. Babington. Nat. br. 69. F.

But he ſhall not have dammages for the taking, but only for the Detainer, Nat. br. 69. F. For he could have no dammage, becauſe before the claim they were none of his.

Succeſſor of an Abbey ſhall have it for taking any thing in the time of his Predeceſſor,Succeſſor. 9 Hen. 6.25. pl. 21. Martin. For now he is concerned in right of his houſe.

Againſt whom a Replevin lies.

It lies not againſt him that hath Goods delivered to keep,Baylee. Lib. Intra. 569. B. ſect. 1. For he comes lawfully to the poſſeſſion of them.

It lies not againſt the King,King. nor where he is party, nor where the taking is in right of the King, 3 Hen. 7.1. Keble. This by his Prerogative. It is ſuppoſed the King will do no wrong.

It lies againſt a Lord that diſtrains wrongfully,Lord. although the goods come again to the owner, Nat. br. 69. H. that the party injured may recover dammages.

It lies againſt the Sheriff, and the Writ ſhall be in the common form,Sheriff. and he ſhall be named by his proper name. Regiſt. Orig. 81. B. during his Office, but not as an Officer, but as a private perſon. Q. to whom the Writ ſhall be directed. It ſeems to the Coroner.

Of what things a Replevin lies.

It lies of Cattel, Regiſt. Orig. 81. Coke 1. part 141.Cattels. Mayowes caſe, the count. Lib. intra. 570. C. ſect. 123.4. Coke 1. part. 54. A. Capels caſe. and the Replevin needs not mention the Colour or Value of them, but only the Kind and Nature; that the Sheriff may know of what to make retorne, in caſe the diſtraier recovers.

But he ought to ſhew the place where they were taken; for the taking of them in another place ſhall abate the Writ, 2 Hen. 6.14. pl. 10. 35 Hen. 6.40. pl. 1. for the falſity of it, and it ſhall not be accounted the ſame taking.

It lies of Wood within the Foreſt, Regiſt. Wood Orig. 86. B. viz. Wood felled. Q. if he muſt ſhew what Wood it is.

Replevin lies of a Barge, 2 & 3 Mariae, Dyer. Barg • . 117. pl. 73. If taken infra corpus Comitatus.

It lies of a Maſtiff-Dog,Maſtiff. 12 Hen. 8.3. For the Owner hath property in him, and he is a uſeful Creature.

Of a Leveret, 2 Edw. 2. Diſtreſs 20. Q. For it is but a thing of pleaſure, if alive.

It lies not of Deeds of Land,Deeds. becauſe they are Real, 4, Hen. 10. pl. 4. And a Replevin is not a real Action meerly.

It lies of a Hive of Bees,Bees. Regiſt. orig. 81. A. For the Owner hath a property in them, and they are valuable.

It lies of a Ferret,Ferret. 2 Edw. 2. Avowry, 142. for the ſame reaſon.

It lies of Grain in a Wagon loaded,Grain. Lib. intra. 560. B. ſect. 2.562. D. ſect. 3. Q. together with the Wagon, or without it.

It lies of a man,Man. if he be not committed by the command of the King or his Juſtices, or for the Death of a man, Regiſt. orig. 77. B. Nat. br. 66. E. that is, be kept priſoner without any Suit or proceſs in Law.

Or by Juſtice of the Foreſt outlawed, approver, taken for Felony with the manner, breaking priſon, known Thief, appealed by an approver, burner of a Houſe, or counterfeiting the Money or Seal of the King, or taken by an Excommunicato Capiendo, or for Treaſon, Convict of Rediſſein, Nat. br. 66. E. For theſe are Capital Crimes.

But if a man be taken for Treſpaſs in a Foreſt, he ſhall be replevied, if detained againſt pledges, Regiſt. orig. 80. A.

And the Writ ſhall be directed Cuſtodi Foreſtae, and if he be not delivered, then a Replevin ſhall iſſue to the Sheriff, and an Attachment to attach the Gardein of the Foreſt, per Stat. 1 Edw. 3. up, 8. Statute 1. Regiſt. orig. 80. B. Nat. br. 67. A, B & C. Little uſe there is now of this Law.

And ſo for a Treſpaſs in the Kings Chaſe, Regiſt. 80. B. becauſe the Chaſe remains at the common Law, Nat. br. 67. D. and is not ordered by Fo •• ſt-Law.

And ſo if a man reſcues one Indicted and Convicted for a Treſpaſs in the Foreſt, Regiſt. Orig. 81. A. and the reſcuer detains the party.

Sheep and Lambs.If one takes Sheep which aſterwards have Lambs, it lies of all, Nat. Br. 69. D. 18 Edw. 3. 48. pl. 55. So of a Sow with Pig, a Mare with Fole, &c.

It lies of a Park ſeiſed into the hands of the King,Park. Regiſt. 80. B. Nat. br. 67. E. Q.

Sow and Pigs.It lies of a Sow and Pigs which were not pigged at the time of the taking, 12 Edw. 45. pl. 10. 18 Edw. 3.48. Nat. br. 69. D. Q. Whether of a Bitch and her Whelps.

Cows and Calves.It lies of Cows and Calves not calved at the time of the taking, Nat. br. 69. D. 18 Edw. 3.48. pl. 55.

It lies of Yarn,Yarn. Mich. 39 & 40. Eliz. com. Ban. Burley verſus Read, and generally for any thing that may be diſtrained.

The Writ.

If a live and dead thing be put in one Writ, the live ſhall be put firſt, Regiſt. Orig. 81. B. propter excellentiam rei. A living Dog is better than a dead Lion.

If it be of more live things, ye ſhall ſay, Averia. Regiſt. orig. 81. B. Nat. br. 68. D. Com. 229. A. For that is a word of large extent, comprehending all four-footed beaſts.

And if the Writ be Averia, and the Count be de Bonis & Catallis, it is not good, becauſe the Count is more large than the Writ, 2 Hen. 4.25. pl. 28. For Bona & Catalla comprehends all manner of Goods, as well dead as living things.

If it be of a live thing, it ſhall be named particularly, Regiſt. orig. 81. B. Nat. br. 68. D. Com. 229. A. 20 Hen. 6.42. pl. 21. viz. the kind of it.

If it be of more dead things, it ſhall be ſaid Catalla, and not Averia, 2 Hen. 4.25. pl. 28. Nat. br. 68. D. If it be of one dead, it ſhall be named, Nat. br. 68. D. Regiſt. 81. A. For the more certainty.

Miſnoſmer of the Place.The Defendant ſhall not plead Miſnoſmer of the place, but may ſay that he took it in another place, 16 Hen. 7.5. pl. 4. fol. 7. pl. 9. and not in the place alledged by the Plaintiff, and this is a good traverſe.

Diſtreſs in one County,County. and impounded in another County, Replevin lies in any of the Counties, Nat. Br. 69. I. For it is a continuing wrong from the taking to the impounding.

It is a good plea that the Defendant took the Cattel in another Village,Willage. 2 Hen. 6.14. pl. 10. For then it ſhall be preſumed not to be of the ſame taking.

The Proceſs. 1. Of a man Replevied. 2. Of Chattels.

Repleg. alias pluries & Attachment againſt the Sheriff, Nat. br. 66. F. 167. B. to make a return.

If the Sheriff return him not repleviſable, a Capias in Withernam ſhall iſſue, Regiſt. orig. 79. A. 80. A & B. That is to take the perſon of the man that detained him, or hath elongated him.

If upon the Capias in Withernam, a Non eſt in • entus of the perſon be returned, then a Capias in Withernam ſhall iſſue againſt his Goods, Nat br. 68. C. to make the Owner appear.

Repleg. alias and pluries, Nat. br. 68. E, F, G.

And an Attachment to the Coroners againſt the Sheriff, Regiſt. orig. 81. A. for not making his return.

Upon a return that the Bayliff of a Franchiſe makes not an Anſwer, or will not make deliverance, there ſhall be a Non omittas propter aliquam libertatem, but it ſeems that the Sheriff ought to do it without a Writ, Nat. br. 68. F. in favour of Liberty. Q. tamen.

If the Sheriff return

Fugavit, in another County.

That the Bayliff of the Liberty returns elongata.

Or that he cannot have the view.

Or that the Cattel elongata ſunt out of the County.

Or that the Bayliff of the Liberty returns that they are impounded within the Rectory of S.

In all theſe Caſes Withernam ſhall be awarded, Nat. br. 68. G. 69. A. becauſe the Sheriff cannot execute the Writ of Replevin.

And upon this three Capias's and an Exigend. ſhall iſſue, 5 Edw. 4.18. A. by Danby.

The Writ of Withernam ought to rehearſe the Return of the Sheriff. Nat. Br. 69. B. For upon that it is grounded.

Vid. The Writ Regiſt. Orig. 82. A. No. Lib. intra. 611. B. ſect. 21.

If the Replevin be in the County-Court per plaint, and the Bayliff return elongata, the Sheriff ought to enquire by Inqueſt whether it is ſo or not, and then Withernam ſhall be awarded by him, if it be true; and if he refuſe to grant the Withernam, the party ſhall have a Writ againſt him, and an Alias pluries, and an Attachment, Nat. br. 69. C. directed to the Coroner.

Second Deliverance.

At the Common Law a man may be non-ſuited in a Repleg. and have a new Replevin infinite, 34. Hen. 6.37. Danby. 10 Hen. 7.29. pl. 23. 19 Hen. 8.12. pl. 7. Q. For by this means the other party is delayed.

And if the Writ abate per Plea or Confeſſion, there ſhall be another Replevin, 34 Hen. 6.37. and not a ſecond Deliverance; for this abatement was not by wilful fault of the party.

But by Weſtm. 2. cap 2. if one be non-ſuited in Replevin, he ſhall have but a Second Deliverance • ut of the Rolls of the former Judgment, and • ot a new Replevin, 19 Edw. 2. Repleg. 25. 4 Hen. 4.23. 30 Hen. 8. Dyer 41. pl. 4.21. Edw. 4. • pl. 16.32 Edw. 3. Return of Cattel, 18.

But if Judgment be given againſt the Plaintiff 〈◊〉 a Repleg. upon a Demurrer or Verdict, no Se • ord Deliverance, 2 Hen. 4.23. pl. 9. But then be party is barr'd by judgment of the Court.

And Second Deliverance ſhall not be, but in the •• me Court, Com. 206. B. where the Replevin • as brought, and can beſt take notice of the Cauſe.

Yet if he be non-ſuited in the County-Court, and it be removed in Ban. then it ſhall iſſue out of the Ban. 13 Edw. 3. Repleg. 37. For there the Cauſe is now depending.

And if he be non-ſuited in the Second Deli • rance, he ſhall not have another Writ, 4 Hen. 6.8. Return of Cattel, 6. viz. of Second Delirerance; for this is final.

Second Deliverance is a Writ judicial, iſſuing out of the former Record, per 2 Weſtm. cap. 2. depending.

Vide the Writ Lib. Intra. 572. B. ſect. 2, 3, 4.

Vide the Count, Lib. intra. 572. B. 5.6. No. Lib. intra. 589. A. ſect. 8.

And if a man be non-ſuited in a Repleg. after the Declaration, the Second Deliverance ought to agree with the Replevin in day, place and number of Cattel, &c. 3 Hen. 6.9. pl. 10. 21 Hen. 7.28. vid. 12 Hen. 7.4. 49 Edw. 3.29. Perſay. For it is to continue the ſame Sait.

But 16 Edw. 3. Ayd 131. Thorpe. 17 Edw. 3. Repleg. 22. 26 Hen. 6. pl. 7. It may vary from the place. Q. tamen.

And per 26 Hen. 8. pl. 27. Fitz Herbert, it may vary from the number and day; ſo there be a certain deſcription of them, Q. tamen.

Repleg. of a Heifer, the ſecond deliverance was of a Cow, and good, 26 Hen. 8.6. pl. 27. For a Cow and a Heifer non variant ſpecie; for they differ only in age and appellation.

Upon a Non-ſuit in Repleg. return awarded, and upon Withernam awarded, and other Cattel taken, yet the ſecond deliverance ſhall be of the former Cattel; for ſo the Writ imports, 36 Hen. 1. Dyer 59. pl. 14. 2 Edw. 3.17. Avowry 171. 22 Hen. 7.92. pl. 7 Crooke, there ſhall not be a ſecond deliverance, becauſe the Plaintiff had eſtrayed the former.

Husband had aid of a Wife in a Replevin, and makes default, the Wife cannot joyn in the ſecond deliverance, 18 Edw. 2. Repleg. 23. For ſhe is not the principal actor in the Replevin, but the Husband.

Diſtreſs.
In what caſe a man may diſtrain.

For Fine or Amerciament in a Court Leet.A man may diſtrain for a Fine or Amerciament in a Court-Leet, Coke 11. part. 45. A. Godfreys caſe; for a Fine and all Amerciaments in a Court-Leet Diſtreſs is incident, 5 Edw. 3.139. pl. 43. 10 Edw. 3.303. pl. 10. by the Common Law.

For a Fine impoſed in a Leet, Coke 8. part. 41. A. Grieſleyes caſe.

For breaking of a By-Law in the Leet of the Lord, he may diſtrain for the Amerciament, Coke. 6. part. 25. A.

Diſtreſs is incident to an Amerciament in a Court-Leet, 9 Hen. 7.2. pl. 22. 8 Hen. 4.15. pl. 16. Gaſciogne. 12. Hen. 7.15. B. 4 Edw. 3.95. pl. 24. 29 Edw. 3.28. pl. 30. Doct. & Stud. 24. A. 5 Edw. 3.159. pl. 21.

Tax by Parliament.Collector of a Tax granted by Parliament, may diſtrain him that will not pay when the Pariſhioners have aſſeſſed it, 22 Edw. 3.10. pl. 52. and juſtifie by the Act that granted it.

Amerciament in a Court Baron.A man ſhall be amerced for not doing of ſuit in a Court-Baron, 9 Hen. 7.22. Wood & Read, Coke 4. part 95. A. Slades caſe, 21 Hen. 6.39. pl. 8. and not diſtrained.

And for ſuch Amerciament he ſhall diſtrain, 9 Hen. 7.22. per two Juſtices by ſpecial preſcription, No. Lib. intra. 570. C. Q.

For Amerciament in a Court-Baron a man may not diſtrain, 16 Hen. 7.14. pl. 9. 21 Hen. 6.39. pl. 8.

The Lord may preſcribe to diſtrain for an Amerciament in a Court-Baron, 15 Eliz. Dyer. 322. Coke 11. part. 45. A. and ſuch preſcription is good.

Yet Doct. & Stud. 74. è contra. Q.

Crooke. If an Amerciament was at the Court-Leet, he may diſtrain, otherways not, Crooke, 20 Hen. 7.66 pl. 8. Q. What remedy is then for it? for it ſeems debt lies for it.

Amerciament in a Tourne. Special preſcription in the Sheriffs Tourne to Amerce, and for this there was a ſpecial preſcription for a Diſtreſs, 33 Hen. 8.30. pl. 2.

Tax by the Inhabitants.A Tax was made by the Inhabitants of a Pariſh, and a Diſtreſs taken for it, and good, Doct. & Stud. 74. B. by preſcript.

Suit to a Mill.A man may diſtrain for ſuit to a Mill, 22 Hen. 6. 14. 9 Edw. 3.356. Nat. br. 122. M. For it is a profit, and valuable.

Rent ſervice.A man may diſtrain for Rent ſervice, and all manner of ſervices, Doct. & Stud. 74. A. For it is a Duty iſſuing out of the Land held.

A. gives Land to B, for him to ſerve in ſuch a place when he ſhall be requeſted, he may diſtrain, 22 Hen. 6.33. A. Q. if he were never ſeiſed of the Service.

Herriot. Difference between ſeiſing and diſſeiſing.For Herriot-ſervice a man may diſtrain, 44 Edw. 3.13. pl. 24.27 Aſſize. pl. 24. Com. 96. Mantels caſe. Doct. & Stud. 75. A.

But for Herriot-cuſtom he can but only ſeize, 2 Edw. 2. Herriot 7. 8 Hen. 7.10. Doct. & Stud. 75. A. And if he cannot ſeize, he hath no remedy.

And for Herriot-ſervice a man may ſeize, 18 Edw. 3.22. pl. 4. 38 Edw. 3.7. pl. 27. 16 Ed. 3. Herriot 2. 6 Edw. 3.227. pl. 10. And Diſtreſs for Herriot-ſervice is more worthy than Heriot-cuſtom.

For a certain Leet.A man cannot diſtrain for a certain Leet without preſcription, becauſe it is againſt common right, Coke 11. part 44. Godfreyes caſe. vide 6 Edw. 3.10. ſo that a preſcription binds common right.

And the Tything-man that preſcribes to have it of the Reſiants, ought to preſcribe to diſtrain, 6 Edw. 3.189. pl. 26. Coke 11. part. 44. B. elſe he cannot.

Ayd.A man may diſtrain for Ayd for marrying his Daughter, or making his Son Knight, Glanvil, Lib. 9. cap. 8. 5 Edw. 3.138. pl. 38. 39 Edw. 3.34. pl. 40. 40 Edw. 3.22. pl. 21. This by tenure is due to the Lord.

Suit to the Hundred.For ſuit to his Hundred Court by reaſon of tenure, there ſhall be a diſtreſs of common right, Lib. intra. 608. B. 5 Edw. 3.152. pl. 32. 9 Edw. 3.356. pl. 39. to compel it to be done, or • ecompence for not doing it.

The Lord may diſtrain for relief,Relief. and hath no other remedy, but his Executor ſhall have debt, and ſhall not diſtrain, Coke 4. part. 49. B. 7 Hen. 6.13. as for a duty veſted in the Lord to whom it was a perſonal ſervice.

A man cannot diſtrain for money due for Agiſtment, but ſhall have treſpaſs,Agiſtment. if that they chaſe the Cattel out of the Land before the Agiſtment be paid, Regiſt. Orig. 92. A. 30 Edw. 3.11. pl. 6. Q. whether debt lies not for it againſt him that agiſted his Cattel.

Inholder.An Inn-holder cannot diſtrain for his Victuals provided for his gueſts, 3 Edw. 3. Diſtreſs 19. but may have an action of debt for the value of them.

He that takes Cattel as Eſtrays,Eſtray. may diſtrain them until he be ſaisfied for the Meat, 44 Edw. 3.13. pl. 25. by the owner of them, if they be claimed within the year and the day.

Pledge. A. indebted to B for tabling, delivers Goods to him until he be ſatisfied; B. may diſtrain them until he be paid, 46 Edw. 3.30. pl. 39. that is, he may keep them; but this is upon the ſpecial agreement.

Toll.For Toll a man may diſtrain, 30 Edw. 3.15. B. 11 Hen. 6.39. 9 Hen. 6.45. 20 Hen. 7.1. Marrowe. viz. Toll of a Market or Fair, this ſeems not to be of common right.

But Trin. 28 Eliz. Ban. Regis. Rot. 963. the Village of Northampton diſtrained for Toll, and alledged not a ſpecial Title, or preſcription to have Toll, and for this it was adjudged againſt them.

Dammage feaſant.A Commoner may diſtrain the Cattel of a ſtranger, dammage feaſant upon the common of common right, Coke. 9. part. 112. B. 7 Edw. 3.266. pl. 39. 24 Edw. 3.42. 46 Edw. 3.23. 15 Hen. 7.2. & 12. 13 Hen. 8.15. B. in reſpect of his intereſt in the Common.

ForfeituresThe Officers may diſtrain for the Forfeitures of Inn-keepers, and ſell the Diſtreſs, 1 Jac. cap. 9. by Statute. vid.

The Lord may diſtrain for the Forfeitures of Inmates, or for erection of Cottages, Stat. 31 Eliz. cap. 7. vid.

Diſtreſs may be taken by Surveyors of High ways, 18 Eliz. cap. 10. from thoſe that make default in labouring. By the Stat.

Arrerages.Tenant in Dower cannot diſtrain for Arrerages of Rent due before the Recovery of her Dower, 40 Edw. 3.22. pl. 19. For the Tenants were not bound to pay her.

A Leaſe of Tithes rendring Rent,Rent. there ſhall be no diſtreſs, becauſe the Tithes are the very thing leaſed, 11 Hen. 4.40. and therefore cannot be diſtrained no more than Land lett, and the rent iſſues not out of the Tithes.

Rent by preſcription.A perſon claims rent by preſcription, and diſtrains for it, Lib. intra. 557. Charge 1. and good.

A. grants a Rent-charge to B in Tayl,Rentcharge. and grants, that if the Bayliff of the King diſtrained, the party might diſtrain, 46 Edw. 3.18. and good by the contract.

Rent granted by Fine, and Diſtreſs appointed to the Juſtices of the Com. Ban. or Barons of the Exchequer, they may diſtrain, 38 Edw. 3.33. So if the Diſtreſs had been appointed to any others, they might diſtrain by vertue of the Fine.

Of what things a man may diſtrain.

Money cannot be diſtrained,Money. unleſs it be in a Bag ſealed, or a Cheſt locked, 22 Edw. 4.50. B. pl. 17. 41 Edw. 3. Diſtreſs 14. For then it may be known and replevied, elſe it cannot.

Cattel in a Wagon.Cattel in a Wagon, viz. faſtned to it, may be diſtrained, but out of a Wagon they cannot, 2 Hen. 4.15. pl. 17. 41 Edw. 3. Diſtreſs 14. 22 Edw. 4.50. 11 Hen. 7.14. pl. 8. 21 Hen. 7. 39. pl. 55. becauſe there can be no Return, neither doth a Replevin lie of them. Q. It ſeems becauſe Cattel of the Plough are not diſtrainable, ſo they ſhall be adjudged if they be looſe; but when they are in the Wagon, it is known they are for other uſes. Q.

The Lord cannot ſeize the Cattel,Lord. and put them in a Wagon, and then diſtrain them, 18 Edw. 3.4. For by this means no Cattel of the Plough would be priviledged from diſtraining.

A Horſe at the Smiths Shop,Horſe. or a Garment in a Taylors Shop, or an Horſe in an Hoſtrey ſhall not be diſtrained; for this would hinder publick commerce and dealing: But if the Saddle be on the back of the Horſe when he is at the Shop, he may be deſtrained, 22 Edw. 4.40. pl. 15. 15 Rich. 2. Avowry 19. becauſe it ſeems he is then as it were in the Owners cuſtody. Q. tamen.

A Horſe upon which I ride over my ground, the Lord cannot purſue, and take him as a Diſtreſs, 6 Rich. 2. Reſcous 14. So if I have him bridled in my hand, as it ſeems; for that is to diſtrain the man as well as the Horſe.

A Horſe of any man through the whole Village ſhall be diſtrained for the Fees of the Knights of the Parliament, 11 Hen. 4.2. For the Law looks upon the Village in general, and every one is liable for the whole, if he be able.

If a man be taxed to Fifteens, having Cattel levant in another Village, when they come within the Pariſh they ſhall be diſtrained, 18 Edw. 3. 11. pl. 39. For the Pariſh is liable with the Tax.

If a Horſe of a Stranger eſcapes into the Land of him that hath loſt Iſſues, he ſhall be diſtrained, as it ſeems, 5 Hen. 7.1. Q. For it ſeems hard.

If the beſt Beaſt be eſtrayed, the Lord may diſtrain any Cattel in the Land, 27 Aſſize pl. 24. viz. where the Lord is to have the beſt Beaſt; but it ſeems they muſt be levant and couchant.

A Goſhawk diſtrained,Goſhawk. and the Diſtreſs juſtified, 16 Edw. 4. pl. 9. viz. a reclaimed Goſhawk, for in that one may have a property, and it is valuable.

Fiſhes in a Pond cannot be diſtrained,Fiſhes. Crookes Reports 188. becauſe they cannot be known what they are, nor can be replevied.

A Hive of Bees ſhall be diſtrained, as it ſeems,Hive of Bees. for a Replevin lies of them, Nat. br. 68. D. Q. if it be in the day-time, how it can be.

Door or window.A Door or Window is not diſtrainable, 11 Edw. 3. Ceſſavit. 21. 21 Hen. 7.26. 14 Hen. 8.25. Brudenel. For it is part of the Freehold.

A Milſtone that is ſevered for picking ſhall not be diſtrained, 14 Hen. 8.25.Milſtone. For it is part of the Mill.

An Anvil ſhall not be diſtrained,Anvil. 14 Hen. 8.25. For it is part of the Smiths Tools he gains his Livelihood by.

A Barge was diſtrained by preſcription,Barge. 3 Mar Dyer. 117. pl. 73. and held good, for that may alter the Law.

The Lord diſtrained Cattel for ſervices before they were Levant and Couchant,Lord. 4 Edw. 3.37. Iſſue joined, 8. 22 Hen. 6.37. 15 Hen. 7.17. Doct. & Stud. 15 A. and well, as it ſeems.

Sheep ſhall be diſtrained,Sheep. if other diſtreſs cannot be found at the day of the diſtraining, 29 Edw. 3.16. elſe not in reſpect of the hindrance of clothing.

Cattel of the Plough ſhall not be diſtrained,Plough. if there be other diſtreſs ſufficient, 14 Eliz. Dyer. 312. pl. 86. elſe they may; for otherwiſe the party may be without remedy.

Cattel in Dower.Cattel delivered by the Sheriff to the Tenant in Dower for ſeiſin of Rent ſhall not be diſtrained for Arrerages of the Rent, 40 Edw. 3.22. pl. 19. For ſhe ſhall not take ſuch advantage.

Yarn brought upon a Horſe to a Neighbour to weigh,Yarn. this the Lord cannot diſtrain for Rent, becauſe it was brought for a ſpecial intent, Mich. 39 & 40 Eliz. com. Ban. Burleigh verſus Read. and it would hinder publick commerce and dealing.

If Cattel put into Black Acre,Cattel. and they ſtray into White Acre, through default of encloſure, they ſhall not be diſtrained, 22 Eliz. Dyer 365. pl. 33. For the Owner is in no fault.

Default of Incloſure.A. ought to incloſe againſt B, and leaſes to C, for 21 years, which leaſes to D, for 10 years, rendring Rent, the Cattel of B, for default of encloſure, eſcape into the Lands of A. and he purſues them; C cannot diſtrain, for no default was in the owner of the Cattel, 15 Eliz. Dyer 317. pl. 9. vide 39 Edw. 3.3. pl. 12. and the Law doth not puniſh the innocent.

What Perſon ſhall diſtrain.

Dammage feaſant.A Commoner ſhall diſtrain for dammage ſeſant, and is not tied to ſhew per quod amiſit Communiam, No. Lib. intra. 573. D. ſect. 4. 24 Edw. 3.42. pl. 23. Coke 9. part. 112. B. 46 Edw. 3.23. 15 Hen. 7.2. 7 Edw. 3.266. pl. 39.13. Hen. 8.15. For the Diſtreſs there taken implies it.

Tenant at ſufferance diſtrains, dammages feaſant. 4 Hen. 7.3. and good; for he hath title againſt a ſtranger.

He to whoſe uſe before, 27 Hen. 8. could not diſtrain, becauſe he had nothing in the Land, 15 Hen. 7.2. pl. 4. but the Feoffee of the Land; but now it is otherwiſe.

Sheep bailed to a woman ſole to dung her Land,Sheep. who takes a Husband, who commands the Owner to take them again, who refuſeth, the Husband may diſtrain them, dammage feaſant, 43 Edw. 3.32. pl. 3. For now they are dammage feaſant unto him in reſpect of his intereſt in the Land.

The Lord diſtrains Cattel, becauſe the Tenant puts in more than he ought into the Common,Lord. 46 Edw. 3.12. pl. 13. and good, for he ought not to ſurcharge the Common.

A. ſold 50 Acres of Moor which lay common,Common. to B, yet every one of them ought to incloſe againſt the other, and if the Cattel of the one go into the Land of the other, they ſhall be diſtrained, dammage feaſant, 23 Eliz. Dyer 372. pl. 10. For by the ſale the Lands are ſevered.

At what time a man may diſtrain.

Services and Amerciaments.For Rent-ſervices he ſhall not diſtrain in the night, 11 Hen. 7.5. pl. 8. 12 Edw 3. Diſtreſs 17. 10 Edw. 3.21. Coke 9. part. 66. A. For the night is for reſt, and all things ought to be then in peace.

After the Term ended no diſtreſs, 14 Hen. 4.31. For then the privity betwixt the Leſſor and the Leſſee is gone. Q.

But 22 Hen. 7.96. pl. 5. by all, if a Leaſe for years be ended, and the Leſſee keeps in, the Leſſor ſhall diſtrain for the arrerages. For that continues the privity as it ſeems. Q.

A Leaſe till Mich. for one year, rendring rent at Mich. he cannot diſtrain, becauſe the Leaſe is ended at the inſtant, Doct. & Stud. 74. A. That is, at the day, and the Law admits not of Fractions of time.

Husband and wife.Husband leaſes the Wifes Lands, rendring Rent, th Wife dies without Iſſue, the Husband cannot diſtrain, becauſe the reverſion goes to the Heir, 9 Hen. 6.45. 28 Hen. 8. Dyer 28. pl. 191. And the rent go with the Reverſion.

A Leaſe for years,Reverſion. & grants the reverſion to B, yet if the Cattel of B comes upon the Land, A ſhall diſtrain during the Term, 10 Edw. 4.4. tamen quaere, becauſe he hath nothing in the Land.

Dammage feaſant.For Dammage feaſant in the night, one may diſtrain, and good enough, Coke 9. part. 66. A. Mackally's caſe. 11 Hen. 7.5. pl. 8. 12 Edw. 3. Diſtreſs 17. 10 Edw. 3.21. For elſe it might be miſchievous in reſpect of the dammages which might be done before the morning.

A. enters upon a condition broken, and takes the Cattel of the Leſſee, dammage feaſant, Quaere. 5 Eliz. Dyer 322. It ſeems he may; for he comes in upon a good Title.

A man may diſtrain dammage feaſant, although the owner make freſh ſuit, in reſpect of his ſatisfaction for the dammage done, 7 H • n. 7.1. pl. 11. 11 Hen. 7.4. pl. 11. 10 Hen. 7.21. Doct. & Stud. 15. è contra.

In what place a man may diſtrain.

A man fined in a Leet, being one of the Deziners,Leet. ſhall be diſtrained through all the juriſdiction of the Leet, although that he be of another dezin, Coke 11. part. 45. A. 11 Hen. 4.89. 13 Hen. 4.9. For he may, it ſeems, be liable in both places.

Tourne of the SheriffA man ſhall diſtrain in any place within the precinct of the Court, 19 Edw. 3.2. Avowry 225. 8 Rich. 2. Avowry 194. 47 Edw. 3. pl. 12. where the Amerciament is ſet, but not without; for there is no juriſdiction.

For Amerciament in the Sheriffs Tourne he may diſtrain throughout the County, 12 Hen. 4.24. pl. 17. 13 Hen. 4.9. 8. Rich. 2. Avowry 194. becauſe all the County is within the juriſdiction of the Sheriffs turn; for it is the County-Court.

If a man had a Leet within his Mannor, he cannot diſtrain out of his Mannor, 4 Edw. 3 96. pl. 26. For that is not within his juriſdiction.

For a tax by the ParliamentFor a Tax by the Parliament, a diſtreſs may be juſtified throughout all the Village, 11 Hen. 4.2. 18 Edw. 3.11. pl. 39. upon which the Tax is ſet. This was according to the old way; but now the Law is altered.

A Fiſhing lying within tenure, a man may diſtrain in it,For Service. for it ſeems that the Soil paſſeth, 40 Edw. 3.45. as well as the water, viz. terra aqua cooperta. Q. For a Fiſhing ſeems but a Liberty or Priviledge.

Herriot-ſervice.A man may ſeize his Herriot-ſervice in any place that he ſhall find him, although not within his Fee, 6 Edw. 3.208. pl. 3. For it is a perſonal ſervice, and not local or fixt.

The Lord may enter the Houſe of his Tenant to diſtrain if the Door be open,Houſe. 38 Hen. 6. 26 pl. 4. But he cannot open the Door to do it. Q.

If the Lord find the Houſe faſt with a Bar, and he break it open and diſtrain, this is wrongfully done, 8 Edw. 2. Diſtreſs 21. For a mans Houſe is his Caſtle of defence.

If the Beaſts of a ſtranger eſcape into anothers Land,Eſtranger. and the Owner chaſes them out before, and the Lord comes and diſtrains them, here the Lord cannot diſtrain them; yet it is otherwiſe, if they go out▪ of their own accord, without chaſing, 11 Hen. 7.4. pl. 11 Com. 38. A. Plats caſe. 2 Edw. 4.6. B. Littleton. 33 Hen. 6.52. pl. 39. 34 Hen. 6.18. B. For in the former caſe he may take notice of the Owner, but in the latter caſe he cannot.

The Lord diſtrains the Cattel of the Patron within the Glebe belonging to the Advowſon,Glebe. 33 Hen. 6.35. Littleton. This is a good diſtreſs held.

A man cannot diſtrain for Rent but in the place leaſ • d,Leſſee. unleſs the Leſſee grant a diſtreſs in other Land, 9 Hen. 6.9. which he may well do by ſpecial agreement.

Lords Ecc.The Lord diſtrains in his Fee, the Tenant chaſes them out of his Fee, he may take them again, 44 Edw. 3.20. pl. 18. for by the diſtreſs he had a property.

Freſh ſuit.A Baily attaches a Horſe, which is reſcued and brought into another County, he ſhall make freſh ſ • it, and take him again, 33 Hen. 6.52. pl. 39. 33 Hen. 6.550. pl. 46. elſe not; for the gaining him upon the freſh ſuit re-continues the Attachment.

A diſtrains and puts them in the pound,Pound. the Owner takes them out, A may take them again in any place, 34 Hen. 6.18. pl. 33. becauſe they were once in cuſtody of the Law, and he may place them there again wherever he finds them.

If one put his Cattel in Land charged with a Rent-charge,Rent-charge. they ſhall be diſtrained for the Rent-charge, although they are neither Levant nor Couchant: otherwiſe, if they eſcape upon the Land, 15 Hen. 7.17. pl. 13. for it ſhall be prefumed he took notice of the Rent; but not ſo where the Beaſts eſcape there, for that is againſt his will, and he could not help it.

Quaere by the 18 Edw. 2. Avowry 219. if the Cattel that eſcape ſhall not be diſtrained for dammage feaſant. It ſeems they ſhall, in reſpect of the dammage to be recompenced, which come by his negligence.

River of Thames. 2 & 3 Mariae Dyer 117. pl 73. Diſtreſs for an annual ſum upon the River of Thames. Q. of what nature.

What Diſtreſs ſhall be ſold.

A Diſtreſs taken in a Court-Leet ſhall be ſold,Court-Leet. although that a common perſon be Lord of the Leet, 3 Hen. 7.4. pl. 15. Fairſax.

Diſtreſs taken by a Baily of a Lord of a Leet for forfeiture of Inmates,Inmate. and ſold by force of a grant of the Steward in nature of a Scire faci • s, No. Lib. Intra 666. A. Sect. 14. Q. whether by the Common Law.

A Diſtreſs taken for a Fine touching Highways ſhall be ſold,Highways. per 18 Eliz. cap. 10.

What ſhall not be ſaid a Diſtreſs exceſſive.

No Diſtreſs ſhall be ſaid exceſſive for Homage, 42 Edw. 3.26. pl. 11. Belknap, Exceſſive. 27. Aſſize pl. 51. Coke 4. Part. 8. B. Bevils caſe; 28. Aſſize pl. 50. this is in reſpect of the great conſequence of the thing diſtrained for, and the eaſineſs for the Tenant to perform it.

So likewiſe for fealty, 27. Aſſize, pl. 51. 28 Aſſira, pl. 50. Coke 4. part. 8. Bevils caſe, for the ſame reaſon, and in reſpect of the contempt done to the Lord.

A man diſtrains four Horſes and a Cart for two ſhillings rent; this is not exceſſive, becauſe they are fixed to the Cart; otherwiſe, if not fixed: ſo of a fold of Sheep, 20 Edw. 4.3. otherwiſe, if not in the fold. Quaere rationem differentia. It ſeems to be, becauſe in the former caſes the intent of the party appears, but only to have his due, and not to take advantage of the Diſtreſs: But not 〈◊〉 in the latter, for then he might have diſtrained 〈◊〉 Horſe, or one Sheep.

1. The Barr. 2. Juſtification. 3. Conuſance. 4. Avowry.

No Barr that the Plantiff is poſſeſſed of the •• tel, Nat. br. 69. H. for he ought to have dam • ages for the wrongful diſtraining of them.

That he took them not, a good barr, Lib. Intra. • 1. B. Sect. 1.565. C. Sect. 1, 2. 19 Edw. 3. Aid 28. 〈◊〉 that diſaffirms the Replevin, viz. the ſuppoſal 〈◊〉 the Writ.

Claim of Property, 26 Hen. 8.6. pl. 27. 31 〈◊〉 . 6.12. for then it was lawful to take them as •• own.

This may not be by way of Avowry, 31 Hen. • .12.

In Replevin of grain it is a good Barr to ſay,Grain. 〈◊〉 was his Wiſes dum ſola, and that the Plaintiff ••• endred it to her, 30 Edw. 3.9. pl. 3. for by the • arriage the intereſt is his.

2. Juſtification. Difference between a Juſtification and an Avowry.When a man cannot have the thing for which 〈◊〉 diſtrains, then he may juſtifie the taking in lieu 〈◊〉 the thing, and not avow to keep it till he have 〈◊〉 thing it ſelf, per Curiam, 19 Hen. 6.41. • 83.

But 22 Edw 4.36. B. è contra, Collow. Q.

If a man diſtrain for Services, and the Tenant 〈◊〉 , in Repleg. brought by the Executors, he ſhall •• fie, but not avow, 17 Edw. 3. Executors 106. the can make no title againſt them, but he may •• 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 f • aſant, 4 Hen. 7.3. pl. 6. for he hath a Title againſt a Stranger.

One makes Conuſance of the diſtreſs for dammage feaſa • 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. • . pe • Common Law; and 2. by Statute Law, ••• e 9. part. 134. B. Aſcoughs caſe.

2. One may avow upon one, as upon his veray •• mant by the manner, ſcil. when the Tenant •• ſed it for life, or made a gift in Tail, the re • 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 •• tter in his Avowry, 15 Edw. 4.12. A. Catesby, •• e 4 Hen. 6.14. pl. 11. Quaere.

3. Upon one as his Tenant by the manner, when • e Lord hath but an eſtate in Tail, or a leſſer •• te in the Lordſhip, or when the Tenant hath ••• ſſer eſtate than Fee-ſimple; for neither of theſe •• ders him from being Tenant, 21 Hen. 6.22. 〈◊〉 . 2. 2 Hen 4.24. pl. 13. Hank • ford.

4. Upon the matter in the Land generally, as • 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 •• gnory, without making Avowry upon any perſon certain, Coke 9. part. 136. Aſcoughs caſe; 〈◊〉 the Avowry is in reſpect of the Lands held, • 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 feaſ • 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 aſſ • 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. France • 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 • abe • electionem, & unum ſolvendo liberatur ab • l • 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,Anceſ • 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 • 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 poſſ • 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 • raud.

By the hands of an Infant,Infant. good, 34 Edw. 3. Diſclaimer. 30. Coke 9. part. 33. B. Bucknals ca • e. Quaere.

Feoffor of the TenantIn the Feoffor of the Tenant, Com. 95. A. Man • e • s caſe; for the Tenant derives under hi • .

By the hands of one Joyntenant only, it is good,Joynttenant. Coke 2. part. 67. A. Tookers caſe.

Preſcription to have rent of a Village,Reſiant • . 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 Undertenant.

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 Eſ • 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. 4.5. and is ſeiſin of Relief, the inferiour ſervice, 13 Edw. 4.5.

Seiſin of Fealty is ſeiſin of all, becauſe he takes an Oath to do all, Coke 4. part. 8. A. Bevills caſe, 44 Edw. 3.11. 8 Hen. 6.16.

Seiſin of Annual ſervice is ſeiſin of every Caſual ſervice, Coke 4. part. 8, 9. Bevills caſe, 20 Edw. 3. Avowry 121.76. B. Avowry 69. for the certain comprehends the incertain.

Seiſin of rent is ſeiſin of fealty, 29 Edw. 3.21. A. 3 Edw. 2. Avowry 188. for fealty is incident unto it.

Seiſin of one Annual ſervice is not ſeiſin of another Annual ſervice, becauſe it is the folly of the Lord that he did not obtain that which is annual, Coke 4. part. 9. A. Bevills caſe, 16 Eliz. Dyer 330. Q

Reſervation the former year one Roſe, and afterwards 20 s. per annum, the ſeiſin of the one gives the ſeiſin of the other, Coke 4. part. 9. Bevills caſe; for they depend one upon another, and hang together like links of a Chain.

The Lord recovers dammage for Suit; this is a good ſeiſin of the Suit, Coke 4. part. A. Bevills caſe; for the dammage comes in room of the ſuit, and ſhew it was due.

Note that a ſeiſin in Law is ſufficient ſeiſin within the Statute of 35 Hen. 8. cap. 2.1. becauſe the intent of the makers was to limit the time, and not to exclude any ſeiſin that was at Common Law; 2. the words being (poſſeſſion or ſeiſin) in the disjunctive, make an actual ſeiſin, which referrs to the three former branches, and ſeiſin; this is either actual or in Law, which referrs to the fourth branch, Coke 4. part. 10. Bevils caſe.

Meaſnalty extinct by purchaſe of the Tenant, the old ſeiſin doth ſuffice for a Rent-ſeck,Ancient ſeiſin. Coke 4. part. 9. A. 2. Edw. 2. Extinguiſh 6.

A Signory granted upon condition which is broken the ancient ſeiſin ſufficeth, for the diſtreſs is in lieu of the entry, Coke 4. part. 9. B. Bevills caſe; for he cannot diſtrain except he enter.

Barr to an Avowry.

Tender of amends for dammage feaſant before diſtreſs,Amends. or impounding is good; but not afterward, Coke 5. part. 76. A. 8. part. 147. A. Doct. & Stud. 112. B. Nat. br. 69. G. becauſe then the party is put to more loſs and trouble.

If there be tender of amends after diſtreſs, and afore impounding, the detainer is wrongful and not the diſtreſs, Coke 8. part. 147. A. Carpenters caſe. Q. for it ſeems the detainer is not wrongful, except he tender amends as well for his trouble and expences, as for the dammage done by the Cattel.

The tender of amends to the Baily is not good, Coke 5. part. 76 A. Pilkingtons caſe, 1 Hen. 4.15. pl. 17. for he hath not power to take it, for this belongs not to him as a Baily.

A claims Common appurtenant to ſuch a houſe pro omnibus averiis magnis, Common. and a verdict given for him; and it was reſolved after verdict, that although he doth not ſay (ſuis) it is good; 〈◊〉 . although he ſaid not Common appurtenant, Paſch. 15. Jac. Ban. Regis, for both ſhall be ſo intended.

Diſclaimer is a good bar,Diſclaimer Coke 9. part. 34. Buck •• ls caſe, 15 Rich. 2. Avowry 214. viz. that the party who diſtrained d • d diſclaim.

Grant by Tenant in tail.Avowry, becauſe A ſeiſed in ſee granted a tent to the Avowant, for which he diſtrains, the other pleads that A was ſeiſed in t •• ; this is not good, if he traverſe not the ſeiſin in ſee, 11 Eliz. Dyer 280. pl. 16. for he might be ſeiſed alſo in ſee in remainder.

Out of his Fee.Out of his ſee is a good Barr, and every Stranger to the Avowry ſhall plead it, Coke 9. part. 20. A. 34. 15 Rich. 2. Avowry; for then the party cannot diſtrain there.

Note, Feodum dum homagium, & ſervitium, Note. & non tenementum in dominico, Bracton lib. 2. fol. 46. B. Q. I ſuppoſe the meaning is, that there is ſee, whereſoever homage or ſervices are due.

If one avow, the other need not ſay he took them in the high Street, but is put to his Action upon the Statute, 11 Rich 2. Avowry 87. which hinders the taking of ſuch diſtreſſes.

Injuria ſua propria.In an Avowry for an Amerciament affered in Court Baron de injuria ſua propria, is a good barr, for the Cuſtome is traverſed by that plea, Mich. 13 Jac. Com. Ban. Baker & Banks.

Ought to in loſe and did not.The Plaintiff ſays, that the Defendant ought to have incloſed, and did not do it ſufficiently; ride the pleadings, 22 Eliz. Dyer 365. pl. 32. and that which is not ſufficiently done is, as if it were not done at all.

Coparcener.Conuſance for dammage feaſant, the other ſaid that they are Coparceners; this is good, 10 & 11 Eliz. Dyer 280. pl. 15. for he is ſeized per my & per tout in all the Land, and therefore cannot be a Treſpaſſer.

Nothing in arrear.Nothing in arrear a good barr; but no Stranger ſhall plead it, Coke 9. part. 20. A. viz. upon a diſtreſs for rent or ſervices.

A releaſe of Actions perſonals and reals pleaded in barr of the Avowry for a corrody granted with a diſtreſs,Releaſe. a good barr, 27 Edw. 3.81. pl. 13. for the diſtreſs is in the nature of an Action.

When the Lord varies from the truth of the quantity of his ſervices by reaſon of ſeiſin,Seiſin. there the Defendant cannot traverſe the ſeiſin, Coke 9. part. 33. A. Com. 94. B. Mantels caſe, for the variance deſtroys not the ſeiſin.

But if they differ of the quantity by reaſon of ſeiſin had, there the ſeiſin is traverſable, Coke 9. part. 33. A. Bucknals caſe, Com. 94. B. Mantels caſe, 18 Edw. 2. Avowry 217. for the ſeiſin is the chief thing in queſtion.

Not ſeiſed generally is a good barr, for by this he ſhall have no remedy of the Lord,Not ſeiſed. Coke 9. part. 34. B. Bucknals caſe, 22 Hen. 6.3 A. 30 Hen. 6. Avowry 15. but he ſhall only retain the diſtreſs. Q. for he ſhall have dammages.

But if the Lord avow and alledge ſeiſin by the hands of the Plaintiff or other perſon, the Plaintiff ſhall ſay, never ſeiſed by his hands, Coke 9. part. 35. A. Bucknals caſe, 22 Hen. 6.3. A. and this is a good barr, for here is a good iſſue tendered.

The ſeiſin is not traverſable, but for that only for which the Avowry is made, Coke 9 part. 35. A. Bucknals caſe, 26 Hen. 8.1. pl. 1. unleſs ſeiſin be alledged of a ſuperiour ſervice, as if tenure be alledged per Homage, fealty, and rent, and the Avowry is for rent, and ſeiſin is alledged in all, the ſeiſin of the rent is only traverſable, Coke 9. part. 34. A. becauſe the Avowry is only for the rent.

But if it be of Homage, Fealty, Rent, and Eſcuage, and the Avowry is for Homage, and he alledgeth ſeiſin in all, there the ſeiſin of Eſcuage is traverſable, becauſe this is ſeiſin of all, Coke 9. part. 34. A. Bucknals caſe, 21 Edw. 3.52. 13 Edw. 3. Avowry 103.19 Edw. 2. Avowry 224.16 Edw. 4.11. pl. 11. for Eſcuage includes all the reſt.

Tenure by Homage, Fealty, or Eſcuage, or Suit of Court and other ſervices, and ſeiſin is alledged of all, he may traverſe the ſeiſin of Homage and Eſcuage, 2 Edw. 3.21. pl. 4. becauſe they include the reſt.

Not ſeiſed within 40 years.Not ſeiſed within 40 years is a good barr, 32 Hen. 8. cap. 2. Coke 9. part. 36. Bucknals caſe, 14 Eliz. Dyer 315. pl. 101. for it is not likely; if he had any right, there would have been no ſeiſin in ſo long time.

But he that pleads this, ought firſt to confeſs a tenure, to the intent that the Lord may have a Writ of Cuſtomes and Services, 15 Rich. 2. Avowry 214. Coke 9. part. 34. B. Bucknals caſe. It ſeems the pleading ſo doth impliedly confeſs a tenure, or at leaſt doth not deny it.

But this is no plea in an Avowry for rent upon a grant or reſervation by deed, becauſe the deed makes the Title, Coke 8. part. 65. A. Foſters caſe, and not the ſeiſin.

Or upon a gift in Tail, becauſe the commencement of the Eſtate is within the time of memory, Coke 8. part. 64. A. Foſters caſe, 4. part. 11. A. Bevills caſe.

Or if it be for caſual ſervices, as homage, fealty, or to go to war, becauſe perchance it may not happen within 40 years, Coke 4. part. 10.11. Bevills caſe, and ſo there could be no ſeiſin of it.

So if the Lord releaſe to the Tenant ſo long as A hath heirs of his body, becauſe A may have heirs a long time after, Coke 4. part. 11. A. Bevilis caſe.

So if Land be conveyed to a Major and Commonality, which was held by homage and fealty, which conveys this over; this is no plea, becauſe the Major and Commonalty cannot do homage or fealty, Coke 4. part. 11. A. Bevills caſe; for that muſt be done by one ſingle perſon, and not by a body politick conſiſting of multitudes.

Note, 1. The Iſſue in tail ſhall avoid ſeiſin by the hands of the Tenant in tail,Seiſin avoided in Avowry. Coke 9. part. 34. A. Bucknalls caſe, 34 Edw. 3. Avowry 131. for he comes in by the Donor.

But this is intended when the Tenant of the Lord makes a gift in Tail, the remainder in Fee; for the Tenant in tail ſhall himſelf avoid the encroachment and ſeiſin made between by the Donor, becauſe he ought to ſhew the commencement of the reſervation, Coke 8. part. 65. A. Foſters caſe, 10. part. 108. Lofields caſe.

2. Succeſſor of a Biſhop ſhall avoid ſeiſin be •• en by the hands of the predeceſſor, Coke 9. 〈◊〉 . 34. A. for the predeceſſors act ſhall not bind • im.

3. Veray Tenant of the land, if he have deed • od ſhew the contrary, Coke 9. part. 34. A. 10 Hen. • .11. Nat. br. 163. C. 22 Hen. 6.5. 4 Edw. 2. •• vry 201, 202. ſhall avoid ſeiſin.

4. Encroachment of ſeiſin is not material, there is no tenure, Coke 9. part. 34. B. Bucknalls • ſe; for the tenure is the ground of the ſeiſin.

5. Such ſeiſin ſhall be avoided, becauſe it was 〈◊〉 coercion of diſtreſs, Coke 9. part. 34. B. Buck • nll • caſe, 12 Edw. 4.7. pl. 18. 8 Hen. 6.18. pl. 1. •• Edw. 3.4. pl. 8. and not voluntarily rendred, 〈◊〉 is in the nature of a thing obtained by Dureſs.

6. If rent be payable at one day in a year, and the Lord encroacheth ſeiſin upon two days of the year; this being involuntary, yet ſhall be avoided is an Avowry for this, that they agree in the ••• ual ſum, Coke 9. part. 34. B. Bucknalls caſe, • ide 21 Edw. 4.64. pl. 36, & fol. 84. pl. 39. and the •• me is only in queſtion, and the Lord is not leſſened in the rent.Tenure.

In an Avowry the ſeiſin is traverſable, and not the tenure, Crooke 13 Hen. 7.31. B. for without ſeiſin the Avowry is not iſſuable.

1. When the Lord varies in avowing of the • erity of the quantity of the ſervices by colour of ſeiſin, the tenure ſhall be traverſed, Coke 9. part. 33. A. Bucknals caſe, 10 Hen. 7.11. pl. 31. Com 94. Mantels caſe, Crooke 13 Hen. 7.31. B. • iz. he may ſay, that he holds not by ſo much •• nt, or ſo many ſervices.

But then the Tenant ought to confeſs the Tenure in part, for he needs not traverſe all the tenure, as to ſay that he holds not of him; but he may diſclaim or plead out of his fee, Coke 9. part. 35. A. Bucknals caſe, 10 Hen. 6.6, 7. pl. 20. 37 Hen. 6.25. pl. 13. 15 Rich. 2. Avowry 214. as to part.

But note 11 Hen. 4.10. pl. 22. the Tenant ſaid, that the Avowant did give the Lordſhip to A in tail, the remainder to B in tail, and that A died without iſſue, B yet living; there he needs not ſuffer a Diſclaimer, or plead out of his fee, but there fol. 7. pl. 40. he had judgment of the Avowry, and admitted good.

2. When they agree in the quantity of the Services, and vary in the quantity of the Land; there the Plaintiff may traverſe abſque hoc, that he held modo & forma, or ſay that he held one Acre only, Coke 9. part. 35. B. Bucknals caſe, 20 Hen. 6.20, & 21.

And ſo one may avow ſeverally where it is a joynt Tenure, or to the contrary, Coke 9. part. 35. B. Bucknals caſe, 9 Hen. 6.26. pl. 24. 2. Edw. 3.34. pl. 19.

But if he vary in the quantity of the Land and of the Services, he may not confeſs the Tenure according to the verity of the caſe, but may traverſe mode & forma, or ſay he held one only, Coke 9. part. 35. A, & B. Bucknals caſe, 5 Hen 5.4.

3. When one diſtrains for fealty, rent, and ſuit of Court, and alledges ſeiſin in all, and avows for rent, the Tenant may confeſs that he held by fealty and rent, and plead as to the rent nothing arrear, without that that he held by fealty, rent, • nd ſuit, modo & forma, as is alledged, and good; •• d if upon Iſſue joyned it be found, that he • eld by fealty and rent, and not ſuit, although that • he Avowry be for rent, yet inſomuch that the tenure alledged by the Avowant was traverſed and found againſt him, Judgment ſhall be given againſt the Avowant, for in vain ſhall he make this traverſable, and yet that he ſhould have the return when it is found againſt him, Coke 9. part. 35, & 36. Bucknals caſe.

Tender of Homage ought to be to the perſon of the Lord,Tender. ubicunque fuerit infra regnum proper reverentiam, Bracton lib. 2. fol. 80. A. quaere. for this may be prejudicial to the Tenant.

Judgment.

If the Plaintiff counts upon a Detainer, and the Defendant appears and makes default, the other ſhall have Judgment for dammages and coſts, and alſo for the value of the Cattel, Nat. br. 69. L. No. Lib. Intra. 610. C. Sect. 20. for by the default he confeſſeth the tort.

Retorno habendo Null. 1. The Defendant ſaid that the place is ancient demeſn, &c. if the iſſue be found for him the Plaintiff ſhall not have a return, 21 Edw. 3.7. pl. 18.

2. If one juſtifies for Services and makes no Avowry, he ſhall not have a return, although it be found for him, 15 Edw. 4.29. 5 Edw. 4.6. 34 Hen. 6. Avowry 47. for there is difference betwixt Avowing and Juſtifying; Avowing ſuppoſeth tenure, but Juſtifying doth not.

If one make a Conuſance as Bailiff, he ſhall have a return, No. Lib. Intra. 591. A. ſect. 9. viz. for his Maſter.

3. The Plaintiff in a Recaption dies, the Lord ſhall have return, if another Writ be purchaſed, 11 Hen. 6.14. pl. 3. Q.

If the Plaintiff be Nonſuited,Returno habendo. the other ſhall have a return, Lib. Intra. 570. D. ſect. 1, 2. 11 Eliz. Dyer 280. pl. 14. 35 Hen. 6.47. pl. 12. 17 Hen. 8. br. ſecond Deliverance 15. 22 Hen. 7.92. pl. 7. Crooke; and this, although the other do make no Avowry, 16 Hen. 6. return of Cattel 1. 2 Hen. 5.6. for the Nonſuit confeſſeth the Diſtreſs well taken, and ſo the Avowry is needleſs.

But otherways he may abate the Writ, by pleading 9 Hen. 6.4. pl. 10. 11 Hen. 6.5. B. Danby, 35 Hen. 6.40. pl. 1.

But if the Count abate, or if he count not of the place of the taking, yet he ſhall not have a return before an Avowry, 35 Hen. 6.40. pl. 1. becauſe that is but for want of good pleading, and he may have juſt cauſe of complaint, notwithſtanding for ought that appears to the Court.

The ſecond Deliverance, he ſhall not have it without Avowry, per Newton, 16 Hen. 6. return of Cattel 1. for it is grounded upon a Title ſhewn.

The Defendant cannot claim a property in Repleg. to have a return, becauſe he ought to claim at the time of the Repleg. ſued, 31 Hen. 6.12. pl. 1. and now it is too late.

The Plaint is removed, and it abates for default of the Sirname, there was a return awarded without an Avowry, 27 Hen. 6.3. pl. 35. for here is no right party complained of.

Repleg. againſt C and D, C pleads he took them not, D juſtifies in right of C, and found for him; yet he ſhall not have a return, 22 Hen. 6.52. pl. 27. becauſe he juſtifies in the right of another, who diſclaims the diſtreſs.

The Defendant pleads property in another, and found ſo; there he ſhall have a return without an Avowry, for the Plaintiff had deliverance without cauſe, 39 Hen. 6.35. pl. 47. Priſott, becauſe the Cattel belonged to another.

One avows for rent at two days, one whereof is not come, the Plaintiff is Nonſuited; there ſhall be a return in reſpect of the rent due for one day, becauſe he is not meerly an Actor, per 4. Juſtices againſt three.

But Newton ſaid, he ought to have ſeveral Avowries. Q.

At the Common Law a return irrepleviſable was but when it was found againſt the Plaintiff,1. Return irrepleviſable, 1. At Common Law. 2. At the Statute Law. by an iſſue tried, 36 Hen. 6.8. pl. 24. Babbington, for then the matter was fully tried.

If the Defendant doth not anſwer to the Avowry, there the Cattel ſhall be irrepleviſable, Lib. Intra. 571. A. ſect. 4. for he thereby confeſſeth the diſtreſs lawful.2.

Return irrepleviſable after Weſtm. 2. cap. 2. is but upon a Nonſuit in ſecond Deliverance, 2 Hen. 4.23. pl. 9. Lib. Intra. 571. A. ſect. 4, 5.

Upon a Nonſuit in Repleg. it ſhall not be, 24 Edw. 3.33. pl. 22. if it be not after verdict, 14 Hen. 7.6. pl. 14. for he may have juſt cauſe of complaint though he be Nonſuit; but by the verdict it appears he had not.

If the Plaintiff be Nonſuited in a Replevin, and after in a ſecond deliverance, there ſhall be a return irrepleviſable before Avowry; but quaere, if he ſhall have dammages before Avowry, 10 Eliz. Dyer 280. pl. 14. It ſeems he ſhall, for this double Nonſuit admits the taking lawful.

If the Plaintiff be Nonſuited when the Jury comes again and gives their verdict, yet there ſhall not be a return irrepleviſable, 34 Hen. 6.5. pl. 14. 14 Hen. 7.6. pl. 14. for it may be he hath better evidence, which he then failed of.

The Plaintiff in Repleg. makes default at the Niſi prius, they ſhall not be irrepleviſable, becauſe it is out of the Law, 3 Hen. 6.8. pl. 24.

The Plaintiff in a Repleg. is Nonſuited, and a return awarded, the King demiſes, the pledges being warned come not; quaere, if the return ſhall be irrepleviſable, 1 Edw. 7. pl. 13.

Or upon a Return awarded in ſecond deliverance, 2 Hen. 4.23. pl. 9. Q.

Or upon a judgment againſt the Plaintiff upon a Demurrer, 2 Hen. 4.23. pl. 9. 14. Hen. 7.6. pl. 14.2, & 3 Mariae, Dyer 118. pl. 77. Q.

Upon a Demurrer upon a plea to the Writ, and judgment for the Defendant, they ſhall not be irrepleviſable, 34 Hen. 6.37. B. br. Repleg. 6. for that is not upon the merits of the cauſe.

Or upon iſſue tried, 2 Hen. 23. pl. 9. the Defendant in a Repleg. pleads to the Writ, and found by the Jury ſo, there ſhall be a return irrepleviſable, the contrary upon a Demurrer upon a Writ or Conceſſion, 34 Hen. 6.37. B. br. Repleg. 6. for a verdict is of a higher account than a Demurrer or Conceſſion.

If the Plaintiff upon a ſecond Deliverance ſuffer the plea to be diſcontinued, there it ſhall be irrepleviſable, 17 Hen. br. ſecond Deliverance; for the Court will not be troubled with Suits to no purpoſe.

Dammages by Statutes.Note, that at this day dammages are given where the Plaintiff is Nonſuited, or found againſt him. or otherwiſe barred in Conuſance, Avowry, or Juſtification, for Rents, Cuſtomes, or Services, per 7 Hen. 8. cap. 4. com. 82. B. Crokers caſe, 14 Mariae Dyer 141. pl. 46. 19 Hen. 8.11. pl. 7.

And for dammage feaſant, per 21 Hen. 8. cap. 19.1, & 3 Mariae, Dyer 118. pl. 77. 4 Mariae, Dyer 141. pl. 46.

But if it be for an Eſtray he ſhall not have dammages, becauſe the Statute extends not to it, • aſch. 34 Eliz. Ban. Regis, Rot. 292. and being penal, it ſhall not be expounded by equity.

But at the Common Law the Avowant ſhall not recover dammages, 35 Hen. 6. pl. 12. for it was though enough for him to have return of the diſtreſs.

If one have a return irrepleviſable upon a Nonſuit in ſecond deliverance, it is doubted whether he ſhall have dammages before Avowry, 11 Eliz. Dyer 280. pl. 14. It ſeems he ſhall, becauſe there needs no Avowry. Quaere tamen, for it appears not to the Court, that he had cauſe to diſtrain.

TRESPASS. Quid. Quotuplex. 1. Court. 2. Plaintiff. 3. Defendant. 4. Thing. 5. Writ. 6. Proceſs. 7. New Aſſignment. 8. Barr. 9. Judgment. 10. Execution. Treſpaſs is either by Common Law, upon the doing of wrong to Inheritance Corporate Caſtle. Houſe. Mill. Columbary. Toft. Garden. Land. Meadow. Paſture. Wood. Park. Forreſt. Chaſe. Pond. Tithes. Trees. Incorporate Village. Way. Common. Fiſhing. Warren. Game of Swans. Toll. Waife. Stray. Bona felonum. Fair or Market. Frank-foldage. Returna Brevium. upon the doing of wrong to Chattels Reals Son. Daughter. Neece. Ward. Woman. Servant. Prentice. Tenants. Priſoner. Captive. Perſonal Living Abducta. Capta & fugata. Capta fugata & imparcata. Capta & interfecta. Diſtricta. Fugata. Imparcata. Interfecta. Percuſſa. Tonſa. Dead Arreſtata. Capta & arreſtata. Capta & aſportata. Combuſta. Conſumpta. Depaſta. Diſtricta. Extracta. Extracta & aſpertata. Faleata & aſportata. Fracta. Impedita. Submerſa. Succiſa & aſportat • . Upon the doing of wrong to the Body, Menace. Siege. Aſſault. Battery. Wounding. Impriſonment. Impriſonment till they make Fine. Acquittance. Statute. Obligation. Find Pledges. Releaſe. Oath. Againſt a Goaler for putting Irons upon one. Statute Law, Marlebridge, cap. 2. For diſtraining to come to his Leet. Cap. 4. Averia ad loca incognita fugata de com. in com. Weſtm. 1. cap. 16. 1 & 2 Mar. cap. 12. exceſſive diſtreſs. Cap. 5. Diſtreſs, extra foedum, Weſtm. 1. cap. 16. In via Regia. In com. ſtrato. Cap. 28. For a Succeſſor, of a thing taken in the time of his Predeceſſor. Weſtm. 1. cap. 17. Diſtreſs by a Baily not ſworn. 21 Edw. 1. De malefactoribus in pareis & vivariu, &c. 4 Edw. 3. cap 6. For Executors De bonis aſportatis in vita Teſtatoris. 5 Rich. 2. cap. 7. Entrie ubi non datur per Legem. 8 Hen. 6. cap. 9. Forcible entry. 1 & 2 Mariae, For ſevering a Diſtreſs taken at one time.
Treſpaſs. In what Court Treſpaſs lies.

County Court.IN the County Court; but then it ſhall not ſay vi & armis, Nat. br. 85. G. neither againſt the peace, becauſe the Sheriff cannot determine it, Regiſt. 92. A. for that Court is not to meddle with criminal matters.

Note, Regiſt. orig. 111. B. Treſpaſs vi & armis, Note. ſhall not be ſued in any Court but the Kings, or before his Juſtices, if otherways a Superſedeas ſhall be awarded, Coke 8. part. 120. A. for he is the proper Judge of ſuch matters, as the chief conſervator of the Peace.

In the Marſhalſey,Marſhalſey. if the party be of the Houſhold, Treſpaſs lies; but then it ſhall ſay vi & armis, for battery or carrying away of goods, and no other cauſes, Coke 10. part. 72. A. which indeed are rather civil than criminal cauſes.

For it ſhall not be Quare clauſum fregit, Coke 10. part. 76. A. which is of a higher nature, and may concern title of Land.

It lies in Chancery for one priviledged there,Chancery. Regiſt. orig. 104. A. No. Lib. Intra. 678. B. ſect. 20. in reſpect of his attendance required there.

And there ſhall be an Alias, &c. Regiſt. 104. A.

It lies in Com. Ban. or Ban. Regis, Nat. br. 86. G. for theſe are high Courts of Record.Com. Ban. Regis.

Ancient Demean.If Treſpaſs be brought in the Court of the King, where the reality ſhall come in debate, Ancient Demean is a good plea, becauſe the Title ought to be tried there, Coke 5. part. 105. as in treſpaſs for Trees, where the Defendant claims Franktenement in the land where the Trees grew, 6 Hen. 4.1. pl. 6. otherwiſe it is no plea, 46 Edw. 3.1. pl. 2. becauſe the Action is perſonal, which may be any where ſued.

In Treſpaſs for a Pigeon-houſe with Pigeons, it is no plea, 47 Edw. 3.22. pl. 54. viz. Ancient demeſn, becauſe the Action is chiefly in reſpect of the Pigeons.

So in Treſpaſs upon the Caſe, 5 Rich. 2. cap. 7. becauſe dammages are only to be recovered, 21 Edw. 4.3. 2 Hen. 7.17. pl. 1. 47 Edw. 3.22. pl. 54. 46 Edw. 3.1.▪ pl. 2. which are perſonal.

And note,Note▪ none may plead this, but the Tertenant of the Land in Ancient dem •• n, 2 Hen. 7.17. pl. 1. and that in reſpect of his ſervice to be done to the Lord there.

Treſpaſs in the Five Ports, the Writ is, Dilecto & fideli ſuo W. Conſtabular. Caſtri ſui de D. & Cuſtodi quinque Portuum ſuor. ſalutem. Mandamus vobis quod Audita quaerela A. de quadam tranſgr. eidem A. per B. qui eſt de libertate Portuum praedict. illat. ut dicitur, auditiſque hine & inde earum rationibus, eidem A. facias exhiberi celeris juſtitiae complementum, prout de jure & ſecundum legem, & conſuetudinem portuum praedict. fuerit faoiend. ne clamor ad nos inde perveniat iteratus, &c.

Who ſhall have Treſpaſs.

Note, that he that taketh only the profit of the ſoil of anothers Land, ſhall not have a Treſpaſs Quare clauſum fregit, 15 Hen. 7. 14 Hen. 8. becauſe he hath no intereſt in the ſoil.

He that hath certain Acres of land annuatim, ſhall have Treſpaſs, for he hath a term in thoſe Acres of land.

An Adminiſtrator ſhall have Treſpaſs for goods of the Inteſtates taken out of the poſſeſſion of the Adminiſtrator,Adminiſtrator. Regiſt. orig. 94. A. 22 Edw. 4.120. pl. 32. the Count, Lib. Intra. 649. D. Sect. 1. for he hath a property in them ratione Adminiſtrationis.

An Adminiſtrator ſhall have Treſpaſs for goods taken out of the poſſeſſion of the Inteſtate, in reſpect of his intereſt in them, Nat.br. 92. A. 14 Hen. 7.13. Tremaile, the Count, Lib. Intra. 640. A. Sect. 1.

An Executor ſhall have it,Executor. per the Stat. of 4 Edw. 3. cap. 6. and the Statute of 31 Edw. 3. gives the ſame remedy to an Adminiſtrator; but this is by the equity of the Statute, 4 Edw. 3. cap. 7. Crooke 24 Hen. 7.101. B. pl. 2.

An Adminiſtrator ſhall have an Action of Treſpaſs before the Adminiſtration committed to him;Adminiſtrator. but not againſt him that juſtifies under the Ordinary, for he was Adminiſtrator pro tempore, 18 Hen. 6.22. pl. 7. 36 Hen. 6.8. A Priſot, Regiſter Original 102. B. that is, for goods taken before the Adminiſtration granted.

But if the Adminiſtration be committed by word to A, who ſells goods to B, and dies, and the Adminiſtration is committed to C; quaere, if C ſhall have Treſpaſs for the goods ſold: It ſeems not, for A had authority, as it ſeems, to ſell.

An alien Friend ſhall have all Actions perſonals,Alien. 6 Hen. 8. Dyer pl. 8. Coke 7. part. 17. A. ratione commorantiae by the Law of Nations, which the Common Law maintains.

But an alien Enemy ſhall have no Action, 6 Hen. 8. Dyer 2. pl. 8. Coke 7. part. 17. A. 14 Hen. 8.4. for it is not reaſon, that he that wiſhes ill to the Nation where he lives, ſhould have the protection of their Laws.

Husband and wife.Husband and wife Executrix to B joyn in Treſpaſs for taking the Goods during coverture, 21 Edw. 4.5. per Littleton, and good, in reſpect of the Husbands intereſt in right of his wife, viz. in taking her goods.

In a Treſpaſs done to the wife ſole, who takes a Husband, they ſhall have Treſpaſs in both their names, Nat. 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. H • 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. • 0. Coke 4. part. 22. A. For the Lord in this • 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 may bring it alone.

But the 19 Hen. 6.65. to the contrary. Q. Executor ſhall have Treſpaſs de bonis Teſtatoris • ſportatis in cuſtodia ſua exten. Regiſt. orig. 94. A. 2 Hen. 7.15. 6 Edw. 4.1. and good; for they are accounted the Teſtators, though to be diſpoſed of by the Executor in performance of the will.

A. takes Adminiſtration of the Goods of B, C proves a Will, by which he was made Executor, and brought Treſpaſs againſt A for the Goods, it lies, although the Adminiſtration was not repealed; for the Adminiſtration was void from the beginning, Mich. 12. Jac. Ban. Regis. Fiſher & Young. becauſe there was a Will made.

An Executor ſhall have Treſpaſs againſt the leſſor which outs him, during the Term, Regiſt. rig. 102. B. if he have a Leaſe parol. Q. if by Deeds, whether he ought not to bring an Action of Recovery.

If the Leſſor outs the Executor of the Leſſee, the Writ ſhall be Summon. per bonos ſummonit. &c. but if he outs him, and takes the Goods of the Leſſor within the Land, the Writ ſhall be pone per vad. &c. Regiſt. orig. 102. B. in the Note, and this is in reſpect of the dammages he is to anſwer for taking the Goods.

Treſpaſs lieth by a Goaler againſt one that takes 〈◊〉 priſoner from him;Goaler. for the Gaoler is liable for the perſon; but a good bar that he is not Goaler, becauſe it is the ground of the Action, 4 Edw. 4.6. pl. 7. & fol. 44. pl. ult.

Church-wardens ſhall have Treſpaſs for the Goods of the Church taken in their time,Church-wardens or in the time of their Predeceſſors, Nat. br. 91. K. 8 Edw. 4.6. pl. 5. 12 Hen. 7.27. pl. 7. 11 Hen. 4.12. 8 Hen. 5.4. 37 Hen. 6.30. 10 Hen. 7.9. pl. 5. For they are intruſted with them to the uſe of the Pariſhioners.

But they ſhall count ad damnum parocbianorum, 8 Edw. 4.6. pl. 12 Hen. 7.27. pl. 7. For the Goods are the Pariſhioners, and the Church-warden is intereſted in their right, and is accountable unto them.

But a good plea that he is not Churchwarden, 4 Edw. 4.7. A. For that deſtroys the ſuppoſal of the Writ.

But 19 Hen. 6.66. ſays; that it is not good for Goods in the time of their Predeceſſors. Q. yet the Law ſeems to be otherwiſe, elſe the pariſhioners might be damnified.

Treſpaſs for making a Grant of Rent in ſee taken to the uſe of the Parochians, Lib. intra. 7. D. Q.

Heir Raviſhment.Every Anceſtor male or female, ſhall have Treſpaſs for raviſhing of his or her Heir apparent againſt a ſtranger, but not againſt the Gardein in Chivalry, unleſs the Father only, Coke. 3. part. 38. B. Ratcliffs caſe, Nat. br. 143. R. 30. Edw. 6. pl. 7. & fol. 16. pl. 19. Regiſt. orig. 98. B. & 99. A. and the Mother; for the education of the Heir doth properly belong to the Father and Mother.

A man ſhall have Treſpaſs for his Son and Heir, Daughter and Heir taken away, Nat. br. 98. H. 29 Aſſize 35. 21 Hen. 6.14. pl. 29.12 Hen. 4.16. pl. 9. 3 Edw. 4.12. B. Danby. For it is an injury to the Parents to loſe the comfort of the Child, eſpecially the eldeſt.

And this of what age ſoever his Son be, 32 Edw. 3. Gard. 32. though the dammage may be greater or leſs in regard of the Age.

A Grantee of Herbage of Land ſhall have Treſpaſs,Grantee. quare clauſum fregit for the Graſs, but not for the other profits of the Land, as Fruit-trees, and the like, 11 Eliz. Dyer. 285 pl. 40. 3 Hen. 16. 13. A. 5. Hen. 7.10. B. For he hath nothing but the Herbage granted unto him.

The Heir ſhall have Treſpaſs for taking of a Deed concerning Land to him deſcended,Heir. and it is good, although he doth not ſay, ſcriptum ſuum, becauſe of neceſſity it muſt belong to him, 1 Edw. 3.18, pl. 11. For it goes along with the inheritance.

But not againſt an Executor that taketh a Box with Deeds. 1. Becauſe the Box appertaineth to him. 2. He had not knowledge what was in the Box. 3. The Heir hath other remedy againſt him, ſcilicet a Detinue, 43 Edw. 3.24. pl. 3. becauſe the Box and Deeds come to him in a lawful way, though he cannot juſtifie the detaining.

But it lies againſt an Executor for taking away a Furnace fixed, or Fatts fixed to the Free-hold, or Pales faſtned, Windows, Doors, Evidences looſe, 21 Hen. 7.26. pl. 4. becauſe they all belong to the Free-hold as part of it.

It lies for an Heir againſt an Executor for taking Fiſhes out of a Pond, Mich. 36 Eliz. Ban. Regis. Rot. 25. Parlett verſus Gray. Crooke 118 pl. 60. For they belong to the ſoil, viz. the Land covered with Water which makes the Pond.

So for Deer or Pigeons, vide Aſſize 27. pl. 29. but not tame Deer or tame Pigeons; the out is as it were an Inheritance, the other a Chattel.

The Leſſor excepts the Trees,Leſſor. he ſhall have Treſpaſs quare clauſum fregit, 14 Hen. 8.1. 28 Hen. 8. Dyer. 19. pl. 48. 46 Edw. 3.22. pl. 3. Coke 8. part. 63. A. Swaynes caſe. againſt the Leſſor, if he cut them down.

A Leſſor at Will ſhall not have Treſpaſs, although he determines his Will, until he enters, Crooke 3. Hen. 8.163. pl. 4. For before he hath no Title.

A enters upon Tenant at Will, and ſubverts the ſoil, he ſhall have one Action, and the Leſſor another, 19 Hen. 6.45. pl. 94. ſo of a Copyholder and Lord, 2 Hen. 4.12. Coke 4. part. 31. A. For as they are both damnified, ſo it is reaſon they ſhould both have recompence.

Leſſee cuts Trees to the intent to repair,Leſſee. the Leſſor takes them, the Leſſee ſhall have Treſpaſs, 44 Edw. 3.44. for the dammage done him in cauſing him to loſe his labour in cutting of them.

A ſtranger cuts Trees, the Leſſee ſhall have Treſpaſs, and ſhall recover treble dammages, Doct. & Stud. 34. A. 23 Hen. 8. Br. waſt. 138. 44 Hen. 8.26. becauſe the Leſſor ſhall recover ſo much of the Leſſee in reſpect of the Waſte.

But if the Leſſor dies, the Leſſee ſhall recover but ſingle dammages, 44 Edw. 3.26. Crooke 3 Hen. 8.163. pl. 4. becauſe no more ſhall be recovered againſt him by the Heir.

1. If the Servant be beat,Maſter. the Maſter ſhall have Treſpaſs, Nat. br. 91. I. Regiſt. orig. 102. A. 8 Hen. 6.28. 19 Hen. 6.35. pl. 73. although he be but a ſervant at will, 21 Hen. 6.9. A. Newton. vide 11 Hen. 4.2.2. For the beating of the Servant is a dammage to the Maſter, and the Servant may alſo have this Action.

2. For taking away his Apprentice, Nat. br. 91. I. 8 Hen. 6.28. 21 Hen. 6.31. pl. 18. whereby he loſeth his ſervice.

3. The Lord of a Villain ſhall have Treſpaſs, 22 Hen. 6.30.32. for taking away his Villain, or beating him, as it ſeems.

The Ordinary ſhall have it for a thing taken out of his poſſeſſion,Ordinary. Nat. br. 91. M. 18 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 is concerned.

The reaſon that it lies not againſt the Lord is, inſomuch that he cannot come within his Tenants Land, being within his Fee, againſt the peace, although he had not cauſe to diſtrain; for it ſeems he may go any where within his own Fee, 47 Edw. 3.7. pl. 3. Finchden. Quaere tamen.

This Statute is intended as well to every Leſſor as of the Lord, 9 Hen. 6.43. pl. 21. this is in caſes of Entries to diſtrain.

If the Lord diſtrain where nothing is in arrear, yet Treſpaſs lies not againſt him, Coke 4. part. 11. B. Bevils caſe, 9. part. 76. A. becauſe he may do this as Lord. Q. for it ſeems unreaſonable to vex his Tenants without cauſe; yet they are not without remedy, for they may replevy the diſtreſs.

But if the Lord diſtrain where there is nothing arrear, and the Meſn will put his Cattel in the Pound for the Cattel of the Tenant, and the Lord will not permit him, Treſpaſs lies againſt the Lord, Coke 9. part. 22. B. Caſe of Avowry; becauſe here the Lord is offered a legal way to come to his right, if any thing be due to him.

And if the Lord incroach, and afterwards diſtrain for the Services, and for the Incroachment alſo, the Tenant may tender the very Services, and ſhall have Treſpaſs for the other, Coke 4. part. 11. B. Bevils caſe, 10 Hen. 6.3. pl. 11. for though the Law favour him as Lord, yet it will not countenance his incroaching.

And if a Baily or Servant diſtrains where nothing is arrear, Treſpaſs lies, becauſe it is not within the Statute, Coke 9. part. 76. A. Combs caſe, 9 Hen. 5.10. 11 Hen. 4.78. B. 9 Hen. 7.4. 48 Edw. 3.20. pl. 16. and they muſt take heed not to be too officious for their Maſter.

Againſt the Lord.When the Lord abuſes his Authorty given him by the Law, he ſhall be puniſhed by Treſpaſs, Coke 8. part. 146. the ſix Carpenters caſe; for the Law will not countenance wrong, but puniſh it in any perſon.

If he labour or kill the Diſtreſs, 8 Edw. 4.15. 22 Edw. 4, 5. pl. 16. & fol. 47. pl. 22. Coke 8. part. 146. B. Treſpaſs lies; for he muſt uſe it only as the Law allows.

If he tie the Cattel in the pound, 27 Aſſize 64. which he ought not to do, Treſpaſs lies againſt him.

If he break the hedges or gates, or ſuch like, of the party where he diſtrains, 20 Edw. 4.3. pl. 11. 48 Edw. 3.6. pl. 10. for though the Law allow him a way to come by his right, yet in doing it, it allows him not to do dammage to the other unneceſſarily.

If he cut the Trees, or ſtay all night, 11 Hen. 4.75. upon the Land, for this the Law warrants him not to do.

The Leſſee cuts Trees to repair, the Leſſor carries them away, and Treſpaſs lies againſt him, 44 Edw. 3.44. for the Leſſor might cut them, and therefore to take them away was a Treſpaſs.

If the Leſſor diſtrain dammage feaſant, 5 Hen. 7.10. pl. 2. upon the Land left; for he hath no preſent intereſt, and ſo there can be no ſuch dammages.

So if he out the Termor, 48 Edw. 3.6. pl. 11. Treſpaſs and Ejectment lies.

Or the Executor of the Termor, Regiſt. orig. 102. B. may have this Action, for now the term is come unto him.

The Leſſor excepts the Trees, and roots them up, it ſeems Treſpaſs lies, Coke 11. part. 49. B. Liſſords caſe, in reſpect of the dammage done in the Soil by the rooting. Quaere tamen, for the whole Trees are reſerved.

The Lord ſells the Diſtreſs, and buys it again, Treſpaſs lies, 29 Hen. 8. Dyer 35. pl. 34. for he ought not to ſell it, and the buying of it again cannot ſalve the matter.

It lies by a Copyholder againſt the Lord that cuts him, 21 Edw. 4.80. Coke 4. part. 22. A. in reſpect of his intereſt in the Land by the Cuſtome of the Mannor.

The Reaſon in all theſe Caſes is, when one hath authority, licenſe, or entry by the Law given him, by the miſuſing it, or the not doing it as he ought, he is a Treſpaſſer ab initio, Coke 8.146.

Deaf and dumb.It lies againſt one that is deaf and dumb, Digeſt. br. 72. A. for he may ſee to do a Treſpaſs. Q. if it lies againſt a blind man; it ſeems it doth.

Tenant at will.If Tenant at will make voluntary waſte, Coke 5. part. 13. B. Salops caſe, Littleton, 15. A. fo. per 3 Mariae Dyer 122. B. This is a determination of the Will of the Leſſee, and Treſpaſs lies by the Leſſor without entry, becauſe the term is determined.

For cutting Underwood Treſpaſs lies, 2 Edw. 4.24. pl. 25. But quaere in what caſes.

Tenant by ſufferance.It lies not againſt Tenant by ſufferance, becauſe he comes lawfully to the poſſeſſion, 22 Edw. 4.13. pl. 3. viz. at the firſt, and he holds not by tort, becauſe by ſufferance.

Tenant in Common.If there be two Tenants in common of a fold • ge by preſcription, one ſhall have a Treſpaſs againſt the other, for the breaking the fold, Nat. br. 91. A, H. Q.

For taking away the Meer-ſtones that bound Land,Meer-ſtone. 1 Hen. 5.1. pl. 1. for this is a great injury to the Owner of the Land, bounded by them.

Note,Sheriff. when the Court hath not Juriſdiction of the cauſe commenced there, the Officer that makes the Arreſt ſhall be a Treſpaſſer; but where the Court hath Juriſdiction, and proceeds •• ronice, there it is not puniſhable, Coke 10. part. 76. A. for the Officer is not to judge of the proceedings; but where there is no Juriſdiction the Officers have no warrant at all for what they do, for they are accounted no Officers.

The Sheriff takes one not named in the Writ, Treſpaſs lies againſt the Sheriff, 11 Hen. 4.91. A. Hankeford, 13 Hen. 4.2. Hankeford & Thirning; for he hath no warrant for the Arreſt. It ſeems alſo a Writ of falſe Impriſonment lies.

But if the Plaintiff ſhew another perſon to him, that was not to be Arreſted, the Action lies againſt them both, for they are both Actors in the ſame Treſpaſs.

A procures the Sheriff to Arreſt B without a Writ, and after purchaſed a Writ, and the Sheriff arreſts him afterwards, being in his cuſtody, the Action lies, 7 Eliz. Dyer 244. pl. 61. for the purchaſing the Writ, and Arreſting of him afterwards, cannot purge the firſt wrong.

The Sheriff takes B upon a Capias, and returns not the Writ, B ſhall have Treſpaſs, 20 Hen. 6.24. A. 21 Hen. 6.5. for if the Writ be not returned, it is as if there were no Writ.

Otherwiſe upon a Capias ad ſatisfaciend. for that is an Execution, and needs no return, Coke 4. part. 67. A. Capias to the Sheriff of Middleſex, and he takes him in London, Treſpaſs lies, 16 Edw. 4.6. for it is out of his County, and ſo done without warrant.

So if he makes a Repleg. of Cattel diſtrained of an eſtranger, he may have Treſpaſs againſt him, 14 Hen. 4 24. pl. 32. per Haukeford & Thirning, Doct. & Stud. 150. A. Q.

So if he come to make a Repleg. and breaks the hedges and gates, 20 Hen. 6.28. pl. 19. for he ought not to do ſuch violence.

So if he attach the Horſe of the Maſter, in poſſeſſion of the Servant, for the debt of the Servant, Doct. & Stud. 138. B. for the property is in the Maſter.

So if he breaks the houſe to Arreſt for Debt or Treſpaſs, 13 Edw. 4.9. A. 18 Edw. 4.4. A. Coke 5. part. Semayns caſe; for this is againſt Law.

So if he makes a good return in Law, but a falſe in deed upon a Habeas corpus, Coke 9. part. 99. B. Bags caſe, 9 Hen. 6.44. for he ought to return the matter of fact truly.

If he takes Felons goods, where another hath them within his Hundred, Nat. br. 91. F. for this is without warrant.

Difference betwixt ſeiſing & taking.One appears for receiving Felons, the Sheriff takes his Goods, and after he is acquitted, Treſpaſs lies againſt the Sheriff; for he ought to have ſeized them only, and the other ſhall find Sureties, and if he can find none they ſhall be in the cuſtody of his Neighbours, 43 Edw. 3.24. pl. 1. which is in cuſtody of the Law; but where they are taken they are not ſo.

It lies againſt one outlawed,Outlaw. Digeſt. br. 72. A. Mich. 38 & 39 Eliz. Com. Ban. Baniſter againſt Truſſel, No. Lib. Intra. 248. A. for though an Out lawed perſon is not protected by the Law, yet he may be puniſhed by the Law for wronging another, elſe it might be miſchievous.

For what matters Treſpaſs lies, viz. for doing of wrong to the dammage of another; 1. touching Inheritance: 2. touching Chattels: 3. touching the Body.

The Plaintiff ought to ſhew the Town where the Inheritance corporate lies,Of Inheritance. concerning which the Treſpaſs is brought; for otherwiſe there can be no venue to try the Iſſue;Note. Trin. 9 Jac. Ban. Luke verſus Sampter.

Of a Caſtle. Quare vi & armis caſtrum ipſius E apud D, fregit; &c. Regiſt. orig. 106. B.

Of a Meſſuage. Treſpaſs for the breaking of a houſe, Nat. br. 87. D. 88. A. Regiſt. Orig. 94. A. the Count, No. Lib. Intr. 653. G. ſect. 7.

Of breaking a houſe, and the Count was of a Church by a perſon, and good, for the Church is a Houſe, viz. Domus Dei, 8 Hen. 6.9.

Of breaking a Houſe, and burning the Timber, Regiſt. orig. 94. B.

Of the burning of a Houſe, Regiſt. orig. 110. A. Nat br. 88. N. the Count, Lib. Intra. 607. C, & B. This is Felony by the Law, and puniſhable by death: Ergo quaere, whether Treſpaſs lies.

For breaking the Door, and Windows of the houſe, Regiſt. orig. 99. A. Nat. br. 92. D.

For breaking the Head of a Mill,Mill. Regiſt. 96. A. Nat. br. 88. M. viz. of the Mill-pond.

For breaking a Pigeon-houſe,Pigeon-houſe. Regiſt. orig. 104. B. 10 Hen. 6.19. A. This is alſo Felony, if it be with intent to take the Pigeons.

For breaking my Cloſe the Writ may be with a continuando, Nat. br. 91. L. the Count,Land. Lib. Intra. 647. D. ſect. 1.642. A. Sect. 6. Lib. Intra. 619. A. ſect. 1. viz. of a Treſpaſs committed ſuch a day, and continued diverſis vicibus till ſuch a time afterwards.

For breaking a Cloſe, the count was of a Church-yard; for that is a Cloſe, becauſe incloſed, 8 Hen. 6.9. pl. 20. and for digging in it, Regiſt. orig. 94. A. 2 Rich. 2. Barr 237. Nat. br. 87. B. 90. K. Q. who ſhall bring it, whether the Pariſhioners or Churchwardens, or the Parſon or Vicar.

The Count, No. Lib. Intra. 661. D. Sect. 12. Lib. Intra. 622. B. Sect. 1.646. C.

For digging my Gravel, the Count, Lib. Intra. 646. C. Sect. 2.

For digging in my Land, Coke 9. part. 12. A. 7 Hen. 4.11.

For digging in my Mine, and carrying it away, Regiſt. orig. 104. B. 43 Edw. 3.35. pl. 53.

For digging in my Quarrey, Regiſt. orig. 105. A. and carrying the Stones away.

For hindring working in my Mine, Regiſt. orig. 104. A. in the digging of Lead, Coles, &c.

For breaking my Bridge, Regiſt. orig. 106. A. or a Bridge, which I am bound to maintain ratione tenurae, or otherwiſe.

Upon 8 Hen. 6. cap. 9. the Writ may be vi & armis, without ſhewing the entry of the Defendant congealable, 34 Hen. 6.26. pl. 14. becauſe the Action is grounded on the Statute.

It was brought upon a Diſſeiſin and Detainer with force, although that the Statute is within the disjunctive, 6 Hen. 7.12. 10 Edw. 4.11. pl. 35. viz. of a Diſſeiſin or Detainer by force; for the word Or is ſometime uſed copulative as well as disjunctive.

It lies upon an entry with force, although the entry be congealable, 9 Hen. 6.19. becauſe force is forbidden by that Statute.

Upon 5 Rich. 2. cap. 7. the Writ needs not mention what Lands certain, 4 Edw. 4.18. pl. 35. 5 Edw. 4.26. A. for the Statute doth not direct it.

It ſhall not be vi & armis, without ſhewing that the entry was congealable, 34 Hen. 6.26. pl. 4. for if it were not congealable, it is ſuppoſed to be vi & armis.

If the entry be ſuppoſed in A and B, where B is a Hamlet of A; yet good, becauſe dammages is only to be recovered, 5 Edw. 4.8. and not the Land, and ſo the place is not much material.

For breaking of my Bank,Meadow. by which my Meadow is drowned, Regiſt. 106. B. Coke 9. part. 50. B. Nat. br. 88. L.

For digging my Meadow, Coke 9. part. 12. A. 7 Hen. 4.11. for thereby the graſs is ſpoiled.

For entring his Wood,Wood. and taking away an Airy of Hawks, Regiſt. orig. 96. B. 110. B. Nat. br. 86. L. 22 Hen. 6.59. Nat. br. 89. K. for the Owner of the Wood hath a property in the Airy.

For cutting his Trees, Regiſt. orig. 110. A. Nat. br. 98. K. 10 Edw. 4.2. pl. 5.

For pulling up his Trees by the Roots, Regiſt. orig. 95. B. for that is utter deſtruction of them.

For pulling up of young Trees, Regiſt. orig. 95. A. br in time they might amount to profit.

For eating up his blades of Graſs, and ſprings of his young Wood, Nat. br. 87. K. for this ſpoils the Copice.

For breaking his Park,Park. Regiſt. orig. 96. A. 109. l. 110. A. Nat. br. 87. A. 46 Edw. 3.12. 18 Edw. • 14. pl. 12. Nat. br. 98. B. 6 Edw. 6. Dyer 7. pl. 7. for thereby he is endangered to loſe his Deer, and is put to charge to repair his Fence.

For entring his Park, 20 Hen. 6.37. pl. 7.

Treſpaſs upon the Statute. De malefactoribus in Parcis, upon the Statute, 1 Edw. 1. Regiſt. orig. 111. B.

The Count, Lib. Intra. 650. D. Sect. 4.

Upon the Statute of Weſtm. 2. cap. 28. 7 Eliz. • yer 238. pl. 34. for the King.

The Count, Lib. Intra. 652. A. Sect. 9.

Upon Weſtm. 1. cap. 20. within the year, Nat. • 67. D.

The Grantee of the herbage of a Foreſt ſhall • ave Treſpaſs, quare clauſum fregit, Foreſt. againſt any that takes the graſs, 11 Eliz. Dyer 285. pl. 40. in reſpect nf his intereſt, by virtue of his grant.

For entring his Chaſe,Chaſe. 42 Edw. 3.2. pl. 8. 43 • dw. 3. fol. 8. pl. 23. 43 Edw. 3.8. pl. 23. for •• ereby his game is diſturbed.

He needs not ſhew how he came to the Chaſe, • 2 Edw. 3.2. pl. 8. 43 Edw. 3.8. pl. 23. for the Title of the Chaſe, it may be, will not come 〈◊〉 queſtion.

For hunting in his Chaſe, the Count, Lib. •• tra. 650. C. Sect. 1. hunting, and diſturbing his • ame.

For fiſhing in his pond,Pond. Regiſt. orig. 95. B. Nat. br. 87. A. and taking his Fiſh.

For breaking his Pond, by which the water and fiſh went out, Nat. br. 87. L.

For carrying away his Tithes,Tithes. being ſevered from the Ninth part, No. Lib. Intra. 686. C. Sect. 23. the Count, No. Lib. Intr. 678. B, & C. vide Stat. 2 Edw. 6. But before this Statute an Action of Treſpaſs lay at the Common Law.

For hindring the Parſon to carry away his Tithes, Regiſt. orig. 105. A. for thereby he is damnified in his loſs of time, beſides what other loſs might befal.

Trees. Inheritance.For cutting his Trees, where one had the Land and the other the Trees, Crooke 12 Hen. 7.16. B. Vaviſour, Coke 8. part. 137. B. Barringtons caſe, Coke 11. part. 49. B. Lyffores caſe, and he that had the Land cuts the Trees.

For fiſhing in his ſevered water,Fiſhing. Regiſt. orig. 96. A, & B. 109. in fine, Nat. br. 87. G. 89. B.

The Count, Lib. Intra. 666. A.

For hindring his free Fiſhing, Regiſt. 95. B. Nat. br. 88. G.

It is ſevered Fiſhing, that a man hath in his own Land, and free in the Land of another, 17 Edw. 4.7. pl. 5. per 2 Juſtices.

For entring his Warren,Warren. Regiſt. orig. 93. B. 96. B. 109. B. 110. A. Nat. br. 86. M. 5 Hen. 7.10. B. 3 Hen. 6.55. B. 34 Hen. 6.20. pl. 9. Nat. br. 89. K. to take, deſtroy, or diſturb his game.

The Writ ſhall not ſay Lepores ſuos, becauſe he hath not a property in them, 3 Hen. 6.55. pl. 34. Regiſt. orig. 109. B. 96. B.

And for this cauſe he ſhall not ſay pretii, or 〈◊〉 valentiam, 8 Edw. 4.5. pl. 16. Lakin; but leave 〈◊〉 to the Jury to conſider of the dammages.

The Count, Lib. Intra. 650. C. Sect. 2, 3.

For breaking his Warren, and carrying away his Conies, 5 Edw. 53, 54.

For taking away his Swans,Swans. Coke 7. part. 16, 17. 〈◊〉 Hen. 6.27.

For diſturbing him to take toll in a Fair or Market, or other place,Toll. Regiſt. orig. 103. A. Nat. • 91. G.

But if he be diſturbed in a Market or Fair, he ••• ght to ſhew the place, 2 Edw. 3.32. pl. 9. be • auſe it is traverſable.

If a Miller take toll of them that are Toll •• e, it lies, 41 Edw. 3.24. pl. 17. 44 Edw. 3.20. pl. 16. vid. antea. for this is encroaching upon the •• iviledge of another to his dammage.

For taking a Wreck of the Sea,Wreck. Regiſt. orig. 103. A. 5 Edw. 3.174. pl. 91. without ſeiſure, Nat. br. 91. D. for he who claims the right in it, ought to ſeize it, that the right may come in queſtion, if it be diſputable.

For taking a Waif,Waif. Regiſt. orig. 100. A. B. without ſeiſure, Nat. br. 91. B. for the ſame reaſon, as it ſeems.

But quaere, 16 Eliz. Dyer 338. pl. 40. for the 11 Edw. 4.16. pl. 7. it ſeems he may not. Q.

For taking an Eſtray,Eſtray. Regiſt. orig. 100. B. the Count, Lib. Intr. 638. B. ſect. 1.

Without ſeiſure, Nat. br. 91. B. as before.

Tamen quaere, for the 12 Hen. 8.10. è contra, quaere 20 Hen. 7.1. Q.

The Count, Lib. Intra. 638. B. Sect. 1. is without ſeizure, and by that, it ſeems, there needs no ſeizure. Q.

Felons goods.For taking Felons goods, Regiſt. orig. 101. A. which belong not to him.

Felons goods within a Hundred, where the Lord hath Felons goods; if the Sheriff takes them, the Lord ſhall have Treſpaſs, Nat. br. 91. F. for the Sheriff hath no warrant to take them.

Fair or Market.For diſturbing a Fair or Market, Regiſt. orig. 103. A, & B. for this is to the prejudice of the Lord thereof.

For breaking and hindring of the Foldage of the Lord,Frankfoldage. Regiſt. orig. 103. A. Nat. br. 91. H.

Chattels Real. Competit etiam Domino actio indirecta, quatenus ſua interfuit non caruiſſe ſervitiis famulorum, & operibus ſervorum & hujuſmodi, Bracton Lib. 3. fol. 115. A.

For taking away his Son and Heir, and marrying him,Son. Nat. br. 90. H. 29 Aſſize 35. 3 Edw. 4.12. B. Danby, 21 Hen. 6.14. pl. 29. Nat. br. 143. R. for this is to the prejudice of his Family.

The Writ is, quare filium & baeredem, and yet he is not heir during his life, 8 Edw. 3.2. Treſpaſs 235. The Law intends it is meant, filium & haeredem ſuum apparentem.

For taking away his Daughter, and marrying her,Daughter. Regiſt. orig. 98. B. for thereby he loſeth his Fatherly intereſt in his Child.

Heir,Heir. Regiſt. orig. 99. A. Coke 3. part. 38. Ratcliffs caſe, 12 Hen. 4.16. pl. 9. Conſanguineum & baeredem ſuum rapuit, Nat. br. 143. R. 30 Edw. 3.6. pl. 7. & fol. 16. pl. 19.

And needs not mention that he is within age, becauſe he ſhall have his marriage, &c. 32 Edw. 3. Gard 32. be he within Age, or not.

For taking away a woman cum bonis viri, Woman. upon the Statute of Weſtm. 2. cap. 34. Nat. br. 89. O. 6 Edw. 3.208. pl. 2. 14 Hen. 6.2. pl. 11. the Count, Lib. Intra. 662. C. ſect. 1.

And this lies, although they are divorced, before the Action brought, if the Treſpaſs was done before, and alſo in reſpect of the goods taken away, which belong to the Husband notwithſtanding the divorce, 43 Edw. 3.23. pl. 154 Aſſize pl. 13.

For Aſſault, Battery, and Wounding, the Count,Battery. Lib. Intra. 668. C. Sect. 4.

For Impriſonment until fine be made,Impriſ •• ment. 6 Edw. 3.208. pl. 2.

For threatning my Servant,Servant. per quod Servitium amiſit, Regiſt. orig. 94. B. for there is apparent dammage.

The Plaintiff needs not count upon the Retainer; for the Law ſuppoſeth it, and if he be not retained he may plead non culp. 21 Hen. 6.31. pl. 18. 22 Hen. 6.30. B. & 43. B. 31 Hen. 6.12. pl. 2.

Aſſault and Battery of his Servant, per quod Servitium amiſit, Regiſt. orig. 102. A. Nat. br. 91. I.

The Count, Lib. Intra. 613. B. Sect. 19.674. C. Sect. 1. he ought to ſay by which he loſt his Service, Coke 9. part. 113. A. 18 Edw. 4.27. pl. 24. 2 Hen. 4.12. pl. 49. 20 Hen. 6.14. and there it was quod Servitium amiſit, and good without this word [per], for quod implies it without per; he beat him that he loſt his Service.

Battery, Mayheme and Impriſonment, per quod, &c. Treſpaſs lies, Crooke 7 Hen. 8.80. pl. 4.

If the Count be not per quod Servitium amiſit, although that Verdict paſs for the Plaintiff; yet he ſhall never have Judgment, 21 Hen. 7.71. pl. 15. Crooke; for there appears no dammages by the Plaintiffs ſhewing.

For enticing my Servant to depart, Treſpaſs lies not, but an Action upon the Caſe, 11 Hen. 4.3. pl. 46. for here is no vi & armis in the caſe, as all Treſpaſſes do imply.

For taking away his Apprentice,Apprentice. Regiſt. orig. 109. A. per quod, &c. Q. whether he need to count ſo, for it ſeems it muſt be ſo intended.

For a Goaler for taking away his Priſoner,Priſoner. Regiſt. orig. 104. A. 4 Edw. 4.6. pl. 7: antea.

For taking his Captive from him,Captive. Regiſt. orig. 95 A. 102. B. Nat. br. 88. A. Q. what Captive, whether one taken in the Wars.

Chattels perſonals. Living. Si quis diſtringit ordine non obſervato facit tranſgreſſionem, Bracton Lib. 4. fol. 217. A. for the Law requires regularity and order in doing of things.

Treſpaſs quare Averia cepit, & abduxit, Regiſt orig. 97. B.

The Count, Lib. Intra. 628. B. Sect. 1. 670. B. ſect. 1.

Note, for live Cattel the Writ ſhall be cepit & abduxit, Nat. br. 88. B. 21 Hen. 6.39. pl. 5.12 Hen. 8.9. B. if dead cepit & aſportavit.

And the Writ for live Cattel ſhall be Averia ſua, or ſhew the thing in certain, 21 Hen. 6.39. pl. 5.

And if the thing be dead or alive, it is not material whether the Writ be pretii ſeu ad valentiam, Nat. br. 88. L. Q. for if alive, it ſeems it ſhould be pretii; if dead, ad valentiam.

For taking away his Boar, Regiſt. orig. 110. B. Boar.

For taking away his Oxen, Regiſt. orig. 110. B. Oxen.

For taking away his Maſtiff, Coke 7. part. 18.Maſtiff. A. 12 Hen. 8.3. Regiſt. orig. 109. A. but he ſhall not ſay pretii, or ad valentiam, becauſe a Dog is not a Marketable creature, though valuable to the Owner, 12 Hen. 8.5. A. Elliot, Regiſt. orig. 109. A.

For taking away his Capons,Capons. the Writ was bona & catalla, and good, 17 Edw. 3.41. pl. 19. for they are general words, and extend to all manner of goods proprietory whatſoever.

For taking away his Conies out of his Cloſe,Conies. the Writ ſhall be ſuos, Nat. br. 87. A. Regiſt. orig. 93. B. 102. A. for the Owner of the Cloſe hath a property in them. Quaere, if not tame Conies.

So if it be in a Park, Regiſt. 110. B. becauſe he hath a property in the game, in reſpect of the encloſure.

But if it be for entring into his Warren, and taking his Conies, he ſhall not ſay ſuos, for he hath them but ratione privilegii, viz. of hunting them, 3 Hen. 6.55. pl. 34. Regiſt. orig. 110. A. Coke 7. part. neither ſhall he declare of the value, 8 Edw. 4.5. pl. 16. Lakin. Quaere differentiam.

The Writ was, Quare Warrennam intravit, & cuniculos cepit & aſportavit, without ſaying ibidem, and yet good, 43 Edw. 3.13. pl. 7. for it ſhall be intended that he took them there where he entred; for the Conjunction Et couples all together.

If Conies go out of a Warren, any may kill them in his own Land, and no Action lies, Coke 5. part 104. 43 Edw. 3.13. pl. 7. For they cannot be ſaid to have animum revertendi, and ſo the property is gone.

Deer if they be tame,Deer. he ſhall ſay ſuas, but then he ought to ſhew that they were tame, 43 Edw. 3.24. pl. 2. For if he declare generally, it ſhall not be intended that they were tame; for tame Deer is but a rarity, and not uſual.

But if it be in a Park or Chaſe, he ſhall not ſay ſuas, becauſe he hath them but ratione privilegii, viz. of the place where they are ſo long as he can keep them there, which is uncertain.

For taking away young Hawks, he ſhall ſay ſuos, Hawks. becauſe he hath a property poſſeſſory in them; for he might have taken them when he pleaſed, Coke 7. part. Regiſt. orig. 93. B. 96. B. 110. B. Nat. br. 89. K.

So if they be reclaimed Hawks, that is, Hawks made tame or managed, which were wild before.

For taking away a Horſe, Regiſt. orig. 95. A. Nat. br. 87. M. the Count, No. Lib. intra. 666. B. ſect. 15. Lib. intra. 682. D.

For his Sheep taken away, Regiſt. orig. 110. B.

For taking his Fiſh,Fiſh. this is good, although the Count be of a hundred Fiſhes, becauſe this word Piſcis, eſt nomen collectivum, 4 Hen. 6.11. Coke. 5. part 35.21 Hen 6.39. and comprehends any number, as well as one Fiſh.

But the Count ought to ſhew the nature and number of the Fiſhes particularly, Coke 5. part 35.31 Hen. 6.39. though the Writ be general, that the dammage may be known.

De tauro ſuo libero, Bull. Oves captae & fugatae. Regiſt. orig. 109. A.

Oves fugatas per quod morierunt, Lib. intra. 616. B. ſect. 1. Nat. br. 89. L. Regiſt. orig. 97. A.

Porcos fugatos, per quod interierunt, Hogs. Regiſt. orig. 97. A. Nat. br. 89. L.

Capta, fugata & imparcata.There he ſhall ſay the price, where he declares of a taking, becauſe Cepit implies that he had gained a property; but it is otherwiſe, if this word be put out, 1 Hen. 5.3, 4.

But Regiſt. orig. 97. B. fuit, Cepit & abduxit, without ſhewing the price of them, and good, becauſe it may be he was ſeiſed of the Cattel.

Cepit in S. & interfecit at W, contra pacem, Capta & interfecta. &c. is nought, becauſe Cepit implies a property, and then contra pacem is not good; for he might kill them, if they were his own, 27 Aſſize 64.

Averia ad loca incognita fugata, upon the Stat.Diſtricta. of Marlebridge, cap. 4. Regiſt. orig. 97. A. 102. A. 30 Aſſize, 38. Nat. br. 89. N.

De Com. in com. & ibidem imparcata, upon the Stat. of Marlebridge, cap. 4. Weſtm. 1. cap. 16. 1 & 2 Mariae, cap. 12. Regiſt. orig. 97. B. 1 Eliz. Dyer. 168. pl. 20. 2 Eliz. Dyer, 177. pl. 32. Nat. br. 89. P.

And there are two cauſes of bringing this Action. 1. He cannot give them Meat. 2. They cannot be replevied, 22 Edw. 4.11. Q. For he might loſe his Cattel, and have no remedy, if he might not have this Action of Treſpaſs.

Note,Note. upon theſe caſes upon the Statute, the Writ ſhall not be general, but ſpecial, upon the Statute, 43 Edw. 3.30. pl. 16. as it is uſual in all other ſuch like caſes.

The Action was of a Cow, the Count, Lib. intra. 464. C. Pound.

For Marlebridge, cap, 4. ſaith diſtrictiones, but not upon 1 & 2 Mariae, cap. 12. for the Statute ſaith Cattel, and upon the ſecond branch it lies well, becauſe it is there Cattel or Goods.

The Count was of taking in one County, 1 Eliz. Dyer, 168. pl. 20.

In this Action the place of the taking is material, becauſe the diſtance of the place of impounding makes the offence, 7 Eliz. Dyer. 238. pl. 33.

But if Land in one County be held of a Mannor in another County, the Diſtreſs belongs to the Mannor, and may be impounded there in the Lords Pound, 1 Hen. 6.3. pl. 9. 30 Edw. 3.6. Com. 204. B. 14 Edw. 3.275. 22 Edw. 4.11. 6 Hen. 3. Avowry, 242. Crooke 18 Hen. 7.50. pl. 3.

If the diſtreſs be put in ſeveral Pounds within the ſame County, this is out of the Statute, unleſs they are put in ſeveral Franchiſes, otherwiſe the party needs not put in ſeveral Replevins, Mich. 37 & 38 Eliz. Partridges caſe. per Anderſon; becauſe it is but as: one impounding.

Treſpaſs lies for Averia diſtricta extra foedum, upon Marlebridge, cap. 15. Weſtm. 1. cap. 16. Articuli Cleri, cap. 9. Regiſt. orig. 97. B. Coke. 8. part 60. B. Nat. br. 90. A.

Note, Non dicitur ſimul in uno brevi Regia via & extra foedum; for there ſhould be two Writs, Regiſt. orig. 97. B. in nota.

In communi ſtrato upon Marlebridge, cap. 15. Regiſt. orig. 97. B. although that it be within his ſee, 17 Edw. 3.43. pl. 31. Treſpaſs lies. Q. whether a common ſtreet or way be within the Lords ſee properly, though it lie within his Mannor.

This Writ is contra pacem, becauſe againſt the Statute, and not vi & armis, 17 Edw. 3.1. pl. 2. Q. For it is not againſt the common Law.

For exceſſive diſtreſs upon the Statute of Marlbridge, cap. 4. Treſpaſs lies.

Averia diſtricta per Ballivum non jurat. upon Weſtm. 1. cap. 17.

Averia Caruce upon the Statute, 21 Edw. 1. Regiſt. orig. 97. B. Nat. br. 90. B. 14 Eliz. Dyer. 312. pl. 86.

The Writ is contra pacem, and not vi & armis, 17 Edw. 3.1. pl. 2. becauſe upon the Statute.

The Count needs not ſhew that the Diſtreſs ſhould be reaſonable, but ſhall ſay generally, contra formam Satuti, 14 Eliz 312. pl. 86. For that implies it is unreaſonable.

This Action lies, although that agreement be made, 4 Edw. 3.1. pl. 2. For the Statute cannot be diſpenſed with by the agreement of the parties.

Oves diſtrictas upon Statute 21 Edw. 1. Bracion, fol. 217. Regiſt. orig. 97. B. Nat. br. 90. B.

But if there be not other Cattel on the Land, at the day that the Lord comes to diſtrain, he may diſtrain the Sheep, 29 Edw. 3.16. pl. 48. elſe he ſhould be without remedy.

Catalla diſtricta quouſque finem fecit, Nat. br. 87. C. The Law hates fraud and violence.

Averia impercata, Impercata Catalla. per quod terra remanſit inculta, Nat. br. 88. J. viz. Beaſts of the Plough, which is againſt the common good.

Equo impercato & mortuo ſine alimento, Regiſt. orig. 94. B. This muſt be of a private impounding, or in a Pound cloſe.

For if they die in a Pound overt, the party had no remedy, 46. Edw. 3.3. pl. 4. For he might have come to feed them.

But if it be a Pound cloſe, he ſhall have treſpaſs, 46 Edw. 3.3. if the Cattel die; for he could not come to feed them.

Equo percuſſo, Percuſſa Catalla. the Count, Lib. intra. 614. A. ſect. 22.

Equo percuſſo per quod the Maſter is hurt, Regiſt. orig. 96. B. Nat. br. 89. E. Q. whether a double Action lies not.

Oves tonſas, Tonſa Catalla. Regiſt. orig. 96. A. Nat. br. 88. O Bracton, Lib. 3. fol. 102. B. Si quis rem mobilem vendicaverit ex quacunque cauſa ablatam, vel commodatam, debet in Actione ſua definire pretium, & ſic proponere actionem ſuam, quia ille à quo res petitur non tenetur praecisè ad rem reſtituendam, ſed ſub disjunctione, vel ad rem; vel ad pretium. The cauſe why the value muſt be expreſſed, is here ſhewed.

The Writ for dead Cattel,Chattels dead. ſhall be Bona & Catalla ad valentiam, 21 Hen. 6.39. pl. 5.

But if it be but one thing, it ſhall not be Bona & Catalla, 22 Edw. 4.12. pl. 32.

But ſhall name the thing it ſelf, Crooke 12 Hen. 7.35. pl. 1.

The Writ for dead Cattel ſhall be Cepit & aſportavit, ad valent. Nat. br. 88. B. 21 Hen. 6.39. pl. 5. For live Cattel cepit & abduxit pretii.

Wool diſtrained until C and D oblige themſelves to make deliverance, Arreſtata. Wool. 43 Edw. 3.6. pl. 18. the Writ is 1. Vi & armis, and good. 2. Ad dampuum, &c. 3. The value is not ſhewed, yet good, becauſe it is not in demand.

Arreſted quouſque commodum perdidit, &c. Regiſt. orig. 102. A. 105. A.

Argentum cepit & aſportavit. Capta & aſportata. Regiſt. orig. 108. B. 110. A. Nat. br. 87. M. 34 Hen. 6.10. pl. 21. 2 Edw. 4.26. ſhall not ſay pretii, Regiſt. orig. 102. B. 108. B.

For the Money comprehends the value,Money. 46 Edw. 3.16. pl. 12. per Moubray. 46 Edw. 3.10. pl. 1.

For Money out of a Cheſt, the Count, Lib. intra. 614. A. ſect. 1.

Auri tot Florenos, there it ſhall be ſaid pretii, Regiſt. orig. 102. B. becauſe they are outlandiſh Coin, and not current in England.

Bona capta & aſportata, the Count, Lib. intra. 615. D. ſect. 3.681. C. ſect. 3.

If one puts his goods in my houſe, and I will not deliver them, Treſpaſs lies not, but a detinue. Q for it was his folly to put them there, Mich. 40 & 41 Eliz. com. Ban. Briton verſus the Counteſs of Shrewsbury, but if I remove them, or ſeize them to my uſe, it lies; for then I do in a ſort diſpoſe of them.

Carbones maritinos aſportat. Regiſt. orig. 94.Coles. A. Nat. br. 87. B.

Plough & Horſe. Carucam & equos capt.

The Count, Lib. intra. 607. C. ſect. 1.

Carucam capt. ad cariand. upon Weſtm. • 1. cap. 1. Regiſt. orig. 98. A.

For taking away Writings in a Box,Writings. Regiſt. orig. 110. B. 106. B.

The Count, Lib. intra. 616. B. ſect. 1.

For taking away Deeds, Minuments and Writings, Regiſt. orig. 111. A.

For breaking open a Cheſt, and taking away Deeds, 36 Hen. 6.26. pl. 26.

For taking away a Cheſt, Regiſt. orig. 110. B.

For taking away Hay,Hay. Regiſt. orig. 102. B.

For taking away Frumentum, Corn. the Writ was Bona & Catalla, and good, 46 Edw. 3.16. pl. 12. For Frumentum is Chattels.

Timber and Wood capt. & aſport. the Count,Timber. Lib. intra. 676. A. ſect. 7.

Navem capt. & abduct. Regiſt. orig. 95.Ship. A. 102. B. Nat. br. 87. I. viz. intra corpus Comitatus, and not ſuper altum mare.

Navem capt. ad faciend. cariag, upon the Statute of Weſtm. 1. cap. 1. Regiſt. orig. 98. A. Nat. br. 90 C.

Scriptum obligatorium delivered in nature of an Acquittance,Obligation. 5 Hen. 4.2. 1 Hen. 7.14. 3 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 Writ of Error lies upon this in Parliament, viz. upon a judgment given in the Kings Bench.

Iudgment given in Chancery, according to the Common Law, that is, on the Petty-bag ſide, ſhall be redreſſed in Parliament, 37 Hen. 6.13. 11 Edw. 4.8. Choke. So it ſeems of a judgment in the Exchequer-Chamber.

Or in ban. regis, 14 Eliz. Dyer 315. pl. 100. and ſo it ſeems 37 Hen. 6.13. 8 Edw. 3.25. 17 Aſſize pl. 24. com. 393. A. 39. Aſſize 18.

And in caſe of Partition one Scire facias was brought in Chancery upon Error, and good, 42 Aſſize 22.

If Letters Patents are enrolled in Chancery, there ſhall be a Scire facias to reverſe it there, 16 Edw. 3. bre. 651. 2 Rich. 3.1. A. if erroneous.

But another Subject upon this being grieved, ſhall have this redreſſed in Parliament, 16 Edw. 3. bre. 651. 37 Hen. 6.13.

But no Writ of Error lies altogether upon a Decree in Chancery, becauſe in their proceeding the Court is not a Court of Record, 37 Hen. 6.13. 27 Hen. 8.15. Rnightley. but meerly arbitrary.

A Judgment given in com. ban. if it be erroneous in Proceſs,Com. Ban. or in default of Clerks, it ſhall be redreſſed in the ſame Court the ſame Term, without a Writ, Nat. br. 21. I. 15 Edw. 4.7. & 8. 7 Hen. 6.28. pl. 22. 19 Hen. 6.2. pl. 2. viz. upon a motion at the Bar.

But for Error in Law in the ſame Term, or other Error in another Term, this ſhall be redreſſed in ban. re. only, Nat. br. 21. I. Coke 8. part. 5. A. 5 Mariae, bre. commiſſion 25.

It ſhall not be redreſſed at the Council-Table, 39 Edw. 3.14. pl. 28. For that is not a Court of Law, but of State.

Judgment given before the Barons of the Exchequer,Exchequer. ſhall be redreſſed in the Exchequer-Chamber before the Chancellor of England, Treaſurer, Barons, and Juſtices, 31 Edw. 3.12. A. 37 Hen. 6.15. 8 Hen. 7.13. pl. ult. com. 260. B. Coke 1. part. 11.34.3. part. 11. B. 8. part. 58. A. 65. B. 15 Edw. 4.18. 39 Hen. 6.52. 6 Hen. 7.15.

Inferior Court-The Statute of Merton, cap. 3. makes the Sheriff Judge of Record in rediſſeiſin, and Error lies upon a judgment given by him in ban. regis, Coke 6. part 12. a Gentlemans caſe.

Judgment given at the Aſſizes in the Countrey,Aſſizes. ſhall be redreſſed in ban. regis, 33 Edw. 3. Verdict 48. 7 Eliz. Dyer 235. pl. 21. 23 Eliz. Dyer 375. pl. 19. 2 Rich. 3.1. pl. 1.10. Aſſize pl. 25.

Or in Com. Ban. Nat. br. 25. E.

But judgment given at the Aſſizes in Com. Monmouth, ſhall be redreſſed only in ban. reg. and not in the com. ban. becauſe the other Iuſtices at the Aſſizes are by Letters Patents, 8 Eliz. Dyer 250. pl. 87. and if the Aſſizes be adjourned in com. ban. and judgment given there, it ſhall be redreſſed in ban. regis, 8 Hen. 6.17.

And if judgment be given at the Aſſizes in a Quare Impedit, Error lies in ban regis, 6 Edw. 6. Dyer 76. pl. 34.

But judgment given at the Aſſizes, ſhall not be redreſſed at the Council-Table, 39 Edw. 3.14. pl. 28. vid. antea rationem quare non.

Oyer and Terminer.Upon Commiſſions of Oyer and Terminer by Iuſtices of the Peace, the judgment given by them ſhall be redreſſed in ban. regis, 29 Edw. 3.30 5 Mariae, brev. Commiſſions 25.

But Error lies not upon a thing done before the Iuſtices of the Peace, 4 Hen. 6.24. Martin. For ſuch things are not accounted judgments, but may be rectified in ſome caſes upon a motion made to that power.

But Error was brought upon an Utlawry, upon an Indictment taken before Iuſtices of the Peace, 11 Hen. 4.53. For an Outlawry is a kind of a judgment given by the Coroner, though the Indictment pended before them.

Conuſance granted to a City or Village corporate. JudgmentConuſance of pleas granted to a City or Village corporate, their judgment ſhall be redreſſed in Ban. Regis.

Or to a Body Natural, and not Corporate; for ſuch are judgments upon pleading.

For a judgment in Cheſter Error lies in Ban. Regis, Coke 2. part 89. B. 19 Hen. 6.12. 6 Hen. 4.8. pl. 30.

But note,Note. in a Writ of Error upon a Judgment given in Cheſter, day ſhall be given for ſo long time that three Counties may be held there, before the return of the Writ in Ban. Regis, within the which time the Juſtices or Lieutenant of the ſame County may redreſs the Error by the uſuage of the ſaid County, Regiſt. orig. 17. A. if they pleaſe.

But in a Writ of Error upon a Writ of Error depending there, they have no ſuch power; but the Record and the proceſs ought to be remanded at the firſt County or Court into Ban. Regis, Regiſt. orig, 17. A. Lib. intra. 290. A. ſect. 1. Cheſter.

And by uſuage in the ſame County of Cheſter, nine County-Courts ſhall be held one year, and eight another year, &c. Regiſt. orig. 17. A.

The uſuage is to have a Writ out of the Chancery retornable in Ban. Regis; for Writs of Error are excepted in the Charters granted to Cheſter.

And in this Error there, the Juſtices may award a Scire facias againſt the Defendant, returnable at the next County, and if the Judgment be affirmed, the party may have a ſpecial Writ of Error, reciting the former Writ, and have the Records and Proceſs of both Judgments removed in Ban. Regis, there to be examined, and a Scire facias awarded againſt the Tertenant ad audiendum errores; for otherwiſe the party ſhall not be reſtored to that which he loſt, 15 Eliz. Dyer 321. pl. 20. 21 Hen. 7.34. pl. 32. Fineux, 34 Hen. 6.42. 6 Hen. 4.8. pl. 36. Lib. intra. 290. B. ſect. 1. Cheſter.

And by 18 Eliz. Dyer 345. pl. 6. if the judgment be reverſed, the party ſhall be reſtored, and the Judges there forfeit to the King 100 l. although the Judgment was given by their Predeceſſors.

But then it is not intended of Error in fact, but only of Error within the Record or Proceſs, No. Lib. intra. 231. A. ſect. 2.

Upon a Claim allowed by the Juſtices of the Foreſt, Error lies upon it in Ban. Regis, Foreſt. 21 Edw. 3.48. pl. 70. For ſuch Allowance is a Judgment in its nature.

If eroneous Judgment be given in the Stannaries,Stannaries it ſhall be redreſſed firſt before the Warden of the Stannaries, and after, before the Council of the Prince, and after, before the King himſelf, as ſupream Judge. It ſeems at the Council-Table, and not in the Kings Bench.

Paſch. 7. Jac. Regis. per Flemming chief Juſtice, a Writ of Error or falſe judgment lies not upon judgment given in the Court of the Stannaries, as was reſolved by all the Juſtices: and it ſeems the reaſon is, becauſe it is but an Engliſh Court, and not a Court of Record.

Judgment in the County Palatine of Durham ſhall be redreſſed by a Writ of Error there, and upon Error in this 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. 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. ErrorVouchee. 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,Reverſ • 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 •• ings error and is barred, and dies without iſſue; • et the Donor or he in Remainder ſhall have Er • or, 3 Eliz. Dyer 188. pl. 9. to reverſe the Recovery; • or if that be erroneous, then the Eſtate • ail is not barred by it.

Note, regularly no Stranger ſhall have Error,Eſtranger. • 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. Ʋpon Judgment in Ireland. 2. Ʋpon a Bill ſealed. 3. Judgment in another Court.

Error brought upon a Judgment given in Ban. Regis in Ireland, Ireland. there ſhall be a Scire facias in the Writ of Error againſt him that had the judgment; for by Sharde this is the uſage, and in no other manner, 34 Aſſize pl. 7. and it is dangerous to alter the ancient practice of proceedings in Law.

In Error upon a Bill ſealed,Bill ſealed. there ſhall be a Scire facias againſt the Juſtices, which ſealed it, ad cognoſcend. Sigilla, &c. per Weſtm. 2. cap. 31. Lib. Intra. 293. C. Sect. 1. 11 Hen. 4.92. This is where Error is brought upon a Bill of exceptions.

But the Juſtices may deliver it in Court by their own hands, 11 Hen. 4.52.92. and then there ſhall be no Scire facias, for thereby they acknowledge their hands.

The Proceſs in a writ of Error againſt the Judges, to whom the Writ is directed, is Alias, Proceſs. Pluries, and Attachment, Nat. br. 22. G. if they do not certifie the Record which is before them.

Errors • ſſignedWhen the Record is removed after Errors aſſigned, the Plaintiff ſhall have a Scire facias againſt the Defendant ad audiend. Errores, Nat. br. 22 E. 10 Edw. 4.13. 3 Eliz. Dyer 195. pl. 38. & 201. pl. 63. 17 Edw. 3.5. This is to give him notice that the Record is removed, and of his proceeding thereupon.

And upon two Nihils a Non eſt inventus returned, the Court ſhall come to examination of the errors, 3 Eliz. 201. pl. 63. without the Defendants in the writ of Errors appearance.

But until Error aſſigned the party ſhall not have a Scire facias, 24 Edw. 3.31. pl. 8. for it is to no purpoſe, for his appearance is to hear the cauſe.

And if he aſſign that for Error, which the Court takes clearly to be no error, he ſhall not have a Scire facias, 18 Hen. 6.17. for that would be to trouble the Court to no purpoſe; but if it be colourable it is otherwiſe.

But in Error brought againſt the King, there ſhall be no Scire facias, becauſe the King is intended to be always in Court, Nat. br. 21. H. either himſelf or his Counſel, for the Judges are of his Counſel.

The Writ needs not mention the names of the Tertenants,Againſt whom a Sci. fac. in Error ſhall be ſued. becauſe it is of common form uſed otherwiſe, 8 Hen. 4.17. pl. 3. and the naming of them is not material.

If the Sheriff return that the Heir is not in his Bailywick,Other County. and the Tertenant ſhews that he is in another County, there ſhall go a Scire facias into that other County, 8 Hen. 4.18. pl. 3. Q. if he remove out of that into another, if another Scire facias ſhall iſſue, and ſo till he is found.

If a Recoverer make a Feoffment,Tertenant and die without Heir, it ſeems there that a Scire facias lies againſt the Tertenant only, and a Writ of Error, 8 Hen. 4.17. pl. 3. 9 Hen. 6.49. B. pl. 30. Q. whether not againſt the Lord by Eſcheat alſo, becauſe he comes in by virtue of the Judgment.

Former Judgment.But the 9 Hen. 6.46. B. pl. 30. a Writ of Error lies againſt none but the party, or them that are privy to the former Judgment. Q. if not againſt privities in Law as well as in fact.

Gardein in right.Gardein in right of the ward recovers in a Quare Impedit, and dies, the Defendant brought Error and a Scire facias againſt the Heir of the Recoverer, and againſt the Heir of him from whoſe right he took his title, and againſt the Incumbent, without naming the Executor; yet good, becauſe he recovers as Gardein in right; but the contrary as Gardein in deed, 8 Hen. 6.35. pl. 1. for there it ſeems the Executor is concerned, for the wardſhip is a Chattel.

Falſe Judgment.Error upon falſe Judgment in Oxford, viz. for Land, the party being dead that hath the Judgment, there ſhall go a Scire facias as well againſt the Heir of the Recoverer, as againſt the Tertenant, 8 Hen. 4.18. pl. 3.

A Scire facias needs not be ſued againſt the Tertenant before the Judgment be reverſed, 47 Edw. 3.7. for before that the Tertenants eſtate is not ſtirred.

But before that he enter, he ſhall have a Scire facias againſt the Tertenant, for otherwiſe he ſhall be a Diſſeiſor, 4 Hen. 7.10. 47 Edw. 3.7. but by the Scire facias it appears that he enters not as a Diſſeiſor.

But if the Recoverer make a Feoffment to his own uſe, and then the Judgment be reverſed,Feoffment there needs no Scire facias againſt the Feoff • e; for this is aided per the Stat. of 1 Rich. 3. 26 Hen. 8.2.

Scire facias in Felony.Error upon an Outlawry in Felony, the Plaintiff ought to have a Scire facias to all the Lords, mediate or immediate, 7 Hen. 7.5.53. 4 Edw. 4.10. 11 Hen. 4. becauſe they are intitled by the Outlawry.

And alſo againſt the party, at whoſe Suit and the Tertenants, Lib. Intra. 308 B. Sect. 3.

And in a writ of Error,Delay. if the Plaintiff haſten not his Suit, the Defendant ſhall have a Scire facias againſt the Plaintiff, to ſhew cauſe why he ſhould not have Execution, 24 Edw 3.24. 9 Hen. 6.13. or elſe he may proceed in Court to have the Judgment affirmed.

And in ſuch caſe upon two Nichils returned, the Defendant ſhall have execution, but after this the Plaintiff ſhall have a Scire facias, 9 Hen. 6.13. Q. for then it ſeems to be too late.

Diminution in Error, 1. by whom; 2. in what caſes, 3. at what time.

1. The Plaintiff in Error may alledge Diminution, Nat. br. 25 A. that is, alledge that a whole Record is not removed.

The Defendant may do it alſo, 28 Hen. 6.11. 15 Eliz. Dyer 321. pl. 21. for if the Record be not wholly removed, the Court cannot judge of it, nor can the parties tell how to aſſign Errors; But this alledging of Diminution is now uſed moſtly for delay.

Error in London. 2. Error upon a Judgment in London, the Recorder certifies the Record; yet he is held to do according to the cuſtome. Quaere, if Diminution ſhall be alledged, 34 Hen. 6.42. it ſeems it ſhould.

When all the Record is not removed Diminution may be alledged, Nat. br. 25. A. vide the Writ there.

Diminution may be alledged in

1. The Eſſoin, Lib. Intra. 290. C. Sect. 1. 1 Hen. 7.2. 2. Continuance of the Jury, Lib. Intra. 290. D. Sect. 2. 3. Words in title in Aſſize, Lib. intra. 290. D. ſect. 3. or any thing material in the body of the Record.

Diminution ſhall not be alledged upon a Bill ſealed, becauſe the bill is not of Record, 11 Hen. 4.52. Hull, & 65. but is given in to the Court by him that takes the exceptions.

3. After in nullo eſt erratum pleaded in another Term, the Plaintiff may not alledge Diminution,Diminution. 28 Hen. 6.11. for then he hath pleaded to the Record as it is, and acknowledged it to be rightly removed.

But the Defendant may, 28 Hen. 6.11. for he hath done nothing to conclude himſelf.

But per 7 Edw. 4.25. Error 45. the Defendant may not. Q.

But Coke 5. part. 37. B. Biſhops caſe, after in nullo eſt erratum pleaded, no Diminution ſhall be alledged by either party; for if it ſhould be ſuffered, it would cauſe great delay.

The Plaintiff to the Writ before that he aſſigns Errors, or a Scire facias ad audiend. errores may alledge diminution, and by this means the Defendant may not afterwards alledge Diminution, 16 Eliz. Dyer 330. pl. 18. vide 13 Hen. 4 Error 92. becauſe it is done already, and it ſeems it may not be twice done.

But note,Note. that the Defendant after that he had rejoyned in the Writ, alledged Diminution, No. Lib. Intr. 232. B. Q.

The Plaintiff may not alledge Diminution for any Error in fact after a Scire facias awarded, 22 Edw. 4.45. but only for matter in Law; for the Scire facias admits the matter of fact to be right.

The Aſſignment of Errors, 1. by whom; 2. at what time; 3. upon what Record; 4. of what things.

Aſſignment of Errors is in place of a Declaration, 9 Edw. 4.32. for therein the Plaintiff declares, why the Defendant ſhould not have execution upon his Judgment.

Aſſign Errors.If one brings a Writ of Error, and he and another aſſign Errors, this is good, as to him that brought the Writ of Error, and void as to the other, for that was but ſuperfluous; but if two brought error, and one aſſign errors, this is not good to either, becauſe the Writ was joynt, Mich. 9 Jac. in the Chequer Chamber, Shakely verſus Porter.

Conuſor of a Fine ſhall not aſſign error in the Conuſance to reverſe his own Fine,Conuſor. which is his own act; neither the Conuſee in the Grant and Render, which is his act; neither the Recoverer in the Recovery, Coke 5. part. 39. B. for they ought not to defeat, but to maintain their own acts.

Executor in Error by him upon a Judgment given againſt him,Executor. ſhall not aſſign for error, that the debt was but upon a ſimple Contract, Com. 182. A. 10 Hen. 6.24. for he might have pleaded it in barr of the Action.

Party ſhall not ſhew error in Proceſs,Party. unleſs he ſhews that it is for his advantage in his proſecution, 7 Edw. 3.25. Coke 8. part. 59. A. Nat. br. 21. F.

But may afterwards ſhew that the Judgment is erroneous by reaſon of ſuch Error, Coke 8. part. 59. A. Beechers caſe, 14 Eliz. Dyer 315. pl. 99. and then is his proper time to do it.

Reverſioner not being made a party ſhall not aſſign for Error,Reverſioner. that the Sheriff made a warrant to the Baily to make a pannel where the party was guiſdable, 3 Hen. 4.6. for the trial concerns him not.

The Succeſſor ſhall aſſign for error,Succeſſor. that his Predeceſſor was but named Gardein, 15 Edw. 3. Error 7. where he ought to have been otherwiſe named.

Error ſhall be aſſigned before a Scire facias ſhall be awarded, 24 Edw. 3.31. pl. 8.Scire fac. for that is the ground of the Scire facias.

For after a Scire facias awarded the Plaintiff cannot aſſign error in deed, 22 Edw. 4.45. for upon the return of the Scire facias the Defendant is to come in, and to hear the errors aſſigned upon the Record.

Upon a Judgment given upon a Demurrer in Law, and a Writ to enquire of dammages awarded,Demurrer. and a Writ to enquire of dammages awarded, a Writ of Error was brought, and he aſſigned errors, 17 Edw. 3.5. and good, as it ſeems. Quaere tamen.

If the Record and the Writ of Error do not agree, Error cannot be aſſigned upon that Record,Record. Error cannot be aſſigned upon that Record, 9 Hen. 6.4. 2 Eliz. Dyer 180. pl. 48. 28 Hen. 6.11. for it ſhall not be judged to be the ſame upon which the Writ of Error was brought.

New Writ of Error.If the Writ of Error be faulty in ſubſtance, errors ſhall not be aſſigned upon the Record, but ſhall have a new Writ, Quod coram vobis reſidet, 3 Hen. 6.3. & 26.5 Mariae Dyer 164. pl. 58. that is, upon the Record, which is removed, and remains where the new Writ is brought.

Falſe JudgmentBut if it be falſe Judgment, then there muſt be a new Writ to the Suitors, who were the Judges; for it is not of Record, 3 Hen. 6.26.

Error without a day.If Error be put without a day, there ſhall be a new Writ before that error be aſſigned, 26 Hen. 6. Scire facias 33. Nat. b • . 20. G. for the old Writ is null, and ſo the Judgment ſtands as if no writ had been brought.

Bill ſealed.Upon a Bill ſealed a man ſhall aſſign error, per Weſtm. 2. cap. 31. 11 Hen. 4.52. 27 Hen. 8.15. 25. Coke 9. part. 13. B. Dowmans caſe, 9 Aſſize 8. 14 Hen. 4.15. 4 Hen. 6.15 A. Martin, 33 Hen. 6.34. Littleton pl. 9. 7 Hen. 6.37. 10 Hen. 7.8.

And if the bill is refuſed to be ſealed, the party ſhall have a writ to compel them to ſeal it, Regiſt. orig. 182. A, & B.

But by Hill Juſtice it is intended of a thing pleaded in Court; for otherwiſe it ſhall not be ſealed, for the Judges are not to take notice of it.

Challenge in an Aſſize was put in a bill ſealed,Challenge. and good, 9 Aſſize 8. 21 Edw. 4.11. 20 Edw. 3.63. Lib. Intra. 346. C. 27 Hen. 8.24, 25.

Priviledge claimed, and not allowed,Priviledge there may be a bill ſealed, 22 Edw. 4. Priviledge 1.

Conuſance claimed,Conuſance if the plea be challenged by one that is not party, there cannot be a bill ſealed, 20 Edw. 3. Conuſance 46. for it concerns him not.

A Patent to three to take an Aſſize where two take it, there may be a bill ſealed,Patent. and error upon it, 29 Aſſize 42.

11 Hen. 92. Aſſize,Bill ſealed. the Tenant ſhews that the Sheriff was beyond Sea, and had a bill ſealed of it.

1. Although the bill did bear date after the Record removed; yet it is good. 2. Although the party did not bring it within the bill, but the Juſtices; yet good. 3. The party ſhall have a writ to the Juſtices, commanding them to ſeal it, where they do refuſe to do it. 4. A writ to the Juſtices ad cognoſcenda ſigilla. vid. antea. 5. Two Juſtices ſeal it, yet one of them may deliver it; for the ſealing, not the delivery, is the principal matter. 6. The party brought a Scire facias ad cognoſcend. ſigilla, before the Juſtices come in Court; yet good, for after that they come the bill was of Record ab initio, and ſo the Scire facias may have a good relation.

Upon a tranſcript of the note of a Fine error ſhall be aſſigned,Tranſcript and if Error appears they ſhall ſend for the note it ſelf, and reverſe it, 21 Edw. 3.24. 16 Edw. 3. Record 35. 40 Aſſize pl. 29.

For otherwiſe perchance the Fine may not be ingroſſed, which may prove miſchievous, 1 Mariae Dyer 89. pl. 4. Lib. Intra. 296. A. ſect. 1. Fines, Nat. br. 20. B.

But note, 5 Mariae Dyer, Record 79. the Record ſhall be certified, and no other proclamation ſhall be made. This is intended of a Fine with Proclamations.

But 1 Mariae, Dyer 89. pl. 4. è contra. Ergo quaere.

Upon a tranſcript in Parliament error is aſſigned, for the Chief Juſtice brought up the Record, and reported it Ban. Regis, 8 Hen. 5. Error. 88. 23 Eliz. Dyer 375. pl. 19. 22 Edw. 3.3. pl. 25.

But in another Court it is otherwiſe, 40 Aſſize 29. Nat. br. 20. F. Quaere rationem. It ſeems, becauſe all Courts agree not in one way of proceedings.

Upon an award by the Juſtices upon return,Priviledge upon a writ of Priviledge, no writ of Error lies, Coke 8. part. 127. B. caſe of the City of London; for this is no judgment upon Record.

Upon allowance of claim by the Juſtices of the Foreſt,Claim. 21 Edw. 3.48. pl. 70. error lies, vid. antea, for it is in nature of a Judgment.

Record removed.Upon a Judgment in an annuity, and after that a Judgment in a Scire facias upon the judgment; Error is brought upon the former judgment, the Record ſhall be removed, 11 Hen. 4.4. viz. the whole Record, as it ſeems.

Error upon a Fine with proclamations,Proclamations. the proclamations ſhall be certified, Com. 265. A. Fiſhes caſe▪ for they are part of the Record by virtue of the Statute.

A Writ of Error ſhall not be awarded until the final judgment be given,Award. Coke 11. part. 40. A. Metcalfs caſe, 7 Rich. 2. Error 68. for the tenour of the Writ ſuppoſeth the judgment to be given.

Unleſs the Award be ad grave dampnum, Coke 11. part. 41. A. Metcalfs caſe; for then it ſeems a neceſſity to grant it before.

As in Debt againſt many by ſeveral Praecipes, and judgment is given againſt one, he ſhall have error, and the pleadings ſhall be ſeveral from the original, and if Error be in the original, tenore tantum ſhall be certified, Coke. 11. part. 41. A.

Judgment in an Account quod computet, Account. error lies not until the final judgment, Coke 11. part. 38. B. 21 Edw. 3.9. 1 Hen. 7.2. B. for the judgment is not perfect and entire before, nor the Record made up.

When an Action of Treſpaſs is in part determined,Treſpaſs. error lies not until it be determined all, 32 Hen. 6.5. pl. 5. 36 Hen. 6. Coke 11. part. 39. B. for before the whole Action is not determined, and ſo no compleat judgment.

So in a Formedon, 12 Eliz. Dyer 291. pl. 67. Coke 11. part. 39. B. Formedon.

So in Treſpaſs againſt two,Treſpaſs. 34 Hen. 6.41. pl. 9.

So in a Quare Impedit, 34 Hen. 6.41.Quare Impedit. Partition.

So in Partition, Mich. 40, & 41 Eliz. Com. Ban. Counteſs of Warwick againſt Henry Lord Barkley. All upon the ſame ground.

If error be brought before the fourth day in Com. Ban. yet it is good,Day. becauſe of Record at the Commencement, 34 Hen. 6. Quaere, whether ſo in Banco Regis.

In an Aſſize of Darrein Preſentment, a Writ was awarded to the Biſhop, and the Aſſize is for dammages, error brought and allowed, 17 Edw. 3.5. pl. 12. for this was a judgment.

Error upon a judgment in a Scire facias upon a Fine,Record. and no Record removed, but the proceedings upon the former judgment, and yet good, 20 Edw. Error 2. viz. the Fine which is a Judgment in its nature, and the Scire facias is but to have Execution upon it; yet it ſeems better, if all were removed.

Praecipe quod reddat.Upon a Praecipe quod reddat judgment is given; and error brought; the original, nor the judicial Writ, nor the eſſoyn ſhall be removed, 2 Edw. 3. Error 2. Thorpe 37. Aſſize 5. but only the Record of the judgment; for there the error is only ſuppoſed.

Unleſs Error be aſſigned in the Original, 24 Edw. 3.24. and then it muſt be removed, viz. the tenour of it.

And then the tranſcript of the Record only ſhall be removed,Tranſcript 34 Aſſize 7. 36 Hen 6.13. for the Record is ſuppoſed not to be erroneous.

Error upon an execution upon a Statute-Merchant,Statute-Merchant. and error in proceſs aſſigned, the original ſhall be removed, 18 Edw. 3.24. for the original is part of the proceſs.

Ancient Demean.And if it be of Ancient demeſn Lands, the Original ſhall be removed, 34 Aſſize 7. out of that Court.

But Error upon a judgment in Ireland, the Original ſhall not be removed, 74 Aſſize 7. 37 Aſſize 15. Finchden. Quaere rationem; it ſeems, becauſe it is a Record of another Kingdom.

Fine and Recovery.Error lies not upon a Fine or Common recovery for falſe Latin, raſure, interlining, miſ-entry of the warrant of Attorney, Proclamation miſ-returned, or not return of the Sheriff, or default of form in words, 23 Eliz. cap. 3. This Statute was made in favour of Fines, and to ſupport them, becauſe they are the common Aſſurances of the land.

And by 27 Eliz. cap. 9. this extends to Fines in Wales, and Recoveries there.

But if the fine be paſſed before the Kings Silver be entred, it is Error, No. Lib. Intra. 231. A. ſect. 2. viz. for the not entring of it; which is paid pro licentia concordandi.

If a Writ of Covenant be returned before the Teſte, this ſhall be amended, Coke 5. part. 45. B. Gages caſe; for it is the miſpriſion of the Clerk.

The Caption before the Teſte of the Dedimus, is no error, No. Lib. Intra. 255. C. Sect. 11. for the ſame reaſon.

Paſch. 1. Jacobi Regis, Rot. 426. the Counteſs of Bedford againſt Foſter, 1. Error aſſigned was, becauſe the Writ of Covenant was of eight Meſſuages and two Tofts, and the Fine certified is of eight Meſſuages and two Meſſuages, but non allocatur, becauſe the Record hath relation to the Writ of Covenant. 2. Error aſſigned, becauſe the Indorſement was Executio iſtius brevis patet in quadam panella &c. where it ſhould be in quadam ſchedula, ſed non allocatur, becauſe in ſubſtance it is the ſame thing, expreſſed by divers names.

Mich. 30 Eliz. Ban. Regis, Auſtein & Steede verſus Conaway & Webbe, a Fine was levied of two Tenements, and void, becauſe a Praecipe lies not of it; this caſe is entred, Hill. 30 Eliz. Rot. 165. for a Tenement is a thing incertain, of which a Fine cannot be levied.

Infancy good Error in a Fine,Infancy. Nat. br. 21. D. 3 Hen. 6.16. B. 2 Rich. 3.1. 17 Edw. 3.53. pl. 33. 27 Aſſize pl. 53. if it be brought during his Minority, that he may be inſpected by the Court, and 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 the Crown, or in any proceedings upon them. Antea.

Statutes penal.Or to the Writ, Bill, or Action, Informations, upon popular or penal Statutes.

10. Law. Judgment.Error in Law by miſpriſion of the Judges in the judgment entred in another term, Coke 5. part. 57. B. Specots caſe; but in the ſame term it may, becauſe all that term the judgment is in the breaſt of the Judges.

Action upon the Caſe in Cur. Wallingford, the judgment was, quod defend. capiatur; this is Error, being but an Action upon the caſe, Trin. 9 Jac. Ban. Regis, Northcot verſus Heywood, for the Judge ought to be defendens in miſericordia; for it is capiatur only where the Action is vi & armis, in reſpect of the fine to the King.

Conceſſum eſt pro Conſideratum eſt. Conceſſum eſt, where it ſhould be Conſideratum eſt; this is Error, although there are 21. Preſidents in my Lord Cokes Reports to the contrary, for by Man Secondary the Books are falſe printed, Mich. 8. Jac. Ban. Regis, Rot. 641. and by Williams, if it be videbitur Curiae; this is erroneous, for the Court is not to vary from their forms in ſuch high matters as Judgment are.

If it be Capiatur againſt the Defendant in an Ejectione firmae, Mich. 8 Jac. Ban. Regis, Rot. 232. Dolby verſus Holbrook, it is error, for it ſhould be ideo in miſericordia.

Juriſdictiō of Court.It is ordained per 27 Eliz. cap. 8. that if Error be brought in the Chequer upon a judgment in Ban. Regis, they ſhall not aſſign it in the Juriſdiction of the Court, or in form of the Writ, Return, Plaint, Bill, Declaration, Pleading, Proceſs, Verdict, or Proceedings; but only inſiſt upon the matter in Law.

And alſo there is a Proviſo, that it ſhall be in Debt, Detinue, Account, Covenant, Ejectione firmae, Traverſe, Action upon the Caſe; and not in other Actions of a higher nature.

In proceſsThe party cannot ſhew Error in Proceſs in delay of the Defendant, unleſs he ſhew that it is for his diſadvantage, and that he is injured thereby, 7 Edw. 3.25. Coke 8. part. 59. A. Beechers caſe.

Nothing that is done contrary to the Office of a Judge ſhall be aſſigned for Error,Judge. Nat. br. 21. B. 7 Hen. 7.4. for their Authority ſhall not be queſtioned this way.

Granting of Aid where it ſhould not be, is not Error, ſo of Receipt, 7 Edw. 4.12. 21 Edw. 4.65 B. 5 Hen. 7.8. 8 Hen. 7.9, 11. 14 Hen. 6.5. pl. 25. but if it be denied where it ought to be granted, it is Error; for none is prejudiced by the former, but by the latter the Defendant is prejudiced.

So of Garniſhment, 14 Edw. 4.1. pl. 3.

So of making of an Attorney, Nat. br. 22. D. 21 Edw. 4.77.

But denial of Aid or Receipt,Viſne. where it ought to be, is Error, Edw. 4.65. B. 5 Hen. 7.8. 8 Hen. 7.9. vid. antea.

When the Viſne is miſtaken,Viſne. it is error, for there is no right trial.

In Replevin.Replevin, the Defendant preſcribes to have all the Paſture of ſuch a place in W. except Common for the Inhabitants of D. and the Preſcription being traverſed, the Jury was of the Viſne of W. only; and this was ruled good in Error brought, becauſe the words of exception to the Inhabitants of D. was void, therefore this was not put in iſſue, Trin. 11 Jac. Ban. Regis, Wicker verſus Stockeman, and ſo nothing in Dale was put in iſſue.

In waſteIn Waſte brought, the Iſſue was for certain Oaks cut for repairing of the Caſtle of Burrum, the Viſne was of the Village of Burrum, where it ſhould have been of the Caſtle of Burrum, this is Er • or, Hill. 12 Jac. Com. Ban. the Counteſs of Cumberlands caſe, for a Caſtle and a Village are two different places.

Trover & Converſion.Trover and Converſion brought in Coventry, upon not guilty pleaded, the Viſne was De Vicineto Civitatis Coventriae, and this ſhewed in arreſt of judgment, ſed non allocatur, and error upon in brought, and it ſeems that by Williams and Yelverton Juſtices, that it is error; for it ſhould be of Coventry; for Vicinetum is of the Neighborhood of Coventry, and excludes the City, and the Sheriff of the Country ought to make it out, 7 Hen. 6.36. B. 4 Edw. 4.39. 7 Hen. 4.12.80. Inqueſt 36. Quare tamen; for the Court did adviſe about bringing of a new Action, and did not determine the Queſtion, Paſch. 9. Jac. Ban. Regis, Procter verſus Clifton.

Treſpaſs for lopping of Wood in Hurſlay, Treſpaſs. the Defendant pleads that the place is parcel of the Mannor of Mamden in the Pariſh of Hurſlay, and the Cuſtom is, that the Copy-holder may cut, &c. and found for the Plaintiff, and the Viſne was of Hurſlay, and it was moved that it was not good, for the Pariſh is not certain, becauſe it may comprehend more Villages; but it was good per Curiam, becauſe Hurſlay ſhall be taken to be a Village and Pariſh, and ſhall not be intended, that there are more Villages in one Pariſh, except it be ſhewed, 5 Edw. 3.20. Mich. 9. Jac. Ban. Regis, Brocke verſus Spencer.

Condition to pay money. Hill. 9. Jac. Ban. Regis, Savil & Cavendiſh, Condition to pay money in the Church porch of the Pariſh of H. and pleads performance, the Viſne was of H. and yet good, for as it ſeems the Village and Pariſh ſhall be intended all one, and the Pariſh ſhall not be intended to comprehend more Villages.

Debt upon an Obligation to perform Covenants,Obligation. and declares of the breaking of the Condition, becauſe a ſtranger recovered the Land at Weſtminſter upon a good title, where the Land lies in Com. Berks, the Defendant ſaid that it was by Covin, without this, that it was upon a good Title, the Plaintiff ſaid that it was upon a good Title the Viſne ſhall be of the County of Berks, where the Iſſue is joined upon the good Title, and where the Land lies, but contrary if the iſſue be joined upon the Covin; for that is alledged at Weſtminſter, but it was ſaid, if it were a perſonal Action, it ſhall be where the Recovery is alledged, Mich. 9. Jac. Ban. Regis, Hanſaker verſus Kirby.

Ejectione firmae of Land in S & T the Defendant pleads a Feoffment of the Land by Deed at S. the Plaintiff ſaid non feoffavit, Ejectment &c. the Viſne was of S. and T. and good; for the alledging of the Feoffment at S, is idle; for it cannot be but upon the Land which is alledged to be in S. and T. Mich. 9. Jac. Ban. Regis. and ſo the Venue is rightly laid there.

Debt for 20 l. the Defendant pleads that at another time the Plaintiff ſued him in London, Debt. in ſuch a Pariſh for the ſame debt, and ſhews the Record certain, &c. and that he had execution in another Pariſh, &c. the Plaintiff ſaid that it was in debt for another 20 l. for the which execution was awarded abſq, hoc that the plaint and the execution was for the ſame 20 l. yet the Viſne ſhall be in both Pariſhes, becauſe the iſſue is as well of the execution as of the plaint, 5 Edw. 4.110.

A vouches B, who vouches C, and after iſſue tried, the former Vouchee, viz. B. dies, this ſhall not be pleaded in arreſt of judgment againſt A, but it is error, if judgment be given, 21 Hen. 7.80. pl. 1. Crooke, but if A die, it ſhall abate the Writ in facto, ibidem. becauſe he is Defendant, and ſo no judgment can be given.

In detinue againſt A, he prays garniſhment againſt B, which comes and pleads, and they are at iſſue, A dies, the Writ abates, ibidem.

Bar in Error.

No bar to ſay that the former Writ depending,Feofment the Plaintiff did infeoff another; for he remains Tenant notwithſtanding the Feoffment, 21 Edw. 3.53. 20 Aſſize 2. 12 Aſſize 41. Coke. 1. part 111. Albanyes caſe; becauſe the Feoffment was made pendente lite.

In nullo eſt erratum. In nullo eſt erratum, a good Bar, 28 Hen. 6.10. 9 Edw. 4.32. 15 Eliz. Dyer 321. pl. 21. For it deſtroys the very ſuppoſal of the Writ.

But note upon Error in Deed this is no plea. 7 Edw. 4.16. 9 Edw. 4.32. 3 Edw. 6. Dyer 65.2 Mariae, Dyer. 104. pl. 10. Lib. intra. 288. D. ſect. 1.289. D. ſect. 1. No. Lib. intra. 233. B. becauſe that doth not appear upon the Record.

Releaſe of Errors is a good Bar,Releaſe. 20 Edw. 3. Error 2. Littleton 116 B. Coke 8. part 152. Althams caſe. 6 Hen. 4.8. pl. 36. 5 Edw. 4.96. B. For the releaſe of Errors makes the judgment good, were it never ſo vicious.

But a releaſe of Actions reals and perſonals it is no Bar in error of an Outlawry, Coke S. part. 152. Littleton, 116. B. For the Outlawry concerns the Commonwealth, which intereſt cannot be releaſed by a private perſon.

If the Defendant be outlawed in Rediſſeiſin, a releaſe of all demands is no Bar, becauſe the Original and the Judgment are the proceſs upon the Outlawry. 11 Hen. 4.6.

The Releaſe of the Vouchee ſhall bar the Tenant, 17 Edw. 2. Error 90. for the Tenant recovers in value againſt him.

Releaſe of Errors by Tenant in Tail, is no bar to the iſſue, although it be tried againſt the Tenant in Tail, 3 Eliz. Dyer 188. pl. 9. For the iſſue in Tail is not bound by the judgment; for the iſſues derives paramount the tenant in Tail, viz. performam doni.

But if he in reverſion in Tail diſſeiſes Tenant in Dower, and ſuffers an erroneous Recovery, and Tenant in Dower releaſes with warranty, and dies, this is a good Bar, Coke 3. part 60, 61. Lincolne Colledge caſe; becauſe the recovery cut off the entail.

A Releaſe of one bars another, when two are to recover a perſonal thing in reſpect of their joint-intereſt; but when they are to diſchage themſelves, it is otherwiſe, Coke 6. part 25. Ruddocks caſe. As where an Action is brought againſt two jointly to one thing, it ſeems if one confeſs the Action, this ſhall not bind the other.

If an Action be brought againſt two jointy, and a judgment is thereupon had againſt them, and one of them releaſeth errors, this ſhall not hinder the other to bring a Writ of Error, becauſe he is to be charged by the judgment.

The King brought Error,Sciſune. it is no plea, that his Miniſters have ſeized the Land, unleſs the King agree to it, 39 Aſſize pl. 18. For the King ſhall not be bound by the Act of his Officers without his conſent. Yet Q. if it be done by an Officer of Record.

The Judgment in Error. 1. For the Plaintiff. 2. For the Defendant. 3. For both.

In Error two things are to be done. 1. To reverſe the judgment. 2. That the party be reſtored to all that he loſt by reaſon of the judgment, 9 Hen. 6.47. B. Martin. Coke 5. part 39. B. Tayes caſe. Q. Whether he ſhall be ſatisfied for all his dammages? It ſeems he ſhall.

The judgment was that the Plaintiff ſhould not be reſtored to the Land,Aſſiſe. with the mean profits, 11 Hen. 4: 93. pl. 49. Q. For a ſeveral Action lies for the mean profits.

And 8 Hen. 6.2. A. Rolfe, that he ſhall recover the Land and the Iſſues of the Land, that is, the profits.

Information upon Intruſion.The judgment was, Quod judicium reverſetur & adunlletur, & quod Defendens de intraſione, intruſione, tranſgreſſione & contemptu, convincatur, & à poſseſſione amoveatur & capiatur, &c. quodque recordum mittatur in Scaccarium pro executione habenda, &c. Coke 1. part 40. A. Altonwoods caſe. The Action and judgment were in the Exchequer.

In a Quare Impedit, that former judgment ſhould be void,Quare impedit. and the Plaintiff reſtored to all that he loſt, 18 & 19 Eliz. Dyer 353. pl. 30.

Gardein recovers in a Quare Impedit in right of the Ward, the Defendant at full age of the Ward brought error, and a Scire facias againſt the Ward, the Ward entitles himſelf by his ancient right, and found for him. 1. The judgment ſhall be reverſed againſt the Gardein, and yet the Defendant ſhall not be reſtored, becauſe he is barred by the plea of the Ward, 9 Hen. 6.47.: B. Newton.

The judgment was, that the judgment ſhall be reverſed,Rediſſeiſin and that the Plaintiff be reſtored to the Land, and to the iſſues taken in the mean time, 9 Hen. 4.6. pl. 19. that is, to the mean profits of the Land taken pendente lite.

The judgment was upon an Utlawry in felony,Utlawry. that the Utlawry ſhould be reverſed, and he reſtored at the common Law to all that he had loſt by this cauſe, 11 Hen. 4.53. pl. 32. 7 Hen. 4.40. B.

And that he ſhould be reſtored at the Common Law to that he had loſt, 3 Eliz. Dyer 196. pl. 39. viz. by reaſon of the Owtlawry.

Error by Executors of the Teſtators being utlawed was, that the Utlawry be reverſed, and that they ſhall be reſtored to the goods of their Teſtator, ſeized by reaſon of it, 11 Hen. 4.65. pl. 22.

It ſhall be Quod judicium redditum ſtaret in omni robore per Coke Chief Juſtice, Paſc. 12. Jac. Ban. Regis, Sir John Heydons caſe; and yet 21 Edw. 4.44. A. was quod judicium redditum remanebit ſtabile in perpetuum, nor the form is let judgment be affirmed.

Et ulterius conceſsum eſt, quod praedictus A, recuperet verſus praefat. This is the Judgment for d • mn • ges. B. 10. l. eidem A. per Curiam Domini Regis hic adjudicat. juxta formam Statuti inde nuper edit. &c. promiſis & coſtagiis & dampnis ſuis quae ſuſtinuit occaſione dilatationis executionis praedict. praetextu proſecutionis dicti brevis Domini Regis de errore, &c. Lib. intra. 244. B. ſect. 8. & 292. B,

By the Statute of 3 Hen 7. cap. 10. if error be ſued before execution, and afterwards be diſcontinued by default of the party that brings it, or he be nonſuited, or judgment affirmed, the other ſhall recover his coſts and dammages by the diſcretion of the Judges.

An Infant and another levie a Fine, this may be reverſed to the Infant by a Writ of Error, but it ſhall be good againſt the other, Coke 1. part 76. B. Bredons caſe. No. Lib. intra. 255. C. ſect. 11. For the Fine ſhall ſtand good as far as by Law it may.

But if the Husband and Wife levy a Fine of the Land of the Wife, and they reverſe it for Error, they ſhall be reſtored forthwith, becauſe the Huſband is joyned with his Wife but for conformity, Coke 2. part 77. B. Cromwels caſe. For the Eſtate paſſeth only from the Wife.

Though Execution be reverſed, the judgment is yet good, Coke 5. part 32. Pettifers caſe; and a new Execution may be taken out.

A Fine reverſed for fault in the Proclamations only, remains a good Fine at the common Law; for the other is but a Diſcontinuance, 4 Eliz. Dyer, pl. 54. and is nothing to vitiate the Fine.

Execution in Error.

Lib. intra. 307. C. ſect. 1.

FINIS.