A SURVEY OF THE LAW. CONTAINING DIRECTIONS how to Prosecute and De­fend Personal Actions, usually brought at COMMON LAW. With the Judges Opinions in Several Cases.

To which is annexed The nature of a Writ of Error, and the general pro­ceedings thereupon. With a plain Table for the easy finding out of every particular.

BY William Glisson and Anthony Gulston Esquires, Baristers at Law.

Good communicated doubles it self.

—Vivere nemo
Nunc sine Lite solet, nec sine Lege potest.

London, Printed for Henry Brome, at the Gun in Ivy-Lane, and Thomas Basset in St. Dunstans Church-yard. 1659.

THE CONTENTS Of the BOOK,

  • 1. Accompt.
  • 2. Case.
  • 3. Covenant.
  • 4. Detinue.
  • 5. Debt.
  • 6. Ejectment.
  • 7. Quare Impedit.
  • 8. Replevin.
  • 9. Trespass.
  • 10. Trover, c&.

Wherein is plainly set down and demonstrated.

  • 1. What their several natures are.
  • 2. How many fold.
  • 3. In what court they most properly lye.
  • 4. Who may best bring them.
  • 5. Against whom.
  • 6. For what causes.
  • 7. What be Pleas and Barres.
  • 8. What Judgements and Executions.

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 dresse. Antiquity may be plead­ [...]d, Sr. Germin Perkins, Stanford, Cromp­ [...]on, Lambert, Sr Henry Finch, Dalton, and di­vers others have in former dayes troden this path. My desires are it may not be perused by those who read only to fault, what they [Page] 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 ecclipsed dayes is the prayer of him, who is

A Well-Wisher to the Laws HEN. APPLEGARTH.
Staple-Inne, January 20th. 1658. 9

The Table.

ACCOUNT.
  • ACcount. Fol. 1.
  • Account against a Guardian in Soccage. 1.
  • In what Court Account lyeth a gainst a Guardien in Soccage 1.
  • Who shall have a writ against Guardien in Soccage 2.
  • Against what person Account lyeth as Guardien in Soccage. 3.
  • For what things Account lyeth. 4.
  • The Account against a Guardian Soccage. 5.
  • The proces against a Guardian Soccage. 1, before appear­ance. 2. after appearance. 6.
  • Bar by a Guardian in Soccage. 1, to the Action of Ac­count. 2, Before Auditors. 7.
  • The Judgment against a Guardian in Soccage. 1, of Ac­count. 2, to recover the thing. ib.
  • Execution against a Guardian in Soccage 1. per com­mon Law. 2, per statute Law. 8.
  • Ex parte talis. 8.
  • Account against a Bayly, 1. of a Court or Hundred, 2. of a Mannor-house, &c. 9.
  • In what Court it lyes against a Bayly. ib.
  • Who shall have an Account against a Bayly, 1. of a Court, 2. of a Mannor. ib.
  • Against whom an Account lyeth as Bayly, 1. of a Court or Hundred, 2. of a Mannor, &c. 12.
  • For what things Account lyeth against a Bayly, 1. of a [Page] Court, 2. of a Mann [...]. 14.
  • The Account against a Bayly, 1. of a Court or Hun­dred, 2. of a Mannor, &c. 15.
  • The writs against a Baily, 1. of a Court or Hundred, 2. of a Mannor, &c. 16.
  • The process against a Baily, 1. before appearance, 2. af­ter appearance. 17.
  • Bar to a Baily, 1. to an Action of an Account, 2. before Auditors. 18.
  • Judgement against a Baily, 1. of Accouut, 2. to recover the thing. 21.
  • Execution against a Baily, 1. per Common-law, 2. per Statute-law. 10.
  • Ex parte talis, by a Baily. 22.
  • Account against a Receiver, 1. in Law, 2. in Deed. 23.
  • Against whom Account lyes as Receiver. 26.
  • For what things Acount lyeth against a Receiver. 28.
  • The Account against a Receiver, 1▪ by others hands, 2. by his own hands. 29.
  • The judgement against a Receiver, 1. of Account, 2. of a Receiver. 34.
  • The writ against a Receiver. 35.
  • The process against a Receiver, 1. before appearance, 2. after. 36
  • Bar by a Receiver, 1. to an action of Account, 2. before Auditors. 37.
  • Execution against a Receiver, 1. per Common-law, 2. per Statute-law. 3 [...]
Action upon the Case.
  • QUid & Quotuplex.
  • In what Court it lyeth. 42.
  • [Page] For doing of wrong to the dammage of another, touch­ing things hereditary. 43.
  • Against whom this lyeth. 44.
  • For what things this Action lyes. 46.
  • The Writ. 55.
  • The process, 1. before appearance, 2. after. 55.
  • The Judgement. ib.
  • For what things it lyes. ib.
  • For doing of wrong to the dammage of another touching his body. 61.
  • For doing a thing to the dammage of another touching his name, which is slander. 62.
  • For the doing wrong to the dammage of another touching sutes in Law. 72.
  • For not doing which onght to be done by the Law, touch­ing a thing hereditary to the dammage of another. 73.
  • For not doing of things which ought to be done by the Law, to the dammage of another concerning Chat­tels. 81.
  • For the not doing of a thing which ought to be done by the Law, to the dammage of another, touching his body 83.
  • For not doing a thing that ought to be done by the Law, to the dammage of another touching sutes in Law. 83.
Assumpsit.
  • FOr the not doing of a thing which ought to be done by the agreement of the party to the [...] of another, touching things hereditary. 84.
  • Assumpsit quid & quotuplex. ib.
  • General Bar. 85.
  • [Page] For not doing of a thing which ought to be done by the a­greement of the partyes, touching Chattels. 87
  • The Judgement. 98
  • The Writ. 99
  • For not doing a thing which is to be done by Agreement touching the body. 99
  • The Writ. 100
  • For not doing a thing which is to be done by agreement of the parties touching sutes in Law. 100
  • For not doing a thing where a man is bound to do it in one manner, and he doth it in another. 100
  • For negligent suffering a thing to be done to the dam­mage of another. 101
  • Bar. 102
  • For deceit in bargains and agreements with warrant, 105
  • For deceit in bargains and agreements without warran­ty. 106
Trover and Conversion.
  • Quid & quotuplex. 108
  • Of what things it lyes. 109
Covenant.
  • IN what Court covenant lyes, 1. personal, 2. real. 113
  • Who shall have a covenant, 1. personal, 2. real. 114
  • Against whom covenant lyes, 1. personal, 2. real. 119
  • The Count in covenant, 1. personal, 2. real. 125
  • Writ in covenant, 1. personal, 2. real. 127
  • The process in Covenant, 1. before appearance, 2. after ib.
  • Bar in Covenant, 1. personal, 2. real. 128
  • Judgement in covenant, 1. personal, 2. real. 129
DETINƲE.
  • [Page]1. QƲid. Fol. 132
  • 2. Quotuplex. ib.
  • In what Court detinue lyes, 1, of Chattells, 2, of Deeds for Lands. Fol. 133
  • Who shall have a Detinue, 1. of Chattells, 2, of deeds. ib.
  • Against whom Detinue lyes, 1, of Chattels, 2, of Deeds. Fol. 139
  • For what things Detinue lyes, 1, of Chattels, 2, of deeds. 142
  • Count in Detinue, 1, of Cha [...]ls, 2, of deeds. 144
  • The Writ in Detinue, 1, of Chattells, 2, of Deeds, 147
  • Tre Process in Detinue, 1, before appearance, 2, after. 148
  • The Garnishment in Detinue, 1, of Chatels, 2, of deeds. 149
  • Enterpleader in Detinue, 1, of Chatels, 2, of deeds. 150
  • Bar in Detinue, 1, of Chattels, 2, of deeds. 151
  • The Judgment in Detinue, 1. of Chattels, 2. of deeds. 155
  • Execution in Detinue, 1. of the Defendant, 2, against the Garnishee, 3. of what Lands, 4. of what Goods. 156
DEBT.
  • DEbt in what Court it lyes. 159
  • Who shall have Debt. 160
  • Against whom Debt lyes. 169
  • For what things Debt lyes. 180
  • Judgment in Debt. 188
  • The Writ in Debt, 1. in the County, 2. in Com. Ban. 193
  • The Process in Debt, 1. before appearance, 2. after. 198
  • [Page] The Bar in Debt. ib.
  • The Judgment in Debt. 217
  • Execution in Debt. 220
EJECTMENT.
  • IN what Court it lyes. 223
  • Who shall have an Ejectione Firmae, 224
  • Against whom Ejectment lyes. 226
  • Of what things an Ejectment lyes, 227
  • The Count Generally, 230
  • The Writ. 231
  • The Proces 1. before appearance, 2. after. 232
  • The Bar. ib.
  • The Judgment. ib.
QƲARE IMPEDIT.
  • QƲid, 234
  • In what Court it lyes, ib.
  • Who shall have a Quare Impedit. 235
  • Against whome a Quare Impedit lyes. 253
  • Quare Impedit of what disturbance it lyes, 254
  • Quare impedit of what things it lyes, 255
  • The Count in Quare Impedit, 256
  • The proces in Quare Impedit, 1. before appearance, 2. after. 258
  • In a Quare Impedit, 1. by the Ordinary, 2. by others. 260
  • Good causes of refusall in a Quare Impedit, 262
  • These are not, ib.
  • These are likewise good causes of refusall, 263
  • Who shall pléad plenarty and who not, 266
  • Against whom plenarty was, is no plea, 267
  • [Page] Judgment in a Quare Impedit, 1. when he shall have Judgment, 2. of what things he shall have Judgment. 268
  • The Writ to the Bishop to whom it shall be directed, 271
  • Proces in the writ to the Bishop, 273
  • Of what things a man shall have Judgment. ib.
  • A Writ to the Bishop and single damages. 274
  • A Writ to the Bishop and double dammages. 276
  • Single damages and no writ to the Bishop. 277
  • Double damages and no writ to the Bishop. ib.
  • Two writs to the Bishop. 278
  • In what court and what Judges have power to award a writ to the Bishop. ib.
NE ADMITTAS.
  • WHat person shall have it. 279
  • In what cases it lyes. ib.
  • Within what time this ought to be brought. 280
  • The Writ. ib.
  • The Proces. ib.
QƲARE NON ADMISIT.
  • OƲt of what court this Yssues. ib.
  • What person shall have it. 281
  • Against whom it lyes. ib.
  • In what case it lyes. ib.
  • The Writ. 282.
  • The Count. ib.
  • The Bar. ib.
  • The Judgment. 283
Quare Incumbravit.
  • [Page]IN what Court it shall be brought. 283
  • What person shall have it. 284
  • Against whom it lyes. ib.
  • In what cases this lyes not. ib.
  • The writ. 285
  • The count. 286
  • The Process. ib.
  • The bar. ib.
  • The judgement. 287
Replevin.
  • IN what court it lyes. ib.
  • Who shall have a Replevin. 288
  • Against whom a Replevin lyes. 290
  • Of what things a Replevin lyes. ib.
  • The writ. 292
  • The process, 1. of a man replevyed, 2. of chattels. 293
  • Second Deliverance. 295
  • In what case a man may distrain. 296
  • Of what things a man may distrain. 301
  • What person shall distrain. 303
  • At what time a man may distrain. 304
  • In what place a man may distrain. 305
  • What distress shall be sold. 307
  • What shall not be said to be a Distress excessive. ib.
  • 1. The Bar, 2. Iustification, 3. Conusance, 4. Avowry. 308
  • Who shall avow. 310
  • For what things a man may avow. 311
  • Seisin in avowry in whom it may be alledged. 313
  • [Page] By what hands Seisin shall be alleadged. 314
  • In what time Seisin ought to be alleadged. 315
  • VVhen it is not requisite to alleadge Seisin. ib.
  • VVhat Seisin shall be good. ib.
  • Bar to an Advowry. ib.
  • Iudgement. 323
Trespass.
  • IN what court Trespass lyes. 328
  • VVho shall have Trespass. 329
  • Against whom Trespass lyes. 341
  • For what matters Trespass lyes, viz. for the doing of wrong to the dammage of another, 1. touching Inhe­ritance, 2. touching chattels, 3. touching the body. 349
Error.
  • IN what Court Error shall be redressed. 361
  • VVho shall have a writ of Error. 373
  • The Writ of Error. 377
  • The Process in Error, 1. upon a judgement in Ireland, 2. upon a Billsealed, 3. judgement in another Court. 387.
  • Diminution in Error, 1. by whom, 2. in what cases, 3. at at what time. 380
  • The assignments of Errors, 1. by whom, 2. at what time, 3. upon what Record, 4. of what things. 382.
  • Bar in Error. 397
  • Iudgement in Error 1. for the Plaintiff, 2. for the Defen­dant, 3. for both. 398
  • Execution in Error. 401

ERRATA.

PAg. 14. l. 4. r Burgi sui. p. 17. l. 4. quindecim. p. 32. unque p. 55. l. ult. r. cards. p. 69. l. 16. r. perjury. p. 229. r. Hoes. p. 142. l. 25. r. Marcii. p. 116. l. 23. r. conventione. p. 154. r. partition. p. 199. Denbawds. l. 15. this may be by the Law. p. 208. r. no bar in debt. p. 231. l. 24. r. Ed. 4. p. 233. r. judg­ment upon demurrer. p. 234. r. terminari. l. eadem. debent. p. 240. l. 18. r. impersonee. p. 246. l. 26. r. vested. p. 250. r. so against a stranger that usurps in their turn. p. 255. l. 12. r. Ecclesiae. p. 262. l. 8. r. perjury. p. 280. I. 9. r. Ecclesiam. l. ult. vacation. p. 309. l. 14. r. two. p. 310. l. 4. r. intestat. p. 227. l. 14. r. law. p. 331. l. 19. r-deere. p 332. l. penult. r. not. p. 339. l. ult. r. trespass. p. 340. r. they. l▪ ead. r. their tenements. p. 341. r. Administrator takes the Goods, B. proves a will. p. 345. l. penult. r. Edw. 4. p. 249. l. 19. r. is impeached. 374. l. 16. r. trespass. p. 360. l. 3. jurat. p. 361. l. 16. r. dead. p. 374. prayer. p. 380. l. 19. r. in such case. p. 390. l. 12. r. br. 10. p. 392. r. Coroners.

ACCOMPT.

 Common LawBy act of Law Gardian in SoccageNext of Kin.
    A Stranger.
Accompt is byBay­lyof a Court or Hundredin Lawin case of a subject.
of a Ma [...]nor house &c.in deedin case of the king.
By his own act.  
ReceiverBy other handsin lawin case of a Subject.
By his own handsin deedin case of the King.
Statute LawMarlebridge cap. 17. Against a Gardein in Soccage.
Marlebridge cap. 23. Against a Bayly vaga [...]ant.
Westm. 2. cap. 23. For Executors. 
2 [...]. Edw. 3. cap. 5. For Executors of Executors.
3. Edw. 3. cap. [...]1. For Administrators. 
23. Hen 8 cap. 8. Collectors for repairing of Goal [...] shall accompt to Justices of peace.
2. & 3. Mariae cap. 8. Against Head-Constables or Church-wardens.
 43. Eliza. cap. 2. Overseers of the poor shall ac­compt to Justices of peace.
 1. Jacobi cap. 9. Against Church wardens and Con­stables for forfeirures▪ of Ale-house-keepers by them▪ received.

Accompt against a Guardian in Soccage.

In what Court Accompt lyeth against a Gar­dein in Soccage.

IT lyes in the County or Common Ban. Nat. br. 117. b.

It lyes not before the Shrieve 43 Edw. 3. fol. 21. pl. 11. Thorp; For Brooke, Accompt 14. saith the Shrieve cannot assigne Auditors.

[Page 2] A good plea to say the Land is ancient de­mean, 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 Gardein in Soccage.

The Heir in ward shall maintain an Action after the age of fourteen yeers, or at his full Age at his election. Littleton.

But Nat. br. 118. b. he shall not have it till the age of 21 years. Crooke fol. 131. pl. 106. by reason of the words 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 dye before his full age, his Executor shall maintain an Action of Account, Crook 131. Pl. 106.

Yet note the heir in Gavel-kinde at fifteen 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. [...]. pl. 13.

The Executor of an Heir shall have an Ac­count: per Westm. 2. cap. 23. Littleton 27. A. Crooke 131. Pl. 106.

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

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

Recusant shall not have an action for any thing that is seized into the hands of the King. 3. Jac. cap. 5.

Against what person Account lyeth as Guardian in Soccage.

Account lyeth against any that taketh the profits before the Ward be of the age of four­teen years. Littleton Na. 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 occupie, 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.

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

Account lyeth not against an Executor of a Guardian, Littleton. Nam non jacet versus exe­cutores, quia merè pertinet ad Curam Christia­nam, cognoscere de compto reddendo versus exe­cutores. Regist. origin. 135. b. 28 Hen. 8. Dyer: 23. Pl. 145.

[Page 4] But if Executors account, an Action of debt lyeth for the Arrearages. 2. Hen. 4. 13. Pl. 2.

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

It lyes against a Woman, 19. Hen. 6. b. New­ton.

It lyes against the Husband and Wife: 18. Edw. 3. 55. Pl. 76.

For what things Account lyeth.

It lyes for woods and underwoods sold, for [...]ands, Tenements, Meadow, Pasture; also for Rents and services, perquisits of a Court ad valentiam. Lib. Intra. 21. B. & C.

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

For Fines of Copy-hold Land granted by one. Trin. 1. Jac. Com. Bane. Shopland. versus Rider. Rott. 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. Edw. 2. Presentment 10.

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

It lyes 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 the Guardian 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. ostendens quare cum de Comm. Concilio regni nostri provisum sit, quod custodes terrarum & t [...]nementorum quae te­nentur in Soccagio haeredes 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. paefato A. rationabilem computum suum de exitibus proveniend. 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 Marle­bridg cap. 17. Nat. br. 118. A. Regist. orig. 1 [...]6.

[Page 6] Note this Writ lyes 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 bloud, 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.

The Proces against a Guardian in Soccage. 1. before appearance. 2. after appearance.

1 The Process at common Law was but a di­stresse infinite, Coke 3. parte 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, Bayly, Cham­berlain, or any other Receiver: Coke 3. parts 12. A. Harberts Case.

And in an 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 If he comes in by Capias or distresse he shall be committed to the Fleet: 29. Edw. 3. 35. pl. [...]3.

If the Account be adjudged, &c. and be not present in Court, a Capias ad computandum shall issue forth: 1. Edw. 3. 2. pl. 10. 1. Hen. [Page 7] 7. 1. pl. per Townshend. Lib. Intra. 18. c. Sect. 1, 2, 3.

Judgement quod computet: the Plaintif dyes, his Executors shall have a scire facias, [...] he come not in upon the garnishment, an exi­gend. shall issue forth: 14 Hen. 4. 1.

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

When he hath the Custody till such a day 1 from such a day, and accounts till the full agc of the Plaintif without that, that he was Guardian before or after, Lib. Intr. 21. cap. Sect. 2.

A good Bar that he expended so much for necessaries for the Plaintif: Littleton.

No Bar to say he was next of Kinne, for the occupation is the substance, Littleton. 29 Edw. 3. 5. pl. 13. 22 Edw. 3. 11. pl. 8. 4 Hen. 7. 6. b. 10 Hen. 6. 7. pl. 21. 13 Edw. 3. Account 77.

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

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

The Judgement is, quod computet, & ideo in 1 misericordia, quia prius non computavit, Coke 11. parte 38. A. Metcalfs Case. Lib. Intr. 19. D. Sect. 1.

The Judgement is, Ideo consideratum est, 2 quod praedictus W. recuperet versus praefatum M. [Page 8] as much as he is found in arrearages & dampnae occasione implacitationis: Coke 11 parte. 40. A.

E [...]ution against a Guardian in Soccage. 1. per Common Law, 2. per Statute Law.

By the Common Law it was but a Levari fa­cias 1 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.

2 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. parte. 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. parte. 119. b. Bonhams Case. 27. Hen. 6. 8. Com. 17.

But if an account be before the Plaintif, 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 Au [...]itors are assigned by the party, which will not allow to the Guardian his reasonable allowances, and [Page 9] charges 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. origin. 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 Plaintif and also the Defendant to be there, Nat. br. 129. G. H. Regist. orig. 137.

Account against a Bayly, 1. of a Court o [...] Hundred. 2. of a Mannor-house, &c.
In what Court it lyes against a Bayly.

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

In London before the Shrieves: Regist. Orig. 135. A & b.

In the five Ports: Regist. origin▪ 135. A.

In communi Banco: Nat. br. 117. b. Regist. origin. 135. B.

But antient demeasne is a good plea: Coke 5. parte. 105. A. Aldens Case. Because the Ac­count is of the issues and profits of the Man­nor: 8 H. 6. 34. pl. 36. 2 Edw. 4. 3. pl. 3.

And the reality by presumption may come in debate, Hobart chief Justice, Hill. 11 Jac. Com. Ban. Rott. 254. Cox & Barnsley.

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

If A. make B. his Bayly of his Court or of a 1 [Page] Hundred he shall have Account against him. Nat. br. 118. E.

A. having a Bayly-wick makes B. his under-Bayly he shall have Account against B. 3 Edw. 3. 54. pl. 24.

A. makes B. his Bayly, which makes C. 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.

2 An Infant purchases lands, he shall have an Account if any takes the profits. Nat. br. 117. B.

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

Maior 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 Common law. 4 & 5 Mariae Dyer. 151. pl. 5.

A Lunatick shall have an Account against the Committee, when he comes to his sound memorie; for the Committee is but in the na­ture of a Bayly. 28 Hen. 8. Dyer. 26. pl. 164. Coke. 4. parte. 127. b. Beverleys Case.

Executor shall have an Account. Nat. br. 117. [Page 11] 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 Judgement against a Bayly upon an Account, and dyeth his executors shall have a scire facias. 14. Hen. 4. 1.

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. Com. 290.

Filius et haeres domini defuncti 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 dyes, the wife shall not have an Account for the profits during the Coverture but the Executors of the husband. Nat. br. 119. A.

Joynt-tenent makes his Companion his Bay­ly, he shall have Account against him, 21. E. 3. 60. pl. 5.

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.

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

Ter-tenant shall have an account against Te­nent by Elegit, but this is only by Sc [...]re facias, [Page 12] Old Nat. [...]r. 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. parte. 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 Bayly of his Man­nour, &c. he shall have an Account against him as Bayly, Nat. br. 116. D.

Fuit quod redat, &c. M. & sociis suis m [...]rcato­ribus de societate de D. in Flandria rationabilem computum: this is nought, 5 Edw. 3. 138. pl. 39.

The King may make a Bayliff of a Mannour and shall have an Account against him, 33 Hen. 6. 2. pl. 10. and fol. 29. b. pl. 2.

Against whom an Account lyeth as Bayly, 1. of a Court or Hundred. 2. of a Mannour, &c.

1 A. having a Bayly-wick makes B. his under­bayly to gather the Amercements, he shall have an Account against him, 3 Edw. 3. 54. pl. 24.

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

An Infant purchases lands, his parents occu­pie this, he shall have Account against them as Baylyes in Law, Nat. br. 117. B.

[Page 13] Non jacet versus Executores quia mere per­tinet ad curam Christianam cognoscere de Com­puto reddendo, versus Executores, Regist. origin. 135. b. Nat. br. 117. C. Littleton. 48 Edw. 3. 2. 4 Edw. 4. 25.

But if an Executor will account, debt ly­eth for the arrearages, 2 Hen. 4. 13. P. 2.

And if a Bayly be found in arrearages be­fore Auditors, his Executors shall be charged, 11 Hen. 4. 84. & fol. 19. pl. 48.

It lyeth not against a Deputy-Bayly, Nat. br. 119. B. 4 Edw. 3. 100. pl. 8.

It lyeth not against an Infant, 118. D. Nut. 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. 6 [...]. b.

It lyes 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. and Stud. 32. b.

It lyes 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, Coke parte 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. parte. 89. B. De­voushers Case.

For what things account lyeth against a Bayly, 1. of a Court, &c. 2. of a Mannour, &c.

Crooke. 21 Hen. 7. 75. Pl. 23. Account a­gainst one as Bayly Burgisin de B. and good.

Account against one as Bayly of a Mannour, 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 Tunns of wine sold. 43 Edw. 3. 2. pl. 11. 46 Edw. 3. 3. pl. 6. 13 Rich. 2. Account 50.

For Herrings delivered and sold. 46 Edw. 3. 9. pl. 4.

For four sackes of wooll delivered and sold. 9 Edw. 3. 359. pl. 38.

Tenent per Elegit accounts for the overplus. Old Nat. br. 34. 21 Edw. 3. 26. pl. 21.

A Man accounts for the profits. Nat. br. 118. B.

A Bayly of woods accounts for Herons and Haukes. 14 Edw. 3. Account 131. Moubrey.

Arrearages of Rent upon a lease for years or at will lyes not in account, for nothing cer­taine lyes in an Account. 19 Hen. 6. 20. pl. 67. 20 Hen. 6. 16. pl. 2.

So of goods leased with a house, although they are wasted. 20 Hen. 6. 16. pl. 2.

For A Custome that one shall gather rents, and take the toll and pettie customes payable to the Lord. 22 l. annuatim, because he payes a certain sum. 11 Hen. 6. 14. pl. 4.

The Count against a Bayly, 1. of a Court, or Hundred. 2. of a Mannour, &c.

Counts that from such a day to such a day he had the administration de bladis, fenis, equis, bobus, vaccis, porcis, bidentibus, carucis, ac de omni­bus aliis rebus, &c. et de, &c. ad mercandizand­um et proficuum▪ faciendum, &c. et 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 Plaintif ought to Count that the De­fendant was Bayly of the Mannor-house and lands, &c. and yet it is not material whether he had the Mannor-house, &c. for the Receit char­ges him. 9 Edw. 3. 356. pl. 38. Stoner. 27 Edw. 3. 29. pl. 25.

He need not Count the things particulary, because it may be shewed before the Auditors. Crooke. 1 Hen. 8. 153. pl. 2.

But the 49. Edw. 3. 13. 14 Hen. 4. 14. sayes that it is material.

If Account be brought against one that by Custome ought to gather the rents, the Count must be speciall. Crooke. 21 Hen. 7. 76. pl. 23.

The Count was against one as Bayly of a house and merchandize occupied by Ioynt-te­nants, ex quacun (que) causa seu contractu. Lib. In­tra. 18. A. sect. 6.

The Count was that he was Bayly at the feast of St. Michael, and good, because it shall be intended th'archangell. Coke. 11. parte. 39. A. [Page 16] Metcalfes Case. 20 Hen. 6. 23.

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

Conusor counts that the Conusee had levied the summe, 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 Assignes of a Conusor. 25 Edw. 3. 53. pl. 17.

The King is not held to Account against one as Bayly, but may aledge generally in his in­formation, quod i [...]e ad computand. Domino Regi tenetur, and if it be against Executors, tempore mortis suae tenebatur. Coke. 11. parte. 90. De­voushers Case.

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

In Comi­tatus. Rex &c. praecipimus tibi quod justicies I. B. quod justè, et sine dilatione reddat B. rationabilem computum suum de tempore quo fuit Ballivus suus in M. sicut rationabiliter monstrare poterit, quod sireddere 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 Marchants. Regist. orig. 135. A.

[...] Banco. Rex &c. praecipe A. quod justè, &c. reddat B. rationabilem Computum suum de tempore quo fuit Ballivus suus in N. & nisi fecerit, & praedictus B. [Page 17] fecerit te securum de clamore suo prosequendo; tunc summ. per bonos summonitores praedictum A. quod sit coram Justic. nostris apud Westm. a die Paschae in sedecim dies ostendens. quare non fecerit: & habeas ibi summ. & hoc breve Teste, &c. Regist. orig. 135. b. Nat. br. 117. E.

It lyes for a man and his wife. 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 isanother form of a writ found­ed upon the statute of Marlebridge. Cap. 23. Nat. 117. H. orig. Regist. 135. b.

Account against B. as Bayly and Receiver in K. a good bar to the Writ that was not Bayly 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 Bayly it shall abate. 3 Edw. 3. 70. pl. 28. 18 Edw. 4. 3. pl. 17.

But one Writ may Comprehend Bayly and Receiver. 9 Edw. 3. 356. pl. 38. Nat. br. 116. P. 21 Hen. 6. 21. pl. 42. Regist orig. 135. b.

The process against a Bayly. 1. Before apparance. 2. After apparance.

At the Common Law the Process was but a [Page] distresse infinite, Coke 3. parte 12. A. Harberts Case.

But by Marlebridg. cap. 23. a capias was gi­ven, Coke 3. parte. 12. A.

And per Westm. 2. cap. 11. processe of Out­lary 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 judgement shall be given against them, 5 Ed. 3. 159. 21 Edw. 3. 1.

Conusor shall have a Scire facias against the Conusee, Coke 4. parte 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 Bayly come in by Capias or Exigend. he shall be forthwith committed to the Fleet, 20 Edw. 3. 35. pl. 63.

So if he come in by Distresse, 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 to a Bayly. 1. To an action of Account. 2. before Auditors.

Account before Auditors. A good Bar that he did account before Au­ditors, 25 Edw. 3. 39. pl. 1. 2 Edw. 3. 45. pl. 13. [Page 19] Lib. intra. 17. A. Sect. 1. he shall shew the time and the Auditors.

But in pleading ought to say that the Au­ditors were assigned by the Plaintiff, and not by his assent, 29 Edw. 3. 40. pl. 21.

A good Bar that he did account with the Plaintiff, Lib. intr. 18. A. & B. Sect. 6. 11 Ric. 2. Stath. Account 46. 45 Edw. 3. 14. pl. 13.

But it is no Bar to say 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, 1 Edw. 3. 2. pl. 10.

Heir Frank-tenant a good Bar, 28 Edw. 3. 90.

An Abbot brought an account against B. as Propertie.Bayly of his Predecessor and pleads that he had a Lease of his Predecessor for three years, and entered after the fine, and found certain things there, this is a good bar, 16 Edw. 3. 368. pl. 30.

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 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 Defendant to say that the wife was the common Taverner, and that they were Bayl for the sale thereof, with­out the assent of him, and that she sold and paid the Plaintiff without that that they were [Page 20] his Baylies 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 Bayly for account-render, 49 Edw. 3. 7. pl. 11.

Payment. Payment by command of the Plaintiff a good bar, 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.

Servant. The Defendant said that he was servant to the Plaintiff, and he did chase the cattle out of the field, without that that he was Baily in any other manner; for the cattle are hurt he shall have an Action of the case, 7 Hen. 4. 14. Pl. 18.

He was his Surveyer, without that that he was his Bayly, 4 Edw. 3. Account 34.

Statute. Merchant. The Defendant said that the Plaintiff grant­ed by deed, and shews that when he came to C. he acknowledged a statute Merchant, 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.

V ndee. Account for the delivering of Tyn, &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.

Bayly 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.

[Page 21] The plt. after judgement 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 Iudgement against a Bayly 1 of Acount 2 To Recover the things.

The Judgement is quod Computet et ideo in 1 misericordia quia prius inde non Computavit. Coke. 11. parte. 38. A. Metcalfs case. Lib. Intra. 19. b. sect. 1. & 20. D. sect. 1.

Quod computet for parcell and Barr for the remnant. Lib. Intra. 22. A. sect. 12.

The Judgement is ideo consideratum est quod 2 praedictus W. recuperet versus praefat. M. as much as he shall be found in Arrerages et dampna occasione implacitationis, &c. Coke. 11. parte. 40. A. Metcalfs case.

Scire facias against Tenant per Elegit to Ac­count and not appearing upon garnishment the Judgement was that the plt. shall recover his lands without any more proces upon the cause of the Account, &c. 5 Edw. 3. 159. pl. 20.

Execution against a Bayly 1 per common law 2 per Statute law.

By the common law he shall have but a le­vari 1 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 proces were not continued. 33 Hen. 6. 49. pl. 33.

[Page 22] 2 Per Westm. 2. cap. 45. A scire facias is given af­ter the year.

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

And per Marlebridge▪ cap. 23. & Westm. 2. cap. 11. Capias is given in process.

And per consequence a Capias ad satisfacien­dum after Judgement. Coke. 3. parte. A. 12.

And by the statute of Westm. 2. cap. 11. if an Accountant be found in arrerages before Au­ditors he shall be Commited by the Auditors to the next Goale in execution.

But then the Auditors ought to Commit him to prison forth with. Coke. 8. parte. 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.

Ex parte Talis by a Bayly.

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 doe 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 [Page 23] 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.

But if the plt. assigne 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 warne the plt. and deft. to be there. Natur. br. 129. Re­gist. orig. 137.

Account against a Receivour, 1. in law 2. in deed.
The Court

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

In London Regist. orig. 135. A.

In the 5 ports. Regist. orig. 135. A.

Before Iustice 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 Receivour.

Husband and wife 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 Ewd. 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.

[Page 24] If one have judgement against a receiver and dyes, his executors shall have a scire facias. 14 Hen. 4. 1.

If two Marchants occupy in Common and one dye his executors shall have an Account a­gainst the other. Nat. br. 117. D.

An executor of an executor shall not have an Account, only, 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.

Guardian of a Church against their prede­cessors. 8 Edw. 4. 6. P. 5.

And per 2. Marlebridg. cap. 8. they shall have an account against a Bayly or head Constable of an hundred, &c. for amerciaments, or not repayring high▪wayes.

Guardians and Parishioners shall have an ac­count against Constables and Church-wardens for forfeitures of Ale-house-keepers, in the same manner as for other things by the com­mon law. 1 Jac. cap. 9.

Two Joynt-tennants of goods, one of them delivers the goods to the other and to Render Account▪ one shall have an account against the other. 43 Edw. 3. 21. 12 Hen. 4. 18: Nat. br. 118. H.

The shrieve levie money upon a fieri facias and doe not deliver it to the plt. neither brings it into court, the plt. shall have an account a­gainst him. 11 Hen. 4. 58. pl. 8. 20 Hen. 6. 24. A. 21 Hen. 6. 5. A.

[Page 25] 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.

So if one receive money to my use. Nat. br. 117. Q. 6 Hen. 4. 7. pl. 33.

So if A. deliver money to B▪ to deliver to me. Nat. br. 117. Q▪ 13 Hen. 4. pl. 1. Haukeford. Nat. br. 138. A.

A. indebted to B. in 200 p. B. prayes C. to re­ceive this for him. A. prayes [...]. to borrow this to pay B. C. borrows it of D. to pay to B. but payes it not at the day. A. was bound to D. for repayment. B. shall have an account against C. for this belongs to B. in so much that C. had his warrant to receive it. Hil. 12. Jac. com. Ban. Harringdon versus Dean.

A. delivers money to B. to deliver to C. and he payes it not, A. shall have an account against him. Crooke 21 Hen. 7. 69. pl. 2. per Frewicke. King.

The King shall have an account, if goods be devised to him, against the Possessor in whose hand soever they be. Coke 11. parte. 90. A. De­voushers Case. 40 Assi. pl. 35.

If one take 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.

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. Devousheres case. 30 Ed. 3. Rott. 6.

[Page 26] If one be entitled to an action of Account, and be outlawed, the king shall have an Ac­count for it, 28 Edw. 3. 92. pl. 10.

If one be indebted to the King and dyes, the king shall have an account against his Exe­cutors or Ter-tenant, 5 Eliz. Dyer 225. pl. 33.

Against whom Account lyeth as Receiver.

It lyes not against a Prentise, Nat. br. 119. D. 7▪ Hen. 4. 14. 8 Edw. 3. 310. pl. 26. for there is no writ in the Register against a Prentise, Coke 11. part. 89. B. Devousheres case.

Per 2. Marlebridg cap. 8. Church-wardens shall have an account against a Bayly or head Con­stable for amerciaments or high-wayes.

It lyes against the husband for receit of the wife, Nat. br. 118. F.

It lyes 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.

Executor. It lyes not against an 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.

But if an Executor will account he shall be charged afterwards, 2 Hen. 4. 13. pl. 2. 19 Hen. 6. 5. A. Fortescue.

Note in the case of the king he shall have account against Executors, Littleton.

It lyeth not against an infant, Nat. br. 118. D. because he hath not discretion to account, [Page 27] per 21 Edw. 3. 8. pl. 21. Regist. orig. 135. A. 26 Edw. 3. 63. he cannot wage his Law.

It lyes against a woman or Chaplyn. Nat. br. 118. D.

Churchwardens shall have an account a­gainst their Predecessors, 8 Edw. 4. 6. pl. 5.

Two being bound and both of them account, each of them of the whole, quaere if Account lyes against one only, 5 Edw. 3. 141. pl. 8.

It lyes 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.

The king grants the Toll of a Village, and the said Village, and there were certain Collectors to receive it, the Village shall have a Commission out of the Chancery of 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 dyes, the King shall have an account a­gainst him, Coke 11 part. 93. A.

It lyes 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 dye, his wife shall not be charged, 5 Eliz. Dyer 215. pl. 33. Contra if he be first in debt, and but a chattle, 5. Assiz. pl. 5.

If one be an accountant to the king, and be­come indebted to the king, and afterward [Page 28] sell a Lease for years, the vendee shall not be charged, because it is but a chattel, Coke 8. part. 171. A.

One in debt to the king purchases lands with the kings money to 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. Rott. 4. Coke 11. part. 92. B. Devousheres case.

For what things Account lyeth 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 the receit of every sum 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. Rott. 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 then the other tendered it.

If one receive money to my use he shall ac­count for it, Nat. br. 117. q. 6 Hen. 4. 7. pl. 33.

So if A. deliver money to B. to deliver to me, Nat. 117. g. 13 Hen. 4. pl. 1. Haukeford, Nat. 138. A.

He which ought to pay me an annuity payes this to another to pay me, or if my Tenant pay it to another to pay me, I shall have an [Page 29] Account against him, 6 Hen. 4. 8. pl. 33.

A. delivers money to B. beyond the sea to be payd in England, he shall account for 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 redelivered, he shall account, Nat. br. 118. G. 41 Edw. 3. 10. 18 Hen. 8. Dyer 22. pl. 135. 11 Hen. 6. 39. pl. 31.

A. leases tithes to B. rendring rent: A. be­ing indebted to C. assignes B. to pay this. No account lyeth for this, 5 Edw. 4. 140, 141.

If goods be devised to the King, account King.lyeth for them, Coke 11 part. 9. A. Devoushers case.

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.

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

The Account was that he was a Receiver 1 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. 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.

But if the Account be of the delivery by the [Page] hands of the wife of the Plaintiff it had been good, 5 Edw. 3. 146. pl. 6. Count of Baylment by the hands of a servant of the Plaintiff, Hill. 4 Eliz. Com. Ban. Rott. 1707. Tresham versus Forde.

And so 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 recived 20 l. and another 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.

Baron and feme count that the Defendant fuit Receiver to the Testator from such a time to such a time, end 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.

2 Account against a Husband upon the receipt of his wife shall be by the Husbands own hands, Nat. br. 118. F.

Bar. Bar in detinue is a bar in account, per Briau. 2 Rich. 3. 14. Pl. 19. for the one and the other affirm property.

Cover­ture. The Defendant said that the Plaintiff at the time, &c. was under Covert Barn, and this was good, 6 Edw. 3. 184. Pl. 5. Vide 18 Hen. 6. 3. pl. 3. 2 Hen. 7. 15.

Delivery. Delivery to another by the command of the Plaintiff Male: but to say that he was Bayly to deliver to B. of the which he had a deed, this is good; because he had not confessed it [Page 31] by the account render, 19 Hen. 6. 5. Pl. 10. 26 Hen. 49. Pl. 7. 30 Hen. 6. 5. Pl. 4. 41 Edw. 3. 31. Pl. 37. Lib. Iutra. 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, Mich. 40. 41 Eliz. Com. Ban. Burrel versus Callice.

So if the plt. deliver to one 20 p. to carry to Lombard to be exchanged, and he brings a bill of exchange for the money without that that he was a Receiver for account render, for by this he doeth not confesse the recits for Ac­count-rendering. 5 Hen. 5. 4. pl. 10. 28 Hen. 6. 9. pl. 1. 3 Hen. 6. 4. pl. 4.

So if the plt. deliver to one 20 p. to obtain a discharge under the great Seale of Customs 10. Hogsheads of wine, the which he hath done this is good. 30 Hen. 6. 5. pl. 4.

Redelive­ry. Redelivery to the plt. without accquittance not good. 39 Edw. 3. 19. pl. 21.

So if it be with an accquittanc. 3 Edw. 3. 52. pl. 13. becuse by this he hath confessed the receipt for account-render.

But this is good before Auditors. 29 Edw. 3. 35▪ pl. 1.

The defendant pleads that he, as messenger of the plaintiff received of C. being provost to the plaintiff and this payd and delivered to the plaintiff, this is no barr because by the Receipt he is lyable to the account. 6 Edw. 3. 185. pl. 7. 29. Edw. 3. 20. pl. 11.

More. An account of a Receipt by the hands of B. [Page 32] 1. of May, till the first of July, it is no plea that B. is dead 3 of May because because he may receive this the 2 of May. 8 Hen. 6. 32. pl. 28.

Obligati­on. A. delivers 20 l. to B. to redeliver; B. binds himself to pay this; no barr in account. 4 Edw. 3. 125. pl. 45.

Payment. Defendant pleads, the plantif being in his debt commands him to receive of B. so much to his owne use as will satisfie his debt, which he do­eth without that that he was his Receiver for account-render, and good. Lib. Intra. 20. A. et B. sect. 6. 5 Edw. 4. 29. B. Brian.

But if he confesse the receipt upon account and commands him afterwards to retaine the debt, this is no barr. 28 Hen. 6. 7. pl. 9.

Robery. No plea that he was factor and was Robbed, but a good plea before Auditors. Coke. 4. parte. 84. A. 41 Edw. 3. 3. pl. 9.

Vende. Vende and takes an obligation no barr. 28 Hen. 8. Dyer. 29. pl. 193.

Unison Receiver. Upon Recipt by others hands, 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.

But 5 Edw. 3. 159. pl. 22. this is not good▪ but shall say generally, that he never was his Receiver.

If one testifie his receipt by deed he cannot plead that he never was his receiver. 10 Edw▪ 3. 383. pl. 18.

Defendant pleads that he is executor of B. and that he received the money as a debt of B. [Page 33] this not good, because the Plantiff supposeth him his receiver; but 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.

Note if the Receit be by the hands of the Plaintiff the Defendant may wage his law, 7 Edw. 3. 269 pl. 52.

So upon the delivery of the wife of the Plaintiff, 13 Hen. 4. 8. 43 Edw. 3. 33. pl. 31.

But upon a Receit 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 Receit lyes in notice of the Country.

An Executor brought an account upon the delivery of the Testator, the Defendant can­not wage his law, 7 Edw. 3 269. pl. 52.

Outlary. Outlary of the Plaintiff after the Receit a good bar, although he had a Charter of par­don, 28 Edw. 3. 92. pl. 10.

Accord. A good plea that after the Receit he mar­ried the daughter of the Plaintiff, and it was then agreed that he should keep the money, 12 Hen. 4. 18. A.

So that he put the money in a bag, and that he should keep it in liew of a debt, 28 Hen. 8. 7. pl. 9. Delivery and Rede­livery.

Delivery over by command of the Plaintiff a good plea, 19 Hen. 6. 5. pl. 10. Lib. Intr. 20. A. Sect. 5. 42 Edw. 6. pl. 21.

Redelive­ry. Re-delivery good without an acquittance, because he cannot compell the Plaintiff to make an acquittance, 29 Edw. 3. 35. pl. 1. 6 Edw. 3. 185. pl. 7. 29 Edw. 3. 20. pl. 11. but it seems [Page 34] it may be a good plea before Auditors.

Expenses. Expences reasonable shall be allowed to a Factor, 3 Edw. 3, 56. pl. 30.

A Factor pleads that he was robbed, Coke 4. part. 84. A. Southcots case 41 Edw. 3. 3. pl. 9.

So for goods lost by Tempest, 3 Edw. 3. 56. pl. 30. 41 Edw. 3. 3. Pl. 9.

So for goods sold under value by reason of war, 3 Edw. 3. 56. pl. 30.

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 found before Hill. 43 Eliz. Com. Ban. Rott. 1707. Treshams case.

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

But then he ought to shew that the obligor was sufficient at that time, 3 Edw. 3. 56. pl. 30.

The judgement against a Receiver, 1. of Ac­count. 2. to recover,

1. The judgement is quod computet, & ideo in miserecordia quia prius inde non computavit, Coke 11. part. 38. A. Metcalfs case, Lib. Intr. 19. D. sect. 1.

Quod computet for parcel, and bar for the re­mainder, Lib. Intr. 22. A. Sect. 2.

But if he confess part and traverse the other, no judgement shall be till the other be tryed, 41 Edw. 3. Account 34.

The judgement is, Ideo consideratum quod [Page 35] praedictus W. recuperet versus praefat. M. so much as is found in Arrerages, & dampna occasione implacitationis, &c. Coke 11. part. 40. A. Met­calfs case.

The King is not held to account against any as Receiver, but generally, quod ille ad compu­tum domino Regi reddend. tenetur: and against Executors, quod tenebantur tempore mortis suae, Coke 11. part. 90. Devoushers case.

In Comita­tu. The Writ against a Receiver.

In Com. Ban. Rex, &c. pr. A. quod juste, &c. reddat B. rati­onabilem computum suum de tempore quo fuit Re­ceptor denariorum ipsius B, &c. Regist. orig. 135. & ibidem B. vide diversa brevia de computo ver­sus Receptorem.

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 Bayly and not Receiver, for otherwise he shall be twice charged, 3 Edw. 3. 70. pl. 28. 18 Edw. 4. 3. pl. 17.

A good plea to the Writ that he was Guar­dian in Soccage, 18. Edw. 4. 3. pl. 17.

The Writ shall be alwayes general, and if the cause be special it shall be in the County, Nat. br. 118. F.

The Defendant pleads the Receit by deed, and demands judgement of the Writ without shewing it, this is no plea to the Writ; because the Receit and not the dead is the cause of [Page 36] Action, 1 Hen. 6. 8. 28 Hen. 8. Dyer 20. pl. 121. But the 9 Edw. 4. 50. B. per Choke contra. 2 Hen. 6. 9. quaere.

No plea to the Writ if they do not agree with the Plaintiff concerning the manner of the Receit, 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 Marlebridg cap. 23. a Capias is given, Coke 3. part. 12. A.

And by Westm. 2. cap. 11. Process of Out­lary is given, Coke 3. part. 12. A. 17 Edw. 3. process 203. 17 Edw. 3. 59. pl. 55. Shard. 26 Ed. 3. 5. pl. 13.

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.

And if he come not upon summons return­ed, Judgement shall be given against him, 5 Edw. 3. 159. pl. 20. 21 Edw. 3. 1.

Conusor of a Statute shall have a Scire faci­as against a Conusee de 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.

But then he cannot surmise that it was ap­praised and found of base value, 17 Edw. 3. 36. Pl. 6.

[Page 37] If a Receiver come in by a Capias or Exigend, he shall be forthwith committed to the Fleet, 29 Edw. 35. Pl. 63.

So if he come in by distress, and the account be adjudged against him, 29 Edw. 3. 35. Pl. 63.

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

Judgement given quod computet, the Plaintiff dyes, the Executors shall have a Scire facias, which being served, if he appear not an Exi­gend. shall issue forth, 14 Hen. 4. 1.

But if the Defendant be taken per Capias ad computandum, and dyes in prison, a Scire facias lyes not against his Executors, 10 Edw. 4. 7. 41. Assize.

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

Bought. The Defendant pleads, he bought the goods of the Plaintiff, and he brought this Action for them, a good Bar, 14 Hen. 4. 19. Pl. 21.

Accord. The Defendant pleads, 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, 22 Hen. 6. 55. Pl. 32. for this drowns the contract: otherwayes he ought to plead this before Auditors.

So if the Plaintiff grant, that if the Defendant pay 20 l. will withdraw his Action, a good Bar: [Page 38] because by way of Accord, 7 Edw. 3 325. Pl. 11. 18 Edw. 3. 39. Pl. 35.

No plea that he put it in a bag, and that the Plaintif agreed that he should keep it in liew of a debt; because the Receit for account-render is confessed, 28 Hen. 6. 7. Pl. 9.

The Count 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.

Count of divers sums received between such and such a day, and 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.

That he accounted to the Plaintiff from three moneths to three moneths 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 was his Reciever before or 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 it is no Bar, that he accounted 1o Maii Anno 5o without answering for the two other years be­cause he is to answer for the whole time, as well for the increase as principal, 7 Hen. 6. 5. Pl. 8.

As to 20 s. received 1o Jun. fully accounted for, and to the receit afterward or before that he never was Receiver, 27 Hen. 6. 1. Pl. 8.

[Page 39] A good Bar quod 21. Jannarii Anno, &c. to D. in the County of W. he fully accounted with the Plaintiff, Lib. Intr. 20. B. Sect. 8, 9, 10. 11. Before the Writ he did account with the Plain­tiff, a good Bar, 4 Hen. 6. 43. pl. 4.

But he ought to account to the Plaintiff be­fore he is imprisoned, or else no Bar, 22 Edw. 3. 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 only to Au­ditors, 45 Edw. 3. 14. pl. 13.

Account brought by Executors a good Bar, that they did account to the Testator and shew his acquittances, 1 Edw. 3. 2. pl. 10.

Defendant pleads award by Arbitrators that he redeliver the goods, this is nought; but if he had been charged only with the safety of them, then good, 2 Hen. 5. 2. pl. 6.

Account upon a Receit by other hands, Ar­bitrament is a good Bar, 22 Hen. 6. 39. pl. 10.

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.

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

Unlesse the Processe be continued, 33 Hen. 6. 49. pl. 33.

2. Per Westm. 2. cap. 45. a Scire facias is giv en after the year, Coke 3. part. 12. A.

[Page 40] 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.

Per Westm. 2. cap. 11. if the Accountant be­fore Auditors be found in Arrereages, he shall be committed by them to the next Goale in execution: the same law is if he will not ac­count before Auditors, 10 Edw. 3. 387. pl. 28.

But this shall be forthwith, Coke 8. part. 119. B. Bonhams case, 27 Hen. 6. 8. Com. 17.

But if he account before the Plaintiff he cannot commit him to prison; for the Statute saith before Auditors, 45 Edw. 3. 14. pl.

But the 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.

Ex parte talis.

Per Westm. 2. cap. 11. If Auditors be assigned by the party which 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.

But if Auditors be assigned by the Court which do not make allowance, yet they shall not have this Writ, but may complain to the Court, and they shall order them, Nat. br. 129. F. 3 Edw. 3. 56. pl. 30.

If one be sued in London, and the Court as­signe [Page 41] Auditors and make not allowance, &c. they shall have this Writ, Nat. br. 129. F. but note Regist. origin. 137. contra.

The Writ shall be returnable before the Treasurer 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.

Note that account lyeth in one Writ against a Bayly 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.

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 Bayly and Receiver.

1. Quid. 2. Quo­tuplex. Action upon the Case.

Action upon the case is either by1. Doing of wrong to another—1. InheritanceReal
2. ChattelsPersonal
3. Body 
4. Name 
5. Suits in Law 
2. Not doing of a thing ought to be done by—Law to the wrong ofInheritance Real,
Chattels personal
Corps,
Suits in Law.
Assumpsit touchingInheritance Real,
Chattels personal,
Body,
Suits in Law.
3. Misdoing  
4. Negligence  
5. Deceit in bargains—With warranty
Without warranty
6. Trover and Conversion inDeed
Law, as to persons discon­tinued,
 Wasting,
 Denyal to redeliver.

In what Court it lyeth.

IN Ban. Regis.

In Com. Ban.

It lyeth not in the Marshalsey, Coke 10. part. 72. A. 76. A. Marshalsey.

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

Baron & feme▪ Baron and feme joyn upon an assumpsit to the wife dum sola fuit, and good, Hill. 9 Jac. Ban. Regis. Wolverton & his wife against Day.

Baron and feme joyn in Trover and cover­sion upon a deed for an annuity granted to the wife, for if he survive, he shall have it, Trin. 40. Eliz. Com. Ban. Russel and Catesby.

Husband had an action sole upon the assum­psit of the wife, and counted of the assumpsit to him, 27 Hen. 8. 24, & 25.

Common­er. Commoner shall have it for feeding his com­mon, though he be but a Coppy-holder, Coke 9. part. 112. B. Mays case.

But then it shall be such feeding by which he looseth his Common, or else cannot have it in that beneficial manner as he ought, Coke 9. part. 231. A. Maryes case.

Executor. Executor shall have it for putting him out of his Terme by the Lessor, Nat. br. 92. G. Regist. 97. Coke 4. part. 95. A. Slades case.

For money for grain sold, Lib. Intra. 4. B. Sect. 2. the Court there.

Upon an assumpsit to the Testator to marry or pay 20 l. Lib. Intr. 10. B. Sect. 5.

Upon an assumpsit to save the Testator harm­lesse of an obligation, Lib. Intra. 12. B. Sect. 2.

Feoffee. If a Nusance be made, and Feoffment is made, if this continue as a new Nusance, the Feoffee shall have an action, Coke 5. part. 101. A. Penruddocks case.

[Page 44] Heir. The heir shall have an action for Nusance made in the time of his Father, if it be conti­nued, &c. Coke 5. part. 101. A. Penruddocks case.

Joynder. Two cannot joyn for calling them false knave and thief, 28 Hen. 8. Dyer. 19. pl. 112.

Two cannot sue in the Admiralty where one ought to have Action. 5 Mariae. Dyer. 157. pl. 39.

Lessor. Lessor shall have it against Tenant at will for voluntary waste, 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.

But not for negligent or permissive waste, Coke 5. Part. 13. B. Salops case.

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 making a Limepit in his Land which they have in common, by which the water sur­rounds his house, 13 Hen. 7. 26.

Tennants in Common joyne in an action for Nusance upon their Land Committed▪ because this concerns their profit. Mich. 7. Jac. Ban. Regis. Stone against Dromage.

For Takeing of a Meer-stone. 1 Hen. 5. 1. Lib. Intra. 9. C. sect. 1.

2 Against whome this lyeth.

Admini­strator. It lyes against an administrator, upon an as­sumpsit of the Testator. Lib. Intra. 4. C. sect. 3.

Which Cuts trees without Cause. 18 Edw. 4. 27.

Bayly. Against a Baylie of a Baylie of goods. 12 Edw. 4. 13.

[Page 45] Baron & feme. It lyes against Baron et feme for not repair­ing seabanks upon the land of his wife. 7 Hen. 4. 31.

Trover and Conversion lyes against Baron and feme▪ for the Conversion is a disloyall act: which his wife may doe. Mich. 7. Jac. Ban. Re­gist. Drapers case.

Carrier. Trover and Conversion lyeth not against a Carrier for delivery to his servant, but an Acti­on upon the case. Pasc. 9. Jac. Ban. Regis. Worn­hall et Bradshaw.

Counsel­lor. A Counsellor is retained to purchase land, and discloses the Counsel by which, &c. 11 Hen. 6. 18.

Upon an assumpsit to pay a bebt. No. Lib. In­tra. Assumpsit.1. B. sect. 1 Coke. 9. parte. 86. B. Pinchons case. 1. Coke. 9. part. 94. A. Banes case.

Church­wardns. Churchwardens for not repairing a Gutter. which is a Nusance to my house. Lib. Intra. 10. D. sect. 1.

Jonder. I make an assumpsit, Action lyes not against 2 only, but if the plantiff shews that the others are dead then good and sufficient to shew that at the request of them that are alive, and that the others are now dead. Trin. 7. Jac. Ban. Regis Brereton and his wife, against King & Milner.

Master. Against a Master upon sale and warranty of the servant. 11 Edw. 4. 6. Tenant at will.

Against Tennant at will for voluntary wast. Littleton. 15. A. 14 Hen. 8. 12. Brown. Coke. 5. parte. 13. Salops case. Dyer. 121. pl. 17.

But not for permissive or negligent wast. Coke. 5. parte 13. B. Salops Case.

[Page 46] Tenant per elegit. Tennant per elegit which holds over and cuts the trees after money tendered to him. 21 Edw. 3. 16.

Tenant in common. Against a Tennant in common by his Com­panion for breaking his gutter between their houses. 2 Hen. 5. plea 12.

For making a lime-pit 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 lyes not against C. because the Leassee had done no wronge, and he could not pull it down. Trin. 13. Jacobi Ban. Regis. Bolds Case.

Vicar. When a man prescribs in an Ile, and the vi­car will not suffer him to make a sepulchre. No. Lib Intra. 8. b. sect. 7.

Shrieve. Upon a false returne. Lib. Intra. 11. A. sect. 1.

Upon returning nichil where he had suffici­ent. Lib. Intra. 11. C. sect. 2.

For what things this action Lyes.

Trees. Against a Tennant by elegit that holds the lands after his money tendered him and Cuts the trees. 21 Edw. 3. 16.

So if tennant at will Cuts the trees. Little­ton. 15. A. Coke. 8. part. 13. B. Salops case. 48 Edw. 3. 25.

If a Bayly cuts trees without cause. 18 Edw. 4. 27.

Chappell. For disturbing of men to come to my chap­pell with offerings. 19 Rich. 2. action upon the case. 52.

Way. Against the owner of the land in which I [Page 47] have a way and he streightens it. 33 Hen. 6. 26. 1 Estreite.

For trenching of it. Lib. intra. 616. C. sect. 1. 2 Trench. 3 Disturbe

For any manner of disturbance in my pas­sage or part of my way 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 Lyes. 22 Hen. 5. 33 Hen. 6. 26. 10 Hen. 7. 21.

So if tertennant and others stop it. 34▪ Hen. 6. 4. tamen quaere.

For against tertennant that stops all the way an assize of Nusance doeth lye 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.

But if I have it but for years, Case lyes. 33 Hen. 6. 26. Nat. br. 176. et 184. L. eodem.

If A. stops my way, and leases the land to B. it lyes against B. if he do not open it; but if A. build a house and leases it to B. there B. cannot pull it down for my way, for this is waste in B. Trin. 13. Jac. Regis. Bolds case▪ and Rutland­shiers case.

But the 11 Hen. 4. Action upon the case lyes for stopping of a way in grosse only, and an assize of nusance for a way appendant. 21 Edw. 3. 2. 6. 34 Hen. 6. 4. pl. 11.

But for stoping of a way in my own land trespasse vi et armis lyes and not this Action. 31 Edw. 3. Action upon the case 38. 13 Hen. 7. 26.

But for stoping of a high way the defendant [Page 48] shall be punnished in the Leete and not by this Action unlesse the party had a speciall losse. 27 Hen. 8. 26. 5 Edw. 4, 2. b. 7 Hen. 4. 8. 33 Hen. 6. 26. Coke. 5. part. 73. A. Williams case. 21 Hen. 7. 35. Coke. 9. part. 113. Mayrs case.

Slander of my Title. If A. sayes that B. hath right in my Land for years Action Lyes. Coke. 1. part. 177. Mild­mays case. No. Lib. intra. 30. A. sect. 27. but I ought to shew how I am prejudiced.

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 hindered, 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 Lyes 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. cáse 14.

Lnad. For stopping a ditch 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 not scouring a Ditch by which my land is over-flowen. Regist. orig. 100. A.

For breaking of a seabanke by which my land is surrounded. Nat. br. 86. F. 89. B. et C. Regist. orig. 95. A.

It lyes not for erecting of Cony-burroughs by which I lose the profits of my land, because the party had no property in them, Coke 5. part. 104. Boulstons case.

Trade. If one hath the trade of a Bakehouse by

[Page 49] Distresse. 1. For disturbing my Bayly to distrain for an amercement, 18 Hen. 6. 9. pl. 20.

2. For disturbing me to distrain or to attach, Nat. br. 102. F.

3. For distraining more sutors to come to my Leete, Nat. br. 94. G. Coke 4. 94. B. Regist. orig. 103. B.

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.

Fair and Market. 1. Against him that set up a Fair or Market against my Fair or Market, 22 Hen, 6. 14. 11 Hen. 4. 74.

But 41 Edw. 3. 24. per Belknap, Quod permit­tat lyes, and not this Action.

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.

3. For disturbing me to hold a Fair or Mar­ket, 16 Edw. 2. Action sur case 47.

And the Writ that it held three dayes, and the Count two dayes and two half dayes, and good.

4. For disturbing me to take Toll in a Fair or Market, 9 Hen. 6. 45. 21. Hen. 7. 16. quaere.

5. For selling in another place out of the Fair, Regist. Orig. 107. A. & B.

Deeds. 1. When the Tenant burns the Deed to him delivered in remainder, 9 Edw. 4. 53.

2. When a Deed is lost, 34 Hen. 6. 4.

[Page 50] 3. When the Seal is broken off, 39 Hen. 6. 46. Lib. Intra. 7. b. Sect. 1. & 3.

4. For deeds sold with the Land and not delivered upon request, Lib. Intra. 5. A. Sect. 2.

5. For forging a statute Staple or Merchant, Nat. br. 96. B 17 Edw. 3. 49. Reg. orig. 115. A. & B.

6. For forging of a Release by which I lose my Ward, 39 Edw. 3. 13.

False Re­turne. 1. For returning me summoned and Judge­ment given by default, where I never was; 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. Processe 55.

Ferry. 1. For setting up a Ferry to the Nusance of my Ferry, 22. Hen. 6. 14.

2. For threatning, by which I lose the pro­fits of my Ferry, 22 Hen 6. 17. pl. 32.

Foldage. For disturbing my Foldage, No. Lib. Intra. 14. D. Sect. 12.

Forrest. For disturbing one to have certain walks in the Forrest of Selwood, Coke 5. part. 76. the Countesse of Pembrokes case.

VVarren. For erecting a Warren or Dove-house Acti­on lyes not, although it be to the Nusance of another, Coke 5. part. 104. B. Boulstons case.

Liberty. For executing Processe in my Liberty, Nat. br. 95. B. Regist. orig. 103. 104. 5 Edw. 3. 150. pl. 20.

House. 1. For hindring my light by making a wood­pyle, Coke. 9. part. 57. B. Alreds case. Le count there, and 58. No. Lib. intra. 19. B. sect. 16. 7 Edw. 3. 261. pl. 15.

[Page 51] 2. For infecting the Ayr of my parlour with an hogskin, Coke. ibidem.

3. With a Dyehouse, Coke. ibideus.

Michaelis. 9. Jac. Ban. Rigis. Ward versus Cheshire. The Plaintif counts that he is seized in fee of a Kitchin, in parochia sancti Dunstani in London, and prescribes to have windows in the backside of the Defendant, and his stopping up of maximam partem, &c. port action and up­on not guilty found per quaer. and moved in arrest of Judgement.

1. He did not shew that the kitchin was an­tient; but it was resolved, that it was implyed in the prescription; but by Williams this was was not material: but Crook e contra by the custome of the city it ought to be stopped if not antient.

2. For that the quantity was not shewed, but resolved it need not be, Coke 4. part. 49. Com. 249. neither shew the Parish in which the back-side is, sed non allocatur because the stop­ping of the light is the material point, and it was shewed where it was: and the Plaintiff had judgement.

Hill 9. Jac. Regis. Hughes & Keme. A. had an antient house in London, B. builds a new one which stops the light of A. per Curiam. 1. that a man cannot by the custom of London erect a new house, where there was not one before, to stop the lights of the antient house. 2. Upon an ancient foundation a man may erect a new house, and stop the antient lights of his neigh­bour; for by the same reason that his neigh­bour [Page 52] 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 Hen. 6. 15.

Mannor. For removing a plaint out of my Mannour without cause, 27 Hen. 6. 4.

For taking an estray within my Mannour or liberty, 13 Edw. 3. breve 674. 31 Edw. 3. breve 333. but ibidem. it lyes not before seisure.

Meere­stone. For removing a Meerstone though one of them be Tenants in Common, 1 Hen. 5. 1. Lib. intra. 9. C. sect. 1.

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.

2. For erecting a new Mill, Lib. intr. 9. B. sect. 2. D. sect. 1.

Office. 1. For disturbing to take seisure of an office, 6 Edw. 3. 9.

2. For disturbing the steward to hold Court, Lib. intra. 5. B. sect. 1.

3. For disturbing to take the profits which belong to the office, 9 Rich. 2. action sur case. 5.

4. Against an Escheator that returns contra­ry to that which was found by office. 9 Hen. 6. 60.

5. If he returne where no office was found, 21 Edw. 4. 23. et 27. for he is not Judge but of­ficer, 9 Hen. 6. 60.

6. For procuring a false office to be found by which my land is seised, 47 Edw. 3. 15. kitch­in 175. A.

Pischary. For erecting of a Dyhouse which poysons [Page 53] my water by reason whereof my Fish dyes, Coke. 9. part. 59. A. Aldreds case.

Procure­ment. 1. For releasing me with warranty and pro­curing an other to sue me, 34 Edw. 3. 20.

Protecti­on. 1. Against Tenant in precipe which hath protection allowed to Westm. for one yeare and within the year he stayes at Gloucester, 15 Edw. 4.

School. If I sue a School-master for erecting a school in the same Town the action lyes not; for it is no nusance, 11 Hen. 4. 47. pl. 21. 22 Hen. 6. 14. prisott.

Slander of my Title. If A. sayes that B. hath right in my Land for years Action Lyes. Coke. 1. part. 177. Mild­mays case. No. Lib. intra. 30. A. sect. 27. but I ought to shew how I am prejudiced.

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 hindered, 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 Lyes 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.

Land. 1. For stopping a ditch 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 not scouring a Ditch by which my land is over-flowen. Regist. orig. 100. A.

For breaking of a seabanke by which my [Page 54] land is surrounded. Nat. br. 86. F. 89. B. [...]t C. Regist. orig. 95. A.

It lyes not for erecting of Cony-burroughs by which I lose the profits of my land, because the party had no property in them, Coke 5. part. 104. Boulstons case.

Trade. 1. If one hath the trade of a Bakehouse by prescription for the whole Town, and another erects another and sels, an Action lyes, Coke 8 part. 125. case of London 19 Rich 2. Action sur case 52.

2. For using the trade of a Dyer in R. without Licence of the Arch-Bishop of York, Regist. orig. 105, & 106. Coke ibidem.

3. The king grants to A. the sole seisance of play-cards, yet A shall not have an Action up­on the case against others that use the trade, because the grant is voyd, Coke 11. part. 86. A. Monopolies.

Waste. Tenant at will makes voluntary waste, Acti­on lyes 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.

Water­course. For diverting of part of the stream by the owner of the Land, by which the stream flows over, 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 lyes, 8 Eliz. Dyer 248. pl. 80. but this is intended when the Mill cannot go.

Watring places. For stopping a pit that one hath for water, although it is not a common watering place, [Page 55] 21 Hen. 7. 35. No. Lib. intr. 18. D. Sect. 15.

The Writ

Ought to be certain as the Count, except the place and time, 22 Hen. 7. 91.

It ought to have the certainty as the Count and to have all the Count except the year and day, the quantity and certainty of the Land, 38 Hen. 6. 9. pl. 20. Prisott.

The Writ shall not be vi & armis, Nat. br▪ 92. E.

When there are two causes of Actions▪ 1. causa causans, 2. causa causata the former may be alleadged vi & armis, Coke 9. part. 50. B. Salops case.

The Process. 1. Before appearance. 2. After.

At common Law a Capias lyeth not, 43 Edw. 3. 11. Coke 10. part. 72. A. Marshalsey.

But the 10 Hen. 7. cap. 9. such processe is given in an Action surcase in Ban. Regis & Com. Ban. as for Traverse or debt, Br. exi­gend. 29.

The Judgement.

For not repairing of a Bank per quod, &c. the judgement shall be to recover Dammages, and a Distresse to the Shrieve to compel the De­fendant to repair.

For what things it lyes.

Chasing sheep. 1. For chasing sheep into the water, 2 Hen. 7. 11. B.

[Page] 2. For keeping of sheep delivered to me for a year to dung my Land, Nat. 26. B. & D.

For goods lent & are wasted. 1. Against him that I give money to give to my Attorney, and he gives it to my adver­sary, 20. Hen. 7. 9.

2. If I lent my plate or other goods 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. Crooke. 2 Hen. 8. 160. pl. 2.

3. If against a Bayly that cuts my trees or kills my Cowes, 18 Edw. 4. 23.

4. If a Bayly lend them to B. and he wastes them, it lyes against B. 12 Edw. 4. 13.

5. Against my Butler that breaks my Hana­per, 18 Edw. 4. 27.

6. For baylment 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.

8. Against a Bayly of beasts which kills them, Littleton. 15. A. Dyer. 121. pl. 17. 14 Hen. 8. 12.

Goods not deli­vered. The executor comes to the heir 31 dayes 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 wronge is punishable. Mich. 7. Jac. Ban. Regis. Steedmans case.

Wood and estovers. 1. A. sold 20. cords of wood to B. to have by assignement, and afterward sold 4000. to C. to have at his election, and assignes to B. which he [Page 57] shall cut and C. takes them, B. shall have an Action. Coke. 5. parte. 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.

Carrier. 1. Against a Carrier that breaks Pots and glasses, 2 Hen. 7. 2.

2. If the things be delivered to the servant of the Carrier, yet an action lyes against the Master, Pash. 9. Jac. Ban. Regis. Wornhall et Bradshaw.

A Horse▪ 1. For delivering a horse to B. for safeguard, who delivers him to C. to the use of A. who spoyls him, A. shall have an Action against C. 12 Edw. 4. 13. pl. 9.

2. Against a Smith that pricks my horse. Nat. br. 94. D. vide the writ there, 17 Ed. 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.

And if the Smith lends the horse to another who pricks him, Action lyes against the second, 12 Edw. 4. 13.

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.

Pigeons. For taking my Pigeons with engines. 16 Edw. 4. 7.

Dice and Cards. For playing with false Dice, Nat. br. 95. D. Regist. orig. 240. No. Lib. Intra. 8. sect. 8.

The same law of false Cares, Coke. 11. part. 87. B. Monopolies.

[Page 58] Distr [...]. 1. For distraining of a Horse of a Prelate, when he had other things distrainable, Nat. br. 93. I. Regist. orig. 100. B. Coke. 4. part. 95. A. Slades Case.

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

3. For distraining one to come to my Leete when he owed sute to my leete, Nat. br. 94. G.

For distraining Cowes and then impound­ing till they cast their Calves, Nat. br. 86. E.

For distraining Cattle of the plough or Lambs where there was other sufficient di­stresse, Lib. Intra. 226. D. distres, the writ there. Nat. br. 90. B.

The count shall not shew that there was o­ther sufficient distresse but it shall be Contra formam statuti. 14 Eliz. Dyer. 312. pl. 86.

And it lyes although the Tenant hath made Agreement for the Rent, 18 Edw. 2.

For distraining in one Liberty where the Contract was not made. Regist. orig. A. per Westm. 1. cap. 34.

Escape by A Goaler. By a Goaler against a prisoner that escapes being committed per Auditors, Nat. br. 95. C. 130. B. the writ there.

Deeds. For Tearing an obligation delivered to be kept, 39 Hen. 6. 44. Lib. intra. 7. B. sect 1.

It was delivered in the nature of an acquit­tance absque hoc that it was, &c. Lib. Intra. 7. B. sect. 2.

Ferryman Against a ferry-man that surcharges his boat by which my horse is drowned, 22. Assize. 41.

[Page 59] Forgery and Counter­feiting. 1. For forging of an obligation that is put in sute against me, 5 Edw. 4. 126. pl. 44. Coke. 4. part. 18. B. case. 14. 42. Assize. 8.

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

3. For forging of a will, 5 Edw. 4. 126. 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. pash. 7. Jac. Ban. Regis. Tracy versus Veale alias Smyth.

Guard. For taking away a ward he shall have the value of the marriage, 29. Assize 35.

Grain drowned. For putting something in my ditch where­by my grain is drowned. Regist. orig. 95. B. 97. A.

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

Pales. For taking away my pales, 15 Ed. 4. 4. Choke.

Piles. For putting in a River piles by which my oxen perish, Nat. br. 92. F.

Protecti­on. For taking my goods after protection to me granted, Regist. orig. 12. A.

Rescous. By a Shreive against one that Rescued one in execution, Dyer. 241. pl. 47.

Servants. 1. For taking my servant out of my service, 19 Rich. 2. Action upon the case. 52.

Bar▪ Not his servant a good bar, 20 Hen. 7. 4. pl. 13. Fineux.

Servant. 2. For inticing my servant to depart and him retaine, 11 Hen. 4. 23.

3. For beating my servant though he serve me [Page 60] but for pleasure, 21 Hen. 6. 9.

But he ought to committ 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.

And if the plaintiff have a verdict and doeth not count as aforesaid, he shall never have judgement, Crooke. 21 Hen. 7. 71. pl. 15.

But he need not count of the retainer, 21 Hen. 6. 31. pl. 18. 22 Hen. 6. 30. B. et 43. B. 31 Hen. 6. 12. pl. 2.

4. For menacing my servant, per quod, &c. Regist. orig. 94. B.

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 he made fine, per quod, &c. 19 Hen. 6. 35. pl. 73.

7. For battery maheyme and imprisonment, per quod, &c. Crooke. 7 Hen. 8. 180. pl. 4.

8. When his Dog bites my servant, per quod, &c. Regist. 111. A.

A good plea to the writ that it was his wife that was prise, 7 Rich. 2. traverse 206.

So, that it was his Farmor, 13 Rich. 2. tra­verse 210.

So, that it was his prentice, 2 Hen. 6. 31. pl. 18.

So that it was his companion, 37 Hen. 6. 7. pl. 13.

Terme. Against the lessor that outs the executors of the Terme, Nat. br. 92. G.

And the writ is there by summons not per pone per vadios, &c.

For doing of wronge to the damage of another touching his body.

Lying in waite. For lying in waite to kill me or take me as villein so that I dare not goe about my busi­nesse, 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.

Note Actio quod metus causa fuit datur ei qui probabli metu rem suam tradidit, vendidit vel promisit, versus eum qui metum intulit, et dicitur metus probabilis qui in virum constantem cadere possit, et non in hominem metriculosum, Bracton. Lib. 3. cap. 4. fol. 103. B.

Arrest. 1. For arresting me in the name of B. without his consent, 7 Hen. 6. 43. pl. 19.

2. For arresting me without cause, 8 Ed. 4. 13.

But this ought to be by collusion to vex me, 43 Edw. 3. 20.

3. For arresting me to appear in the Marshal­sey where I was not sued, 3 Hen. 6. estoppell. 18. 10 Hen. 6. 13. 7 Hen. 6. 30.

4. For arresting me in London knowing I was priviledged in Banke. 7 Hen. 6. 45.

5. Against a Shreive for returning me nihil where I had lands by which I was taken per Capias, Nat. br. 93. B. 31 Edw. 3 proces. 55.

For arresting me and bringing me before a Justice where I was indicted and Acquitted and good allthough the time of the arrest is not shewed because the other is vexation▪ Trin. 7. Jac. Ban. Regis. Olivers case.

[Page 62] Articles. If one exhibite Articles to a Justice of peace against B. to have him bound to his good beha­viour, no Action lyes for this because it is in Course of Justice, Coke. 4. part. 14. B.

Goaler. For putting Irons and putting in the stocks and giving little sustenance to one Committed for debt, or Arrearages in Account, Nat. br. 83. H.

Indict­ment. For procuring another to be indicted with­out cause, Nat. br. 114. D. 116. A.

For procuring B. to be indicted for A com­mon Barector, and acquitted secundum Leges Angliae, 1. good although that the count was that he was lawfully acquitted, for it is so im­plyed, 2. 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.

Menace. For threatning by word or writing to beat me if I come out of my house, 17 Edw 3. 4. vide Bracton. Lib. 3. cap. 4. fol. 113. B.

For threatning another of life and member, 10 Edw. 4. 6. the writ and count, Lib. intra. 661. B. sect. 1. 2.

Poyson. Surgeon. For putting poyson in my meat, Regist. orig. 102. A.

Against a surgeon that impairs the body by his Medicine, 21 Hen. 6. 55. 11 Rich. 2. Action upon the case. 37.

For doing a thing to the damage of another touching his name which is Slander.

Slander Dicitur quod scandalosum est, generale verbum. [Page 63] that one does to the overthrow of another; therefore it is conceived that if the words are spoken to the wrong of another, an Action lyes, Kitchin. 173.

Fit autum injuria non solum cum qui [...] puguo per­cussus fuit, verberatus, vulneratus, vel fustibus ce­sus, verum cum [...]i conviti [...]m dictum fuit, vel de eo factum crimen famosum, & hujusmodi. Bracton. Lib. 3. fol. 155. A.

There are 2 kinds of defamations, Spiritu­all, and Temporal. Nat. br. 55.

Note when words are spoken adjectively if they touch one in his Profession or Trade they are actionable, otherwise not, Coke 4. part. 19. case 15.

Also if they imply or presume an illoyall act then an action lyes although they are spoken adjectivly but if they imply an intention on­ly then an action lyes not. Coke. 4. part. 19. B. case. 15.

Adulter­er. It lyes not for calling one adulterer because it belongs to the spirituall Court, 27 Hen. 8. 17. Coke. 4. part. 17. case 11. but now it doeth be­cause Adultry is made death.

Bunkrupt 1. For calling a man Bankrupt it lyes not, un­less a man be a Marchant or use a Trade. pash. 40 Eliz. Beckard & Constable. it was there doubted, then one case was Cited in Ban. Regis. that it did not lye.

2. For saying that B. will be a Bankrupt within 2 dayes it lyes, 6 Edw. 6. Dyer. 72. pl. 6. Coke. 4. part. fol. 19.

3. A. shews that he was a Shoomaker, and did [Page 64] 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 shooma­ker, for it is implyed in that he sayd he used to buy and sell per 10 years, Mich. 9. Jac. Ban. Regis. Dayet. Chandler.

4. For calling a Merchant Bankrupt Knave it lyes because it toucheth him in his profession, Coke. 4. part. 19. A. &. B.

Basterd. 1. For Calling one Basterd if he be an Heir, No. Lib. Intr. 28. sect. 25. Trin. 25 Eliz. Ban. Regis.

2. A. intends to present B. to a Church and C. sayes that he is a bastard by which he is not presented, B. shall have an Action. Coke. 4. part. 17. case. 11.

Bawd. For Calling one Bawd it lyes not, 27 Hen. 8. kitchin. 173. because it belongs to the spiritu­all Court.

Bribery. A. said to B. your Attorney is a bribing knave, Action lyes because it toucheth him in his profession, Mich. 11. Jac. Com. Ban. Yardly et E [...]ill.

A. said of an Attorney, You are well known to be a Corrupt man and to deal Corruptly, Action lyes, Coke. 4. part. 16. case. 6.

Barecter. For Calling a man Common Misseasor or Barector it lyes not, Kitchin. 173. A. vide. 22. Assiz 43.

Cosen­er. 1. For Calling a man Cousener it lyes not, Coke. 4. part. 15. B.

2. Thou art a Cosening knave and hast Co­sened my 2 Kinsmen of Land worth 6000 l. and [Page 65] I will bring thee to stand upon the Pillory for it, the action lyes not, Kitchin. 173. B.

3. A. is a Cosening knave and I have prov­ed him a Cosening knave for selling me a sa­phir for a diamond, it lyes not, Kitchin. 174. A.

4. If Sr. John S. may 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 et May.

Thou art an enemie to the state of this Realm an action lyes, Hill. 40. Eliz. Com. Ban. Hooknell et Smith.

Slander in writing. It lyes for writing a Libell in a paper and affixing it to the Church door by which I am to enter, 17 Edw. 4. 3. Lib. Intra. 13. B. sect. 4.

False Ju­stice. For calling one false Justice of peace it lyes. 4 Edw. 6. 22.

False Knave. False sure. It lyes not for Calling a man false knave, Kitchin. 173. B.

1. It lyes not for suing a man for forgery. 11 Eliz. Dyer. 245.

Because for false action sequiter nulla poena. 2 Rich. 3. 9.

For this is in course of Justice, Coke. 4. part. 14▪ B.

2. But if one be sued in the star-chamber for a thing not examinable, there an action lyes▪ Coke. 4. part. 14. B. case. 3. No. Lib. Intra. 23. B. sect. 21.

[Page 66] 3. But if one appeal in Com. Ban. it lyes not, because this is in the nature of a loyal sute.

Felon. 1. For calling a Judge a Felon, 30. Assize. 19. Kitchin. 173. A.

Forger. It lyes for saying that one had forged a deed, 11 Eliz. Dyer. 285.

Heretick. 1. For calling one Heretick it lyes not, be­cause it properly belongs to the Spirituall Court, 27 Hen. 4. 17. Regist. org. 54. Coke. 5. part. 57. B. Specotts case.

2. But if one said of a divine that he is a He­retick by which he looseth his benifice or pre­sentation, action lyes, Coke. 4. part. 17. case. 11.

Thief. 1. For calling one thief an action lyes. 27 Hen. 8. 14. Eliz. Dyer. 236. pl. 26. Lib. intr. 12. D. sect. 2. Hill. 4 Eliz. Com. Ban. Reques case. Dyer. 9. pl. 112.

Common voyce and fame is not sufficient to call a man Thief 26 Hen. 8. 9. Dyer. 236. pl. 26.

But he may Justifie that the plantiff stole sheep, Mich. 13. Jac. Com. Ban. Cuddinston et Wilkins.

For calling one thief and causing him to be indicted where he was acquited, 27 Hen. 8. 11 Lib. intra. 12. D. sect. 2.

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.

[Page 37] A. is infected with such a Robbery that he doeth smel of it, 14 Eliz. Dyer 317. pl. 8. 6 Edw. 6. Dyer. 72. pl. 6.

There is a nest of theevs at B. and C. is the maintainer of them, and is a strong thief, Dyer. 75. pl. 2.

Men cannot have their Cattle go up and down the Common but B. and his children will kill them with Barbors dog, no action lyes, Dy­er. 118. pl. 79.

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 untill thou diddest steal one. action lyes, No. Lib. intra. 22. D. sect. 20.

Thou art a Thief for thou stollest my sons goods, action lyes without averring that he had goods, Pash. 38 Eliz. Com. Ban. Elin. et Moore.

My master B. hath Robbed me of all my goods, action lyes without averring that he was his servant, for that is assets certain, Mich. 15. Jac. Ban. Regis. Brown et Low.

B. burned my barn, (innuendo) a barn of Corn, action lyes not, for it is not shewed a barn with Corn, nor that it was parcell of the Mansi­on house, and the innuendo, cannot aid it, Coke. 4. part. 20. case. 16. No Lib. Intra. 24. D. sect. 22.

A. hath stollen my wood, action lyes, for wood cannot be intended trees growing, Pash. 38 Eliz. Com. Ban.

A. doeth or will prepare to Robb me, action lyes, for this tends to the ruine of A. Mich. 14. [Page 68] Regis. Sydenham et May.

A. Calls B. Thief, and Justifies that he stole sheep, B. pleads the generall pardon after the words spoken, the action lyes, for by the par­don the word Thief is taken away, Mich. 13. Jac. Com. Ban. Cuddingtons case. and Wilkens.

Thou didst set on me on the high way, and didst take away from me my purse, and I will be sworn to it, action lyes, Pash. 9. Jac. Ban. Regis. Stoner et holland.

Leper. 1. For Calling one Leper or Leprous knave, Action lyes, Intr. Taylor et Baggs.

For leprosus extra communionem positus peters non potest, Bracton. Lib. 2. fol. 12. A.

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

2. Thou hast killed my wife, no Action lyes, because it appears to the Court that she is a­live, Coke. 4. part. 16. A.

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

4. Thou didest poyson S. and it shall Cost me a 100 l. but I will hang thee for it, Action lyes, No. Lib. Intra. 25. C. sect. 23.

5. A. said that C. gave counsell to B. to kill me, It lyes not because a man is not punishable without an Action done, Coke. 4. part. 16. Case. 10.

Perjured. 1. For calling one perjured, 2 Hen. 8. 22. Kitchin. 173.

[Page 69] 2. But for saying that he had forsworn him­self, It lyes not, Coke. 4. part. 15. A et B.

Unlesse he had sayd in such a Court of Re­cord, Coke. 4. part. 15. B.

3. A. hath gotten a Mannour by swearing and forswearing, Action lyes not because it is found generall, Coke. 4. part. 15. A et B. No. Lib. Intra. 21. B. sect. 18.

4. W. is forsworn and perjured in swearing at the Common Plea 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 lyes, Hill. 35. Eliz. Ban. Regis. Rott. 56. Crowe.

H. is a perjured old knave in the Court of T. Action lyes, for perjuring in a Court, Ba­ron is punishable, per 5 Eliz. for the right comes in debate there, et perjurium est ius alienum per­vertere, Pash. 40 Eliz. Com. Ban. Hatchman et Southcotte.

A. sayes to B. thou hast an old Creeple whore to thy mother, for which words he sued him in the spirituall Court, and produced W. for wit­nesse, A. takes exception to him because he was perjured at the Assizes at D. in such a cause, W. for this brought his Action against A. which Justifies as aforesaid, 1 this was a legall course, ergo the action lyes not, 2 the Eclesiasticall court may punish perjury, therefore it lyes not, Trin. 15. Jac. Ban. Regis. Westover versus Dabe­ner.

Thou art perjured and I will pro [...]e it, Acti­on lyes, N. Lib. intra. 26. A. sect. 24.

[Page 70] For saying that A. was detected of perjury in Starchamber, it lyes not because an honest man may be detected but not convicted, Coke. 4. part. 16. case. 8.

Plague. 1. For saying of an In [...]holder that he had buried divers of the Plague that dyed in his house in his garden, Action lyes, Regist. orig. 173. B.

Pox. M. is a whore and hath the Pox, and they have made such holes in her that you may turne your finger in them, and K. the Srugeon hath given her a dyet drink to heal them, take heed how you drink with her, Action lyes: 1 for calling her whore and this is the cause of the Pox, 2. the cure is published, to wit the sur­geon and the drink, 3. the contagion, take heed how you drink with her. ergo it shall be intend­ed the french Pox, Trin. 15. Jac. Ban. Regis. Milner and his wife against Reeve.

Profession 1. A. said of B. being a Barrester that he had as much law as a Jack an Apes, action lyes be­cause it is an unreasonable creature not having any law, and it scandals him in his profession, Mich. 36. et 37 Eliz. Ban. Regis. Palmers case.

Revealer of a cause. For saying of a counsellor he will deceave you, he was of my counsell and reavealed my Cause, No. Lib. Intra. 22. B. sect. 19.

Rogue. For calling a man Rogue it lyes not, Kitch­in. 173. B.

Sedition. A. sayes of a Preacher thou hast made a se­ditious Sermon to day and moved the people to it, Action lyes because he is scandalized in his profession, Coke 4. part. 19. case. 15.

[Page 71] An Action de scandalis magnatum was brought for saying you like of those that maintain sedi­tion against the Queenes proceedings, Coke. 4. part. 12. B. Cromwells case.

Sorcery. L. said E. did report that your wife sacrific­ed her child to the devill to make away my mother, Action lyes, because sorcery is felony, per 11. Jac. Regis. and there is an evill inten­tion and an act joyned together, Pash. 15. Jac. Locke versus Locke. Traytor.

It lyes for calling one Traytor, 27 Hen. 8. 14. 30. Assize. 29. Coke. 10. part. 130. B. Osburns case.

Thou didest speak treason, action lyes, 9. Jac. Brereford et Preston.

Walter said P. did say that Mr. Lewis. did say there was no Prince in England, action lyes, and it cannot be intended but Prince Charles, and because it toucheth the plaintiff in his Al­leageance it shall be taken in the favourablest sence, as is Fama, fides, occulus non patiuntur Lu­dum, Hill. 14. Jac. Ban. Regis. Lewis et Wal­ter.

Userer. For calling one Userer it lyes not, because it meerly belongs to the spirituall Court. 27 Hen. 8. 17.

Whore. It lyes not for calling one whore, Mich. 9. Jac. Ban. Regis. Hudsons case. Coke. 4. part. 18. A. but it doeth by the late action.

But in London by customes it did lye 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.

[Page 72] For saying of a Maid that she had a Bastard, an action lyes, 1 because it is punishable by our Law, 2 if she be to be married it hinders her preferment, Coke. 4. part. 16. case. 11. Davies et Gardiner.

For doing of wronge to the dammage of another, touching suits in Law.

Admiral­ty. For suing me in the Admiralty for matter above neque super altum mare, neque ultra mare, per 2 Hen. 4. cap. 11. 5. Mariae. Dyer. 159. pl. 37.

But if one which is only Bayly in the admi­ralty and is arrested when the principall mat­ter is not determinable there this Action lyes, quaere for it was argued at the bar, Mich. 11. Jac. Com. Ban. Rott. 1127. Rowe versus Alporte.

Attach­ment. Against him that disturbs an officer to make Attachment.

Against a Bayly of a Franchise that frandu­lently delivers to the owner his goods attach­ed, Na [...]. br. 93. F. 2 Edw. 3. 43.

Attorney. 1. Against an Attorney that makes default by which my land is lost, Lib. Intra. 2. A. sect. 1. vide. the count there.

2. For sueing debt in my name without my assent, 7. Hen. 6. 43. 45.

3. For Appearing without warrant, and imparling where the party is misnamed be­cause he looseth the Advntage of the plea, 15 Hen. 7. 14.

For taking an obligation in his own name where it ought to be taken in his Masters, 20 Hen. 6. 25.

[Page 73] 5. It lyes for not executing his office, 20 Hen. 7. 9. A. Knigsmell.

6. It lyes for Utlawing me in the name of B. that was dead at the time, Coke. 7. part. 1. A. Bulwers case.

7. It lyes for pleading Non sum informatus without warrant, 20 Eliz. Dyer. 361. pl. 13.

8. It lyes for appearing in default of the Te­nant and confessing the Action without war­ant, 9 Edw. 4. 13. 43 Edw. 3. 20. Regist orig. 113. A.

9. Against him that will be my Attorny without my Assent 42 Edw. 3. 14.

Counsel­lor. Against a Counsellor retained for a certain sum, and he discovers his counsell, and was of Counsell with the other, party and good, al­though he doth not shew for what summe he was retayned, 11 Hen. 6. 2. 18. Action upon the case the 7. Lib. Intra. 2. B. sect. 2.

Against a Counsellor that is an Ambodexter Lib. intra. 2. B. sect. 3.

Christian Court. Aganist him that sues me for Tyths in court Christian, although I shew him a Composition out of memory, 8 Edw. 4. 13.

Escape. 1. Against a Sheriff that suffers one to escape upon a Capias ad Computandum 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.

2. Against a Goaler that lets one escape that was committed upon the statute of Labourers, 14 Hen. 6. 8.

3. Against a Goaler that suffers one to es­cape taken upon a Capias upon A statute Mar­chant, [Page 74] Nat. br. 93. A.

4. Against a Goaler that suffers one to es­cape upon execution, Lib. Intra. 8. C. sect. 1.

5. Against a prisoner that breaks prison and escapes, Nat br. 95. C. 130. B.

6. Against an Officer that arrests one at my sute and suffers him to escape, Regist. 111. A. et B.

Essoyne. Against a shrieve that quashes essoynes in Reply erronice without assent of the sutors, 20. Assize 45.

Executi­on. 1. A. having goods of B. in his house 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 alleadged precisely. Coke. 5. part. 93. A. Semaines case.

2. By hindering execution by Removing the Record by Attaint, Regist. orig. 113. A.

Against him that shews execution upon a statute as executor of the Conusee where he is not, or where the Conusee is alive, 2 Rich. 3. 8.

False re­turne, no Returne. 1. Against a Shrieve that returnes 4to ex­actus, where it should be 5to exactus, 9 Hen. 6. 60. 81.

2. For returning Cattle estrayed which are dead, 32 Hen. 6. 27.

3. For making other returne then the Bayly made, 36 Hen. 6. 1. 30. Assize 5.

4. For returning a man of the enquest where he shews him a Charter to the contrary, 18 Hen. 8. 5.

[Page 75] 5. Against a Comissary that returns a Jure patronatus otherways then it is found 22 Hen. 6. 30.

6. Upon a devastavit returned falsely, Lib. Intra. 11. A. sect. 11 Hen 6. 37. B.

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.

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. proces 55. Nat. br. 39. B.

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. proces. 120.

11. For delivering a distres and returnes not the writ, 21 Edw. 3. 43.

Against a deputy of a shrieve, 20 Hen. 6. de­ceipt. 11.

12. For returning a nihil where had suffici­ent, Lib. intra 11. C. sect. 2. Nat. br. 39. B.

13. Against an escheator that Certifies an office otherways then it is found or that certi­fies one where there is none found, 21 Edw. 23. 9 Hen. 6. 60. Regist. orig. 115. B.

14. By the new shreive against the old shreive for returning one sufficient which is not by which the plaintiff is charged in Issues, 19▪ Hen. 6. 38. B. Paston.

15. Against a Shreive that makes a precept [Page 76] to one that is not Bayly of a Franchize, 38. Assize 13.

16. The Shrieve returnes not a cepi Corpus, sed languidus when he was in good health, he shall have a false prisonment, 11 Hen. 6. 42. pl. 39. 2 Hen. 6. 5. A. And the other an action upon the case, 21 Hen. 6. 5. A.

17. False Judgment the Shreive returns that there is no such things, &c. if it be false Action lyes, 10. Edw. 3. 389. pl. 35.

18. For the Shreive shall not be amerced, 44 Edw. 3. 3. pl. 11.

19. If the Shreive make a false returne upon an enquest the party hath no remedie, Coke. 5. part. 32. B. Pettisors case.

20. For not returning a writ delivered by bill, Westm. 2. cap. 39. 42. Assize 12. But note 8 Edw. 3. 3. 298. pl. 26. Herle. it lyes.

21. It lyes against a Shrieve for a false Re­turne, Doct. & studend. 134. B. 19 Hen. 6. 29. 5. 72.

22. For returning summoned where he was dead, Action lyes, 8. Edw. 3. 330. pl. 1.

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.

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

Imbezel­ing. Against a Custos brevium by Bill for em­bezelling a Writ to him delivered, 7 Hen. 4. 6.

[Page 77] For inciting another to embezel a Writ, 19 Hen. 6. 29.

If my Attorney or Deputy of the Shrieve embezell a Record, deceit lyes, 19 Hen. 6. 30.

For suing me before the Steward or Mar­shall, Marshal­sey.where I am not of the household, 3. Hen. 6. Estoppel 18. 10 Hen. 6. 13.

Plea. 1. Against a Baylie of a Franchize that dis­continues his plea, Nat. br. 93. F. the Writ there.

2. Against a Bayly of a Franchize that sues after the plaint removed, Nat. br. 93. E. 14 Ed. 3. Action upon the case 39.

3. Against a Guardian which pleads a false plea: or vouches one that is not sufficient, 9 Edw. 4. Action upon the case 118.

Procure­ment. Against him that procures one to say he is A. B. the plaintiff in the Suit, and confesses the thing, &c. Regist. orig. 113. B.

Prohibiti­on. Against him in Court Christian that pro­ceeds after prohibition delivered, Nat. br. 92. E. the Writ shall say contra pacem.

Against him that throwes the prohibition in the durt, Nat. br. 92. E. Regist. orig. 92. the Writ shall say contra pacem.

Protecti­on. Against him who gets a protection of the King for one, and gives it to another of the same name, 30 Hen. 6. 18.

Against a Tenant in a praecipe that hath a pro­tection to come to Westm. and stayes at Glouce­ster, 15 Edw. 4. 19. Regist. orig. 119. B. 20 Hen. 6. 10.

Against him that gets a protection, where he was not in service of the King, Lib. intra. [Page 78] 492. D. the Count 493. Sect. 2, 3.

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.

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

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.

Reseous. 1. By a Goaler against Rescoussors of one in Execution, Dyer, 241. pl. 47.

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, Pash. 7. Jac. Ban. Regis. Kemps case.

Statute. Against him that acknowledged a Statute in my Name without my privity, 112. B. Regist. orig.

Vexation. Against him that sues me on purpose to vex me, 8 Edw. 13. 43. 1 Edw. 3. 20.

But for causelesse Suits no action, 11 Eliz. Dyer 285. for, pro falsa actionis prosecutione nulla sequatur poena, 2 Rich. 3. 9. pl. 22.

2. Against him that sues me for a thing ar­bitrated [Page 79] before that the day come, Regist. 111. A.

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

Admission. A Coppie-holder by Custom may nominate him which shall succeed him, and name one, and pray to be admitted, and offer reasonable fine to the Lord which refuseth; the Coppie­holder shall not have an action of the Case a­gainst the Lord, because before admittance he had no right, Pash. 13 Jac. Ban. Regis. Forde and Hoskins.

Bedell of a Hundred. A Bedle of a Hundred brought his action against many, and prescribes to have three gallons of the best beer of every Brewer for 7d. and good. 1. he need not shew what estate. 2. it is good against many because all in com­mon are accessory, 19 Rich. 2. Action upon the Case 51.

Enclosure Against him which ought to enclose and doth not, by which my grasse is consumed, 11 Rich. 2. Action on the case 36.

But if it be between two houses, a Curiae claudenda lyes, ibidem. Feofment.

A. sold land to B. and he will not enfeoffe him, Action lyes, 22 Hen. 6. 44. Newton. Inducti­on. Instituti­on.

Against an Archdeacon which refuseth to induct, 26 Hen. 8. 3. Nat. br. 47. because here the Archdeacon is in place of the Shrieve, Mich. 12 Jac. Ban. Regis, Poole and Godfrey. But [Page 80] in this case by Dodderidge & Coke it lyes not against the Ordinary for not instituting a Clerk, because this is meerly spiritual: in the case above specified.

A. hath a nomination and B. the presentation, A. names B. and will not present, yet an Acti­on Presenta­tion.lyes not by the Court, Pasch. 13 Jac. Ban. Regis, in the case of Forde and Hoskins.

Against one that ought to finde a Priest, and will not, 21 Hen. 7. 5. 22 Hen. 6. 46. Lib. intra. To find a Priest.2. D. Sect. 5.

But if he shall be found by the Lord, and his Tenants of his Mannor, no such Action lyes, Coke 4. part. A. Williams; but it shall be in the Court Christian.

1. Against a Lessor that refuses to repair his house, Dyer 36. pl. 37.

Reparati­ons. 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.

3. But if a High-way be not repaired by which my horse is mired, I shall have an Acti­on, by Heiden. 5 Edw. 4. 3.

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.

But if they be broke by tempest no action lyes, 29 Edw. 3. 32. pl. 49.

[Page 81] 6. For not scouring the Ditches, 11 Rich. 2. Action upon the case 36. Nat. br. 93. G.

7. For not repayring of a Gutter, Lib. Intra 10. D. sect. 1.

For not repayring a house that is ready to fall upon my house, Crook. 22 Hen. 7. 98. pl. 4. per Fineux et Brudnell.

Retain. Against him that is retayned to purchase Lands and doeth not, 11 Hen. 6. 18.

But if he doeth his endeavour it sufficeth.

But if he be a Counsell with the other party Action lyes, 11 Hen. 6. 18. pl. 10. Babinton. & 55. pl. 26.

To hold Court. Against a Lord in Antient demeasne which will not hold his Court, 11 Edw. 2. action up­on the Case 46. Toll.

1. Against a Miller that refuseth to grind toll­free for one that is toll free, 43 Edw. 4. 24. Crooke. 130. pl. 100 l. per Keble.

2. Against him that bought or sold in my market or fair without paying Toll, 7 Hen. 4. 44. pl. 11.

3. But if one pass over my passage or port where I have toll quaere what remedy, 21 Hen. 7. 16. pl. 25.

For not doing of a thing which ought to be done by the law: to the damage of another, concerning Cattells.

Borrowed. A. borrowed a horse of B. which dyed sud­dainly without his default, Action lyes not, 40 Edw. 3. 36.

[Page 82] Attorney. It lyes not against an Attorney that will not do his office unless he be retained, 20 Hen. 7. 9.

Baylment. Against a Bayly that hath money to bayl my Attorney and doeth it not, 20 Hen. 6. 9. B.

Against my servant because he pays not mo­ney for Bayling and saving harmless, 20 Hen. 6. 9.

Cocket. S. being a Dutchman his parents being sub­jects to the King brought an action against a Customer for not putting Cocket upon his Marchandize and tenders the Customes. Coke chief Justice said that insomuch that the dutch­men here assembling and not of our Congrega­tion nor free of any Company of Marchants that the action lyes not. Pasc. 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.

2. But then he ought to have all necessaries and his wages tendered, 2 Hen. 6. 55.

3. Against a Farrier that applyes medicine and cures not my horse. But if no default be in him it lyes not, 19 Hen. 6. 49. 43 Edw. 3. 33. 48 Edw. 3. 6.

In-keeper Against an Innkeeper that will not lodge me, 39 Hen. 6. 18. Crooke. 18 Hen. 7. 50. pl. 4. 14 Hen. 7. 22. B. Higham.

Pledge. 1. Against him that will not deliver Pledge upon tender of Money borrowed. Nat. br. 86. C. Regist. 91. B. Lib. intra. 8. B. sect. 1.

Servant. Against a servant that will not do his service 2 Hen. 7. 11. B.

For his wages is Certain by the statute, and [Page 83] he hath his action to recover it, 3 Hen. 6. 36. B.

3. Against one that will not serve not having land. Regist. orig. 101. A. and B.

4. Against one that will not serve in summer, Regist. orig. 101. B.

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

In-keeper Against an Innkeeper that refuseth to Lodge me, 36 Hen. 6. 18.

Bar. A good bar that his house was full and had no room, 5 Mariae. Dyer. 158. pl. 32.

Surgeon. Against a surgeon that takes upon him a Cure and neglects it, 48 Edw. 3. 6.

Victualler Against a Victualler that refuseth to sell to me, 39, Hen. 6. 18.

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

1. It lyes against an Attorney that is retain­ed and makes default, Lib. intr. 2. A. sect. 1. Re­gist. orig. 113. A.

Clerk of Assize. Against a Clark of Assize that takes a fee and enters not the Jury. 34. Hen. 6. 4.

Feoffee to use. Against a Feofee to use which doeth not plead according to the directions of the feofor. 14 Hen 8. 24. B. pl. 2.

To hold Court. Against a Lord of a Mannor that will not hold his Court, 11 Edw. 2. Action upon the case. 46.

[Page 84] Shrieve. 1. Against a Shreive that will not execute proces, 14 Heu. 7. 23. the party being shewed to him, 8 Edw. 4. 14. 17.

2. For the plaintiff against a shrieve that will not returne his writ, 2 Hen. 6, 5. 8 Edw. 4. 14. 7.

3. Against a Shrieve that will not returne an outlary, 42. Assize. 12.

4. For delivering a distres upon a second de­liverance, and not returning the writ. 2 Edw 3. 43.

Assumpsit.

For the not doing of a thing which ought to be done by the agreement of the partie to the dam­age of another touching things heriditary.

A [...]umpsit. Quid. Quotu­plex.
ASsumpsit is either by word.		Indented.
or deed.Poll.

If it be by Covenant it lyes, and need not a­ny Consideration, 2 Hen. 7. 11. 21 Hen. 6. 55.

If it be by word, then it ought to be upon a consideration otherwaies it is but Nudum pa­ctum unde non oritur actio.

A Consideration is one cause or occasion Conside­ration. Quid. Quotu­plex.meritorious requiring mutuall recompence in deed or in Law, 16 Eliz. Dyer. 336. B. pl. 34.

The consideration is either expressed, or im­plyed, in every contract there is an Assumpsit implyed, Coke. 4. part. 94. Slades case.

If it be expressed it ought to be shewed in the [Page 85] Court, 3 Hen. 6. 36. 11 Hen. 4. 33.

Consideration of a thing past is not good, Doct. and Stud. 104. B.

An assumpsit may be made in the absence of another if he will agree to it afterward, 27 Hen. 8. 24.

Generall Bar.

1. Concord pleaded, Lib. intra. 6. C. sect. 6.

2. Non assumpsit and this a man may plead al­hough there is no consideration, Pasch. 26 Eliz. Ban. Regis.

But if the former where upon an entire sum upon 2 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. Intra. 5. D. sect. 1.

Non emisset the Land of him a good bar, Lib. Intra. 6. B. sect. 5.

That the plaintiff discharged him of the bar­gain, a good bar, Lib. Intra. 685. C. sect.

1. Against him that sells land to me and pro­mises To make an estate▪to make an estate, and doeth 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.

2. Against him that sells land to me and pro­mises to give me seisin of it and does not. Re­gist. 112. A.

3. A. promises to convey land to such a per­son [Page 86] as B. shall name, and shewes that he con­veyed it to B. this is good; for it shall be in­tended one nomination in so much that he did accept of it, Mich. 13. Jac. com. Ban. Huligo and Wilde.

4. Against him that first sells land to me and afterward sells it to another, Lib. intr. 685. B. sect. 1. Nat. br. 98. F. 20 Hen. 6. 34

5. The same Law is if he grant a Rent and afterwards infeoffe me, 20 Hen. 6. 34.

Ditch. Against one that promises to scoure his ditch and doeth not, by which my land is drowned, 3 Hen. 6. 36.

Granage, Against an Alien that brought Salt to Lan­don and promises to the Major to pay so much as shall be due for Granage, 18 Eliz. Dyer. 352. pl. 27.

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

House. 1. Against him that promises to amend his house, 19 Hen. 6. 49.

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 doeth 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 et occupationis messuagii praedicti, and for every far­thing hurt he will satisfie 2 d. upon request: the [Page 87] 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 2 d. for every far­thing, 3 he ought to request so many farthings due to him and to demand 2 d. for every one in a grosse sum, 4 the promise to the tenant at will, 5 he needs not to averre 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 untill, &c. And it being a Lease for years ergo the action lyes not, Mich. 9 Jac. Ban. Regis. Coventry & Woody.

Purchase. Against him that promises to purchase land for me and doeth not do it, he is not excused though B. will not sell it 11 Hen. 6. 18. 3 Hen. 7. 14.

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

Release. Against him that promises to make B. to re­lease me and doeth not, 14. Hen. 6. 18. pl. 58.

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

Agistment 1. Against him that puts in Chattels with­out paying for the Agistment, Nat. br. 86. B. Regist. orig. 92. A. the writ there.

Annual payment. Against him that promises to pay 10 l. for 4 years and fails of the first payment, Action lyes presently, Coke. 3. part. 22. A. Walkers [Page 88] case. 3. Marie. Dyer. 113. pl. 54.

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

Arbitri­ment. Against him that promises an agreement and doeth it not, Coke. 5. part. 77. B. Sammons case. No. Lib. intra. 3. B. sect. 4.

Assent. A. grants his terme to B. if C. agree, B. pro­mises 20 l. to C. for his assent, this is a good assumpsit, Trin. 12. Jac. com. ban. in the case Greisly and Louther.

1. Against one that promises to redeliver mo­ney and doeth not, Lib. intra. 10. sect. 1.

2. Against a Baylee that takes upon him to keep Cattle safe and doeth not, Lib. intra. 9. A. sect. 1. & fol. 3. B. sect. 1.

3. But if he promise to guard the goods and after refuses, no action lyes, Doct. et Student. 102. B.

Carrier. 1. Against a Carrier that undertakes to car­rie goods safe ann doeth not, 2 Hen. 7. 11. Lib. intra. 2. D. sect. 1.

2. Against him that promises to Carry wine and breaks the Pipe by negligence, Regist. 110. A.

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

Charita­ble deeds. Against him that promises 10 l. for the Cur­ing a poor man, Doct. et Student. 104. A.

For upon every promise if the party be charged with it, an action lyes, although the o­ther have no benefit, Doct. et Student. 104. A.

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

But the plaintiff ought to Count that he did [Page 89] give money for the doing, otherwaies it is but Nudum pactum, unde non oritur actio, 3 Hen. 6. 36. pl. 33.

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

Against him that takes upon him to repair my Dove-house and doeth it ill, Regist. orig. 110. B.

Crosse. Against him that promises to make a Crosse and doeth not, Regst 109. B.

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 sale, for in the forner case the request is traversable but not in the latter, Pasc. 28 Eliz. Com. Ban.

Discharge of a pri­soner. Against him that promises to pay me as much as the other ought if I will discharge him of the prisoner. 27 Hen. 8. 24.

Farrier & Smith. 1. Against a smith that takes upon him to shooe my horse and doeth not, 14 Hen. 6. 18.

2. Or to cure him, 19. Hen. 6. 49. Regist. orig. 119. B.

It is not sufficient to do all he can, But upon a retainer without taking upon him the Cure, 43 Edw. 3. 33. 45 Edw. 3. 17. 48 Edw. 3. 6. 27. Assize 56.

[Page 90] And the writ shall not say contra pacem, 43 Edw. 3. 33.

3. Quare tam negligenter et improvide imposu­it medicinas, &c. quod equus mortuus▪ 43 Edw. 3. 33. pl. 38. 19 Hen. 6. 49.

Ferryman 1. Against a Ferryman that takes upon him to carry one over the water and doeth it not, and this without consideration because his fare is certain 22. Assize 41.

2. For surcharging his boat by which my beast is drowned, 22. Assiz 41. action upon the case. 40.

Forbear­ance. An administratrix desires [...]o be forborne till such a time and then she will pay the debt, this is a good assumpsit, Coke. 9. part. 94. A. Banes case. the count there, and 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 chargable if she have not quid pro quo. Coke. 9. part 92, 93, 94. Banes case. et fol. 90. B. Pin­chons case.

Fobear­ance. The same law is of a strangers promise, Coke. 9. part. 94. A.

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.

Yet A. counts that B. was indebted to him in 20 l. but shews not how long, and that the 10. of September. 7. Jac. promises if the plaintiff would not arrest him, but forbear till the 21. [Page 91] 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 otherwayes when the forbearance is for a time uncertain, Trin. 9. Jac. Ban. Regis. Deane et Nuby.

This count was that the Intestate was in­debted to him in a 100 l. and the admistrator in consideration of forbearance by 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 intend h [...] 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 et Broughton.

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 otherwayes when the Testator is indebted and promises for, there the debt is the cause of the action, 2. Cok. Chief Justice that he needs not shew that he did surcease his suit, because it was but a reciprocall agreement, but [Page 92] if A. in consideration that the plaintiff shall sur­cease his suit promises to pay it, then he ought to shew that he did surcease, Pasc. 14. Jac. Ban. Regis. Fullers case.

W. indebted to B. delivers goods to L. to pay him, L. prayes B. to stay 2 or 3 dayes and he will pay him, L. pays it not, B. shall have an action against L. for it is a good consideration in so much that L. had goods to satisfie, Mich. 7. Jac. Ban. Regis. Brande et Lister.

A. pledges goods to B. 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 tell another day, and he would pay it, yet B. may have an action against C. for if C. pay the money then he may have a Detinew against B. for the goods, for by the payment C. had a speciall propertie, Trin. 13. Jac. Ban. Regis. Capper et Dickingson. Per Coke. Chief Justice.

Goaler. Against a Goaler that promises to the Shrieve to keep safe his prisoners and lets them escape, Regist. 110. A. et B.

Warranty. Against him that warrants for 10 l. that my boat shall come safe upon the Thames, 34 Hen. 8. br. action upon the case. 107.

Lessor. A. Leases to B. rendering rent and paying all out rents and makes reparations, the Lessor in consideration of this promises defendere et sus­tentare statum et possessionem of the Lessee quiete et pacifice absque interruptione, 1. a good consi­deration, 2. the said Clause amounts to so much as if he had said that the Lessee shall quietly enjoy his Terme, Mich. 7. Jac. Ban. Regis. Gam­ble et Terrell.

[Page 93] Marriage money. 1. Against him that promises in Marriage 10 l. if he Marry his daughter, No. Lib. intra. 2. B. sect. 2. et 4. B. sect. 1. Doct. et student. 104. A. 16 Hen. 3. prohibition 22.

2. A. being to Marry B. C. living with A. saies 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. C l. in consideration that B. marry his daughter, this is a good con­sideration in so much that the advancement continues being even in franke marriage after the mariage is good, Trin. 29 Eliz. Ban Regis. Marche et Rayneforde.

4. A. promises to B. that whereas his sonne was a suitor 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 sonne of A. was to have advance­ment by the marriage, Trin. 12. Jac. Com. Ban. Greicely et Louther.

5. A. promises 50 l. 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 et Tod.

6. A. having speech with El. Stukley about marriage promiseth to M. the daughter of the [Page 94] 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 in so much that he did averr in his count that she had not disposed of her estate it was not good, Mich. 15. Jac. Ban. Regis. Kings case.

Obtains a Lease. Against him that promises to obtain a Lease for me for 10 l. and gets it for himselfe, 3 Hen. 7. 14.

Payment. In consideration of divers summes received of divers persons to the use of the plaintiff a­mounting to 24 l. assumes to pay this, and ad­judged a good count though he doeth not shew of whom he received the summes because this is not traversable; for it is a consideration exe­cuted. Trin. 14. Eliz. Ban. Regis Beckingham et Lambert.

Count that upon an in simul computasset the Defendant was indebted to him in 20 l. and promises to pay it, &c. Crooke Justice said it was a good consideration, and Dodderidge said that in every action of debt an action of the case is implyed, and when it appears how the debt grew due, then it is a good Assumpsit, Trin. 14. Jac. Ban. Regis. Cullimore & Eynison.

Planting. Against him that takes upon him to plant thorns, and doth not do it, Lib. Intra. 13. C. Sect. 1.

Save harmlese. 1. My servant being in prison I request his enlargement, and promise to save A. harmless, an action lyes; but without request not, 10 Eliz. Dyer 272. pl. 31.

2 If one become Bayl for the servant, and [Page 95] after the Master promise to save harmlesse, an action lyes not.

3. A. being Bayl for B. in Ban. Regis, B. promises to save him harmlesse, yet A. shall not have an Action against B. although he pay the money, if no Capias be awarded against the Principal, nor Scire facias against the Bayl, Trin. 7. Jac. Ban. Regis: Bolles & Jones error upon judgement in Com. Ban.

4. A being indebted to B. prayes C. to be bound to B. for the debt, and he will be bound to C, &c. C. is bound to B, &c. A. refuseth to be bound to C. yet C. shall have an action against A. for it is a good consideration, in so much that C. is lyable to the debt, Mich. 9 Jac. Ban. Regis. Knyvet & Pledall.

5. A. promises to B. to discharge him and save him harmlesse from all bonds in which he was bound for the son of A. at the request of the said son. B. brought his action, and shews that he as fidei jussor was bound. 1. It is a good consideration. 2. He ought to shew pre­cisely that his son requested; for although fi­dei jussor imply a request, yet it is not suffici­ent, Pasch. 9 Jac. Ban. Regis. Somerston & Barnby, & postea Mich. 9 Jac. it is shewed that it was alleadged, and for this judgement was given for the Plaintiff, Lib. intra. 11 C. Sect. 1.

6. An infant borrows money, B. is bound to Infant.pay it at full age, the infant promises to save him harmlesse, action lyes upon it; for al­though the infant is not lyable in law, yet in conscience he was, and this sufficeth: for the [Page 96] consideration, Trin. 29 Eliz. Ban. Regis ad­judged.

Sollicitor. A Widow promiseth for following her Suits to pay 200 l. this is not good; 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.

Sufferance A. promises 10 l. to B. 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 lyes, Pasch. 15 Jac. Ban. Regis. Taylor & Wilks.

A. being a Coppie-holder makes B. his Exe­cutor, and intends to surrender, to the intent that B. should satisfie a debt to D. the son of A. promises that if he do not surrender but suffer the Land to descend he will satisfie the debt. A. dyes: B. shall have an action a­gainst the son; for it is a good consideration, Hill. 9 Jac. Ban. Regis. Gray versus Gray.

Tabling & Lodg­ing. A. promises to pay to B. for his reasonable board for such time as he shall be with him, B. shews that he was with him ten moneths, and that 5 s. the moneth is reasonable, amounting all to 50 s. this is good, Pasch. 30 Eliz. Ban. Regis. Floyd & Irish.

2. A. being sick in an Inne B. promises to pay as much as shall be due for all necessaries that the Inne-keeper shall provide for A. yet in the Action the Inne-keeper shall say in the Writ and Count, that he did provide necessa­ries til such a day, until, &c. in all to the va­lue of 20 l. forasmuch as the promise was ge­nerall [Page 97] the Writ is good. 2. It is inconvenient to shew all things that he did provide, &c. the same law is for a Physitian per Dodderidge Ju­stice. Pasch. 13 Jac. Ban. Regis. Crips & Bayn­ton.

Vendor. 1. For money upon the sale of any perso­nal things, 33 Hen. 8. br. Action upon the case 105, 110. 2 Rich. 3. 14. Com. 102.

For in every contract there is an Assumpsit implyed, Coke. 4. part. 94. Slades case. the Count needs not shew but soepius requisitus, Pasc. 28 Eliz. Com. ban.

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. william & Blackman.

3. Against a purveyor or servant that bought goods for his Master, and promises payment, Dyer. 230. pl. 56. 12 Hen. 8. 12.

4. Against him that promises to a Baker to pay so much as he shall deliver in bread to B. 29 Hen. 8. 25.

5. Upon a promise to pay for cloath bought if B. doeth not, 12 Hen. 8. 12.

6. A. brought an action, and shewes 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. this is nought for the contract, and the giving of day to B. ne fuit ad instantiam of the Defendant; but com­pleat before, Pasch. 9 Jac. Ban. Regis. Farmer & Field.

[Page 98] 7. A. promises to pay to B. such Sums of money as B. shall disburse of his own money for cloath to the use of the Defendant, this is a good consideration: by the buying of the cloath the property was in A. forthwith. Trin. 9 Jac. Ban. Regis. Moore & Moore.

8. A. sold to B. two wayes of Barley for as much as he sold to others, the Plaintiff in the Action ought to count, 1. for what he sold to others, 2. ought to give notice of this to B. So if A. promise to B. 20 l. if he marry C. yet B. ought to have 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.

Vendee. 1. Against a Seller of corn to be delivered at a certain day, and dotht no, 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.

2. For delivering good and merchantable corn and doth not, 6 Edw. 2. 6. Dyer. 75. pl. 23. Lib. Intra. 4. B. Sect. 2.

The judgement.

For not delivering of grain yearly, quaere if the Plaintiff shall recover damage as well pro tempore futuro quam pro praeterito. 3 Mariae. Dyer. 113. pl. 56.

Administratrix promises to pay a debt, &c. then the judgement against him shall be gene­rall, [Page 99] & praedictus P. & M. uxor ejus in misericor­dia. Coke. 9. part. 93. Banies case. No. Lib. Intra. 2. C. Sect. 3.

But upon plea that the Testator did not as­sume shall be for costs and damages de bonis pro­priis if the Testator had not sufficient. No. Lib. Intra. 1. B. Sect. 1.

The Writ.

Upon assumpsit by the Husband and Wife made to the wife dum sola fuit, the Writ said, ad dampnum ipsorum; for the husband shall have the damages, ideoque fuit ad dampnum ipsorum. Hill. 9. Jac. Ban. Regis. Wolverton and his Wife against Day.

For not doing a thing which ought to be done by Agreement touching the body.

Barber. 1. Against a Barber that takes upon him to rase the beard and doth it with an unwholsome Rasor, Lib. Intra. 2. C. Sect. 1.

Physition, or Chi­rurgeon. 2. Against a Physitian or Chirurgeon for not curing a malady, or not applying mede­cine, 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 medecine to cure him, and it did not, 19 Hen. 6. 49.

For commanding his servant to apply a medecine and he doth it not, 11 Edw. 4. 6.

4. For applying a medecine that impairs [Page 100] 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, 19 Hen. 6. 49. 48 Edw. 3. 6.

The Writ.

The Writ ought to shew the place where he took upon him the cure, 48 Edw. 3. 36.

If A. promise to cure me in London, and ap­ply unwholsome medecine in Middlesex, the action shall be in Middlesex, because there was the wrong. 11 Rich. 2. Action upon the case 37.

Assumpsit. For not doing of a thing which ought to be done by Agreement of the parties touching Suits in Law.

Clarke. Against a Clerk that promises to enroll a Jury and doth it not, 34 Hen. 6. 4.

Sergeant. Counsel­lor. Against a Serjeant or Counseller that pro­mises to plead, and doth it not, 14 Hen. 6. 18.

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.

Attorney. Against an Attorney that takes an obliga­tion in his own name, when it should have been in mine, 20 Hen. 6. 25,

Carpenter. Against a Carpenter that undertakes to build a house in such a form, and builds it in another, Nat. br. 145. G. 2 Hen. 4. 9. 21 Hen. 7. 41. 20 Hen. 6. 35.

[Page 101] Cranage. Against him that hath a Crane, and spoils my Merchandize. Lib. intra. 3. C. Sect. 1.

Farrier. Against a Farrier that takes upon him to cure my horse, and applies unwholsom medecine, &c. 19 Hen. 6. 49.

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.

Lyccence. Misplead­er. For misusing a Lycence, 21 Edw. 4. 76.

Against a Sergeant at Law that is retained to plead, and mispleads, 14 Hen. 6. 18.

For negligent suffering of a thing to be done to the Damage of another.

Borrowed A. borrowed a horse of me which dyes sud­denly, an Action lyes not, 40 Edw. 3. 6.

But if the thing be used in other manner then it was lent, and dyes, an action lyes, Doct. & stud. 29.

But if it be but in the same manner that it was lent, and dyes, no action lyes, Doct. & stud. 29.

A. borrowed a horse, and a house fell upon him; there if the house fell upon him being feeble, action lyes, otherwise not, Doct. & Stud. 128.

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.

Although his own house be burned, 33 Hen. 6. 1. Lib. intra. 8. A. Sect. 1.

[Page 102] 3. It lyes 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.

4. If a servant bring fire in the street and burn a house of his Masters, he is not charge­able.

5. It lyes not if it be burned suddenly, and the cause not known. 42. Assiz. 8. 2 Hen. 4. 18.

Barre.

That it was not burnt in default of good custody of the fire of the Defendant, Lib. Intr. 8. A. Sect. 1.

But by 28 Hen. 6. 7. this is but a negative pregnant.

That he guarded his fire well, absque hoe that he guarded it negligently, Lib. Intra. 8. B. Sect. 2.

Bayly. Against a Bayly of Cloath, that suffers it to be consumed with mothes, 27 Hen. 8. 25. 13 Hen. 7. 1. 18 Edw. 3. 23.

Against a Baylie of a horse that suffers him to perish, 12 Edw. 4. 13. 26 Hen. 8. br. Action upon the case 103. Lib. Intra. 3. B. Sect. 1. Re­gist. orig. 107. A.

For losing a Release, 34 Hen. 6. 4.

So of a box, Lib. intra. 9. A. Sect. 1.

Dog. Against him that suffers his dog to bite my sheep, 28 Hen. 8. Dyer. 25. pl. 102. & fol. 29. pl. 195. 28 Hen. 6. 7. pl. 7. Lib. Intra. 616. B. Sect. 1. Regist. orig. 110. B.

But then the master ought to know that he would bite them, ibidem.

[Page 103] But sciens is not traversable: but may be given in evidence, Coke 44. part. 188.

If the owner of the dog brings him to the master of the sheep to do justice upon him, It lyes not, 7 Edw. 3. bar 290.

The Plaintiff declares that the Defendant was possessed of a dog 8o Octobris 7o 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 shewen 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.

4. For suffering his dog to bite my servant, Regist. orig. 111. A.

5. For hurting of an ox, Regist. orig. 111. A.

6. For hurting of a horse after warning given, Regist. orig. 106. A.

Escape. 1. Against a Warden of the Fleet that suf­fers one to escape, that was taken upon a Ca­pias ad computandum, 15 Edw. 4. 19. Lib. intra. 8. C. Sect. 1.

2. Against a Shrieve that suffers one to e­scape that was taken upon a Statute Merchant, Regist. orig. 98. B. Nat. br. 93. A. the Writ there.

In-keeper Against an In-keeper 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. Assiz. 17.

1. But note, 1. this ought to be a common [Page 104] Inne and 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.

2. It ought to be a Travailer that lodges there, otherwise the action lyes not, Coke. 8. part. 32. Calyes case.

3. He shall shew nothing but this that it was within his Inne; for if [...]e puts his horse to pasture of his own accord, unlesse the In-keeper request him, it lyes not, Coke. 8. part. 32. A. Calyes case.

4. He ought safely to keep the goods with­in his Inne, 42 Assiz. 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 42 Edw. 3. 11.

Or that he knew not the Felons, 22 Hen. 6. 38. A.

But if the Companion or servant, or any other that the Guest desires to lye with him rob him, the In-keeper shall not be accounta­ble, Coke. 8. part. 33. A. Calyes case, 22 Hen. 6. 38. B. 22 Hen. 6. 22. A.

Or if he say his house is full, and the other sayes he will make a shift, and be robbed, 5 Mariae. Dyer. 158. pl. 32.

Or if he command him to put his goods in such a place, and he will not, but suffer them to lye in the open court, 10 Eliz. Dyer. 266. pl. 9.

And although the Writ is but bona & catalla [Page 105] 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.

But an In-keeper shall not be accountable for wronge done to the person of his Guest, Coke. 8. part. 33. A & B. Calyes case.

Servant. 1. Against a shepheard 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.

2. Against a Ploughman that suffers my corn to be spoyled, 7 Hen. 4. 14.

Deceit in Bargaines. For Deceit in bargains and agreements with Warranty.

1. The Warranty 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.

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.

It is not material whether the price be paid or not, for debt lyes for it, 9 Hen. 7. 21. pl. 2.

Horse. Against the Seller of a horse that is sick and is warranted sound, Nat. br. 94. C. 7 Rich. 2. 42. Regist. orig. 108. A. Lib. intr. 9. b. sect. 1.

[Page 106] Or a lame horse warranting sound, [...]1 Hen. 6. 11. Statham.

A strained horse it lyes not, because the buyer hath the view, 13 Hen. 4. 1. pl. 4. Hank­ford.

Cloath. Against a Seller of cloath, that warrants it well fulled 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 lyes against the Master, 11 Edw. 4. 6. for it lyes not against the servant, ibidem.

Grain. Against him that sells grain and warrants it to be good, Lib. intra. 9. B. Sect. 1. Regist. orig. 111. A.

Herring. Against him that warrants herrings, Regist. orig. 96. A.

Saphire. Against him that sells a Saphire instead of a Diamon, Kitchin 174.

Wood. Against a Seller of wood, and shews part, and warrants the rest to be good, 14 Hen. 6. 22. pl. 66.

Wine. Against a Seller of corrupt wine with war­ranty, Nat. br. 94. C. 9 Hen. 6. 35. 7 Hen. 4. 14. pl. 19.

The servant sold it by covin of the Master, action lyes against the Master, 9 Hen. 6. 53. pl. 37.

For Deceits in Bargains and agreements, without Warranty.

Deceit in bargains. 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.

[Page 107] Horse. For selling an horse to another that was not his own, 42 Assiz. 8. Coke 4. part. 18. B. Cloath.

For selling cloath that is nought, knowing it to be so without warranty, 21 Hen. 7. 91. pl. 16. Crooke.

Gumme. Against him that promises to deliver good Gum, and doth not, Mich. 7. Jac. ban. Regis. Weston & deighton.

VVine. Against him that sells wine mixed with wa­ter, Nat. br. 88. F.

Victual. For uttering Corrupt victual knowing it to be so, 19 Hen. 6. 53. 22 Hen. 7. 91. pl. 16. Crooke. 11 Edw. 4. 6. B. Brian & Neal.

VVax. Against him that sels good wax, and delivers ill, 6 Edw. 6. Dyer 75. pl. 18.

Trover and Conversion.

Trover.

Quid et Quotu­plex.

In deed		1. Delivery as to persons unknown 33 Hen. 8. Br. action upon the case. 109. Trover for a Hauk with bells re­cla [...]ed and sold knowing, it to be the plaintiffs, 14 Eliz. Dyer. 306 pl. 66.
In LawSold as to persons unknown, Lib. intra. 5. A. sect. 1.
2. Wasting, 34 Hen. 8. br. Action upon the case. 103.
 3. Denyall to redeliver, A. brought an action for Plate and Jewells. And shews that upon request, the defen­dant refused to deliver them, this is good evidence to a Jury, but to find it at Large is not a sufficient conversion, Coke. 10. part. 46. B. Oxfords case. Hill. 12. Jac. Ban. Regis. Isack et Clarke. per 3. Justices, 33 Hen. 6. 27. for the count is in usum suum proprium conver­sit et disposuit, but a nude denyall is not a Conversion.

Money. But if it be for money out of a bag then it is a good Conversion because it cannot be known, Pasch. 14 Eliz. in Le chequer.

[Page 109] Note if the plaintiff have not property in the things it Lyes not, 20 Hen. 7. B. pl. 18.

Note. 1. Pasch. 43 Eliz. Bushopps case, was a doubt, if A. takes goods to the use of B. and afterwards B. agree, quaere if such action lyes against B. quia A. divests the property by the taking.

2. The count ought to shew the place of con­version, Mich. 26. 27 Eliz. Ban. Regis. Stran­hams case.

So the day of the Conversion. Hill. 7. Jac. Ban. Regis.

If the count be of Trover and the Jury finde upon Baylment yet good for the Conversion is the point of action, Hill. 12. Jac. Ban. Re­gis. Isack et Clark.

Of what things it lyes.

Money. 1. It lyes for money out of a purse upon speciall matter, that he lost it and the other found it, Trin 43 Eliz. Com. Ban. Hall et Wood. Pasch. 24 Eliz in the Exchequer.

2. The Mr. delivers Corne to the servant to sell, and brings his action for the money and good, 1. the possession of the servant is the possession of the Mr. 2. it lyes of money. Mich. 4. et 41. of Eliz. Ban. Regis. Holliday et Higges. Sheep.

It lyes for 20 Sheep, Boke. 5. part. 109. Fox­leys case. Chain­door.

It lyes for a Chain-door found and solde, 3. Mariae Dyer. 121. pl. 14. Horse.

It lyes of a Horse.

[Page 110] But it is no plea that a person unknown stole them, and left them, & waiviavit, with­out shewing the circumstances, Coke. 5. part. Foxleyes 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 vocabulum artis, Mich. 15. Jac. Ban. Regis. Leader & Paschall.

1. Traverse the sale is good, 3 Mariae. Dyer. 121. pl. 16.

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, ideo (que) it amounts to the general issue, Mich. 9. Jac. Ban. Regis. Davies & Knap.

That he is a horse-breaker and delivered it for him, &c. Absque hoc, &c. this amounts to the general issue, Mich. 9. Jac. ban. Regis. Lovelace & Martin.

Deeds. Husband and wife shall have this action for a deed by which an Annuity was granted to the wife; for the wife should have it if she survive the husband, Trin. 40. Eliz. Com. ban. Russel & Catesby.

Frument & grain. It lyes for twenty Pooks of corn, Trin. 38 Eliz. Com. ban. Price versus Sr. Walter Sands.

It lyes of four bushels of wheat, Trin. 12 Jac. ban. Regis. Hill & Hawkes.

The Defendant shews prescription in the Baylie 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 pinte of wheat, &c. [Page 111] & justifies, &c. this is good, because the custom is doubtful, therefore a good bar: otherwise this plea amounts to the general issue, Trin. 12 Jac. ban. Regis. Hill & Hawks.

Jewels. For delivering of jewels, &c. in a box to B. who dyes, 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 a good bar, for the Trover & breaking are but conveyances, 20 Hen. 7. 4. pl. 13. per Fi­neux.

VVooll. It lyes of 50 l. of wooll ad valentiam, &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 & Loyd.

VVood. It lyes of a 100 load of wood, and 40 Beeches, No. Lib. intra. 41. B. Sect. 33.

Monkey. Of three Monkeys, and error brought be­cause that they did not say they were tame, Mich. 9 Jac. in Exchequer chamber. Shackley & Porter.

Pippins. It lyes of fourty measures of Pippins, scil. Bushels, Mich. 9 Jac. in Exchequer. Err. inter Claydon & Taylor.

Covenant.
Conventio est quasi Transactio.

Covenant is either byCommon Law1 Exprest1. By word1. Personal touchingChattel Real Personal
  2. A Real thing 
  1. Indented 
  2. Poll Reall1. Warranty de qua non est hact.
 2. By deed2. Covenant de qua non est hact. be seized to use.
  3. Covenant to levie fine
 2. Im­plyed1. Personal 
 2. Real 
Statute Law31 Edw. 3. cap. 11. Administrator shall have it and be subject to a Covenant.
32. Hen. 8. Cap. 34. Grants against Lessees & e converso.
  • 1. Court.
  • 2. Plaintiff.
  • 3. Defendant.
  • 4. Things.
  • 5. Count.
  • 6. The Writ.
  • 7. Processe.
  • 8. Barre.
  • 9. Judgement
  • 10. Execution.

In what Court Covenant lyes 1. personall 2. Reall.

1. IT lyes in the County or Hundred, Nat. br. 145. E.

2. It lyes in any court of the Lord. Nat. br. 145. E.

3. In London, Nat. br. 146. A.

1. Marshalsey between 2 of the Household, Coke. 10. part. 74. A. otherwise not.

2. In the court of the Lord by speciall grant 44 Edw. 3. 28. pl. 18. et fol. 37. pl. 30. Lib. in­tra. 296. A. sect. 1. 50. Assiz. pl. 9.

Fine levyed in the county Pallatine of Lan­caster, good, 37 Hen. 8. cap. 19.

In Banco Regis. 36. Hen. 6. 34. A. Fortescue, but it shall be avoyded by writ of error,

In Ancient demeasne quaere per. 6 Edw. 3. 207. pl. 20.

But the 44 Edw. 3. 37. 50. Assiz. 9. Knivet. it is not good.

But 22 Hen. 7. 90. B. pl. 14. Crooke. a fine may be levyed in antient demeasue. per petty writ of right close.

In Eire, good, 1 Edw. 3. 10. pl. 34. 8 Edw. 3. 27. 18 Edw. 3. 40. pl. 53.

In communi banco.

Before the Justices of the grand sessions in Wales, 34 Hen. 8. cap. 26.

[Page 114] Who shall have Covenant 1. Personall 2. Reall.

If a man covenant with another to enfeoffe him or to serve him, &c. the other shall have covenant, although he doe not agree, Nat. br. 145. A.

But then it ought to be by deed, Regist. orig. 165. B. Nat. br. 145. A. et G. 7 Rich. 2. deeds 160.

Yet in London a man shall have Covenant 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 statute de 31 Edw. 3. cap. 11. Coke. Admini­strator.9. part. 40. A. Hensloes case.

But not before, 19. Edw. 3. covenant, 24.

Assignee shall have Covenant, where it is made to one and his assignes, Nat. br. 145. C. Assignee. Regist. orig. 165. B.

Assignee shall have covenant without shewing the deed of covenant, Trin. 36 Eliz. Banco Re­gis. Assignee. Noke versus Ander. But there if the lessee for years by estoppell grant over his terme the Assignee shall not have Covenant, because he had nothing in the land, but only an estop­pell.

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 parcell of the mannor of B. for the Lords of the said mannor, the Alliance of B. shall have covenant because it is a service annexed to the Mannor, 42 Edw. [Page 115] 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.

But if the service is to be made in the Chap­pell of the other then the assignee shall not have covenant, because it is annexed to the Mannour 2 Hen. 46. pl. 25.

And so if one covenant with a Tenant by Curtesie to singe 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.

Assignee by word shall have covenant, Coke. 3. part. 63. A. Lincolne Colledges case

Assignee of Assignee shall have covenant, Coke. 5. part. 71. B.

Assignee of Copercenary shall have covenant against the other parcener to acquit him of the suite, because the covenant goes with the land, Coke. 5. part. 18. A. Spencers case. 42 Edw. 3. 3.

Lessor covenants to repair the house the as­signee shall have covenant, against him named because this is annexed to the estate, so the husband of the wife termor, tenant per statute Marchant staple and every one that comes to the land Coke. 5. part. 17. Spencers case.

So in all cases where it is annexed to the e­state Nat. br. 146. C. 48 Edw. 3.

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 collaterall covenants Coke. 5. part. 18. A. Spencers case.

[Page 116] Assignee of a Reversion for years when the Tenant for years for a greater Terme his as­signee shall have covenant within, 32 Hen. 8. al­though the lessor grant over his Terme, Trin. 40. Eliz. Ban. Regis. Rott. 123. Natures versus Westwood.

Assignee shall have covenant upon covenant in Law Coke. 4. part. 80. B. 9 Eliz. Dyer. 257. pl. 13.

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 et Wilborne.

Husband and wife. 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 the Terme if he grant it not over, 47 Edw. 3. 12. pl. 11.

Corpora­tion. The Cominalty of D. Covenants with the Maior and cominalty of L. that they shall be quit of Toll, &c. in D. and after one Burges in D. takes toll of one in L. covenant lyes for one corporation against another. 48 Edw. 3. 17. pl. 2.

Executor. Executor shall have covenant for covenant made to his testator for a personall thing, Nat. br. 145. D. and orig. Regist. 165. B. Note de conversione pro executoribus non invenitur in Re­gistr. sed pro assignatis tamen potest fieri pro exe­cutoribus tam bene quam pro assignatis.

A. leases to B. for life and dyes within 12 years, the executors shall have it until 12 years, &c. B. dyes A. outs the executors within 12 years, they shall have covenant, 19 Edw. 3. cove­nant, 24.

[Page 117] 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. intra. 134 B. sect. 1.

Heir. Heir shall have covenant if the deed be made to him and his heirs, Nat. br. 145. C. 16 Eliz. Dyer. 338. pl. 39. but this was to enfeofe him and his heirs.

A. enfeofes B. in fee rendering for 8 years one Rose and afterwards 20. B. dyes 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.

Joynt­tenant. A. covenants with B. and C. and their heirs et eorum utri (que) to make an estate to the heir of him which first dyes (being percener) the heir of one shall have covenant sole, 16 Eliz. Dyer. 338. pl.

When any of the covenanters shall have se­verall interests or estates and the covenant is made with them et cum quolibt eorum they shall have severall covenants, otherways not, Coke. 5. part. 22. A. Matthewsons case.

Lessee. Lessee for years by deed poll is out by the lessor, he shall have covenant, Nat. br. 145. L. 21 Edw. 4. 30. pl. 25.

But if a stranger outs him without title he shall not have covenant▪ Nat. br. 145. L. 22 Hen. 9. 52. pl. 26.

Although it be by verdict, Coke. 4, part. 80. B. Nokes case.

And although the lessor warrant to him dur­ing the terme, 26 Hen. 8, 3. pl. 11.

[Page 118] But if a stranger that hath Title, then it lyes, Nat. br. 145. 32 Hen. 6. 32. pl. 27. Nedham.

But Lessee for life shall not have Covenant upon such outing, 26 Hen. 16. covenant 10. Nat. br. 145. M. if the covenant be not exprest.

But the 13 Edw. 3. fines. 165. per Shard if a Lease be to A. without impeachment of waste and waste be brought against him, A. shall have covenant.

Tenant for life shall not have the benefit of warranty if he be not in possession, 26 Hen. 8. 3. pl. 11.

Lessee for years shall have covenant upon a demise and grant, Coke. 4. part. 80. B. Nokes case. et 5. part. 17. A.

Pasc. 7. Jac. Ban. Regis. Winchcombe et Rigge. A lease made to A. per dedi et concessi, the land is evict for years, A. shall have covenant against the lessor, for judgement was so entered, Mich. 9. Jac. But Williams et Yelverton said that it was without their privity and Williams said that it lyed not,

Recusant. Recusant shall not have an action for any thing seised in the Kings hands, 1. Jac. cap. 5.

Successor. Successor shall have covenant upon a cove­nant made and broken in the time of his pre­decessor, 4 Edw. 3. 130. pl. 71.

Fine. A covenant to levye a fine the party to whom this covenant is made shall have cove­nant, Nat. br. 146. F.

Admini­strator. Against whom Covenant lyes 1. Personall, 2. Reall.

Administrator is subject to it, 13 Edw. 3. cap. 11. Coke. 9. part. 40. A. Hensloes case.

Assignee. Assignee of a termor shall be lyable without naming how the condition of the thing ex­tends to the things in esse parcell of the demise, Coke. 5. part. 16. A. Spencers case. et fol. 24. Worcesters case.

This extends to him that comes to the de­mise by any way, Coke. 5. part. 17. B. Spencers case.

So if the covenant extende to a thing to be newly made, if it shall be made upon the de­mised land, the assignee shall be boumd by ex­presse covenant, to the lessee and his assignes, Coke. 5. part. 16. B. Spencers case. 25. Hen. 8. br. covenant 32. lessee covenants for him and his assignes to repair a house, covenant lyes against the lessee, and then against the assignee and no remedy but an audita querela per Brooke.

A. leases for years to B. and covenants to suf­fer him to enjoy this, there the assignee of A. is lyable not named, 9 Eliz. Dyer. 255. pl. 4.

When the covenant extends to a thing which had not essence at the time of the demise, the assignee is not lyable without naming, Coke. 5. part. 16. B.

When the demise is of a personall thing the assignee is not lyable by expresse name, Coke. 5. part. 16, et 17.

If the demise be of Land and a personal [Page 120] thing, the assignee is not bound by expresse name for the personality, for there can be no privily between the lessee an assignee. Coke. 5. part 16, et 17.

The statute of 32 Hen. 8. cap. 34. extends to co­venants which touch the thing demised, and not to Collaterall covenants.

Executors▪ It lyes against 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.

But all the executors ought to be named, 47 Edw. 3. 22. pl. 20.

Lease to A. Lessor covenants to pay the quit Rents, &c. divers dues likewise, this is a perso­nall thing and binds not the executor, 2, et 3. Mariae. 114. pl. 6.

Feme. Leas to the Husband and wife which cove­nants to make assurance for the Rent, this binds not the wife because it is Collaterall, 45 Edw. 3. 11. pl. 7.

But if they covenant that they will not as­signe without his consent there the wife is bound, 18 Hen. 8. Dyer. 13. pl. 66. Shels [...]y.

Heir. Heir shall be bound by covenant of his an­cestor if be named, Regist. orig. 165. B.

And although it be broken by his ancestor, 4 Edw. 3. 130. pl. 71.

But not if he be not named, 28 Hen. 8. Dyer. 14. pl. 69. 32 Hen. 6. 32. p. 27.

Infant. Infant cannot be bound by his covenant to [Page 121] be an apprentice per the common law, 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.

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.

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.

Lessee. Lessee covenants to leave the house in good case, it lyes not against him tell the end of the Terme, Nat. br. 145. K. 12 Edw. 2, covenant 2.

But if he covenant, sustentare et reparare it lyes presently, 45 Eliz. Dyer. 324. pl. 34.

So if he covenants to leave the wood in good plight, this is void for the impossibility, Coke. 5. part. 21. A. Mains case, 7. part. 15. A. Engle­fields case. Fitsherbert covenant, 29.

But if the trees are thrown down by Tem­pest it lyes not, 40 Edw. 3. 6. A. Coke. 1. part. 98. A. Shelleys case.

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. et Stud. 66. B. 29 Hen. 8. Dyer. 33. pl. 10.

Lessor. Lessor is bound by express covenants or co­venant in law,

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.

Parson. Parson leases his glebe and resignes, covenant [Page 122] lyes against him, because it is his own act and wrong, 12 Hen. 4. 3.

Parcener. Where a Parcener upon partition covenants to sue, the other assignes his estate to B. which covenants against the covenantor and good, Coke. 5. part. 17. B. 42 Edw. 3. 3.

Pledge. If one become pledge for another to per­form such a Covenant, the Action lyes against the pledge, Nat. br. 146. B.

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.

Successor. It lyes against a Successor, Lib. intr. 136. B. Sect. 2.

Deed. It lyes against him that should make a Deed, Nat. br. 146. [...].

For what things Covenant lyes. 1. Personal. 2. Real.

Guardian in Soc­cage. Guardian in Soccage grants the custody to A. which covenants to render Account to the Heir at full age, Covenant lyeth for not doing of it, Regist. orig. 165. B. Nat. br. 145. H.

Covenant lyes against him that doth not according to his Covenant in deed, Nat. br. 145. A.

But if it be not by deed it lyes not, Regist. orig. 165. B. Nat. br. 145. A & G. 7 Rich. 2. deeds 160. Nat. br. 168. F. 14 Hen. 4. 26.

Unlesse it be in London by Custome. Nat. br. 146. A. 22 Edw. 4. 2. pl. 6. Vavisor. 27 Hen. 6. 10. Covenant 11.

[Page 123] Pattent. Doctor Hector had a Pattent that none should bring over Spanish wool but him, &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 not the indenture to be void, yet Covenant lyes for this that it was due before, Mich. 9 Eliz. Ban. Regis. Doctor Hectors case.

Mill. A. gives a Mill to B, &c. that nec ego, nec hae­redes mei construemur molendinum, ni, &c. Co­venant lyes against the Heir, if he or his father erect a Mill, 4 Edw. 3. 130. pl. 71.

Termor. Termor deviseth to his wife during her widdowhood, the remainder to C. and dyes. Lessor sells the Fee to the wife, & covenants that he should discharge all former Titles, &c. she marries C. in the mean time, Covenant lies against the Bargainor, Coke 10. part. 52. Lampels case.

Lease. A. leases to B. for years, if C. lives so long, and covenants that he had power to do it, C. being dead at the time Covenant lyes, if A. had not a good estate in it, Coke. 9. part. 60. Bradshaws case.

A. leases to B. for years lands, in which C. had a Coppie-hold estate, and covenants that the Lessor suffers him quietly to hold the same, without trouble either of the Lessor or any other. B. enters, C. outs him, Covenant lyes not, because all the sequel depends upon this word, [suffer] the which extends only to the Lessor and his Executors and Assignes, 9 Eliz. Dyer 255. pl. 4.

[Page 124] A. leases to B. for years, and covenants, quod pacifice gauderet, &c. sine interruptione alicujus, Covenant lyes if any interrupt them, 16 Eliz. Dyer. 328. pl. 8.

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 lyes not for such breach, Trin. 11 Jac. com. Ban. Rott. 384. Selby versus Shute.

Lessee. Lessee by deed Poll shall have a Covenant against the Lessor, if he out him, Nat. br. 145. L. 35 Hen. 8. Dyer▪ 57. pl. 24. Shelley.

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.

Although it be by Recovery, by Verdict, Coke. 4. part. 80. B. Nokes case.

But if a stranger hath title, then it lyes, Nat. br. 145. L. 32 Hen. 6. 32. pl. 27. Nedham.

But Tenant for life shall not have covenant for such outing, Nat. br. 145. M. 26 Hen. 6. Covenant 10.

If it be not exprest, Nat. br. 145. M.

Lessee for years shall have Covenant upon a demise and grant, Coke. 4. part. 80. B. Nokes case. 5. part. A. Spencers case.

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.

Tenant for an anothers life leases for years [Page 125] with warranty, he that hath the life dyes, the first Lessor enters, Covenant lyes, 32 Hen. 6. 32. pl. 27. 9 Eliz. Dyer. 257. pl. 13.

But if it be without warranty it lyes not, 9 Eliz. Dyer. 257. pl. 13.

A. covenants to serve B. for years, and dyes, no action lyes, 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 harmlesse the Lesse, concerning the lands and profits for one year against Blunt, Blunt enters within the year, Covenant lyes because it is expressed against a certain person.

Lessee covenants that he will not assigne his Term over, by which it may come to D. the Lessee assignes it to K. per curiam, Covenant lyes, for he hath put the power out of him, Trin. 13. Jac. com. ban. Guines case.

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, this is good; but such plea in Barre is not good, Mich. 7 Jac. ban. Regis. Wyrdnam versus Faukner. 2 Mariae 117. pl. 78.

Count. Prior and covent Lease to 2 for years with warranty, per Indenture, rendering rent, one dyes after possession the other survives, and was sole possest, the prior dyes, the defendant [Page 126] fuit electus et praefectus et tali die expulsus et e­jectus, the survivour and so the defendant did not hold covenant made between the late Pri­or and the said survivour, Lib. intra. 135. D. sect. 2.

Count upon covenants to make a new lease, Com. 2. Chapmans case.

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, then covenant lyes, 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

Count by the Lessor, against the Lessee, that covenants to pay all charges, and pays not the tenths granted per parliament, Lib. intra. 136. C. sect. 4

The Count shall be generall, that he hath broken covenants, between them, to the dam­age, &c. the other shall say that they are per­formed, the plaintiff may reply that they are not, becuse he shall have damage 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.

Tenant for life, leases for years rendering Rent, the lessee covenants and is expulsed by him in remainder, 1 he ought to count that he was possest, 2 he ought to shew the estate for life and the remainder certain, 9 Eliz. Dyer. 257. pl. 13.

Writ in covenant 1 Personall, 2 Reall.

In Comi­tatu. Rex, &c. justicies A. quod. teneant B. conven­tionem inter eos factam, de quibusdam defectibus, in Mannerio ipsius B. de N. existentibus sumpti­bus ipsius A. competenter emendand. si [...]ut, &c. ne amplius, &c. Regist. orig 167. A.

In Banco. Rex, &c. praecipe A. de B. quod juste, &c. tene­at W. conventionem. inter eos factam de viginti acris terrae in K. frumento et alio blado compe­tenti seminandum et de bladis et terris praedict▪ cresentibus metend. et ad domus ipsius W. sump­tibus ejusdem A. in eadem villa cariandis, et ni­si fecerit, &c. Regist. orig. 166. A.

The writ shall be brought where the cove­nant was made, Nat. br. 146. E. 11 Rich. 2.

But it is no plea to abate the writ unlesse the deed bears date in another county, Nat. br. 146. E.

The writ for outing the Lessee shall be de dampnis et de perditis occasione, &c. 9 Eliz. Dy­er. 257. pl. 13.

The writ ought to mention all the execu­tors which did administer, 47 Edw. 3. 22. pl. 20. 48 Edw. 3. 2. pl. 4.

The Process in Covenant, 1. Before appearance. 2. After.

Cove­nant per­sonall. 1. By the Common Law the process was but a distresse infinite, 22 Hen. 6. 13. Br. exigend. 29. 48 Edw. 3. 29. pl. 15.

[Page 128] 2. The parties appear, and day given over▪ (salvis partibus, &c.) the Defendant makes default at the day, a distresse was awarded against him, Lib. Intra. 134. B. Sect. 1.

Cove­nant Re­ [...]ll. Non fit breve de Attachiamento, quia oporteat quod partes compareant personaliter in Curia, Regist. orig. 165 A.

The Barre in Covenant, 1. Personal. 2. Real.

Accord. 1. When one certain duty accrues by the Covenant at the time of doing of it, Accord with satisfaction is no plea, Coke 6. part. 44. A. Blakes case.

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.

Covenant to a Parson for the enjoying his Benefice, and he deserts the Cure is voyd, 14 Eliz. cap. 11. Rastal, Leases. 244. D. 23 Eliz. Dyer 372. pl. 11. this is after the Parson is ab­sent fourty dayes in the year and not other­wise.

Distur­bance. A. covenants to gather the rents in D. and he pleads that he was interrupted by the Plain­tiff a good Barre, Crooke 13 Hen. 7. 34. pl. 2.

Lessee covenants to surrender▪ before the terme ends, and a stranger that hath right en­ters upon the Lessee, this is a discharge be­cause the Lessee is disabled, Hill. 41. Eliz. com. Ban. Andrews versus Nedham, 45 Edw. 3. 48.

Perfor­mance. Performance generally a good plea, 6 Hen. 4. 8. pl. 34.

[Page 129] Covenant upon a Demise by Indenture and eviction by a stranger by a greater Title, it is no Barre to traverse the possssion of the Plain­tiff without particular cause shewing, because it is by Indenture, Trin. 3 Jac. ban. Regis. Stile versus Hearing.

A. covenants to make a good estate in Cop­pie-hold Land to B. before Easter, during the life of Cox, no plea to say that it was surren­dred to the Lord by his procurement, 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.

Release. Release is no Barre before the covenant is broken, Coke 4. part. 71. Hors case. 5 Eliz. Dyer. 217. pl. 2. Coke. 1. part. 99. A. Shellyes case.

If it be not by expresse words, Coke 5. part. 71 A. 35 Hen. 8. Dyer. 57. pl. 24 Bramly.

Judgement in covenant, 1. Personal. 2. Real.

Judgement against an Executor for a Cove­nant broken after the death of the Testator, is of the Testators goods, 15 Eliz. Dyer. 324. pl. 34.

If a Lessee recover being outed by the Les­sor, he shall recover his Term, Nat. br. 145. M. 47 Edw. 3. 24. pl. 61. 20 Edw. 3. Judgement 177. and also Damages, Nat. br. 145. M.

Execution in covenant, 1. Personal. 2. Real. 1. Per Common Law. 2. Per State Law.

Personall. By the Common Law it is but a Levari faci­as, Lib. intra. 133. D. Sect. 2. & fieri facas, Lib. intra. 138. A. Sect. 1.

[Page 130] But no other, Coke. 3, part. 12. A. Harberts case.

This only within the year; for if the year be past it was an Action of debt, Coke 3. 12. A.

Unlesse the Process were continued, 33 Hen. 6. 49. pl. 33.

By Westm. 2. cap. 45. a scire facias was given after the year, Coke. 3. part. 12. A.

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

By the 23 Hen. 8. cap. 14. Capias ad exigend. fuit given in Processe, and by consequence a Capias ad satisfaciendum in execution.

Reall. By the Common Law it was but a Writ de fine facto, which was but a Writ of Covenant, 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.

Fine. If land be tayled to one by fine, he shall have a Formedon in Remainder, 6 Edw. 3. 185. pl. 9. Harle.

But when the King levies a fine, he ought to make Letters pattents to the Conusee to enter, Coke. 7. part. 32.

Fine levyed of an Advowson, this may be executed by quare impedit, 24 Edw. 3. 69. pl. 78.

But if usurpation be no scire facias, 33 Edw. 3. Quare impedit 193. Knivet.

Fine levied of Services, there shall be a per quae servitia, 29 Edw. 3. 46. pl. 9.

Fine levied of Rent, there may be a Writ [Page 131] of Covenant, 22 Edw. 4. 2. pl. 6.

Tenant grants to do his services, there shall be but a Distresse, to Edw. 3. 371. pl. 3.

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.

Conusor dyes, there shall be no quid juris clamat, but if the Conusee only dye, quaere if his Heir shall have the Writ. 34 Hen. 6▪ 7. B. Moyle.

Fine levied before memory, there shall be no Execution, 1 Edw. 4. 6. pl. 13.

By Westm. 2. cap. 44. Scire facias is given af­ter the year; but within the year such execu­tion as in other judgements.

Detinue.

1. Quid 2. Quotu­plex.

Detinue is either byCommon Law.1. Upon baylment1. To the Defen­dant himself1. Of chattels Personal1. Alive.
 2. To another. 2. Dead.
2. Upon a Deve­nerunt.1. General.2. Of deeds1. Cer­tainChat­tels.
 2. In­certain in aBag.
2. Upon Trover.Box.
 Chest.
   1. Sealed.
   2. Unsealed. Reals.
Satute Law.Westm. 2. cap. 2. Against a Sheriff and the Avowant.
27 Hen. 8. cap. 7. Against Forresters in Wales.
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 Processe.
  • 8. The Garnishment.
  • 9. Enterpleader.
  • 10. Barre.
  • 11. Judgement.
  • 12. Execution.

In what Court Detinue lyes 1. of Chattells. 2. of deeds for Land.

In Comi­tatu. 1. It lyes in the County, Nat. br. 138. B.

In any other Court, Nat. br. 138. C.

In Common Bancke, Nat. br. 138. B.

It lyes not in the Marshalsey, Coke. 10. part. 76. A. 72. A. Marshalsey.

2. In the County Court, Nat. br. 138. B. Re­gist. orig. 159. B.

It lyes not in any court without a writ and if it be sued a Prohibition lyes, Nat. br. 138. C. Regist. orig. 159. B.

Avowant. Who shall have a detinue 1. of Chattles, 2. of deeds.

Avowant shall have a Detinue against a Shrieve upon a return. Habend. where he returnes quod Averia elongata sunt, per Westm. 2. cap. 2. 9 Hen. 6. 42.

But this shall not be untill it be returned quod plegii nihil habent nec sunt inventi.

Husband. Goods taken out of the possession of the wife which marries, and dyes, the Husband shall not have a Detinue unlesse his wife make him executor, 38 Hen. 6. 26. pl. 38. Executor.

Executor shall have a Detinue.

VVoman. A Woman shall have a detinue after divorce for the goods given in marriage with her, Nat. br. 139. M. 16 Hen. 8. 7. pl. 1. 28 Hen. 8. Dyer. 13. pl. 61.

[Page 134] But the 13 Hen. 3. prohibition 21. the wife may sue for them in Court Christian.

A woman shall have a Detinue for a ratio­nabile parte bonorum, where the Custom gives such part, Nat. br. 122. L.

Heir. The Heir shall have a Detinue upon Bayl­ment to rebayl to him and his Heirs, although it be but a Chattel, 15 Edw. 3. 159. pl. 24.

Custom that the Heir shall have the principal goods, he shall have a Detinue for them, 30 Edw. 3. 2. pl. 9. 29 Edw. 3. 6. pl. 24.

And so the Heir of a Coppy-holder shall have a Detinue for the Coppy before Admit­tance, Coke. 4. part. 22. B. 3.

Lessor. A. leases a house with implements to B. for years, A. shall have a Detinue for implements at the end of the Terme, although they are wasted, 20 Hen. 6. 16. pl. 2.

Proprietor The Plaintiff in a Replegiare shall not have a Detinue for Cattel taken in Withernam, 6 Hen. 7. 8. B. 2 Hen. 4. 9. Br. Debt 51.

Because he that brings a Detinue ought to have property, 6 Hen. 7. 9. Nat. br 138. 2 Hen 4. 9.

In a Repleg. the Avowant returns irreplevi­sable yet if the Plaintiff tender amends he shall have a Detinue, Coke. 8. part. 147. A.

For he which returnes irreplevisable had not property in them, 10. Eliz. Dyer. 280. pl. 14.

Quaere if the Avowant after appearance claimes property 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 over [Page 135] and be not tolled for according to the statute, 2 & 3 Mariae. cap. 7. the owner shall have De­tinue by the same statute.

In Wales if Cattle or goods be stole and sold in a Fair or Market there the property is not altered therefore the owner shall have a De­tinue, 34 Hen. 8. cap. 26.

King. The King shall have a Detinue for Cattle of an Outlawed person, 4 Hen. 7. 17. pl. 3. bre. out­lary 41.

Lord. The Lord shall have a Detinue for a heriot Custome if it be taken after seisure because he had the property before seisure, 13 Edw. 3. Br. Harriot Trin. 9. Jac. Ban. Regis Cresses case. per Curiam in a Prohibition, vide 10 Hen. 4. 4 Hen. 6.

But the 14 Edw. 3. Barr. 277. (Wilby.) a man shall not have an Action for a Harriot.

Use. If a thing be delivered to A. to deliver to B. yet B. shall have a Detinue, 18 Hen. 6. 9. A. Newton.

Husband and wife. Husband and wife joyn in Detinue for a deed of lands 38 Hen. 6. 25. Lib. intra. 209. D. sect. 3. et fol. 217. A. sect. 2.

But this is when the Defendant comes not to the Lands by Baylment, for if the Husband Bayle them he shall have it alone, ibidem. 8 Edw. 4. 15. 38 Hen. 6. 25. A.

Ʋide tamen. Lib. Intra. 217. A. sect. 2.

If Baylement be before coverture they ought to joyn, 21 Hen. 7. 29. But upon Baylement during the Coverture the Husband sole shall have a Detinue, 8 Edw. 4. 16.

Donor. The Donor shall have a Detinue for the In­denture [Page 136] after the death of the Donee without Issue, Nat. br. 138. F.

Estranger An Estranger shall not have a Detinue for deeds unlesse he make title to the Land but up­on request he shall have an Action upon the case, 33 Hen. 6. 26. pl. 12. Prisot.

Feoffee. If one have deeds and some concerne war­ranty some not and enfeoffe B. with warranty B. shall not have a Detinue for the deeds which serve to deraigne the warranty per amount, Coke. 1. part. 2. Buckehursts case. 44 Edw. 3. 11. B.

Neither is it materiall for to maintain the title, Coke. 1. part. 1. Buckehursts case. But they shall have them which concerne the possession only, ibidem.

But if a Feofment be made without warran­ty the Feofee shall have a Detinue for all, Coke. 1. part. 1. Buckhursts case.

Unlesse it be per dedi then it is expresse war­ranty during the life of the Feoffor, per statu­tum de Bigamis, cap. 6. Coke. 1. part. Buckehursts case. 1.

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.

And Note if the thing which lyes in grant as a Lordship, rent, Advouson, &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.

[Page 137] So in all other Cases, the Feoffee shall have a Detinue for every deed which concernes the making of his estate good, Nat. br. 138. K.

Note. Note if A. Bayle deeds of Land to B. to re­bayle them to him and his heirs, and after­wards enfeoffe C. in Fee yet C. shall not have a Detinue against B. for it is a charge to A. per cause of Baylement. Crooke. 18. Hen. 7. 48. pl. 3.

Feoffor. If one enfeoffe another with warranty, the Feoffor shall have the antient deeds, which con­tain the warranty, or which are materiall for the maintainance of the title, Coke. 1. part. 1. B. Buckehursts case.

If A. grant a thing that lyes in grant to B. with warranty, B. shall have a Detinue for the antient deed because this makes his title, Coke. 1. part. 1. B.

A. enfeoffes B. per dedi, A. shall have the antient deed, which Compredends the warran­ty because dedi makes an expresse warranty, Coke. 1. part. 2. B.

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. Heir. ge­nerall.

The heir generall shall have the antient deeds comprehending warranty, or necessary, for the maintenance of the title, where the Feoffor obliges him and his heirs to warranty, Coke. part. 1. B. Buckehursts case. Nat. br. 138. L.

Feoffment per dedi the heir of the feoffee shall not have the antient deeds because he is not bound to warranty, Coke. 1. part. 2. B. Buckehursts case.

[Page 138] The heir of the disseisee shall have a Detinue for the deeds, Nat. br. 138. L.

Heir spe­ciall. The Heir in Taile shall have a Detinue a­gainst the discontinuee, for the deed of Taile, Nat. br. 138. H. 9 Edw. 4. 52. pl. 15.

And although there be a warranty in the Feoffer by his father, 9 Hen. 6. 15. pl. 5. 4 Hen. 7. 10. pl. 4.

Joynt­tenant. One Joyntenant sole delivers the deed to re­deliver, he alone shall have a Detinue per cause of Baylment, 13 Rich. 2. br [...]. 648.

Joyn-re­nant sur­viv [...]r. A. enfeoffs B. and C. and the heirs of B. and delivers all the deeds to B. which dyes, C. shall have a Detinue for the deed of Feoffment, but not for the other deeds, 34 Hen. 6. 1. A. [...] 1. part. 2. A. Nat. br. 138. F.

If A. makes a Release to B. and C. and this delivers to B. which dyes C. shall not have it ibidem.

But if A. and B. joyn per defeasible title, and make a Release to them, the survivor shall have it, 34 Hen. 6. 1. per the Report Coke. 1. part. 2. A.

Feoffment to two in Fee the survivor shall have all the deeds, Coke. 1. part. 2. B. Bucke­hursts case.

If deeds concerne more Lands if the terten­ant of any part happen upon the deed he may detain it because he hath Interrest, 4 Hen. 7. 10. pl. 4. 2 Eliz. Dyer. 183. pl. 57.

Recusant. Recusant shall not have an Action for any thing seised into the hands of the King, 3. Jac. cap. 5.

[Page 139] Remain­der. 22 Hen. 6. 1. A Tenant for life dyes, he in the Remainder shall have Detinue for the Deed, 9 Hen. 6. 54. pl. 39.

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.

If Tenant for life dye, he in the Remain­der of a Coppy-hold shall have it, Coke 4. part. 22. B.

Land given to A. for the life of B. the re­mainder to C. in Fee, B. dyes, 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.

But there quaere whether it lyes against the Husband when the wife is dead without issue, without request and possession.

Ter-te­nant. Tertenant shall have a Detinue for the deeds, Coke 1. part. 2. A.

Lord. The Lord by Escheat shall have a Detinue, Coke 1. part. 2. A. 10 Edw. 4. 14. 6. Moyle.

Abbot. Against whom Detinue lyes. 1. Of Chattels. 2. Of Deeds.

Detinue lyes against an Abbot and his Com­moigue for a thing delivered to his Com­moigue to redeliver, 3 Edw. 3. 83. pl. 32.

Admini­strator. Administrator sold a thing, the Executor proves the Will, he shall have a Detinue against the Vendee of the Administrator, Com. 275. Foxes case.

Avowant. Avowant returns irreplevisable, the other [Page 140] 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.

Bayly of goods. Goods delivered to A. to keep, and they are stole, yet Detinue lyes against him, Coke 4. part. 83. B. Southcots case.

But if he take them to keep, as he would keep his own and they are stole, Detinue lyes not, Coke. 4. part. 83.

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.

Husband and wife. It lyes not against Husband and wife suppo­sing they detain, 38 Edw. 3. 1. pl. 1. 13 Rich. 2. Breve 644.

But of baylment to the Wife, dum sola fuit, and that the Husband did detain, 43 Edw. 3. 18. pl. 1. Lib. Intra. 219. D. Sect. 4.

Carrier. Carrier loseth his goods, or are stole, yet Detinue lyes against him, Coke. 4. part. 84. A. 2 Hen. 7. 11. B. Townsend.

Executor. It lyes against an Executor, but he shall not be charged but for his Detainer, 39 Edw. 3. 5. pl. 21.

Crooke 118. pl. 62. A. bayls goods to B. which dyes, in Detinue against Executors the questi­on was, whether they shall be named Execu­tors or not, and it seemed they needed not, for the Detainor is the point of Action.

For Hill. 12 Jac. ban. Regis. Isack & Clark. 13 Hen. 4. 12. pl. 2. 11 Hen. 4. 45. pl. 20. 2 Hen. 5. 6. pl. 29. 21 Hen. 6. pl. 1. one shall not answer without the other, therefore they are charged for the Detainer only.

[Page 141] It lyes against an executor upon a rationable parte bonorum, 17 Edw. 3. 9. pl. 29.

Executor shall have a Detinue for goods in the possession of the executor of his joynt-exe­cutor if the said joint-executor will pay a debt to the value, 3 Eliz. Dyer. 187. pl. 6. Estranger

It lyes against a stranger when they come to the possession of two, 4 Edw. 4. 9. pl. 11. Nat. br. 138. E. Lessee.

Lessor shall have a Detinue for implements leased with the house, at the end of the terme against the Lessee although they are wasted, 20 Hen. 6. 16. pl. 2.

Trover of goods. Against him that finds goods if they be wasted per willfull negligence, otherwaies if it be by casuall means, Doct. et Stud. 129. B.

Vendee. If a Horse be stole and sold in a market but not according to the statute the owner shall have a Detinue, per 3. Mariae. cap. 7.

Administrator sold a thing the executor proves the will, he shall have a Detinue against the vendee of the administrator, Com. 275. Fox­es case.

Shreive. It lyes against a Sherive where he returnes upon a returna habenda quod averia elongata sunt per. Westm. 2. cap. 2. 9 Hen. 6. 42. Husband.

A Wife tenant in taile dyes before Issues quaere if a detinue lyes against the Husband without request, 33 Hen. 6. 30. B.

A feme trove dum sola fuit and takes a hus­band, Detinue lyes against the hasband and wife, Lib. intra. 209. D. sect. 4. 43 Edw. 3. 18. pl. 1.

[Page 142] Feoffor. If A. enfeoffe B. with warranty, B. shall have a Detinue against A. for deeds that com­prehend warranty or are material for the Ti­tle, Coke. 1. part. 2.

If A. enfeoffe B. without warranty, B. shall have it against A. for all, Coke 1. part. 2.

And if the thing lyes in grant, then it lyes against the Feoffor, Coke 1. part. 1. Buckbursts case.

And so in any case for a deed that makes his estate good, Nat. br. 138. K.

Against a Lessee for life. A Lease made to A. for the life of B. remain­der over to C. B. dyes, C. shall have a Detinue against A. without request, because C. had in­terest in it before, 33 Hen. 6. 30. B.

For what things Detinue lyes. 1. Of chattels. 2. Of deeds.

Certain. Detinue ought to be of a thing certain, Nat. br. 138. A.

Money in a Bag, Box, or Coffer, Nat. br. 138. A.

And this although the seal be broken, 21 Edw. 4. 30. pl. 25. Littleton.

But otherwise it lyes not, Nat. br. 138. A. 22 Hen. 8. Dyer. 22. pl. 137.

Note Detinue was brought for one piece of Dornex of the value of 22 s. and try­ed at Gloucester Assizes, 5 Mariae. 15 Jac.

Ʋide tamen 21 Hen. 7. 82. pl. 3. Detinue Rationa­bile parte bonorum.brought of a piece of silver.

It lyes of Rationabile parte bonorum, 17 Edw. 3. 9. pl. 29.

[Page 143] Heir. Custome that the Heir shall have the prin­cipal goods, Detinue lyes for them, 30 Edw. 3. 2. pl. 9. 39. Edw. 3. 6. pl. 24. & fol. 9. pl. 15.

Imple­ments. Land leased with implements, at the end of the Terme Detinue lyes for them, although wasted, 20 Hen. 6. 16. pl. 2.

Goods lost Goods Bayl If goods are lost Detinue lyes, Nat. br. 138. E.

Goods bayl to deliver over, Detinue lyes, Nat. br. 138. A. 18 Hen. 6. 9. A.

A. bayls goods to B. which are stole, De­tinue lyes against B. for them, Coke 4. part. 84. Southcots case.

But if he receive them to keep, as he doth his own goods, and they are stole it lyes not, Coke 4. part. 83. Southcots case. 9 Edw. 4. 40. pl. 22. Danby.

Carrier looseth goods. Carrier loseth goods or is robbed, yet De­tinue lyes against him, Coke 4. part. 84. 2 Hen. 7. 11. B. Townsend.

Corne. A contracts for corn to be delivered at a day to come, he shall have Detinue at the day for this. No. Lib. intra. 169. B. Sect. 1.

Divorce. After divorce it lyes for goods given in mar­riage, Nat. br. 139. A. 26 Hen. 8. 7. pl. 1. 28 Hen. 8. Dyer. 13. pl. 61.

It lyes of a horse, cow, &c. or more things or horses, Nat. br. 138. A.

Replevin. It lyes for the Plaintiff in Replevin, for goods taken in Withernam, because he 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 [Page 144] and claim of the property, 11 Hen. 4. 10. pl. 21.

Tender a­mends in Replevin. The Plaintiff in a Replegiare after returne 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.

Corne. Wine. A delivered B. corn and wine, &c. and they perish, yet Detinue lyes for them, Doct. & Stud. 129. A.

Horse. But if it be a thing that shall be redelivered as a horse, &c. if it be used in other manner then was agreed, and if it perish in Default of the party to whom it was delivered, Action lyes, Doct. & Stud. 129. A.

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 lyes not, Doct. & Stud. 129. A.

Note. Note in brevi de chartis reddendis semper de­bet poni certus numerus chartarum vel scriptorum, Regist. orig. 159. B. Nat. br. 138. B.

The Count in Detinue, 1. Of Chattels. 2. Of Deeds.

Count. The Count ought to name all things certain and the value, 1 Rich. 3. 20. A. 3 Hen. 6.

Bayle­ment. The Count was, that such a year day and place, Bayl to B. catalla, &c. scilicet, one Cup of silver, &c. ad valentiam, &c. salvo custodiend. & eidem querenti cum inde requisitus fuisset re­deliberand. &c. Lib. intra. 212. B.

[Page 145] Spoons. A. counts de baylment of spoons, &c. ad va­lentiam, &c. Lib. intra. 211. D. Sect. 2.

Devene­runt Ag [...]. executors. Count was, quod cum ipse, the year, day and place, deliberasset W. in vita sua, catalia, &c. posteaque predictus 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. Per exe­cutor.

Count per Executor, Com. 275. A. Foxes case.

Trover Count upon baylment to B. which loses it, and that the Defendant found it, and yet deti­net lyes, Lib. intra. 212. B. Sect. 3.

Count of a Horse found, No. Lib. intra. 169. D. Sect. 2.

Contract. Count upon a bargain for Corne to be de­livered at a day to come, that such a day, year and place, bargained for eight quarters of Corn, ad valentiam, to be delivered, &c. No. Lib. intra. 169. B. Sect. 1.

Obligati­on. For two Obligations, Lib. intra. 220. A. Sect. 1.

Husband▪ and wife. for box with deeds The Husband and Wife counts that they were possessed of a box sealed with Deeds concerning Lands, &c. and lost them, and 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. Heir a­gainst husband and wife.

Counts that his Brother whose Heir he is, was seized of Land in Fee, and of a box [Page 146] sealed with writings, touching the Land and lost the box and it came to the hands of the woman dum sola fuit and dyes without issue and descends to him and takes a husband per quod, &c. Lib. intra. 209. D. sect. 4.

Heir. Heir against executors, Lib. intra. 210. A. sect. 5.

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.

And yet the sealing is not traviseable, 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.

He ought to count as heir if he claimes as heir, 7 Hen. 6. 31. pl. 25.

But if he count upon Baylement to rebayle to him and his heirs, he need not to set forth the title to the land, 19 Hen. 6. 41. pl. 84.

If a Feoffee with waranty make a Feoffe­ment with warranty, or desseisee dye his heir shall have a Detinue and count specially, Coke. 1. part. 2. A. Buckhursts case.

The heir counts that his father was seised in fee, and demands the deed of the estate taile and good, for his father may discontinue and take it again in fee, 38 Hen. 6. 24. pl. 11.

Feofee. Count per Feoffee, Lib. intra. 210. sect. 6.

Note. Note if the writ be of bona et catalla the count cannot be of Charters, 22 Edw. 4. 12. pl. 32.

[Page 147] 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.

The Plaintiff in a Detinue for Deeds for Land ought to make title in the Count, 33 Hen. 6. 26. pl. 12. Prisot. for otherwise he ought to make request, and then an Action upon the case lyes.

The Writ in Detinue. 1. Of Chattels. 2. Of Deeds.

1. In Comitatu dicitur injuste detinet, Regist. orig. 139. B.

Si quis rem mobilem vendicaverit, ex qua­cunque causa oblatam vel commodatam, debet in actione sua definir e pretium, & sic proponere acti­nem suam; quia ille a quo res petitur non tenetur precise ad rem restituendam, sed sub disjunctione vel ad rem vel ad pretium, Bracton, Lib. 3. fol. 102. B.

If it be against an Executor it need not name him Executor, because he is only charged with the Detainer, 29 Edw. 3. 38. pl. 12.

In comi­tatu. Rex, 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 Cyro­graphum, quod, quas vel quae, ei injuste detinet, [Page 148] ut dicit, sicut rationabiliter monstrare poterit, ne amplius, &c. Regist. Orig. 159. B. Nat. br. 138. B.

In Banco. Rex, 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, 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.

If one sue for deeds in any Court without a Writ, a prohibition lyes, vide the Writ, Re­gist. orig. 159. B. Nat. br. 139. C.

A. bayls Deeds to rebayl to him and his Heirs, there the Heir need not mention, though he is Heir in the Writ, 5 Edw. 3. 159. pl. 24.

The Process in Detinue, 1. Before ap­pearance. 2. After.

Detinue for chat­tells. By the Common Law it was but a distresse infinite, Nat. br. 139. A. 14 Hen. 6. 1.

But per 25 Edw. 3. cap. 17. a Capias was given.

But lyes not in a Detinue for Deeds, 5 Eliz. Dyer. 223. pl. 24.

Detinue for deeds. The Processe at Common Law was a Sum­mons, Attachment and distresse, Nat. br. 139. A. 14 Hen. 6. 1.

But if the deeds are in a box Capias lyes, [Page 149] 20 Edw. 4. 3. pl. 12. 7 Hen. 4. 2. pl. 8. 14 Hen. 6. 1. pl. 1. 40 Edw. 3. 25. pl. 28.

But then it ought to Count of a Deed in certain, 14 Hen. 6. 1. pl. 1.

Garnishee The Garnishee may be summoned by word, 1 Hen. 5. 13.

The Garnishor may grant a scire facias to issue out against the Garnishee, and if he make default judgement shall be given against him, Lib. intra. 217. B. Sect. 3.

The Garnishment in Detinue. 1. Of chattels. 2. Of Deeds.

Garnish­ment. Garnishment is granted for saving the Con­dition, if not performed, only this, whether the Defendant did 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 without shewing what conditions were, 3 Hen. 4. 18.

And also the reason to be because the con­ditions came not in debate between the Plain­tiff and Defendant.

Garnishment prayed of the Heir and Exe­cutor of B. good; because it did not appear whether the Deeds in the box were reall or Chattels, 14 Edw. 4. 1. pl. 3. 21 Edw. 3. 41. pl. 44. 48 Edw. 3. 30. pl. 19.

Garnishment granted against an Executor, because it was supposed that the Testator was one that delivered the deeds, 14 Hen. 6. 11. pl. 42.

[Page 150] The Defendant shall have Garnishment, al­though the Garnishee was a stranger to the Delivery, 14 Edw. 4. 2.

If the Garnishee be returned dead, then his Heir or Executor shall Garnie, and if it be a Chattel, and it is returned that he is dead intestate, the Ordinarie shall Garnie, 48 Edw. 3. 3. pl. 19.

So of the Successor, Lib. intra. 217. C.

Executor shall have Garnishment upon de­livery to his Testator, Lib. intra. 216. D. Sect. 1.

Enterpleader in Detinue. 1. Of Chattels. 2. Of Deeds.

Enter­pleader. Note that there shall be no Enterpleader unlesse the Defendant pray it, 18 Edw. 3. 22. pl. 3.

If the parties are by Attorneys, day shall be given over, because they shall not enterplead but in person, 9 Edw. 3. 334. pl. 12. 24 Edw. 3. 24. pl. 3.

And if one come at his day by Attorney, the other shall not have judgement against him, 9 Edw. 3. 334. pl. 12.

Upon several Baylments there shall be no Enterpleader, 19 Hen. 6 2. pl. 6.

But if the Defendant said that he was Joynt­tenant, absque hoc that it was several, 19 Hen. 6. 3. pl. 6.

In Detinue the Defendant pleads another Writ, hanging per another, and prayes Enter­pleader, and it was granted for the mischief [Page 151] that might be, for otherwise both might reco­ver the Deeds, and so be twice charged, 3 Hen. 6. 43. pl. 20.

But there ought to be two several Writs de­pending, 3 Hen. 6. 35. pl. 31. and these ought to be returned at one day, 9 Hen. 6. 36. pl. 9.

If the Defendant and the Garnishee do not agree in plea there shall be no Enterpleader, 14 Hen. 6. 11.

There shall be no Enterpleader unlesse the Defendant alleadge that both demanded one thing, 8 Edw. 4. 6.

If the Defendant after Garnishment make default, yet there shall be an Enterpleader, 2 Rich. 2. Enterpleader 13.

If it be returned at several dayes then a day shall be given over, at which day they shall Enterplead, 33 Hen. 6. 25. pl. 8.

But if two bear the same date, then he that first comes and demands answer shall be an­swered, 19 Hen. 6. 4. Lib. intra. 213. A & B. Sect. 1.

Otherwise he that the Court assignes, 19 Hen. 6. 4.

Barre in Detinue. 1. Of Chattels. 2. Of Deeds.

Accord. Accord is a good Plea in Detinue of any goods personal, Coke. 9. part. 78. B. Petoes case.

Attach­ment. Barre that the goods were attached and de­livered to him, only the custom of the Citie, Lib. intra. 112. C. Sect. 5.

[Page 152] Command A. lent sheep to a woman sole, which took a Husband, which commanded the owner to take them again, who refused; this is a good barre as to the baylment in Detinue, 43 Edw. 3. 21. 10.

To deliver over A good barre that they were lent to deliver over, of the which he had a deed, Nat. br. 138. M.

A good plea by the Executor upon baylment to the Testator, that he had delivered them to him that had the right, 9 Hen. 6. 58. A.

Given. Detinue is no plea, that the Plaintiff gave him the goods, because he may wage his Law, 22 Edw. 4. 29. pl. 10.

Distres. Detinue upon Trover, the Defendant pleads that he did distrain for Rent reserved upon a Lease, a good barre, 27 Hen. 8. 22. pl. 15.

Estray. In Detinue of a Horse, a good plea that he did estray, and that he proclaimed him, and offered the horse to the owner, if he would pay for his meat, No. Lib. intra. 169. D. Sect. 2.

Malady. A good barre to say the Horse was sick in Detinue at the time, 21 Edw. 4. Detinue. br. 42.

Non deti­net. Non detinet a good barre, Lib. intra. 211. D. Sect. 1. & 2. fol. 112. C. Sect. 4. & 5.

And this may be by the Country, Lib. intr. 211. D. Sect. 1. and 112. Sect. 4. C.

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.

Although the baylment be by deed, for [Page 153] the detinet is the substance, 27 Hen. 8. 22. pl. 14.

An Executor may wage his Law, 11 Hen. 6. 40. pl. 25. 3 Hen. 6. 38. Martin.

Non detinet by the Law, although the bayl­ment be by others hands, 8 Hen. 6. 10. pl. 26. 33 Hen. 6. 8. B. Moyle.

Payment to the va­lew. Executor pay a debt to the value of the goods and dyes, this is a good barre in De­tinue brought by the surviving Executor, 3 Eliz. Dyer. 187. pl. 6.

Pledge. The Defendant said, that the Plaintiff pledg­ed them for money which is not paid; this is a good barre, 34 Hen. 6. 42. pl. 13.

Perish. Corne lent, &c. and it perisheth, this is no barre, Doct. & stud. 129. A.

A horse used in other manner then was a­greed, no barre if he perish.

But if he be used in the same manner, if he perish not in Default of the Owner, to whom he was lent a good barre, Doct. & Stud. 129 A.

Robbery. No plea for a Carryer or Ferry man that he was robbed, Coke. 4. part. 84. Southcots case. 2 Hen. 7. 11. B. Townsend.

So if goods are delivered to keep, Coke. 4. part. 83. B.

But it is a good plea if they are taken to keep as my own, Coke 4. part. 83.

Recovery. Recovery in Travers a good barre in De­tinue, 20 Hen. 7. 58. B. Crooke.

Travers. The baylment is not traversable where he may wage his Law, 8 Edw. 4. 3. pl. 7.

[Page 154] Vendee. No barre that the Horse was sold in a mar­ket overt, unlesse it were tolled for, according to the Statute 1 & 2 Phil. & Mariae. cap. 7.

Bastardy. Detinue for Deeds as Heir, Bastardy is a good plea, 35 Hen. 6. 9. pl. 12.

F [...]osment. A. bayled to B. to rebayl and dyes, having two sons which makes petition, he which had the Land comprehended in the deed infeosses B. this is a good barre, 17 Edw. 3. 12. pl. 45.

Warranty▪ Warranty and assets is no barre against the issue in Tayl in Detinue, 9 Hen. 6. 15. pl. 5. 4 Hen. 7. 10. pl. 4.

Rebayl­ment. Rebaylment in another Countie a good barre, because he cannot wage his Law, 22 Hen. 6. 15. pl. 27.

Release. Release per the Plaintiff a good Barre, Lib. intra. 290. B. Sect. 1.

Retainer. Defendant pleads baylment by the Plaintiff upon condition that if his wife survive the Plaintiff that the Defendant should retain it, and that his Wife is alive, a good barre: but then he ought to shew what lands they con­cern, 18 Edw. 4. 18.

Infancie. Infancy is no plea, because he may avoid an obligation in debt, 14 Hen. 6. 11 pl. 41.

Recovery. A good barre that the Garnishee brought a Detinue against the Defendant, and prayes Garnishment against the Plaintiff, which makes default, and he had judgement, 34 Hen. 6. 47. pl. 13. 21 Hen. 6. 35. pl. 2. per Newton.

Release. Garnishee pleads release between this action brought and the delivery, & quaere, 20 Hen. 6. 28. pl. 23. 49 Edw. 3. 13.

[Page 155] But the 39 Edw. 3. 13. adjudged that it is a good barre.

The judgement 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. & dampna sua, &c. and upon the return of the Writ, if it appears that W. did not deliver the corn, then the judge­ment shall be for the value with damages and costs.

Plaintif. The Plaintiff shall have judgement to reco­ver the thing named, 17 Edw. 3. 45. 1 Rich. 3. 1. & 2.

The judgement was that he should recover his Chattels, and his damages, 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.

Against the De­fendant. The judgement was that he should recover the deeds if they are found, and also damages; and if not found then all in damages, 7 Hen. 6. 31. pl. 25. 22 Hen. 6. 41. pl. 17.

And this shall be although it be proved that the Defendant burnt the Deed, 17 Edw. 3. 45. pl. 1.

Ideo consideratum est quod praedictus A. recupe­ret versus praefat. B. pyxidem praedictam cum chartis, &c. Lib. intra. 218. A Sect. 1.

The Heir in Detinue had judgement to re­cover [Page 156] one box with as much as in it contained that belongs to him, 5 Edw. 3. 159. B.

Against the defen­dant and the gar­nishee. The Judgement was that he should recover the deeds against the Defendant et 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.

But if Judgement be given upon default of the Garnishee before appearance no damages shall be given, 20 Hen. 6. 4. pl. 27.

If the Plaintiff and Defendant make default the Garnishee shall have Judgement and the Plaintiff and Defendant in misericordia, 40 Edw. 3. 39. pl. 15.

Execution in Detinue 1. of defendant 2. against the Garnishee 3. of what Lands 4. of what Goods.

Chattells. Execution against the Defendant by distresse for the thing, Nat. Lit. intra. 169. C. sect. 1. 20 Edw. 4. 3. pl. 12. No. Lib. intra. 170. D. 17. A. 6 Rich. 2. execution.

But if the thing be not delivered to the Plaintiff then he shall have execution for the damages by capias, Lib. intra. 216. B. sect. 6. 20 Edw. 4. 3. pl. 12.

For capias was given in proces per 25 Edw. 3. cap. 17. and by consequence a capias ad satisfa­ciend. in execution.

At the common law execution was for dam­ages by fieri facias and also for the goods, Lib. intra. 216. B. sect. 8.

[Page 157] For damages by fieri facias and for the thing by distres, 6 Rich. 2. execution, 45.

Deeds. The Plaintiff and Defendant make Default Garnishee had Judgement and distresse against the defendant, 40 Edw. 3. 39. pl. 15.

Destrese Issued forth in execution, Lib. in­tra. 215. C. sect. 1. 20 Edw. 4. 3. pl. 12. 22 Hen. 6. 41. pl. 17.

But capias lyes not, 5 Eliz. Dyer. 223. pl. 24. 21 Hen. 6. 42.

If the deeds concerne Lands, 8 Hen. 6. 29. pl. 24. 14 Hen. 6. 1. pl. 1.

But for the damages if they will not deliver capias lyes, 22 Hen. 6. 41. pl. 17. 20 Edw. 4. 3. pl. 12.

If deeds are in a box then a capias ad satis­faciendum lyes in execution, 7 Hen. 4. 2. pl. 8. 14 Hen. 6. 1. pl. 1. 40 Edw. 3. 25. pl. 28.

But for Damages at the Common Law it was but a Fieri facias, Lib. intra. 216. B. sect. 7.

Or a Levari facias, Coke. 3. part. 12. A.

And this only within the year for after the year the party had but an action of Debt, Coke. 3. part. 12. A.

Unlesse the partes be continued, 33 Hen. 6. 49. pl. 33.

But by Westm. 2. cap. 450. a scire facias is gi­ven after the year, and by Westm. 2. cap 18. an Elegit is given,

And by the twenty fifth of Edw. 3. cap. 17. Capias is given in Processe for Deeds in a Box and by Consequence a Capias [Page 158] ad satisfaciend. in execution, Lib. intra. 216. A. Sect. 3. 40 Edw. 3. 25. pl. 28.

Deeds. If damages shall be recovered against a Gar­nishee, 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.

But the book of Entries 216. B. Sect. 6. Ca­pias ad satisfaciendum was awarded against a Garnishee, for damages recovered against him.

 Quid.  1. Superiour1. Parliament. 
 Quotuplex.  2. Ban. Regis. 
   3. Chancery. 
   4. Com. Ban. 
   5. Eschequer▪ 
  1. Of Record. 
  1. Prescription. 1. Pypowders in a Village.
  2. Inferiour2. Pattent. 
  Common Law1. General in Court  3. Parliament.1. Pypowders.
   4. Common Right2. Tourn of the Shrieve
  3. Leet.
 2. Not of Record.1. County Court.1. Antient Demeasne.
 Upon Judg­ment  2. Court Baron—2. Hundred. 
    3. In any Mannor. 
 2. Special1. In Court 1. Of Record. 
   Merchant. 
  1. StatuteStaple. 
  2. Recognizance, according to 23 Hen. 8.
   2. Out of Court.3. Account, Common Law. 
Debt is by4. Arbitriment.  
  5. Ordinance, or by-Law. 2. Not of Record.
  Upon a Deed1. Indented.1. Inrolled.  
  2. Not inrolled.  
   1. Simple. 
  1. Obligation2. Conditional. 
   1. Years. 
 Upon mat­ter in the County. Finite, as for2. For life. 
3. Anothers life. 
 4. Estate Tayl. 
2. Poll. 1. Absolute. 
   Infinite2. Conditional. 
   3. Limited1. general. 
     2. special. 
    1. Casual, Hac vice. 
   2. Grant.2. Certain, to have continuance for a time. 
With­out Deed.1. Lent.Bayl over.  
 2. Baylment toPledge.  
 3. Contract realRebayl.  
    Rent upon a Lease for life during the Lease.
    2 personal1. ChattelsLease at Will.
     Lease for years.
      1. Effluxion▪
     After the Lease ended.2. Limitiation.
     2. A real thing3. Condtion.
      Incident.
        Collateral.
       2. Perso­nal.1. Rent reserved.
        2. Agistment.
   4. Upon TaylRelief.Sallary for 3. Partition.
  5. Matter in Law.Ayde.1. Counseller. 4. Tabling and Physick.
     Toll.2. Attorney.
     Fees.3. Servant for one day, as Labourer. 5. Vendition.
     Robbing6. Marriage mony
     Escuage.4. Retayner as for one or more years.7. Surgery.
     Rationa­bili parte bonorum.8. Taylor for generalContract.
        A garment special

[Page]

Statute LawWestm. 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 Shrieve for not returning a Knight of the Parliament.
2. Edw. 6. cap. 13. For a Parson against him that will not set forth his Tythes.
By the party grieved.
7 Edw. 6. cap. 6. Against a Receiver that takes more then he ought, forfeits 6. s. 8. d for every penny, to the party grieved.
1. Edw. 6. cap. 14. Debt against a Seller of Lands given to the King by the said Statute.
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 Sute 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 Jac. cap. 15. Creditor of a Bankrupt shall have an Action of Debt to him assigned.
5 Eliz. cap. 13. The Owners of the soyl against the Surveyors of High-wayes, which dig in a mans Ground and not fill it up again within one Month, the forfeiture is 3 l. 6 s. 8 d.
To a person certain.
The Lord of the Leet for erecting a Cottage, or Inmate, shall have an Action of Debt, per 31 Eliz. cap. 7.
14 Hen. 8. Physitians in London for practising without Licence.
17 Edw. 4. cap. 2. A Steward of pypowders forfeits 5 l. if they hold plea, unless the
Action popu­lar.
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 lyes.

IN the County Court, Nat. br. 119. G. Regist. orig. 139. A.

In a Village, Citie, and Burrough Liberty, Nat. br. 119. K.

In Pypowders.

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.

It lyes in the Marshalsey, if both are of the houshold, 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.

In Chancery for a person priviledged, debt lyes.

In the Exchequer by quo minus, Coke. 8. part. 68. A. Trollops case.

So if one usurp upon a Franchize of the King, where he had Fee Farme, the Farmer shall sue by Quo minus, 32 Hen. 6. 24 pl. 7.

An Executor shall have a Quo minus, when he is a Debtor to the King by his own Act, 8 Hen. 4. 10. pl. 19.

In Com. Ban. Nat. br. 119. G.

Note. Debt lyes not for a popular action, or pe­nal Law, but in one of the four Courts of Re­cord at Westm. per Statut. 18. Eliz. cap. 5. Coke 6. part. Gregories case.

Who shall have Debt.

Accoun­tant. If a Bayly account and surplusage be found he shall have Debt for it, Nat. br. 121. I. the count, Lil. intra. 150. D. sect. 1.

But a Receiver shall not, Nat. br. 121. I. 38 Hen. 6. 5. pl. 14. Mich. 12. Jac. Ban. Regis. Countesse of Suffolke et Floyde.

Admini­strator. Administrator shall not have Debt untill, 31 Edw. 3. cap. 11. Nat. br. 120. D. Coke. 9. part. 39. A. Hensloes case.

1. An Administrator ought to count that he which Commited the Administration was the Ordinary of the place where the intestate dyed, 31 Hen. 6. 23. pl. 5. Com. 277. A. Per Dyer.

2. He ought to name the place where the administration was to him commited, 35 Hen. 6. 31. pl. 39. Danby et Moyle.

3. He needs not name the Ordinary by his name, 7 Hen. 4. 10. pl. 18.

But in a writ de Colligend. he shall be named.

An administrator shall have Debt upon, 1 Edw. 2. cap. 14. for money given to Chantery land.

The Ordinary Release a debt and after­wards grants administration to A. yet A. shall have Debt for the Release is void, 18 Hen. 6. 23. Coke. 9. part. 39. A. vide Crooke. 127. pl. 90.

Attorney. Attorney shall have Debt for his Fees and Fees of Counsell and costs of suite, Nat. br. 121. L. 21 Hen. 6. 4.

[Page 163] Baylor. If I. deliver money to Bayle over or to a Marchant or to be given in Almes or upon a Condition to rebayle, if he break the trust, I. 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 Frowicke.

Husband. A. is bound to the Husband and wife the husband alone shall have the action, 3 Hen. 6. 37. pl. 35. 12 Rich. 2. bre. 637.

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.

Husband and wife. Husband and wife Assigne Auditors to re­ceive it dum sola fuit and brought debt for the Arrerages in both their names, and good be­cause the wife was the cause of the Action, 16 Edw. 4. 8. pl. 4.

Husband and wife Lease for years render­ing Rent, the husband dyes, and the second husband brought Debt, and good, 28 Edw. 3. 90. pl. 4.

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.

A Woman shall not have an action against her husband although she is executrix, 8 Edw. 3. 330. pl. 48.

A. is bound to the husband and wife and they are divorced causa prae-contractus and they brought debt in their nam es, No. Lib. intra. 121. sect. 5.

B. had a Rectory in right of his wife for [Page 164] years and they both joyned in debt upon the 2. of Edw. 6. for not setting forth of Tythes, Hil. 39. Eliz. Ban. Regis Rott. 699.

Leasse for year rendering Rent by the Hus­band and wife, husband may have Debt in his own ame, 7 Edw. 4. 5. pl. 16.

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. Wyatts case.

Husband and wife sold the Land of the wife, the Husband alone shall have Debt, 48 Edw. 3. 18. pl. 4.

Husband and wife recover damages, the Hus­band alone shall have debt for them, 16 Hen. 6. Bre. 939.

A woman tenant in dower of Rent takes a husband and dyes, the husband shall have debt for the Arrerages during the coverture, Nat. br. 121. C. 14 Hen. 6. 26. A. 10 Hen. 6. 11. 22 Hen. 6. 25. 26. Edw. 3. 64.

And by 32 Hen. 8. Ca. 37. the husband shall have debt for the Arrerages before the Co­verture, Coke. 5. part. 51. A. Ognels case.

Annuity to the wife that takes a husband, arrerages incurre, the wife dyes, the husband shall have debt, because it is more then the thing in action, Hil. 29 Eliz. Com. Ban. St. Le­gers.

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.

[Page 165] But during the coverture the husband may Relase it, 17 Edw. 3. 66. pl. 78. Hill.

Husband makes his wife executrix which takes a husband and makes him executor and dyes, the husband brought debt for the debt to the former husband and good 4 Hen. 6. 31. Clarke of the Peace

It lyes in the name of the Clark of the peace for the Hundred against the Village where de­fault is made in Hugh and Cry, 27. of Eliz. cap. 13. Colledge in Oxon.

Colledg shall have debt for commons of any Student. Pasch. 9. Jac. Ban. Regis. Colledge of St. Johns in Oxford, versus Brickeden. Colledge of Physiti­ons.

Colledge of Physitians for practising without licence shal have it, but the Master sole shal not, Hill. 11. Jan. Ban. Regis. Colledge versus Dr. Ten­ant, Lib. reports title Plaints. Stat. Marchant Staple. Counsee. Accord­ing to 23 Hen. 8. Recogn.

Debt lyes by a Conusee of a Statute or Re­cognizance, Nat. 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.

Debt upon a retayner to be his counsellor for 40 s. per annum, but then he ought to count that he was of his counsell or was ready to be, 37 Hen. 6. 8. B. Prisott. Counsel­lor.

But if I retayn a Sergeant at law, for A. he shall not have debt for his salary against mee, 31 Hen. 6. 9. B. Fortescue.

Executor. Executor shall have debt for a thing due to the testator, 11 Hen. 6. 7.

Executor of an executor shall have debt, 25 Edw. 3. Ca. 5.

Executor shall not have debt before probat [Page 166] of the testament, 7 Hen. 4. 18. Coke 5. part. 28. A. Midletons case, com. 278. Foxes case. Perkin. 193.

But if (pendente breve) the testament be prov­ed it sufficeth, Pasche. 43 Eliz. Com. Ban. Wal­mesly.

Feme Rent services, granted to the husband and wife for life, the husband dyes, the wife shall have the Arrerages that did accrew in the life of the husband, and debt for them after the estate ended, 29. Edw. 3. 40. pl. 19.

Grantee of a Re­version. Annuity. Grantee of a Reversion shall not have debt for Rent upon a lease for years before At­tornement, Nat. br 121. N.

But a Devisee shall have it, Nat. br. 121. N. Mich. 14. Jac. Ban. Regis. Baylyffes and Bur­gesses case of Ipswiche.

So Bargainee shall have it Coke. 3. part. 24. A. Walkers case.

A. is bound to B. and his heirs, B. dyes, his Heire.heirs shall not have debt, Nat. br. 120. I.

But if a penalty be granted to one and his heires then the heir shall have debt, Nat. br. 120. M. 11 Hen. 4. 84. 28 Hen. 8. Dyer. 24. pl. 149.

The heire shall have debt for the reasonable part of the goods where the custome gives it him, Nat. br. 122. L.

But if there be no such custome it lyes 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 statute of Magna Charta is but one forspris and for that an action shall not be [Page 167] founded upon it, vide Lib. intra. 541.

But Nat. br. 122. L: Glanvill Lib. 12. cap. 20. 17. Edw. 3. 9. pl. 29. this is by the Common Law

Custome that the heir shall have the princi­pall Chattells, &c. he shall have debt for them, 30 Edw. 3. 2. pl. 9. 39 Edw. 3. 6. pl. 24. & fol. 9. pl. 15.

Lessor shall have debt for Rent reserved up­on a Lease at will Coke. 5. part. 10. Hensteads Lessor.case. Littleton. 15.

And so for a Lease for years, 7 Rich. 2.

Tenants in Common make a Leasse ren­dring rent, they ought to Joyn, Littleton. 72.

Ordinary. The ordinary shall not have Debt because he hath not absolute interest in the thingso [...] the intestate, Coke. 9. part. 33. Hensloes case, Nat. br. 120. D.

Parson. Parson shall have Debt for not setting out of Tythes, 2 Edw. 6. Cap. 13.

Physitian. Physitian shall have Debt for physick and Dyet. Lib. intra. 187. B. sect. 1.

Recusant. Recusancy shall be pleaded in disability for such Lands and tenements which are not seized into the Kings hands, 3. Jac. cap. 5.

Robbery. The party robbed shall have an action a­gainst the Hundred per 27 Eliz. cap. 13.

But he ought to bring his action within the year after the Robbery, 27 Eliz. cap. 13.

And the day of the Robbery shall be ac­counted parcell tell of the time, Pasch. 15. Jac. com. Ban. per 2 Justices.

Steward retayned by word for such a summe [Page 168] Steward. per annum, shall have debt, 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.

One retayned in England to do service be­yond the sea shall have debt in England where the retainder was, Nat. br. 120. E.

Servant retayned by a Corporation with­out deed shall not have debt for his salary, 4 Hen. 7. 6. Com. 91. B.

Successor. 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.

Unlesse the Custome will warrant it, Coke. 4. part. 65. A. Fulwoods case.

But a Corporation aggregate shall have an Action, Coke. 4. part. 65. A. 20 Edw. 4. 2.

Master of an Hospitall recovers damages, the successor shall have them, 19 Hen. 6. 44. pl. 94.

Abbot recover damagess 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.

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.

An obligation made to Church-wardens their successors shall not have an action being there executors.

Surgeon. If A. contract for B. with the Surgeon for so much as should cure him, if B. dye the sur­geon shall have debt against him, for it is a [Page 169] good contract, 37. Hen. 6. 9. A. Moyle. Vendor.

If I. sell a horse and earnest is given or day set I. shall have Debt for the money, 14 Hen. 8. 19. br. contract. 15. Coke. 3. part. 22. A. Wal­kers case.

If I. sell a Mannor Debt lyeth for the mo­ney, and yet the vendee cannot enter before Shrive.livery, 37 Hen. 6. 8. pl. 18. Prisott.

The shrieve shall have debt for his fees, Trin. 14. Jac. Ban. Regis. Shrieve of London against Use. Michel. per 28 Eliz. cap. 14.

Outlawed person. If A. gives money to B. to carry to C. yet C. shall have debt, count, Lib. intra. 159. sect. 1.

Outlawed person shall not have debt, 16. Edw. 44. 7 Hen. 4. 1. pl. 6.

Against whom Debt lyes.

Abbot. Abbot shall be charged for debt due by him which enters in Religion, Nat. br. 121. O. 5. Hen. 5. 8. pl. 18.

Accomp­tant. But the 45 Edw. 3. 10. pl. 1 to the contrary.

If Accomptant be found in Arrerages Debt lyes against him. Admini­strator.

Debt at the common law against the Com­mittees of the Ordinary, 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. Coke. 9. part. 39. Hensloes case.

Plene administravit special, No. Lib. intra. 269.

[Page 170] Recovery against one administrator upon a nihil dicit no plea in debt against all, Hill. 38 Eliz. Com. Ban. Furthow versus Furthow.

If an Administrator wast the goods, and af­ter the Administration is disolved, and grant­ed to another, Debt lyes against the former, Coke. 6. part. 18. et 19. Packmans case.

A. being executor of his own wrong takes Administration quaere how he shall be sued, Crooke. 127. pl. 91.

Assigne. Termor assignes his term to another the les­sor shall have Debt against the assignee; Coke. 3. part. 25. B. Walkers case.

Joynten­ant. If two Joynt-tenants of a Term, the one as­signes to B. the other dyes, debt lyes for the rent against the assignee, & the executor of the dead for rent after his death, for it shall be mischievous to compell the Lessor to bring se­veral actions, Mich. 14. Jac. Ban. Regis. Bay­liffes and Burgesses de Ipswichs, case.

Attorney. If an Attorney suffer another to follow any matter in his name he forfeits 20 l. and the party greived shall have Debt., per. 3. Jac. cap. 7.

Debt lyes against a person attained, Mich. 38. Attainder et. 39 Eliz. Com. Ban. Banister et Trussells case. No. Lib. intra. 148. A.

Baylee. If I. deliver money to deliver over for Mer­chandize, or to give in Alms or upon Conditi­on to be performed to redeliver, if the party breaks the trust, debt lyes, 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.

[Page 171] Husband. If the husband give authority to his wife he shall be charged by contract made by her, o­therwise not, Nat. br. 120. G.

Unlesse it be for a parrell convenient for his wife, 11 Hen. 6. 30. B.

For unlesse it be convenient he shall not, 7 Eliz. Dyer. 234. pl. 17.

The husband alone shall be charged for ar­rerages of rent-service in his time, Nat. br. 121. C. Crooke. 125. pl. 83.

And so of a rent-charge. Coke. 4. part. 49. B. 26 Edw. 3. 64.

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.

Unlesse recovery be between them during the life of the wife, Nat. br. 121. C.

A woman covert being sole Merchant may be sued in London by the custome without the husband but not in com. Ban. 9. Edw. 4. 3.

And his wife covert by the name of his wife fole are obliged, it lyes not against the wife be­cause it is void, 14 Hen. 4. 30. pl. 39.

Husband and wife are bound, the husband alone shall besued; 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.

Husband and wife. Debt lyes against the husband and wife for rent upon a lease to the Husband and wife, 45 Edw. 3. 11. pl. 7.

So if it be that they double the rent, 45 Edw. 11. pl. 7.

[Page 172] But not if it be with nomine poenae, 45 Edw. 11. pl. 7.

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.

Conusor. Debt lyes against a counsor 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 Eliz. Dyer. 369. pl. 52. 39 Hen. 6. 3. pl. 5.

Debt lyes against a Customer after Liberate Customer.delivered to him if he hath assets, Nat. br. 121. F.

So after a Tallee delivered, 27 Hen. 6. 9. pl. 1.

So against a Collector of Tyths and fifteens, 37 Hen. 6. 15. pl. 5.

Enfant. Debt lyes against an Enfant for Tabling & apparel, 18 Edw. 4. 3. A.

For Rent upon a Lease for years, 21 Hen. 6. 31. B.

For an Escape if he be a Goaler, Doct. & stud. 147. B.

For a thing as executor, Coke. 5. part. 27. B. Russells case.

Executor. Debt lyes against an executor although he be not bound, 45 Edw. 3. 17. pl. 4.

Debt by the daughter against the executor of her father which had levyed ayd to marry her, per Westm. 1. cap. 35. Nat. br. 83. A. et 122. G.

Debt lyes against executors of the Ordina­y which will not deliver the administration to another, Nat. br. 120. D. com. 280. A.

[Page 173] Debt lyes against an executor of an heir, Lib. intra. 172. C. sect. 4. 18 Eliz. Dyer. 344. pl. 1.

Against an executor of a shrieve for not re­torning a Knight of the Parliament, 23 Hen. 6. cap. 15.

Debt against an executor of his own wrong. Coke. 5. part. 30. Coulters case. et. 33. et. 34. Reads case.

And the count was generall although he took letters of administration.

Executor shall not be charged upon surplu­sage of account, 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.

But if an executor assigne Auditors they shall be charged in debt for the surplusage, 10 Hen. 6. 24. pl. 84.

If an executor account debt lyes for the Ar­rerages, 2 Hen. 4. 13. pl. 2. 19 Hen. 6. 5. A. For­tescue.

Executor shall not be charged for arrerages upon an accout before the same party, Lib. in­tra. 149. B. sect. 3.

But for Arrerages before Auditors he shall, because Auditors are Judges of record, per Westm. 2. Lib. intra. 149. B. sect. 5. the count there.

Debt against an executor for Arrerages of an Annuity after it is determined, Lib. intra. 151. C. sect. 1. 45 Edw. 3. execution 71.

Debt against an executor, Outlary in the testator no barr, 14 Hen. 6. 14. 21 Hen. 6. 3. quaere 3 Hen. 6. 17.

[Page 174] But an Outlary at the time of the death a good barr or where he was a Villein to the King 8 Edw. 4. 6. pl. 7. Doct. et Stud. 11. 12. 36 Hen. 6. 27. pl. 38.

Debt lyes not against an executor upon an escape unlesse Judgement be given against the Testator, 10. Eliz. Dyer. 271. pl. 26. 15 Eliz. Dyer. 322. pl. 15. 41. Assiz. 15. Coke. 9. part. 87. A.

It lyes not against an executor upon a tay­lee ensealed by the Testator, 12 Hen. 4. 23. 25 Edw. 3. 40. pl. 9.

It lyes not upon a simple contract but if he plead in barr and it be found against him it shall, com. 182. A. 10 Hen. 6. 24.

So in London, by Custome, 1 Edw. 4. 6.

Lessee for years grants his Terme, his execu­tor shall not be charged for Rent due after his death, Coke. 3. part. 24. A. Walkers case.

Debt for one retained according to the sta­tute it lyes against the executor without spe­cialty, 2 Hen. 4. 14. 4 Hen. 6. 19.

Goaler. Goaler refusing one committed by the Col­ledge of Physitions forfeits double the Fine, per Marleb. 1. cap. 9.

Heire. If a man Levy Ayd for the marring of his daughter and dyes, if his executors have not sufficient, Debt lyes against the heire. Nat. br. 83. A. per Westm. 1. cap. 35. Nat. br. 122. G.

Debt lyes against an heire upon the obligati­on of his father if he hath assets and be bound, Nat. br. 120. C. et I.

But if he alien the Assetts before the Action [Page 175] 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. 12. 48 Edw. 3. 32. pl. 22.

Unlesse it be fraudulent to deceive creditors Coke. 5. part. 60. Gooches case.

And if they be heires in Gavill kind they shall all be charged, 7 Eliz. 239. pl. 39. Dyer. the count Lib. intra. 208. D. 11 Edw. 3. debt 7.

But if all alien but the eldest he shall be charged sole.

The count against an heire, Lib. intra. 172. B. sect. 1. No. Lib. 126. B.

The count needs not shew that he hath as­sets, for it shall be intended unlesse the con­trary be shewed, 18 Eliz. Dyer. 344. pl. 2. 11 Hen. 6. 2. pl. 6.

But 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 lyes not against an heire upon a statute Marchant, Staple or Recognizance be­cause he is not bound, Coke. 3. part. 15. A. Har­berts case.

Goaler suffers an escape, his heir shall not be charged, 15 Eliz. Dyer. 322. pl 25.

Grandfather, father and sonne or father and his two sonnes or Grandfathers two sonnes who have two sonnes the heire mediate shall be sued in debt as well as if they were imme­diate heirs 22 Eliz Dyer. 368. pl. 14. 7 Eliz. Dyer. 239. pl. 39.

Right shall not be assetts.

[Page 176] What shal be assets to the Heire. Disseisee obliges him and his heirs and dyes, this is not Assets; for it is but a Right discen­ed, Pasch. 6. Jac. com. Ban. Molineux versus Molineux.

Right without an estate in possession Rever­sion or remainder is not Assets untill it be re­duced into possession, Coke 6. part. 58. Bredi­mans cases

Land in antient demeasue shall be assets, 7 Hen. 4. 14. pl. 11.

Coppyhold Land is not assets to the heire Coke. 4. part. 22. A.

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.

If Land descend to the heire although he enter not yet▪ it is assets, 42. Edw. 3. 10. pl. 12.

The Grandfather makes a feoffement in Fee to the use of the heire of his body and dyes per 26 Hen. 8. the father enters and obli­ges him and his heirs and dyse, quaere 182. Ma­rie. Dyer. 111. pl. 46.

Reversion expectant upon an estate Tayle is not assets because it lyes in the will of te­nant in tayle to Dock and barr it at his plea­sure, Coke. 6. part. 58. B. Bredimans case. et 42. A. Mildmays case.

Franktenement descendible express is not as­sets Coke. 10. part. 98. A. Seymors case.

Rent-seck. descendable is not assets untill seisin, Coke. 6. part. B. Bredimans case.

[Page 177] If the heire had not Assets in debt and af­terwards assets come to his hands the first judgement is no barr of the action, 19 Hen. 6. 37. A. Markham.

The profits of the heire at the time of the descent are sufficient and this shewed to the Court and the heire cannot deny it there shall be a general judgment against him, per Dyer. 18. Eliz. Dyer. 344. pl. 1.

The heir confesses the action, and sayes that he had nothing but a Reversion descended to him, there the Plaintiff shall have judgement to recover the said reversion, to be levyed when he comes in possession and shall have a speciall writ of extent, 23 Eliz. Dyer. 373. pl. 14.

If the father recover and error be brought a­gainst the sonne and a recovery against him he shall not render damages unlesse he hath as­setts of other Land in Fee-simple.

Hundred. If one be robbed he shall have debt against the Hundred, per 27 Eliz. cap. 13.

Lessee. Debt lyes against a leessee at will for rent during the Term, Coke. 5. part 10.

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.

By limitation,

By conditi­on in law, In deed,Common Law, Nat. br. 120. H.
Statute Law' 19 Hen. 6. 42. A. wast, Nat. br. 120. H. reentry Coke. 3. part. 23. B. Walkers case. 30 Edw. 3. 7. 17 Edw. 3. 48. et fol. 73. pl. 107.

[Page 178] Life. It lyes not against tenant for life so long as his estate continues, Coke. 4. part. 49. A. 11 Hen. 6. 14. pl. 4.

But yet by the Statute, 32 Hen. 8. cap. 37. the executors of a Lessor shal have debt during the est ate for life, Coke. 4. part.

Master. Debt lyes not against the Master upon the buying of the servant unlesse it comes to his use or by his assent, Doct. et Stud. 137. A.

Ordinary. Debt lyes against an Ordinary when a man dyes intestate Nat. br. 120. D. Coke. 5. part. 83. A. Snellings case. et 9. part. 39. B. 11 Hen. 7. 1 2. 9 Edw. 4. 33. Danby. 18 Hen. 6. 23. com. 277. 8 Eliz. Dyer. 247.

The Ordinary administers, and then grants administration, yet debt lyes against the Ordinary, but it was sayd that such administra­tion ought to be alledged in the Dioces of the ordinary, 12 Rich. 2. Administrator 21.

But note no Debt lyes against the ordinary after that he hath committed administration to another, 8. Eliz. Dyer. 247. pl. 73.

Debt was brought against the father for the Father.sons commons in a Colledg in Oxon although the father had delivered it to the Tutor of the sonne, Pasch. 9. Jac. Ban. Regis. St. Johns in Oxford. against Brickenden.

Pledge. Debt lyes against him that becomes pledge without deed, Nat. br. 122. K. 18. Edw. 3. 13. pl. 7. Finchden.

A. borrowed of B. 20 l. to pay it at Michael­mas, [Page 179] at which day D. prayes B. to take him for Debter, and gives him day over and obliges him to pay it, by one Tallie ensealed, Debt lyes not against D. because A. was not by this discharged, 44 Edw. 3. 21. pl. 23. Purveyor.

Purveyor contracts for fat wares for the king & makes a bill of receipt to the use of the King, and for this obliges him to pay, but seales it not, he shall be charged by Assumpsit, and the King by debt and by no other way, 8 Eliz. Dy­er. Receivor.230. pl. 56.

Debt lyes against a Receivor which takes more then he ought, per 7 Edw. 6. cap. 6. Lib. Successor. intra. 191. B. sect. 1. com. 201. Stradlings case.

Abbot shall be charged with the borrowing of his predecessor if it come to the use of his house, Nat. br. 121. K. Lib. intra. 152. A. sect. 1.

The count shall be generall, Coke. 7. part. 10. B. Ʋghtreds case. Society.

Praecipe societati Lombardiorum London mer­catorum de Florentia, and this was good, 19 Hen. Shrive under shrieve. 6. 80. pl. 11.

Debt upon an escape of one in execution upon an account, it lyes per Westm. 2. cap. 11. and 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.

Shrieve takes an obligation for an Appear­ance of the defendant which not appears, yet debt lyes not against the shrieve, by the plain­tiff, Trin. 13. Jac. com. Ban. Outlawed person.

It lyes against a person Outlawed, Mich. 38. [Page 180] et. 39. of Eliz. com. Ban. Banister. versus Trus­sell. No. Lib. intra. 248. A. 7 Hen. 6. 10.

For what things Debt lyes.

Lent. It lyes for money lent to another, Nat. br. 119. G.

Of a horse lent till such a day and then to give 10l. or the horse after the day, debt lyes for the one or the other. Nat. br. 121. B.

A. borrowed money for the servant, debt lyes not against the Master unlesse it came to his use by his assent, Doct. et Stud. 137. A.

Baylment. To deliver to redeliver debt lyes, 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.

To deliver to redeliver over to another if it be not performed debt lyes, 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. Brittons case.

But 6 Hen. 4. 8. pl. 33. if A. ought to pay an Annuity in fee. to B. and deliver money to C. to pay to B. yet B. shall not have debt against C.

Contract. Lease for life of another debt lyes not for the Rent during the terme, Coke. 4. part. 49. A. Ognels case.

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.

But after the estate ended, debt lyes, Coke. 4. part. 49. A.

So it is by the death of the Lessee, Coke. 4. part. 49. A.

Or by Limitation.

[Page 181]

Or by con­dition.in deed 39 Ewd. 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.
  Common42. A.
  Law.wast.

Lease for years by a bayly the master shall have debt for the Rent, Lib. intra. 174. D. sect. 3.

Corporation made a lease for years rendring to P or 20. dayes after verdict, it was moved that they shewed not the deed, sed non allocatur because it was after verdict, 2 good although they had brought debt for the rent for 6. years ended to P. and not 20 dayes after, Mich. 9. Jac. Ban. Regis. Baldry. defendant in debt by the Corporation of Brewers.

Bargainee of a reversion in debt for rent, ought to shew in what court the deed was in­rolled, Mich. 9. Jac. Ban. Regis. Welby et Pur­ley.

Agist­ment. Debt lyes for the agistments for Cattle for so long time as they went, Lib. intra. 150. A. sect. 1. count Lib. intra. 151. A. sect. 1.

Marriage money. A. promises 20 1. to B. to marry his daugh­ter, 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.

But if he promise 20l. in marriage with his daughter he shall not have debt but sue in court christian, Nat. br. 50. S. 16 Hen. 3. pro. 22. vide Regist 46. B.

But if it be by deed. then see, 45 Edw. 3. 24.

[Page 182] Regula. Bracton. Lib. 5. cap. 16. Sic de rebus datis vel promissis ob causam matrimonii principaliter, et sic de rebus quae accidunt matrimonio ut si pecunia promissa fuerit, ob causam matrimonii, quia ejus­dem juris id est, et jurisdictonis esse debet accesso­rium cujus est principale

Partition. Partion, one promiseth the other 20 l. for equality of partition, debt lyes for it, Nat. br. Rent up­no a per­sonal thing.122. H. 14 Edw. 3. Debt. 137.

If a persoual thing be leased rendring rent debt lyes for it, Coke. 3. part. 22. A. Walkers case.

Salary. Attorney shall have debt for his fees and for fees of counsell, and costes of suite, Nat. br. 121. L. Count Lib. intra. 202. B. sect. 6.

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 counsell or was ready, 37 Hen. 8. B.

But 31 of Hen. 6. 9. B. Fortescue. serjeant at Law shall not have debt for his fees.

Servant. Shall have debt for his salary, Coke. 9. part. 87. 3 Hen. 6. 42. 11 Hen. 6. 48. although it be to doe his service beyond the sea, Nat. br. 120. E.

The Count, Lib. intra. 201. D. sect. 1.

Steward. Steward retayned by word shall have debt, 8 Eliz. Dyer. 248. pl. 79. Coke. 4. part. 30. A.

Count for a chapleine, Lib. intra. 153. B. sect. 11.

Count for a Priest, Lib. intra. 202. B. sect. 5.

Count for one retayned, &c. Lib. intra. 203. B. sect. 12.

[Page 183] Surgery. I. promise to a Surgeon 40 s. to cure B. he shall have debt because it is a good contract, 37 Hen. 6. 9. A. Moyle. Tabling.

Debt lyes against him that Tables with me, 27 Edw. 3. 87. pl 37. 9 Edw. 4. 1. The count lib. intra. 153. B. sect. 10. et 177. D. sect. 1.

Goaler shall have debt for tabling of a Pri­soner, Coke. 9. part. 87. B. 28 Hen. 6. 4. pl. 21.

Inkeeper shall have debt for Lodging or victuall, 39 Hen. 6. 18. pl. 24.

Tabling. and phy­sick. Physitian shall have debt for tabling and physick, Lib. intra. 187. B. sect. 1. vide the count there.

Taylor. If I. put my Cloath to a Taylor to make a garment he shall have a special action for the puting of the cloath is a sufficient contract in Law, Coke. 8. part. 147. Carpenters case.

But not a generall action of debt without a contract in deed, ibidem

Vendition. If I buy a Mannor Debt lyes for the money yet I shall not have it before Livery, 37 Hen. 6. 8. pl. 18. Prisot.

I bargaine for a horse Debt lyes for the money, 14 Hen. 8. 19. br. contract, 15. Coke. 4. part. 94. B. Slades case.

If a man makes an obligation for debt due by contract debt▪ lyes not upon the contract, Nat. br. 121. M. Coke. 6. part.

Because the obligation drowns the contract.

Upon an emisset of several waies, the count, No. Lib. intra. 125. B.

Servant. If I. give authority to my bayly or servant to buy for mee debt lyes against mee, Nat. br [Page 184] 120. G. Doct. et Stud. 137. A. 6 Eliz. Dyer. 130. pl. 56. 2 Rich. 2. Debt 13.

And so if he bought it without command if it come to the use of the Master by his assent, Doct. et Stud. 137. A.

And likewise if he bought it in his own name and it comes to the use of his Master it lyes a­gainst his Master, ibidem.

So if the bayly which used to sell, sold a horse for twelve bushels of wheat, this is good and the master shall have debt, 27 Assiz. pl. 5.

The servant sels, the Master agrees, this is the sale of the Master, debt lyes, 27 Hen. 8. 25. B. Fithams.

A factor receives money and gives a bill of exchange if the Master accept the bill by it he becomes debtor by the custome, Trin. 43 Eliz. com. ban.

Wife. The wife buyes a thing the husband agrees this is the emption of the husband, 27 Hen. 8. 25. B. Fittiams.

Voluntary per Cryer. One condemned taken in Westminster hall kept by a cryer assigned which suffers him to escape, debt lyes not, 1, because it was no pri­son, 2 because he had no command by writ, 33 Hen. 6. 55. pl. 50.

Shrieve. If a prisoner escape by assent although the shrieve take him again yet debt lyes, Coke. 3. part. 44. Boytons case. 19. Hen. 4. 10.

Unlesse the shrieve brought one per habeas Corpus then if he had him at the day it sufficeth Coke. 3. part. 44. Boytons case.

Unlesse the party be in execution, Coke. 5. [Page 185] part. 89. Frosts case. 7. Hen. 4. 30.

Or upon a capias ad satisfaciendum although the writ be not returned, Coke. 3. part. 52. Rig­wayes case.

And if it be retorned and had not the body debt lyes, 7 Hen. 4. 11. br. retorne 107.

A writ of priviledge for a Burges of Parli­ament the shrieve suffers him at large debt lyes not, 36 Hen. 8. Dyer. 6. pl. 17. 1. Jac. Negl [...]gent escape per Shrieve.

If one be taken by a capias utlagat. after the yeare and escape debt lyes, Coke. 5. part. 89. Frosts case. 88. B. Garnons case. vide 7 Hen. 6. 5. in forgery.

The antient Shreive makes no mention of one in execution this is an escape in the old shreive, but not in the new, but if the old shrieve dye the other ought to take notice, but if the escape be in the vacancy debt lyes not, Coke. 3. part. 71. & 72. Westbyes case. 10 Edw. 3. 375. pl. 28.

If one be in execution yet debt lyes against the shrieve, 7 Eliz. Dyer. 241. pl. 47. 16 Edw. 4. 3. pl. 7.

The Plaintiff and chief Justice assent for one time and after he suffers an escape debt lyes, 10 Eliz. Dyer. 275. pl. 46.

A capias upon a recognizance in chancery the party taken escapes, debt lyes Coke. 8. part. 142. Druries case

The count was that 6 were in execution and escaped and the doubt was whether they might count for one only and by the better o­pinion it was good, Crooke. 26 Hen. 7. 67. pl. 11.

If one be marshall whether it be by right or Marshall. [Page 186] wronge debt lyes against him, 39 Hen. 6. 33. A.

Count that he was in execution in C. and removed and committed to the Marshall which suffers him to escape debt lyes, 38. Hen. 6. 28 pl. 10.

Deputy. Deputy of a Marshall suffers an escape, debt lyes against him, 11 Eliz. Dyer. 278. pl. 5.

Mayor de Staple. Debt lyes against a Mayor of the Staple up­on a recognizance taken before him, 5 Hen. 6. 11 Hen. 6. 49. B. 12 Hen. 6. 2. pl. 9.

The count, Lib. intra. 171. D. sect. 6.

Lord de Franchize Deane and chapter of Pauls having returne of writ and making a bayly that suffers an es­cape Action lyes not against the deane and chapter because they are not baylyes, Pasch. 14 Eliz. com. ban.

Grannt. penalty. 1. Nomine poenae granted this is casuall and debt lyes for it, Nat. br. 120. M. 2 Hen. 8. 8. Dyer. 24. pl. 149.

And this is but hac vice if there be no other words, 32. Hen. 6. 10. A. Billinge.

And so upon any grant hac vice certayn or uncertayn.

Annuity. 2. Annuity or rent charge granted for years debt lyes not during the term, But the 5 Edw. 4. 42. B. debt lyes.

But against a customer it lyes if it be to be payd out of the customs of L. after delivery of a Liberate, Nat. br. 121. F.

It lyes for executors or administrators of the Grantee per 32. Hen. 8. cap. 37.

And after the term ended it lyes for the Grantee Lib. intra. 151. C. sect. 1.

[Page 187] For Life. 3. Annuity for life debt lyes not for this dur­ing life, 19 Hen. 6. 42. A. 37 Hen. 6. 35. A.

But against a customer it lyes, Nat. br. 121. F.

Also if a Parson or Prebende, &c. hath such annuity & resigne or be despossessed it lyes for the arrerages, Coke. 4. part. 48. B. Ognels case. For by his resignation he is meerly personall.

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.

But if it be a Rent-charg seck or service debt lyes not for any so long as the estate continues Coke. 4. part. 49. A. Ognels case.

Although it have Continuance but to a spe­ciall intent, Coke. 7. part. 39. B.

But after it be determined debt lyes 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 in the personality.

In Tayle. 4. Annuity in Tayle generall or speciall debt lyes not during the annuity, Coke. 4. part. 48. B.

So of a Bent-seck, service or charg.

But if the estate be determined, quaere.

But by the 32. Hen. 8. cap. 37. the executor or administrator shall have debt for the Arre­rages.

Annuity or Rent in Fee. Annuity in fee during the annuity debt lyes not, Coke. 4. part. 48. B. 6 Hen. 4. 7. pl. 33.

Unlesse it be in a speciall case as when a par­son or prebend resigne, Coke. 4. part. 49. A. [Page 188] Nat. br. 121. D. 19 Hen. 6. 41. & 42. Nat. br 121. H.

So if a parson dyes his executors shall have debt, Nat. br. 120. L. Coke. 4. part. 49. A. 37 Hen. 6. 8. pl. 18.

And by the 32 Hen. 8. cap. 37. the executors or administrators of every one.

But after the Annuity determined every one shall have debt, Coke. 4. part. 49. A. 45 Edw. 3. 45. execution 71

    Parliament.
    Ban. Regis.
Judgement given.  Superior.Chancery.
In Court of Record. Com. Ban.
 Exchequer.
  Prescription.
 Custome.
  Inferior byPattent.
  Common-Right.
 Court Baron.For principall.
Not of Record. County.For damages and losses.
  Antient Demesn in any Mannor.For Fine or Amercia­ment.
  Marchant▪ 
Out of. CourtSta­tute.Staple. 
  According to 23 Hen 8. 
 Recognizance. 
 Account at common law. 
 Arbitriment.  
 By law or Ordinance. 

[Page 189] Judgment given in debt for the prin­cipall. If a man brings debt, upon a recovery in com. Ban. he ought to bring it in Middlesex, wherethe record is, because it is the Ori­ginall, but a scire facias to execute one Judgement shall be where the Originall was, because it ought to follow it, Hil. 9. Jac. Ban. Regis. Musgrave versus Whar­ton.

Arrerages recovered in a scire facias upon Judgement in annuity against the predeces­sors debt lyes upon it, Nat. br. 122. E. 22 Edw. 4. 1. pl. 6.

Debt recovered in court of Pypowders, and debt brought upon it in com. ban. super tenorem recordi, and good, 7 Hen. 6. 19. For dam­ages and costes.

If a man recover damages in w [...]st he shall have debt for the damages, Nat. br. 122. C. 43 Edw. 3. 2. pl. 5. the count Lib. intra. 197. C. sect. 15.

Debt for damages in Assize 32 Hen. 6. 29. pl. 23. but then this ought to agree with the Record, the count, Lib. intra. 194. D. sect. 7.

So for damages in a Mort-dauncester, 46 Edw. 3. 25. pl. 10.

The Plaintiff in com. ban. is non-suited and the record removed by writ of error the de­fendant shall have debt for his costes, 29 Hen. 8. Dyer. 32. pl. 5.

Damages recovered in antient demeasne and the tenour of the record was removed by Cerc [...]orari, debt lyes upon it for the damage, [Page 190] 39 Hen. 6. 3. pl. 5. count Lib. intra. 195. C. sect. 11.

Damages recovered before the Mayor of Hull debt lyes there, 11 Hen. 4. 12.

Fine. Debt lyes for a fine, Coke. 8. part. 41. B. Greis­leys case. 7 Hen. 6. 2. B.

Amercia­ment. Debt lyes for an amerciament in a Leete, Lib. intra. 151. B. sect. 1. 23 Hen. 8. br. Leete. 37. The count Lib. intra. 151. B.

Debt. lyes in a Court barron, No. Lib. intra. Judgment out of Court as statute.118. B. sect. 1.

Debt lyes upon a Statute Merchant, Staple and according to the 23 Hen. 8. Nat. br. 122. C. 11. Hen. 6. 49. pl. 7.

Recogni­zance. Debt lyes upon a Recognizance, Nat. br. 122. C. 11 Hen. 6. 49. pl. 7. Eliz. Dyer. 306. pl. 63. The count Lib. intra. 192. B. sect. 1.

Or upon the tenor 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.

Debt brought upon a Recognizance after the Recognizance and afore the enrollment and good, Passc. 43. Eliz. com. ban.

Account at the common law. Debt lyes upon arrerages of Account at the Common law, the count Lib. intra. 149. A. sect. 1.

Also a Bayly shall have debt upon the sur­plusage of account, Nat. br. 121. I. 38. Hen. 6. 5. 19 Edw. 2. Debt. 176.

He ought to count the place and day where the Auditors were assigned, Hil. 32 Eliz. com. ban. Lord Dacres case.

But if the Lord will not hear his account he [Page 191] hath no remedy for the surplusage, 7 Edw. 3. 12. per Herle.

But not by a Receiver, 38. Hen. 6. 5. pl. 14. Mich. 12. Jac. ban. Regis. Countesse de Suffolk. versus Floyde.

But a receiver for Merchandize shall have it, 38 Hen. 6. 5. Prisott et Moyle.

Arbitri­ment. Debt lyes upon an Arbitrement, Nat. br. 121. G. Coke. 9. part. 92. B. the count Lib. intra. 153. C. sect. 1.

By laws or ordi­nances. Debt lyes upon an ordinance or by law, Coke. 5. part. 64. A.

A Paine upon one in a leete to reform a nu­sance and afterwards it is presented that it is not done the Lord shall have debt, 23. Hen. 8. br. Leete 37.

Penalty inflicted upon one in London per the common counsell debt lyes for it in Ban. Regis. Matter in law, as for▪ Ayd. Mich. 9. Jac. ban. Regis.

Debt lyes for the daughter for Ayd to mar­ry her, Nat. br. 83. A. et 122. G. 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 which hath assets he shall have debt, Nat. br. 121. F.

So if he deliver a Talle to a customer, 27 Hen. 6. 9. pl. 1.

So if he deliver a Talle to a collector of tenths and fifteens, 37 Hen. 6. 15. pl. 5.

Pro ratio­nabili par­te bonorum. Debt pro rationabili parte bonorum where the custome gives such part, Nat. br. 122. L. 3 Edw. 3. Debt 156.

The count was that the sonne or daughter which is not heir nor preferred in the life of [Page 192] the father shall have a reasonable part and shewes the things to the value, &c. Lib. intra. 564. B. sect. 1,

But shall not have this writ but where such custome is, 40 Edw. 3. 38. pl. 13. Mowbray. 7 Edw. 4. 20. pl. 23.

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.

But other Bookes say it lyes at Common­law, Nat. br. 122. L. Glanvil Lib. 12. cap. 20. 17 Edw. 3. 9. pl. 29.

And the account is upon the common law, No. Lib. intra. 565. A. sect. 2.

So debt lyes where the custome is that the heir shall have the principall goods, 30 Edw. 3. 2. pl. 9. 39 Edw. 3. 6. pl. 24. et fol. 9. pl. 15.

Executor shall have debt for a relief because For a re­liefe per executor.it is but an improvement of the service, Coke. 4. part. 49. B. 34 Edw. 1. Avowry, 233. 11 Hen. 6. 15-pl. 4.

And it is a chattell to the executor, 34 Edw. 3. Advowry, 233.

But the Lord shall not have debt, Coke. 4. part. 49. B. 7 Hen. 6. 13. For it is no chattell to the Lord, 34 Edw. 1. Avowry 233.

For Tolle. Tolle shall be recovered by debt, 20 Hen. 7. 1. pl. 2. but vide librum et quaere.

For Escu­age▪ Debt lyes for Escuage after that it is assessed per parliament for then it is a duty certain, Crooke. 133. pl. 111.

Simple. Obligati­on condi­tional. Debt lyes upon a simple obligation count, Lib. intra. 178. B. sect. 1.

[Page 193] Vide versus Attorney vel sarvientum ad legem, fol. 174. D. sect. 5. et 6.

Debt upon a bill to pay within a moneth after that the Plaintiff shall come from Jerusa­lem, he needs not give notice to the defendant because he is bound to pay it at his perill, Hil. 9. Jac. Ban. Regis. Edmonds.

Obligation with condition to performe covenants, No. Lib. intra. 130. B. sect. 14.

Obligation to discharge and save harmeless the shrieve of all escapes of persons in executi­on, A good breach to shew that one was in ex­ecution, per capias, &c. and suffered him at large without shewing 1 that he was at large, 2 without giving notice and request to save him harmlesse 3 without shewing that the ca­pias was returned, Trin. 12. Jac. com. ban. Norton versus Smyth.

Upon a bill obligatory the count, Lib. intra. 178, B. sect. 1. 2. 3.

Bill obligatory with condition, Lib. intra. 178. C. sect. 4.

Debt upon an obligation made in England to be payd in Flanders, Lib. intra. 158. C. sect. 1.

Debt lyes upon a Tallee sealed, Nat. br. 122. I. 2 Rich. 2. Debt 4. vide 44 Edw. 3. 24. pl. 23.

The writ in Debt, 1. In the county, 2. in Com. Ban.

County. Rex, &c. praecipimus tibi quod justicies A quod juste et sine dilatione reddat B. XXl. quas ei de­bet, ut dicitur, sicut rationabiliter monstrare po­teret, quod ei reddere debeat, ne amplius inde cla­morem audiamus Pro defectu Justitiae, &c. Regist. orig. 139. A. Nat. br. 119. H.

[Page 194] In comitatu Pro debito semper dicitur quas ei debet, tantum et pro catallis detinet tantum, Regist. orig, 139. B.

But for executors alwayes in the detinet, ibi­dem. Admini­strator.

If debt be by administrators all must be named, Regist. orig. 140. A.

The Writ shall be Detinet only, Regist. orig. 139. B.

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.

Husband and wife. The writ shall be debet et detinet eis, Coke. 5. part. 36. A. Walkots case. 12 Hen. 4. 1. pl. 1. 7 Hen. 7. 2. B.

But the count shall be speciall, 7 Hen. 7. 2. B.

So in debt against them for debt due before Coverture, 7 Hen. 7. 2. B.

Against a collector. Bill against a collector after that he hath ac­counted there ought to be nuper collector, 15 Edw. 4. 27.

By execu­tors. Debt per executors the writ shall be detinet only, although the duty accrew in their time, Coke. 5. part. 31. B. Hargraves case. Nat. br. 119. M. Regist. orig. 140. A. for goods sold by them 19 Hen. 8. 8. 11 Hen. 6. 36. A. 20 Hen. 6. 5. B. for Rent due in their time.

If they sell a thing and take an obligation, 17 Edw. 3. 64. pl. 78. 25 Edw. 3. 40. pl. 7. and this is to the use of the Testator.

[Page 195] Et Regist. orig. 138. B. 9 Hen. 6. 11. B. 20 Hen. 6. 4. B. Paston.

In antient 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.

All executors ought to joyne 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.

Vide tamen, 38 Edw. 3. 9. pl. 7. L. where an executor sold goods and brought debt sole and it was awarded good.

Executor and an executor of an executor joyne in debt and good, 7 Edw. 3. 261. pl. 22.

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 sole.

Wife exe­cutrix. Wife executrix Debt by her and her hus­band the writ shall suppose both executors, 22 Hen. 6. 49. pl. 8.

Feme covert executrix shall not have debt without the husband and soveraigne, 8 Edw. 3. 330. pl. 48. 10 Edw. 3. 381. pl. 63. 21 Hen. 6. 30. pl. 17. Marke [...]am. Regist. orig. 140.

Against executors. The writ shall be detinet only, Nat. br. 119. M. Regist. orig. 139. B.

But for Rent due in the time of the execu­tor it shall be in the debet et detinet, Coke. 5. 31. Hargraves case. 7 Edw. 6. 81.

A man being executor of his own wrong [Page 196] takes administration, quaere how he shall be su­ed, Crooke. 127. pl. 91. A.

It sufficeth to name them only that be admi­nistrators, Regist. orig. 140. A, et B. 19 Hen. 6. 31. Coke. 9. part. 37. Hensloes case. 33 Hen. 6. 38. pl. 15.

Debt against an executor which pleads ano­ther they both may plead another but the for­mer only cannot, 29. Edw. 3. 11. pl. 32.

Debt lyes against an executor of right and wrong 39 Hen. 6. 45. pl. 19.

But not against an executor and executor of an executor, 41 Edw. 3. 13. pl. 3.

Two executors administer and intermary debt lyes against both 22 Hen. 6. 59. pl. 12.

Heire. The heire ought to be named, 30 Hen. 6. 5. pl. 2.

But Regist. orig. 140. A. he was named heir in the count only and yet good,

He was named heir apparent and it was er­ronious, Pasch. 35. Eliz. Ban. Regis 242. Aud­leys case.

It shall be against him in the debet et 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.

Ordinary. Praecipe A. epi scop. London. ad cujus manus bo­na et catalla quae fuerunt B. qui obiit intestat. ut dicitur devenerunt quod juste et sine, &c. reddat, &c. C. solidos quos idem B. ei debuit et praedictus epis cop. ei injuste detinet ut dicet et nisi, &c. Re­gist. orig 141. A. Nat. br. 120. D.

[Page 197] Et ibidem vide the writ against an executor of the ordinary.

But it lyes not for the Ordinary, Nat. br. 120. D. Coke. 9. part. 39. Hensloes case. tamen vide, the writ for the Ordinary in the Regist. orig. 141. A. Nota.

Nota when a man demands money it shal be debet et detinet, Nat. br. 119. G.

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.

And the writ shall make mention of the va­lew, 17 Edw. 3. 48. pl. 17. 29 Edw. 3. 39. pl. 14. et fol. 45. pl. 6.

And if it be for silver or other things then it shall say 10 l. quas ei debet et injuste detinet, et 10 l. quarters of corne 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 XX1. 1 Hen. 5. 6. B.

For in Mich. 14. Jac. Ban. Regis. in the case of the Baylyes of Ipswich Houghton Justice said that A. was indebted to the King. in 3000 l. the King granted to B. 1000 l. parcell of it, yet B. shall not have debt for the 1000 l. as was ad­judged in the Chequer, Int. Yorke et Allen.

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.

For Lib. intra. 158. C. sect. 1. the writ was [Page 198] 28 l. and the count of the bill, 19 l. 16 s. Flem­mish which is 14 l. English, and for the Rem­nant, &c.

The Proces in Debt, 1. before Appearance, 2. after appearance.

At the common law the proces was but a summons Attachment and distresse in finite, Coke. 12. A. Harberts case.

But by 25 Edw. 3. cap. 17. capias was given for it yet the proces is summons Attachment and distresse, 3. capias and one exigend. 14. Hen. 6. 20. A.

But if debt be in the county per Justices and the bayly return a nihil habet and afterwards this is removed quaere if a capias lyes, 3 Hen. 5. 4.

Nota. Nota that a capias lyes not upon a Recogni­zance, 23 Hen. 7. 100. pl. 1. Crooke.

Nor against a Peer of the Realme Coke. 6. part. 52, B. 11 Hen. 4, 15. 3 Hen. 6, 48. 29 Edw. 3, 30, pl. 40 et 42, pl. 3. 5 Edw. 4. 108. B.

But if a Bushop of Wales or Ireland be sued, upon a nihil habet returned A capias lyes, ibi­dem.

Account. The Barr in Debt.

For arre­rages of account. Debt lyes for arrerages of account that he owes nothing a good barr, Lib. intra. 149. B. sect. 2.

2. before auditors. And this may be by wager in law because it is within the statute, 22 Hen. 6. 35. pl. 53. [Page 199] 9 Hen. 5. 3. pl. 9. 43 Edw. 3. 1. pl. 3.

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.

2. before auditors. If it be for arrerages of account before audi­tors, imprisonment by auditors a good bar; but then he ought to be committed forthwith, 27 Hen. 6. 8. pl. 7. Coke. 8. part. 119 B. com. 17.

Non computa vit a good barr, 3 Mariae Dyer. 122. pl. 18.

Nul tiel account, 34 Hen. 6. 22. A. Danby.

Arbitriment for arrerages of account no bar because one is mater of record, 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.

Auditors discharged by the plaintiff a good barr, Lib. intra. 150. A. sect. 9.

Obligation made to the plaintiff for arerages no barr, 11 Hen. 4. 79.

Payment in another county a good barr, Lib. intra. 150. A. sect. 10.

That he owes nothing per patriam, a good bar, Lib. intra. 150. A. sect. 1. 4 Mariae. Dyer. 145. pl. 63.

That he owes nothing by the law no barr, because Auditors are Judges of record, 2. cap. 11. Coke. 103. A. Debounds case. 4 Hen. 6. 17. 8 Hen. 6. 5. 14 Hen. 19. pl. 21. 9 Hen. 5. 3. pl. 9.

But the Plaintiff may be examined and if it be fou [...]d that he is not in arrerages the defen­dant may wage his law, per statute, 5 Hen. 4. cap. 8. Coke. 10. part. 103. A. 8 Hen. 6. 10 et 15. 19 Hen. 6. 43. pl. 90. 20 Hen. 6. 32. Ashton.

[Page 200] And if the plaintiff or his attorney refuse to be examined the defendant shall wage his law, 33 Hen. 6. 24. pl. 5.

But if the executor brings debt for arrera­ges of account in vita testatoris he shall not be examined, but his Atturney 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.

But 21 Hen. 6. 4. pl. 10. the executor was ex­amined but not precisely.

So if another brought such action against an executor he shall not be examined, 20 Edw. 4. 3. pl. 14.

So if it be found that they submit themselves to arbitriment so that they were not Auditors but arbitrators they shall wage their law, 22 Hen. 6. 41. pl. 13.

Lord. The lord shall say that he owes nothing and was by his law, Westm. 2 cap. 11, doeth 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.

The defendant alledges before auditors that he delivered to the plaintiff one Statute Mer­chant in leive of the summe, the plaintiff wages his law, 30 Edw. 3. 4. pl. 19.

Lending to succes­sor. To the party. Successor shall wage his law upon a thing lent to his predecessor, 13. Edw. 4. 4. pl. 9.

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.

Baylment. Debt upon Baylment the defendant pleads [Page 201] that they were delivered to be redelivered to B. the which he had done a good barr, Nat. br. 138. M.

Contra a Reall 1, for years. 2, for life. 3, at will. Arbitriment of the Rent trespas and pay­ment of the thing awarded a good Barr with­out saying he owes nothing, 10 Hen. 7. 4. pl. 4.

Accord a good plea 10 Hen. 7. 24. 2 Rich. 3. Debt, 100, Coke. 9. part. 97. A. Peytoes case.

Acquittance of the last day shall discharge all arrerages, 11 Hen. 4. 24. 10 Eliz. Dyer. 271. pl. 26.

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 wast, 34 Hen. 6. 17. 14 Hen. 4. 27. pl. 35. 11 Rich. 2. Barr.

But if the grande tymber be in decay per­chance it may be a good barr, ibidem.

The Lessee was Advocate in the spirituall court, the Lessor promises that he shall keep the Rent for his fees, this is no barr, for stop­page is no plea, but he hath a good ground to have an Assumpsit, Mich. 9. Jac. Ban. Regis. Jarvis versus Lea.

The Lessee pleads that the Lessor entred be­fore the day 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.

A good barr to say that the Lessor entred before his day without any more, 34 Hen. 6. 21. pl. 40.

So if the Lessor enter but in part a good [Page 202] barr, Coke. 3. part. 22. B. Walkers case.

But if the Lessee enter again before the day of payment no barr.

So if the Lessor cuts the trees no barr be­cause the Lessor ejects not the Lessee, 33 Eliz.

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.

But not for arrerages due before the entire, 9 Hen. 6. 17. B. Cottesmore. 19 Hen. 6. 42. B. Pas­ton. 20 Hen. 6. 20. pl. 15.

Debt in com. M. where the land is in com. E. levied by distresse good, 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.

But if it be in the same county where the land is then it ought to conclude that he owed nothing because the country may have notice whether he did or not, 28 Hen. 6, 6, pl. 2. 33 Hen. 6, 4, pl. 12.

But the 9 Edw. 3. [...]3, 4. pl. 16. Herle, it is good without such conclusion.

Debt upon a Lease for Tythes levied by di­stresse no barr because there is nothing subject to distresse, 22 Hen. 6. 35. pl. 5 [...]. 11 Hen. 4▪ 40. br. debt 234.

A good barr that the Lessor distrained and sold the distresse for the rent by the assent of the defendant, 2 Rich. 2. debt 235.

Payment in another county a good barr without saying more, 22 Hen. 6. 36. pl. 1. 34 [Page 203] Hen. 6. 17. B. Moyle, 9 Hen. 5. 2. pl. 6. 11 Hen. 7. 4. pl. 16. 1 Hen. 5. 6. et 7. 20 Hen. 6. 16. B. 22 Hen. 6. 35. pl. 53.

For otherwayes it shall be tryed where the writ is brought, 4 Hen. 6. 5. pl. 12.

To say that the Lessor covenanted to repayr the house or that the custome is that he should repayr it, and did not do it, this is no barr be­cause it is but a covenant, but if the lease be that the lessee repayred it and payd the rent this is a good barr, that the Lessor did not re­payr it, 27 Hen. 6. 10. pl. 6.

But a lease by indenture and that the lessee repayred the house at the cost of the lessor a good plea that he did expend the rent in re­payring of the house, 2 Rich. 2. 235.

That it 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.

Surrender before the day a good barr, Lib. intra. 176. C. sect. 17. 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.

Servant. Payment to the servant no barr unlesse 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. et Student. 138. A.

Lease for years of a stock of Cattell, or other Rent up­no a per­sonal thing.personall thing rendring rent at severall dayes debt lyes not till all the dayes be incurred, [Page 204] Coke. 3. part. 22. A. Walkers case.

That he owes nothing by the law a good Salary for a Coun­sellor.barr, 1 Hen, 6. 1. pl. 3. 9▪ Edw. 4. 1.

That he owes nothing a good barr although he be a serjeant at law, 3 Hen. 6. 33. pl. 26. 21 Hen. 6. 4. pl. 6.

Atturney. The defedant shall not wage his law be­cause the court compel him to be atturney for the party, otherwaies if it be upon suit in a base court, 21 Hen. 6. 4. pl 5. Fortescue Newton.

Servant. That he departs his service within the term a good barr, 40 Edw. 3. 25. pl. 27.

That he discharged him of the service with­in the term to which he agreeed a good barr, 10 Hen. 6. 23. pl. 78.

That he retayned him not modo, forma, &c. a good barr, 38 Hen. 6. 22. pl. 41.

Payment without specialty is not good in debt by a servant retayned in husbandry, 40 Edw. 3. 21. pl. 27.

And so if one be retayned but not according to the statute the Master may wage his law in debt for the salary, 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.

But he may not pleade that the servant de­mands 40 s. per annum, the statute allowes not this because he was not retayned according to it, 11 Hen. 6. 10. pl. 20.

So if it be retayned in all occupations al­though that husbandry be Comprehended within it.

[Page 205] If a generall receiver retayne one by deed yet the Master may pleade that he owes him nothing by the law, 28 Hen. 8. Dyer. 20. pl. 12. 4.

If one be retayned in husbandry although he be not compellable to serve, yet his Master shall not wage his law, 38 Hen. 6. 22. B. pl. 4. Steward.

A. retaynes B. to be his Steward of his court for one year or more he shal have debt although the retayner be by word but not for an annu­all pension unlesse the retayner be by deed, Crooke. 1 Hen. 8. 158. pl. 6.

Tabling. Enfancy no Barr, 18 Edw. 4. 3. A. Vavisor, 10 Hen. 6. 14. A. Perkins 4.

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.

So if a contract for tabling be with B. 22 Hen. 6. 13. pl. 18.

So if an inkeeper brings debt for dyet or lodging because they cannot depart till they pay for it, 39 Hen. 6. 78. pl. 24.

But debt brought by the liefetenant of the Tower the defendant shall not wage his law because he ought to find him dyet, Coke. 9. part. 87. B. Vendition.

The defendant said that it was in another place upon condition and that the condition was not performed, a good barr, 34 Hen. 6. 42. pl. 13. 44 Edw. 3. 28. pl. 6. vide. 47. Edw. 3. 20 pl. 44.

Debt upon a simple contract the defendant pleads that the plaintiff tooke an obligation for [Page 206] it, a good barr, Coke. 6. part. 45. Heggins, 3 Hen. 4. 17. 11 Hen. 4. 79. 9 Edw. 4. 50 51.

Payment without acquittance no plea, 1 Hen. 5. 6. B.

He cannot pleade to the Country for part and wage his law for the other; but if it be for 20 s. the defendant may say that for 10 s. with­out this that it was 20 s. and as to the 10 s. wage his law: but quaere if he may tender part and wage his law for the Remnant, Crooke. 17 Hen. 7. 40. pl. 5.

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.

Unlesse the contract be by deed, 39 Hen. 6. 35. pl. 46.

Debt against the husband and wife upon a contract of the wife dum sola fuit the husband wages his law but at the day of the doing of it if the wife be not there the husband shall be condemned, 33 Hen. 6. 43 pl. 23.

That he recovered in an action upon the case upon an Assumpsit a good barr, Coke. 4, part. 94 B. Slades case.

The breaking of the prison by enemies or Escape.a tempest a good barr 33 Hen. 6. 1. pl. 3.

But not by rebells, 33 Hen. 6. 1. pl. 3

The Shrieve pleads that his predecessor suf­fered him at large and that he did take him a­gain, &c. a good barr, 3 Edw. 6. 67. pl. 17.

Enfancy no plea because the statute is ge­nerall, Doct. et Stud. 147. B.

[Page 207] Debt against a bayly because the Shrieve had not his warrant for appredending one in execution and returnes that he was taken quae­re whether the bayly shall say no such warrant against the returne of the Shrieve, 5 Edw. 4. 1.

Non permisit ire ad Largum a good barr, 10 Hen. 4. 10. 38 Hen. 6. 29. 3 Mariae Dyer. 121. pl. 18.

Returned by a bayly 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.

Taken again before the action brought a good barr if that he agree not to the escape and make fresh suit, Coke. 3. part. 52. Rigwayes case. 34 Edw. 1. debt 162.

That he owes nothing no plea because this action is brought not upon a contract but upon a special Clause of the statute, 2 Rich. 2. Ys­sue 160.

Account upon a recovery of damages and the party committed in execution Nul tiel re­cord a good barr, 30 Hen. 6. 6. Judge­ment in Court.

Debt upon a Judgement in Pypowders a good barr that he was taken in execution, 7 Hen. 6. 18.

Recovery in a court baron the defendant shall say that he owes nothing by the law, 49 Edw. 3. 3. A. Hanmer, 13. Hen. 7. 3. B. Conesby.

Debt for damages. Damages in Assize entire of the plaintiff after verdict and before Judgment pleaded quaere, 2 Mariae. Dyer. 107. pl. 24.

Levied by the shrieve a good barr, 11 Hen. 4. 58. pl. 8.

[Page 208] Elegit pleaded in barr good, 13 Eliz. Dyer. 299. pl. 34.

Damages in antient demeasne, debt brought against the defendant he shall not say that he owes nothing but Non tiell Recovery, quaere, 34 Hen. 6. 49. A. pl. 15. Littleton.

For fine or amerci­ament. Amerciament in a leete that he owes nothing by the law no plea, 12 Rich. 2. law 33.

Amerciament in a court baron that he owes nothing by the law a good plea, 12 Rich. 2. Sta­than, Judgment out of court.debt 35. No. Lib. intra. 119. A. sect. 1.

Debt upon a statute Merchant the defen­dant sayd that he was a lay man & not learn­ed and that the condition was 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, but otherwayes if execution be sued Arbitri­ment.upon it as a statute, Hil. 9. Jac. Ban. Regis. Fox versus Brooke.

No debt in barr for arrerages of account before Auditors because the summe 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. Hull, 3 Hen. 6. 55. A. quaere 4 Hen. 6. 17. pl. 3. 10 Hen. 7. 4. A.

Debt upon an in simnl computaverunt that he was not accountable by the country, no bar, for where the defendant may wage his law the con­tract is not traversable, Crooke. 13 Hen. 7 39. pl. 4▪

Nullum fecerunt Arbitrium a good barr be­cause this lyes in notice of the country, Crooke. 13 Hen. 7. 39. pl. 4.

But if he plead such a plea he cannot re­joyne [Page 209] afterwards and say that the arbitrators gave no notice, but must plead it in barr, Crooke 7 Hen. 8. 155. pl. 8.

The arbitrators gave no notice no barr un­lesse the submission be so.

The defendant said before the arbitriment made he discharged the arbitrators, this is a good barr 21 Hen. 6. 30. 28 Hen. 6. 6. Coke. 8. part. 82. B. Ʋniors case, and needs not to averr that the arbitrators had notice.

Obligati­on simple Accord. Debt upon an obligation, accord with satis­faction no barr, because the duty being certain ought to be avoided by matter of as high a nature, Coke. 6. part. 44. A. Blakes case.

But if the duty accrew not untill some sub­sequent act, there accord with satisfaction a good plea, Coke. 6. part. 44. A.

Acquit­tance. A. obliged to B. in 100l. shewes 3 acquit­tances 1, of 10l. 2, of 20l. and 3, of 20l. which amount to the receipt of 50l. parcel of the 100. in which he was bound to pay 50l. this a good barr because it appeares that it was but 50l. principall debt, 43 Edw. 3. 31. pl. 26.

Attach­ment. Forreyne attachment in London a good barr as it seems, No. Lib. intra. 139. C. sect. 20. 22 Hen. 6. 47. pl. 2.

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.

Attainder Attainder of felony no plea, Mich. 38, et 39. Eliz. com. ban. Banister versus Trusselle.

Nil debet Nil debet no plea because an obligation shall [Page 210] not be avoided by a nude averment but by mat­ter of as high a nature, Doct. et Student. 22.

Non com­posti mnetis Non compos mentis pleaded by the party not adjudged, Trin. 37. Eliz. ban. Regis. Strode Payment.versus Marshall. vide 5 Edw. 3. 70.

Payment without acquittance no plea, 33 Hen. 8. Dyer. 51. pl. 10. Coke. 5. part. 43. Doct. et 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.

A. by indenture sold land for 20l. & there were covenants in the deed for the performing of which he bound himself in 40l. debt was brought for the 40l. payment without acquit­tance no plea, 26 Hen. 8. Dyer. 6. pl. 3. et fol. 25.

Defeazance upon a statute Marchant to pay 20l. payment there without acquittance a good plea, and this is without an audita querela when the party is not in execution, 17. Edw. 3. 3. pl. 10.

A. is bound to pay his rent, there payment Obligati­on condi­onall.without acquittance is a good barr, 46 Edw. 3. 1. pl. 1.

When the originall contract is for money Accord.accord with satisfaction a good barr, Coke. 9. part. 79. A. Petoyes case. 22 Edw. 4. 25. A.

But accord to a generall receiver is no barr if he had not a speciall authority, Doct. et stud. 137. B.

But when the condition is for a collaterall thing, accord is no barr, Coke. 9. part. 79. A. 12 Hen. 4. 23. 9 Hen. 7. 4. 4 Hen. 8. Dyer. 1.

And if it be before the day then part of the [Page 211] summe is a good Bar. Coke 5. part. 117. Pinnels Case. 27. Edw. 3. 84.

But at the day, or after, it is no Bar, unless it be in another place, Coke 5. part. 117. Pin­nels Case.

The Defendant pleads he pay'd 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. 1. 17. A. Pinnels case.

Conditi­ons per­formed. Conditions performed is a good bar, 41 Ed. 3. 10. pl. 7. & fol. 25. pl. 19. Thorpe.

One pleads part of the Arbitriment, it shall be intended all, until the contrary be shewed. 2. The other may shew the remnant absque hoc, Arbitri­ment.that they arbitrated that only. 3. The other needs not to rejoyn to more, because it shall be a departure from his Plea, Pasch. 12. Jac. Ban. Regis. Linsey versus Ashton.

Conditi­on to levy a fine. Obligation with Condition to levy a fine upon Garnishment, the Shrieve 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.

Deed pol. A. enfeoffes B. by deed Poll, provided that 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.

A. is bound to pay a greater summe granted by Indenture to B. and to levy it of his goods [Page 212] and Chattles: this is void, and therefore no bar, 41 Edw. 3. 7. pl. 15. Belknap. 46. Edw. 3. 18. pl. 17. Belknap.

Conditi­on. A. conditions that B. shall lease to C. the Land in his Occupation, 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.

A. conditions that one shall make a Lease for 16. years, and he makes one for ten years, if he live so long this is good; for it was imply­ed before, Mich. 15 Jac. Ban. Regis. per Montague Chief Justice. Woolridge & Banbury.

Condition to deliver such a Lease as shall be devised by the Judge of the Court of Audi­ence. Non devisavit aliquid, &c. no bar, for he ought to procure him to make one, Coke 5. part. 23. B. Lambs case. The pleading. No. Lib. Intra. 130. A.

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, and that he would name him in his will, B. makes his will and names none, the Executors shall not have it, for as yet the condition is 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 bar, because it is but a thing in Action, Mich. 12 Jac. Com. Ban. Rand. & Strut. [Page 213] Trn. 6. Jac. Com. Ban. Rott. 10001. Lovelace.

Payment. Payment, only the Condition a good Bar, Coke 8. part. 58. A. Beechers case. But he to shew the place, 5 Edw. 4. 141. B.

Payment of Parcel hanging the Writ is not good to abate the Writ, without Acquittance, 3 Hen. 7. 3. pl. 12. 5 Hen 7. 10. pl. 15. 7. Edw. 4. 15. Ʋide 28. Hen. 8. Dyer. 6. pl. 3.

A. is bound to B. in 10. l. and after the date is one clause that he shall pay him 5. l. the Obligation is void, Payment there without ac­quittance is good, 30 Edw. 3. 3. pl. 12.

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.

A. is bound to pay 20 quarters of Mault, and if he pay it not at the day, then in 40 quarters; in Debt, for the 40 quarters he pleads payment without acquittance but not in Debt for the 20 quarters. 28 Hen. 8. Dyer. 24. pl. 154. 1 Hen. 5. 7. A.

Three bound to pay their Rent, one payes it, the other plead payment without acquit­tance, 45 Edw. 3. 4. pl. 9.

A. is boud 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 moneth. Mich. 13 Jac. Com. Ban. Price & Coe.

Conusee had Execution for 20. l. and by Indenture grants that if the Conusor pay 8. l. [Page 214] at a day to come, it shall be void, this is a good discharge, 20 Assize. pl. 7.

Payment to a Deputy a good Bar, 42 Edw. 13. pl. 35.

Payment to the Bayly of a Bishop by his command a good Bar, 22 Edw. 4. 25. pl. 5.

But payment to a servant without command is no Bar, unless it comes to the use of his Master, Doct. & Stud. 38. A.

Payment to a Creditor of the Obligee by his command is a good bar, 46 Edw. 3. 33. pl. 45. Perkins 145. A.

But then he ought to shew that the Creditor was the Creditor of the Obligee, 27 Hen. 6. 6. pl. 1.

Condition to pay 20 l. to B. assoon as he comes to the Age of 21 years. 1. He ought to shew that he is of full years. 2. He ought to shew the place where he payd it, for other­wise there cannot be any tenure, Mich. 12 Jac. Ban. Regis. Halse.

Permit. Condition to permit one to enjoy, &c. he pleads that he did permit him and good, 10 E­liz. Dyer. 279. pl. 6.

[...]etainer▪ Defendant said that the Plaintiff was in­debted to him, and that he commanded him to retain it, a good barre, 22 Edward. 4. 25. 6 5.

[...]arr ge­nerall to an obliga­tion. Acquit­tance. Acquittance a good barre.

But an acquittance by a general Receiver without receit of the Money is not good, unless he be receiver by deed, and hath authority to make acquittances, Doct. & Stud. 137. B.

[Page 215] A. brought debt in ban. Regis. against B. and that depending, brought debt in London, and had goods attached in the hands of C. and had Judgement upon them, this is a good barr in debt, by B. against C. but if A. brings debt against B. and after the debt is attached in London, and Judgement given there, if the Creditor sue B. he cannot plead the Attach­ment in barr, because he might have pleaded the action brought against him in Com. ban. Mich. 39, et 40. Eliz. com. ban. Jaques, versus Lewkner.

Debt is attachable before the day in which it is payable because the debtor debet although non detinet but an obligation made to performe covenants is not attachable, Mich. 39, et 40. Eliz. com. ban. Beacher, versus Minors.

Cover­ture. Coverture a good barr. Lib. intra. 168. B. sect. 1.

Infancy. Non est factum. Infancy a good barr, Lib. intra. 163 A. sect. 1.

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.

When it is but voidable non est factum no plea, Coke. the 5. part. 119. A. Whelpsdales case. 11 Hen. 7. 15.

When an obligation is made voyd by sta­tute yet non est factum is no plea, Coke. 2. part. 9. B. Thoroughgoods case.

When an obligation is once good and after and before, the plea be voyd, non est factum may be pleaded, Coke. 5. part. 119. A. B. Whelps­dales case.

[Page 216] When 3 are bound seperatim, and the seale of one is broken the other cannot plead non est factum because they are severall obligations, Coke. 5. part. A. Mathewsons case.

But it is not when 3 are bound without any more, Coke. 11. part. 28. B. Pigots case. 3 Hen. 7. 5. Coke. 5. part. 23. A.

But if 2 be bound in debt against one on­ly it cannot be pleaded, Coke. 5. part. 119. A. Whelpsdales case.

Recovery. Recovery in an inferiour court of Record with execution a good barr, Coke. 6. part. 45. B. Higgins case.

But without execution not, Coke. 6. part. 45. A.

Recovery is a good barr so long as it is in force, Coke. 3. part. 44. B. Higgins case.

Release. Release a good barr.

Two bound to B. which makes the wife of one his executrix and devises his goods to her this is a good releas of the debt, for if the obli­gee make the wife of the obligor his executrix this is a release in Law, because it is suspend­ed by the act of the party, Trin. 12. Jac. com. ban. Fryer versus Gildridg.

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.

A. is bound to B. to the use of C. the release of C. is a good barr, 36 Hen. 8. br. obligation 27.

[...]ymony. Defendant said that the agreement was for the obtayning a benefice, this is nought, 1 the [Page 217] statute makes the contract void, 2. It cannot be averred out of it, Mich. 40 et 41 Eliz. com. ban. Gregorie versus Olden.

Defendant pleads that the obligee accepted of a statute for the obligation after the day, Statute.this is no barr because the obligation is in force notwithstanding, Coke. 6. part. 44. B. Higgins case.

Statute law. The condition was to save the surety harm­lesse no plea that the former bond was usuri­ous because the counter bond was not for pay­ment of money, Mich. 40, et 41. Eliz. com. ban. ban. Dowman versus Button.

The Judgment in debt.

Against an executor. The Judgement, Lib. intra. 173. B. sect. 1.

Arrerages of account the executor pleads no such account or nothing in arrere or outlary in the plaintiff and it is found against him, the Judgement shall be de bonis Testatoris, 34 Hen. 6. 22. A. Danby.

A covenant broken after the death of the Testator the Judgement shall be de bonis Testa­toris, 15 Eliz. Dyer. 324. pl. 34.

Nothing in Arrere 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.

Accquittance or release pleaded and found against him if it be pleaded and made to the executor the Judgement shall be generall, 11 Hen. 6. 8. A. Danby. 34 Hen. 6. 24. A. Prisot.

Non assumpsit of the Testator to pay the debt [Page 218] the Judgement is of costs and damages, of suit de bonis propriis if the Testator had not suffici­ent, No. Lib. intra. 1. B. sect 1.

The executor found in a Cheft a graunt of the next avoydance made to the Testator and presentation there upon a Recovery in a qua­re impedit against him, the Judgement shall be of his proper goods, 34 Hen. 6. 22. B. Prisot.

Coexecutor pleades and found against him, the Judgment shall be de bonis testatoris, 9 Hen. 6. 44. 11 Hen. 6, 7. 34 Hen. 6. 32. A.

Confession of the Action by the executor the Judgment shall be generall against him, because he ought to have pleaded that he had not more then 20 s. and against the other exe­cutor it shall be de bonis testatoris, 14 Hen. 4. 12. pl. 1. Hull.

And by 33 Hen. 6. 2. it shall be of the goods of the testator if he hath none for damages of the goods of the executor that confesses the action.

But 4 Eliz. Dyer. 210. pl. 23. it shall be but de bonis testatoris against both, 28 Hen. 6. 3. pl. 13. 40 Edw. 3. 2. pl. 3.

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 shall be generall, 11. Hen. 4, 5. 11 Hen. 6. 8. A. Danby.

But the Judgment shall be de bonis testatoris, si, &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.

[Page 219] One pleads ne unques executor, the other plene administraevit, 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.

One dyes intestate and Administration is committed to D. by the ordinary and 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.

17 Edw. 3. 20. pl. 58. where an executor pleaded non est factum and found against him, there the Judgment against him for all 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. 2. 46. pl. 3.

Plene administravit, the Judgment is for so much of the principall as they had and for damages de bonis testatoris, si, &c. and if not then for damages 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 speciall for the debt.

Upon such plea the defendant prays execu­tion [Page 220] forthwith, because it is a confession of the debt, but no execution untill the defendant had goods of the testators, Coke. 8. part. Ship­pleys case. vide 21 Hen. 6. 40.

But if it be found to the defendant no scire facias lyes against them, 4 Hen. 6. 4. pl. 8

Unlesse he prays Judgment upon the plea.

But yet 33 Hen. 6. 24. pl. 1. is that a scire facias lyes, yet Coke. 8. part. 53. A. Syms his 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.

Against [...]n heir. If the heir confesse 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.

But if he plead any other plea and it be found against him the Judgment shall be ge­nerall, Com. 440. Pepyes case.

So if he confesse the action and shew as much as descends, if it appear to the court that the profits from the time of the descent untill the time of the execution, are sufficient for the debt, per Dyer. 18. Eliz. Dyer. 344. pl. 1.

 1. For the plaintiff.
 2. For the defendant.
Execution in debt.3. Of what Lands.
 4. Of what goods.

At the common law it was but a scire facias, Coke. 3. part. 12. or a levari facias, Coke. 3. part. 12. A. and this is of chattells, and profit [Page 221] 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, Coke. 3. part. 12. A. Harberts case. un­lesse the proces be continued, 33 Hen. 6. 49. pl. 33.

But for Recovery against an heir then it was but one Liberate, com. 441. A. pepyes case. Lib. intra. 172. D. 173. A. 3 Edw. 3. Execu­tion, 107.

But by Westm. 2. Cap. 45. a Scire facias was given after the year, and per Westm. 2. cap. 18. Elegit was given, Coke 3. part. 12. A.

If a man have an Elegit on Record, and there be a Nichil returned, he shall have never any other execution, 19 Hen. 6. 4. 5 Edw. 4. 41. 15 Hen. 7. 15. Fairfax.

And by the 25 Edw. 3. cap. 17. Capias was given in debt: and per consequence a Capias ad satisfaciendum in Execution. Coke 3. part. 12. A. Harberts case.

Mich. 41 & 42 Eliz. Com. Ban. if the Plain­tiff dye after Execution, yet the Shrieve may levy it, and if there be no Executor or Ad­ministrator, the moneys shall remain in Court. But if the Defendant dye before Execution, there the Shrieve cannot make Execution; for the words of the Writ are, that it shall be le­vyed of the goods of the Defendant. Thorough­goods Case.

Upon a non est inventus returned of the Prin­cipal upon Judgement in Com. Ban. the party shall have Execution against the Bayl, because [Page 222] the debt being by original is certain, there the Lands which they had at the day of the taking the recognizance shall be lyable, but quaere in ban. Regis if more lands are lyable than they had the day of the originall, because the debt is uncertain, Mich. 15. Jac. ban. Regis. Baskervile et Brocket. speciall verdict.

The defendant for damages and costs shall have the same execution as the plaintiff hath as if he had recovered against the defendant, per 23 Hen. 8. cap. 15.

The lands which he had at the time of the Judgment and not before, Coke. 8. part. 171. Fleetwoods case. 42 Edw. 3. 11. pl. 13. 6. Edw. 193. pl. 14.

But if the Judgment be the last day of the Terme the lands which he had the first day of the terme are lyable because all the terme is but one day in law, 42 Assiz. 17.

If two Joyntenants are for life and he a­gainst whom the Judgment is given dyes be­fore execution this shall not be put in executi­on, 13 Hen. 7. 22. A.

Land in antient demeasne shall be put in ex­ecution, Coke. 5. part. 105. A. Aldens case. Hill. 11. Jac. com. ban. Rot. 2541. Cox et Bar­nesly.

The goods that he had at the time of the execution shall be only lyable 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. Crook.

Unlesse it be in case of executors, 34 Hen. 6. 23. B. Prisot.

[Page 223] But sale by covin after Judgment cannot hinder the execution, 22 Assiz. 72. 13. Hen. 4. 4. pl. 9.

Hill. 40. Eliz. com. Ban. per Curiam, if a writ of execution be awarded for debt or damages and between the Teste of the writ and execu­tion, the party sold the goods bona fide yet these are lyable to the execution.

Ejectment.

In what court it lyes.

IT lyes not in the Marshalsey, Coke. 10. part. 72. A. Marshalsea.

In Ban. Regis. it lyes.

In Com. Ban. it lyes.

In the chequer it lyes for a party priviledg­ed, Coke, 1 part. 3. A. Pelhams case. and this was by bill.

But if it be by antient demeasne land it lyes not in the court of the King, Coke. 5. part. 105. A. Aldens case. 9. part. 77. B.

Because the possession is to be removed in such account, per Hobart cheif Justice, Hill. 11. Jac. com. ban. Rot. 25. 41. Cox versus Barnsbee.

But none can plead this but ter-tenant, 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 antient demeane the next terme, [Page 224] but must move the court that the plaintiff put it in his declaration, and then the advantage shall be saved. Trin. 12 Jac. ban. Regis.

But he may plead this after veiw because by this he confesseth if it be frank fee or not, 50 Edw. 3. 9. pl. 20.

Who shall have Ejection Firme.

Lessee for years only shall have it, Nat. br. Possession120. F.

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.

Nor upon a lease to commence in futuro, 37 Hen. 6. 18. A.

Note that tenant for years needs not count Note.that he entred, but that a lease was made to him by vertue of which he has possessed, com. 503 B. Grendons case.

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 actuall possession, Pasch. 11. Jac. In the Chequer in­ter, Sir Rich. Grebham et Stone.

Tenant for years. Tenant for years leases for one year or a lease is made for yeares the remainder for years, estranger enters, none shall have an e­jectment but the tenant in possession, Crooke. 130. pl. 99.

Lessee shall have an ejectment after the terme ended and recover all in danages, 21 Lessee. Edw. 4. 30. pl. 25. Brian. 7. Edw. 4. 6. B. Fairfax.

Lessee which may have a real action can­not [Page 225] have an ejection firme, Com. 419. B. Bracebridges case.

Husband and wife ought to joyn if it be in right of the wife, 21 Edw. 4. 10. pl. 1. 30. pl. Husband and wife.25. 7 Edw. 4. 6. B. Fairfax. Com. 418. B. Brace­bridges case.

But if the terme be ended, the husband a­lone shall have it, because nothing shall be re­covered but damages, 7 Edward. 4. 6. B. Fairfax.

Lessee for one year of a Coppyholder shall have an ejection firm, Coke. [...]4. part. 26. Coppy­hold.

Lessee of a Coppyhold for more years 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.

Executor [...] Executor of a Lessee shall have it, No. Lib. intra. 195. D. Sect. 6.

Executor, Husband and Wife, Co-executor, and the Count. Lib. intra. 252. B. Sect. 6.

Executor shall have an ejection firm in vit [...] Testatoris, per the equity of the Statute, 4 Ed. 3. cap. 6. Coke 9. part. 78. B. Peytoes case.

Church­wardens. Churchwardens shall have it of land leased to them, 15 Hen. 7. 8.

Tenant by elegit. Tennant by Elegit shall not have an ejecti­on firm, Crooke 109. pl. 29.

Tenant in common. Tennant in Common shall have it against his companion, Littleton. 73, A.

Father and Son having several inheritances, the Father levies a fine, the son being beyond­sea dyes, his Issue enters and leases (being within age) to A. without rendring Rent, [Page 226] A. enters, the Conusee enters, and leases it to B. yet he shall not have an ejectione firmae a­gainst A. without express outing, because as to the moyety the Plaintiff had not title, and the Defendant had none, because there was no rent reserved, Pasch. 32 Eliz. com. ban. Rott. 1017. Smye versus June and others.

Against whom Ejectment lyes.

Husband and wife. It lyes against Husband and Wife, Lib. intra. 253. C. Sect. 11. Coke 9. part. 77. B. Petoyes case. Com. 187. Wortleyes case.

Estranger It lyes against a stranger that wrongfully outs one, 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.

It lyes not against a Feoffee of a Lessor, be­cause Feoffee.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.

Unless the Feoffee make a Deed presently upon the outing, then it lyes against him, Nat. br. 198. A.

Or enter upon the Lessee, afterwards that the Lessee had entred upon him, Nat. br. 198. A.

Lessor grants a Reversion to A. the Lessee Grantor.attornes, A. outs him, the Lessee shall have an ejectione firmae, Nat. br. 221. A. 1 Hen. 5. 3. pl. 3.

Heir. It lyes against the Heir of the Lessor, Nat. br. 198. K.

[Page 227] Lessor. It lyes against the Lessor [...] outs the Les­see, 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.

Recoveror Lessor suffers a Recovery, the Recoveror outs the Lessee, he shall have an Ejectione Firmae against the Recoveror by the equity of the Statute, 21 Hen. 8. cap. 15. Nat. br. 220. J. 198. E.

Lord. It lyes against the Lord per Escheate which outs one, Nat. br. 221. I. B. 198. K.

It lyes against the Lord of a Villeyn which enters upon the Termor, Nat. br. 221. C. 198. K.

Tenant in common. It lyes against Tenant in common per his companion, Littleton. 73. A.

Of what things an Ejectment lyes.

Cattell. It lyes upon a lease for Cattel because it is a personall thing, 1 Hen. 6. 1 Cottesmore.

Wood. It lyes of Wood, Com. 223. B. Barkeleyes case, the count there. Chamber.

It lyes of a chamber, Mich. 30. Eliz. ban. Regis. Brand against Cage.

Tythes. It lyes of Tythes, per 32 Hen. 8. cap. 7. 2. 3. Mariae. Dyer. 116. pl. 17. the count ought to shew the nature or quality of the Tythes, Coke. 11. part. 24. B. Harpers case.

Garden, &c. It lyes of a Garden, Barn, and Tyths, 9 Eliz. Dyer. 258. pl. 16.

But if all the Tything consists of a modus decimandi and a lease made thereof ejectione [Page 228] firm lyes not, Coke 11. part. 25. B. Harpers Case.

Water-course. It lyes of a water-course, Com. 288. B. Brown. Regist. orig. 227. B.

Hundred. It lyes of a Hundred, because it is liberum tenementum, 15 Hen. 7. 8. Pl. 1.

Mannor. It lyes of a Mannor, and the Writ Regist. orig. 227. B. Nat. br. 220. G. Com. 229. A. Barkleys Case.

The Count. Lib. intr. 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.

Messuage. It lyes of a Messuage, Coke 11. part. 55. A. Savels Case.

The Count, No. Lib. intra. 184. A. Sect. 1. 3. 197. C. Sect. 7. Lib. intra. 252. B. Sect. 5. 6. Coke 1. part. A. Pelhams Case.

It lyes of a House, goods and Chattels. The Count, Lib. intra. 252. B. Sect. 7.

It lyes de medietate Messuagii, Lib. intra. 256. D. Sect. 14. The Count, Com. 459. B. Studs Case.

It lyes de tribus partibus duorum Messuagio­rum, No. Lib. intra. 195. D. Sect. 6.

Chappel. It is not formal to have it of a Chappel, but shall be of a House, Coke 11. part. 25. B. Harpers Case. For the Plaint in Assize shall not be of an Hospital, but shall say Messuage, 8. Assize 29.

Mill. It lyes of a Mill, No. Lib. Intra. 192. A. Sect. 5.

[Page 229] Pasture. It lyes of 300 Acres of Pasture, the Count Lib. intra. 251. D. Sect. 2.

Oxe. It lyes of pasturing of an Oxe, Com. 228. B. Brown. Regist. 227. B.

Meadow. It lyes of 100 Acres of Meadow, Lib. intra. 252. A. Sect. 13.

Rectory. It lyes of a 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.

Reversion It lyes not of a Reversion, Com. 159. B. Thracies Case per Dyer.

Land. It lyes of a 100 acres of Land: the Count Lib. intra. 251. C. Sect. 1.

But it lyes not of a Close containing three acres, but shall be of so many of the acres by name, Coke 11. part. 55. Savels Case.

For by Crooke Justice, Mich. 15 Jac. Wicks & Sparrow, the Land of every man is en­closed, and therefore an Ejectione firmae cannot lye of it for the incertainty.

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 so it was adjudged, Mich. 15 Jac. ban. Regis. Wicks et Sparrow.

It lyes not of a piece of ground called Mi­chels piece, Trin. 38 Eliz. ban. Regis. Rott. 450. Palmer & Humphreys.

It lyes not of a virge of Land, 38 Eliz. Rott. 453. Mell versus Moor.

The Count Generally.

Bishop. If it be of a Lease made by a Bishop, it ought to count upon the Deed, No Lib. intra. 186. D. sect. 2.

Husband and wife. But if it be of a Lease made by the Husband and Wife, it needs not count that it was by Indenture, Lib. intra. 252. C. sect. 8. Coke 2. part. 61. B. Wiscots case.

Person. If it be of a Lease made by a Person tunc & adhuc seized of the Reversion, it is good without averring of the life of the Person, 13 & 14 Eliz. Dyer 304. pl. 52.

If the count be of a Lease made by three where two have nothing in it, it is not good, although they joyn in the Lease, but contra­ry by him that hath right, per Williams & Crooke. Mich. 10 Jac. Ban. Regis. Longs case.

Lease. A Lease to commence at Mich. next after the death of A. the count ought to shew that A. is dead, 1 Mariae. Dyer 97. pl. 46. & fol. 89 [...] 19 Eliz. Dyer 357. pl. 46.

Demise. Counts that A. demised to him per Inden­ture dated 27 Martii, 11 Jac. & primum deli­bat. 10 de [...]imo Aprilis eodem anno, for 21 year till Mich. next before, and the ejectment 1 [...] Aprilis, this is good; or he may count, that by Indenture dated 27 Martii, & primum de [...] libat. 10 Aprilis, Mich. 11. Jac. ban. Regis. Mi­chels case.

The count upon the Imparlance Roll wa [...] upon a Lease made 10. of December, 10 Ja [...] [Page 231] and upon the plea-roll it was upon a Lease made 30 Januarii, 10 Jac. habendum 20 of December before, this is not good, Hill. 14 Jac. Milward & Wats. Ban. Regis.

The count was that he was seized, and so seised, leased, 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 & Crofts case.

But 14. Eliz. Dyer. 340. pl 57. doeth not count of the seism, 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.

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 versus Eliot & Wilkins.

It is Vi & armis, 1 Hen. 5. 3. Coke 9. part. 78. A. Petoes case. 21 Edw. 10. pl. 1. Choke.

But Hill. 36 Eliz. ban. Regis Rott. 610. Griffin versus Eliot & Wilkins in error, that it may be without vi et armis, 7 Hen. 6. 4. 17 Edw. 3. 1.

Fuit ad terminum qui nondum praeteriit, 2 et 3 Mariae. Dyer 116. pl. 71.

Et est pone per vad. et salvos pleg. 21 Edw. 4. 10. pl. 1. et 31 pl. 25. Brian.

It may be bona et catalla, Com. 228. B. Lib. intra. 252. B. Sect. 7, 8.

[Page 232] Although Regist. orig. 227. B. say to the contrary.

But may be without it, Com. 229. A. 199. A. Adams Case.

Thé Process 1. before, 2. after appearance.

The Process is Attach and distress and Pro­cess of Outlary, Nat. br. 220. H. 35 Hen. 6. 6. per Wangford & Moyl. Com. 228. B. Coke 9. part. 78. A. Peytoes Case.

The Barr.

Accord. Accord with satisfaction a good barr, Coke 9. part. 78. A Petoyes Case, because it is but in the nature of a Trespass.

Dures. Dures a good barr, Lib. intra. 253. B. Sect. 10.

Ejecit. Non ejecit a good barr, si bona & catalla are not in the Writ, 7 Edw. 6. 89. pl. 111. 19 Hen. 6. 56.

But if such words be in, Quaere.

Ent [...]ie. The Lessor had it but in right of his wife, and he enters after the death of the Lessor in right of his wife, Lib. intra. 252. D. Sect. 8.

Surrender That he surrend [...]ed before, & quod non ejecit a good barr, 21 Edw. 4. 10. pl. 1. 30 pl. 25.

The Judgement.

The judgement shall be quod recuperet a­gainst the Defendant terminum suum praedictum [Page 233] venturum de & in, &c. ac dampna sua, &c. & quod Defend. capiatur. 9. Eliz. Dyer 258. pl. 16. 7 Edw. 6. Dyer 89. pl. 109. Com. 420. A. Bracebridges case. 515. Snowes case. Lib. intra. 253, A. Sect. 8. 256. C. Sect. 13. 259. C. Sect. 15. No. Lib. intra. 188. A. pl. 7. 203. A. Sect. 8. 212. D. Sect. 11. 216. B. Sect. 13. Com. 526. A. Granthams case.

Note. But note this is, when the terme is not end­ed, Coke 9. part. 80. A. Peytoes case. 4. part. 104. Lamberts case. Nat. br. 220. H. 7 Edw. 4. 6. 13. Hen. 7. 20. B. Wood.

Note also, he shall recover damages but for the ejectment, Coke▪ 9. part. 80. A. Peytoes case.

If the Terme be ended he shall recover all in damages, 7 Edw. 4. 6. Fairfax. No. Lib. intra. 205. D. Sect. 9.

Judgement. First for the Plaintiff, Com. 526. Granthams case. Secondly for the De­fendant, No. Lib. intra. 197. C. Sect. 6.

Judgement upon a Non-Suit after Evi­dence delivered to the Jury. No. Lib. intra. 189. B. Sect. 2.

  • Quare Impedit
    • Ne admittas.
    • Quare non admisit.
    • Quare incumbravit.

Quid. IMpedire est pedem ponere in jus alienum, quod quis habet in jure praesentandi, Bracton. lib. 4. cap. 6. fol. 247. A.

Haec dictio [impedit] componitur de [in] & [pes] & unde revera ille impedit, qui nititur in­tus pedem ponere in jus alienum, ubi nullum jus ei competit, nec proprietatis, nec possessionis, Bra­cton lib. ibidem.

Advowson is an interest to present an able man to a benefice, 5 Hen. 7. 38. B. Brian & Townsend.

Advocation est incorporalis, & est jus prae­sentandi ad ecclesiam vacantem, Bracton lib. 2. fol. 53. A.

  • Jus patronatus est
    • Honorificum, to be Patron or Protector.
    • Ʋtile, to advance his friend.
    • Onerosum, a burden to his conscience if he present one not able.

In what Court it lyes.

Bracton Lib. 3. fol. 160. A. Immediate in curia Domini Regis terminarid ebent placita de advocation [...]t us Ecclesiarum, quia si alius a Re­ge mandaret [...]piscopis de admittendo Clericum, & ipse oltem [...] rabit alius à Rege coercionem non [Page 235] haberet, quia Episcopus ad alterius mandatum quàm Regis Clericum admittere non tenetur.

Quare Impedit of an Advowson in Wales ought to be in com. ban. in England, and shall be tryed in 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. Fortescue. 35 Hen. 6. 30. pl. 35. 3 Edw. 3. 163. pl. 35. 8 Edw. 3. 319. pl. 15. 24 Edw. 3. 3. pl. 26.

No plea to the Jurisdiction, to say, that it is antient demean, because they cannot award a Writ to the Bishop, 7 Hen 6. 35.

In Ban. Regis it lyes for the King, for he may sue there if he pleases, Nat. br. 3 [...]. G. 47 Edw. 3. 4. pl. 9.

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.

Who shall have a Quare Impedit.

Note. That he that is out of the possession shall not have a Quare Impedit, which a man may be five wayes, 1. by Presentation, 2. by dis­continuance of the Land, to which, &c. 3. by Disseisin. 4. by Descent. 5. by Recovery. in right of the Advowson, or Quare Im­pedit.

[Page 236] Husband and Wife having it in jure uxo­ris, they 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.

But the Husband may bring this without the Wife, 14 Hen. 4. 12. pl. 12. 22 Rich. 2. br. 937. for the wrong done to the Husband.

The church void, the Wife dyes, the Hus­band shall have the Quare Impedit, because the presentation was a Chattel invested, 21 Hen. 6. 56.

The Husband presents, and after they are divorced, the Husband shall have the Writ, 31 Hen. 8. br. Divorce 8.

Cestui que use. Cestui que use shall not have it, but the Feof­fees; for the presentation, is alwayes firm to the Advowson, Crooke 17. Hen. 7. A. Frowick & ibidem 2 Hen. 8. 160. B. pl. 1.

Chancel­lor. Chancellor shall present to a church under 20 Marks per annum, 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.

But vide Br. Praescript. 86. that at this day the Chancellor presents to all under 20 l. per Annum.

Defen­dant. The Defendant shall have a Quare Impedit against the Plaintif, if his Clerk be not insti­tuted, Nat. br. 35. C.

Half blood. The elder brother presents and dyes, the brother by the half blood shall not have the next avoydance. Nat. br. 36. E. 3 Hen. 7. 5.

[Page 237] But the 19 Edw. 2. Quare impedit 177. Contra.

Two Sisters by several venters make com­position, and one dies before Presentment, the other shall have it, Nat. br. 36. E. Corpora­tion.

The Bishop shall have a Quare Impedit rati­one Patronatus. Bishop.

Ratione patronatus Patronage of a Denary belongs to him of common right, 17 Edw. 3. 40. pl. 17.

Ratione Lapsus. The Bishop shall have a Quare impedit rati­one lapsus, 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.

If Lapse accrew to the Metropolitan, he may put his Clerk in without the Ordinary of the place. Doct. & Stud. 125. B.

The Ordinary is deprived after Lapse ac­crues, Quere who shall have it, 7 Edw. 6. Dyer 87. pl. 203.

In quo casu Ordinarius loci providebit eccle­siae viduitati, Bracton. Lib. 2. 34. fol. 76. B.

But Bracton sayes, Lib. 3. that Lapse was but by the Council of Lateran.

If it be found 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.

Although a Ne admittas be sued, yet the Ordinary of the place shall present by Lapse Nat. br. 48. L

Lapse is when the Patron doth not pre­sent in six Moneths, then the Ordinary pre­sents by Lapse, Doct. & Stud. 124. B.

[Page 238] Although the Patron be an Infant or feme covert, Nat. br. 34. T. 3 Edw. 3. Quare Impe­dit. 41.

But this rule of Lapse admits divers excep­tions, [...]cill.

1 So long as the Church is void the Pa­tron may present Doct. et Student. 126. A. for the Title by Lapse is not a Chattell in­vested.

2. It shall not be Lapse of a chappell Dona­tive or Chantry unless the patron make his presentative, then it shall, Nat. br. 35. E. 6 Hen. 7. br. presentment 43. Pasch. 3. Jac. Ban. Regis. Fairfeild versus Gaire, or expressed in the foundation, 13 Edw. 4. 3.

3. An Advowson appropriate shall not be Lapsed, Nat. br. 35. F.

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 otherwaies the Lapse incurres, 5 Edw. 4. 115. but it seems that the ordinary cannot collate him that was the incumbent and made defendant in the suite.

5. In many cases Lapse shall not incurre without notice.

In what case Lapse cannot in­curre without notice. 1. Upon a Resignation, Nat. br. 35. H. 1 Hen. 7. 9. 5 Edw. 4. 116. A.

If the Ordinary dyes his Successor ought to give notice, Crooke. 18 Hen. 7. 41. pl. 2.

2. Upon privation, Nat. br. 35. H. 1 Hen. 7. 9. 5 Edw. 4. 118. A.

[Page 239] Although the Incumbent be meerly Laicus, 13 Eliz. Dyer. 293. pl. 3.

And although the party be party to the Suit, Coke 6. part. 29. Greens case, 22 Eliz. Dyer 369. pl. 54.

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.

4. If the Church be void by any clause of Statute, 13 Eliz. cap. 12.

5. He shall lose his benefice, per 2 Edw. 6. cap. 20. for refusing to pay tithes, 12 Eliz. Dyer 294. pl. 3.

6. If one have a benefice within 8 l. per ann. takes another and be inducted, Coke 4. part. 79.

7. If the former be 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.

And the value shall be according to the true value, and not according to the book of Tithes and first fruits, 7 Eliz. Dyer 237. pl. 29.

8. Upon refusal of a Clerk, Nat. br. 35. J. 15 Eliz. Dyer 327. pl. 7.

But Crooke 18 Hen. 7. 49. pl. 2. per Frowick, if it be a spiritual Patron, then it is not re­quisite.

So for avoydance per Creation, Cession, or Death, Doct. & Stud. 116. B. 5 Edw. 4. 115.

[Page 240] 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, Mich. 42 & 43 Eliz. com. ban. Rot. 3579. Leake against the Bishop of Coventrie.

Notice is as to the Lapse only, for as to the presentation, the Patron may be put out of the possession of the presentation although no notice is given, Pasc. 39 Eliz. com. ban. Scriven versus Episcopum Lincoln.

Parson. A Parson shall have a Quare impedit for the Vicaridge, for of common right it belongs unto him, Nat. br. 33. Ʋ.

For if the Vicaridge be void, and the Par­son be made a Bishop, yet he shall present, for it was a Chattel invested, Nat. br. 34. N. 24 Edw. 3. 26.

A Parson imprisoned shall have a Quare Impedit, 17 Edw. 3. 51. pl. 25.

Preben­dary. Prebendary, although he resigne after u­surpation upon him, 26 Edw. 3. 3.

Dean and Chapter. The Chapter brought a Quare impedit a­gainst the Dean, and good, for their possessi­ons are several, 9 Edw. 3. 134. & fol. 354. pl. 33. 17 Edw. 3. 64. 40 Edw. 3. 28. B. Finchden. 7 Edw. 3. Quare impedit 72. Lib. intra. 500. A.

Aggregate Hospital which hath not spiritual possessi­ons, neither Colledge nor scal, yet the Ma­ster shall have a Quare Impedit.

Corpora­tion mixt. 1. In right of the Crown, Nat. br. 32. E. the Writ.

2. For by reason of Lapse, for this makes [Page 241] him supreme Patron, Doct. & Student. 124. B. Com. 498. 18 Edw. 3. 19.

Therefore, after Lapse accrues to the King, the Patron cannot present, Doct. & Stud. 126. A. 10 Eliz. Dyer 277. pl. 55.

Nor the Ordinary collate after Lapse is accrewed to the King, 17 Eliz. Dyer 339. pl. 47.

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.

If the Dean of the Chappel Royal pre­sents not within 6 moneths, the King shall present, Nat. br. 34. F. 27 Edw. 3. 84.

Creation. Parson created Bishop, the King shall pre­sent 21 Edw. 3. 31. pl. 14. & fol. 41. 11 Hen. 4. 37. vide 6. Eliz. Dyer. 228.

Ratione tempera­lium. 21 Edw. 3. 5. pl. 13. The Writ was quia per­tinet ad Regem praesentare ratione Episcopatus nuper vacantis, and good.

The Count Lib. intra. 530. C. sect. 15.

And needs not say in the Count, for that the temporalities were seized, 42 Edw. 3. 7. pl. 27.

If a Church be void, during the time that the temporalities are in the hands of the King, although he makes restitution, yet the King shall present, Nat. br. 33. N. Stanford 44. Edw. 3. 17. pl. 8. 18 Edw. 3. 22. pl. 39.

If the Church voids, and the Bishop dyes, the King shall have it, and not the Executors, Nat. br. 33. Q. 9 Edw. 3. 2. Quare imped. 11.

And although the Bishop collate, Nat. br. [Page 242] 34. K. 11 Hen. 4. 9. A. 24 Edw. 3. 30. 44 Edw. 3. 3.

But if he dye after induction, although it be the same day, the King shall not have it, 44 Edw. 3. 3.

Lapse accrues to the Bishop which dyes, the King presents, 25 Edw. 3. 53. pl. 20.

Lapse accrues after the death of the Bishop, the King presents, Nat. br. 34. G.

Outlary. So if he have judgement to have the tem­poralities, 21 Edw. 3. 29.

By Outlary in a personal action the King shall present, Nat. br. 34. R. 8 Rich. 2. Quare Impedit 200. 21 Hen. 6. 56.

A. enfeoffes B. of a Mannor, to which, &c. and is outlawed, and presents per permission Symony.of B. the King shall present, because the pre­sentation is a chattel, 5 Hen. 5. pl. 4.

Upon 31 Eliz. cap. 6.

Note. The pleadings, No. Lib. intra. 405. C. Sect. 516. B. 531. D.

Note per 25 Edw. 3. cap. 1. the King shall not present in anothers right, but for the a­voydance in his own time, 11 Hen. 4. 7. pl. 16.

Note, if the King presents one that dyes before induction the King shall present again, for he had it not compleat before, Coke 9. part. Holts case. Vide Regist. orig. 31. B.

But if the King have title hac vice, and an­other presents A. which dyes, the King hath lost his turne, Coke 7. part. 28. Baskerviles case. No. lib. intra. 489. A.

Yet if one be qualified having two bene­fices [Page 243] takes another incompatible, the first is void, by two years the Patron presents, and after induction, his Clerk refuses to pay his tenths, and this is certified according to the Statute of 26 Hen. 8. the Bishop being Patron collates, the King shall present for this refu­sal is as it were a resignation, which shall be intended a Collusion, to take away the title of the King, Mich. 29 & 30 Eliz. Com. Ban. Bott. 2299. 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 instalment, and yet he is inducted, the King confirms it, and he is made Bishop, the Prebend dyes, the King shall present again, for the confirmation was void, because he was not in ex praesentati­one Regis.

Nat. br. 38. D. the King recovers a Pre­bendary, and gives by Letters Pattents to A. which dyes, the King gives it to B. he shall have a Writ to the Justices to make executi­on for him.

Disseisee. Disseisee shall have a Quare Impedit before his entrie into the Mannor, 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.

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.

[Page 244] And if the Disseisor presents, and the dissei­seisee enters into the Mannor, to which, &c. and infeoffes B. thereof, with the Advowson, the Church voyds, B. shall have a Quare Im­pedit, for by the entrie of the Disseisee, he was in the possession of the Advowson, 3 Hen. 4. 7. pl. 33. 14 Hen. 6. 16. pl. 52.

But 33 Hen. 6. 33. Prisot to the contrary, for there it is said, that untill Recovery the Disseisee shall not have the Advowson.

Disseisor dyes 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.

But if it void in the time of the Disseisor, the Disseisee shall have it, although the Dis­seisor died seized of the Mannor to which, &c. 24 Hen. 8. Dyer 5. pl. 6.

Disseisor suffers usurpation, Disseisee en­ters into the Mannor, Disseisee shall have a Quare Impedit, Nat. br. 36. F. 14 Hen. 6. 14. 3 Hen. 4. 7.

Executor. Executor of the King shall not have a Qua­re Impedit, but the successor, for this is a chat­tel Royal, 7 Hen. 4. 25. pl. 3. 1 Edw. 3. 17. pl. 8. 5 Edw. 3. 149. pl. 15.

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.

Although the Heir be in ward to the King, Nat. br. 33. R.

[Page 245] If one recover in a Quare Impedit and dye▪ the Heir shall not have execution against the Executors, 9 Hen. 6. 57. A. Rolfe.

Enfant. At the Common Law the Infant was bound by suffering Usurpation, 35. Hen. 6. 6. 31 Edw. 3. Quare Impedit. 186. 10 Edw. 2. Quare Im­pedit. 43.

But at this day he is not, per Westm. 2. cap. 5.

Unless he be a Purchaser, 10 Edw. 2. Qua­re Impedit. 43. 35 Hen. 6. 60. Nat. br. 31. & 34.

Or that the party that usurps be remitted, Nat. br. 35. M.

If he suffer usurpation having it by descent, he is bound till full age, 16 Edw. 3. 9. Quare Impedit. 62.

And if he suffer usurpation, and at full age enfeoffe B. of the Mannor to which, &c. yet B. shall not be in, Nat. br. 34. X.

But by 16 Edw. 3. Quare Impedit. 67. Coke 6. part. Boswels case, the Infant is also bound.

Feme Co­vert. Usurpation at the Common Law shall bind a Woman Covert, 35 Hen. 6. 6. Prisot. 31 Ed. 3. Quare Impedit. 180. 10 Edw. 2. Quare Im­pedit. 43.

Husband suffers usurpation, where the Wo­man is the purchaser, she shall not have a Quare Impedit; but if she had it by descent she shall have the next turne, per Westm. 2. cap. 5. Nat. br. 34. S.

The Husband discontinues one Acre with the Advowson, the Wife may not present, un­less [Page 246] after the Alienee sever the Advowson of the Acre, Nat. br. 32. 17 Edw. 3. 5. pl. 12.

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.

But this is intended when the King hath but one Title, 10 Eliz. Dyer 269. pl. 19. 9 Edw. 3. 26. Stamford. Prerogat. 44. 16 Hen. 7. 7. 18 Edw. 3. 22. A. Pole.

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.

But the 9 Edw. 3. 348. pl. 24. the orders of the Templars were dissolved, the Church voids, and after the Advowson, &c. were gi­ven to the Hospitalers per Parliament, the King shall not have the presentation.

A common person grants the Advowson in Fee when the Church was voyd, the Grantee shall not have the presentation, because it is a thing in action, 11 Hen. 4. 54.

So of a Feofment of Land, to which an Advowson is appendant, 24 Eliz. Staffords case.

But a Feofment upon condition, the Church becomes void, the Feoffor enters up­on Condition broken, the Feoffee shall pre­sent, because it is a Chattel invested, 24 Ed. 3.

Feoffment of the third part of a Mannor, the Feoffee shall not have the third present­ment, 6 Edw. 3. 215. A.

Unless it be with three presentments, 9 Edw. 3. 341. pl. 31.

[Page 247] Grantee of the next avoydance shall have a Quare Impedit, 39 Hen. 6. Quare Impe­dit 95.

The Count, Lib. intra. 520. D.

And if the Grantee levy a fine of the Ad­vowson, yet this puts him not out of posses­sion, 19 Edw. 3. Quare Imped. 154.

Grantee by Parliament suffers a usurpa­tion, this doth not put him out of possession, 16 Hen. 7. 8. Keble.

Grantor by Fine usurps, this shall not trou­ble the Grantee, 31 Edw. 1. Quare Impedit 187.

Tenant in tayl for life, or years, grants their estate, the Church voids, the Grantee shall present, because it is a Chattel invested, 9 Edw. 3. 336. pl. 4.

Daughter. If the Daughter suffers a usurpation, the son shall not afterwards have a Quare Impe­dit, 11 Edw. 3. Quare Impedit 138.

Founder. Founder shall have a Quare impedit of com­mon right, because he enters upon the disso­lution, 12 Edw. 4. 30. A. Catesby.

Joynt-Tenants. One of them shall not have a Quare Impe­dit against the other, Nat. br. 34. Ʋ. 14 Eliz. Dyer 304. pl. 54. 33 Hen. 6. 11. B.

Nor against a stranger.

But he that pleads Joynt-tenancy of part, the Plaintif ought to entitle himself to the Advowson, or shew that he is Incumbent, 31 Hen. 6. 51. B.

Joynt-tenancy of part is no Plea, 14 Hen. 6. 14. 14 Hen. 4. Joynt-tenants 32.

[Page 248] Joynt-Tenant presents sole, this shall not put his Companion out of possession, 27 Hen. 8. 13.

But 11 Hen. 4. 44. Hanford é contra.

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.

Nomina­tor. Nominator shall have a Quare Impedit a­gainst him that presents, Nat. br. 33. A. be­cause he had the fruit, 14 Hen. 4. 11. pl. 9. 14 Edw. 4. 2. pl. 2. 32 Hen. 8. Dyer 48. pl. 16. 22 Edw. [...]. 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.

For if it be [Nominare] this shall abate it, 14 Hen. 4. 11. 21 Hen. 6. 17. A. But the Count shall be special, Nat. br. 33. A.

For the 14 Hen. 4. 11. per Hill. Nominator is in a manner the very Patron, 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, Crooke. 2 Hen. 8. 161. pl. 1. per Read.

Parceners The eldest shall have the first presentment, Nat. br. 33. L. 38 Hen. 6. 9. pl. 19. Doct. & Student. 115. B. Nat. br. 34. Ʋ. Crooke. 12 Hen. 7. 1. A.

So the Husband of the eldest being Tenant by Courtesie, Nat. br. 33. L. 5 Hen. 5. 10. pl. 24.

[Page 249] So he that hath the estate of the eldest, Nat. br. 34. Ʋ. But Crooke. 18 Hen. 7. 49. pl. 5. Frowicke. if he grant this before any present­ment by him, the Grantee shall not have the former presentment, because he is a stranger in blood.

Where a Parcener grants his Fstate to B. (the Church being void) yet the Parceners ought to joyn in a Quare Impedit, 11 Hen. 5. 54.

The Pleading of Partition, No. Lib. intra. 468. B. & C.

They make partition to present by turne, the youngest dyes, his Heir in ward to the King, he shall present during the Nonage, 21 Edw. 3. 32. pl. 14. 22 Edw. 4.

Parceners agree to present by turne, this is a good partition to the possession, 20 Edw. 3. Quare Impedit. 63. 65.

But Nat. br. 33. L. e contra. because the in­heritance is severed.

Doct. & Student. 11 [...]. the King shall have the first presentment, the eldest the second.

But 38 Hen. 6. 9. pl. 19. the Issue of the eldest was in ward to the King, there three o­thers to the pleading make 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.

Upon composition to present by turne, if it be inrolled, they shall have a Scire facias one [Page 250] against the other when their turne comes, Nat. br. 34. H. 21. Edw. 4. 6. pl. 36. B.

So of a stranger that presents by turns, if the partition be of Record, Nat. br. 36. C. but they may joyn in a Quare Impedit against a stranger, and also present in common; but by this the Composition is waved, Nat. br. 36. D.

The purprise of one Parcener shall not put the other out of possession, when his turne comes again, 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.

Procura­tor. My Procurator presents as to his own Ad­vowson, 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.

Recoveror in right of an Advowson suf­fers Reco­veror.an usurpation, he shall not have a Quare Impedit, 45 Edw. 3. Quare Impedit. 139.

Revers [...]o­ner. Tenant for life or years suffers an usur­pation, the Lessor shall not be ayded by Westm. 2. cap. 5.

But his heir shall be, Nat. br. 31. G.

But 33 Hen. 6. 12. pl. 3. 34 Hen. 6. 27. pl. 8. e contra.

If Tenant for yeers or Gardein brings a Quare Impedit, and a Writ be awarded to the Bishop for the Defendant, yet the Tenant [Page 251] of the Franck-tenement 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.

Queen. The Queen shall have it alone, because she is a sole person exempt by the Common Law, and the Writ shall not say unde queritur, be­cause she shall not finde Pledges, 18 Edw. 3. 2. pl. 6.

Lord. The Lord that hath an Advowson by Es­cheat, shall have a Quare Impedit the Count Lib. intra. 500. D.

If an Abby which hath an Appropriation be dissolved, the Lord shall have a Quare Impe­dit 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. Greu­dons case. Tenant in Tayl.

Tenant in Tayl suffers an usurpation he hath no remedy, but his Issue shall have a Quare Impedit, 49 Edw. 3. 14. pl. 9. this is by the equity of Westm. 2. cap. 5. Coke 6. part 50. B. Boswells case.

Tenant in Tayl of a Mannor, to which an Advowson belongs Enfeoffes A. which grants the Advowson to B. and Reinfeoffes, the Tenants in Tayl, the Issue shall not have a Quare Impedit, because the other had no remedy, Nat. br. 35. B. 19 Hen. 6, 30.

Tenant in Tayl Leases his estate over, the Church voids, he dies, the Issue in Tayl shall present, 9 Edw. 3, 10.

[Page 252] Tenant in Tayl suffers an usurpation be­fore the Statute, the Issue shall not have a Quare Impedit after the Statute, 8 Edw. 2. Quare Impedit 167.

In Dower Tenant in Dower shall have the third pre­sentment, Nat. br. 33. L. 33 Hen. 8. br. Pre­sentment 55. 15 Hen. 7. 17.

So if she have the third part of a Mannor, to which an Advowson belongs, Nat. br. 34. Q. 6 Edw. 3. 215.

For life. Tenant for life shall have a Quare Im­pedit.

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 yeers Tenant for years shall have a Quare Impe­dit although he doeth not present within the Terme, Nat. br. 34. B. 9 Edw. 3. 338. pl. 6. 39 Hen. 6. 39.

In com­mon. Tenant in common shall not have it with­out his Companion, Nat. br. 34. Ʋ. 14 Eliz. Dyer 304. pl. 52. 33 Hen. 6. 11. B.

Travers. He that traverseth an office and hath the Land in Farme, shall have the presentment, if it be void during the time, so it be found for him, although no mention be made of the Advowson, Nat. br. 34. P.

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.

Against whom a Quare Impedit lyes.

Patron sole. It lyes against a Patron sole, 29 Hen. 6. 57. 19 Hen. 6. 67. pl. 14. & fol. 73. pl. 1. et fol. 75. pl. 5.

But then the Incumbent shall not be remo­ved, 29 Hen. 6. 57. 7 Hen. 4. 34.

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. et fol. 75. pl. 5.

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 Impedit 24. vide 47 Edw. 3. 10.

Note. But note, this is intended, when the inhe­ritance, estate or interest of the Patron in the Patronage, is to be devested by the Judgment, for otherwise he ought not to be named, Coke 7 part. 26. B. Halls case.

When there is no Patron, the Writ shall be against the Incumbent sole, 13 Hen. 8. 12. 4 Hen. 8. 3.

When the King presents, it lyes against the Incumbent sole, because the King shall not be sued, Coke 7. part. 26. B. Halls case. 32 Hen. 8. Dyer 48. pl. 16. 24 Edw. 3. 77. pl. 103. Crooke 19 Hen. 7. 53. pl. 9.

Plaintif. It lyes for the Defendant against the Plain­tiff, if the Clerk of the Defendant be not instituted, Nat. br. 35. C.

But not of the same presentation, if the [Page 254] 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.

Shrieve. The King grants a free Chapel to B. by Patent, if the Shrieve will not put him in, he shall have a Quare Impedit against the Shrieve and the Writ, shall be general, 14 Hen. 4. 11. pl. 9. Haukeford.

Quare Impedit of what disturbances it lyes.

Disturbor. If a Disturbor presents three times within the six moneths; Quare Impedit lies for the former, Nat. br. 35. R.

The Ordinary refuses to grant a Jure Pa­tronatus, or to admit the Clerk, a Quare Impe­dit lies, 33 Hen. 6. 12. 32. 34 Hen. 6. 11. 35 Hen. 6. 38.

So if it be Litigious, and the Ordinary ad­mit a Clerk without awarding a Jure Patro­natus, 22 Hen. 6. 25. Bre. 83.

So if he do not admit him within convenient time, 22 Hen. 6. 29.

The Bishop refuses to admit the Clerk, be­cause it was first found in a Jure Patronatus, this is a disturbance, Nat. br. 35. G.

Unless the Admittas be delivered to him, 21 Hen. 6. 44.

Quare Impedit of what things it lyes.

And if one be disturbed before the Statute yet he shall have the Writ, because the Sta­tute refers before aswel as after, 6 Edw. 3. 221. pl. 51.

The Count Lib. intra. 646. C.

Chappel. It lies of a Chappel, 22 Hen. 6. 25. B.

And it lies by Westm. 2. cap. 5. Lib. intra 52. A. Sect. 2.

The Writ shall be ad Capellam, Nat. br. 32. H. 8.

But if the King brings a Quare Impedit of his Free Chappel, it shall be Presentare ad Pre­bendam in his Frank Chappel, Nat. br. 33. & 16 Edw. 3. 3.

Denary. It lyes of a Denary, 17 Edw. 3. 40.

Domus Sancti Martini. It lies of Domus Sancti Martini, in Bristol, Nat. br. 33. G.

Hospital. It lyes of an Hospital, Nat. br. 33. G. pro Westm. 2. cap. 5. the Count. Lib. intra. 506. C. Sect. 1. De Medie­tate Advoca­tionis.

It lyes not de medietate Advocationis ne (que) de Advocatione medietatis, Nat. br. 33. A. 33 Hen. 6. 11. B. Prisolt. vide 4 Hen. 6. 15. B.

But in such cases the Writ shall be general (scil. ad Ecclesiam) and not (ad medietatem Ecclesiae) but the Count shall be special, Coke 5. part 102. Winsors case, 16 Edw. 6. Dyer 78. pl. 44.

[Page 256] But where there are 2 severall Patrons, and 2 severall 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.

21 Hen. 6. 4. pl. 8. in fine. One person saies that he was Parson but of the Moiety of the Church, 7 Edw. 3. 246. pl. 24. Quare Impedit of the Moiety of the Church.

Parso­nage. It lyes of a Parsonage and the writ shall be ad Ecclesiam because Ecclesia is intended of a Parsonage, Nat. br, 32. H.

Prebend. It lyes of a Prebendary, Per Westm. 2. cap. 5.

The count, Nol. lib. intra. 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.

Subde­conry. It lyes of the Subdeconry of Yorke, Nat. br. 34. G.

The writ shall be quod permittat cum prae­sentare, and yet the King gives it by his let­ters Patents, Nat. br, 34, G.

Vicaridge It lyes of a Vicaridge, per 2 Westm. cap. 5.

The writ shall be ad Vicariam. Nat. br. 32. H.

The count in a Quare Impedit

He that brings a Quare Impedit in his count ought to alledge presentment in himself, or in his Ancestors or in him by which he claims, Nat. br. 33. H.

[Page 257] 1. Unless a man erect a new Church, for then the Count shall be special, Nat. br. 33. H. 17 Edw. 3. 12.

2. If he recover in a Writ of right, then he may alleadg the presentation in him, a­gainst whom he recovered, Nat. br. 33. J.

Or may have this without alleadging any presentation, but may count upon the Re­cord, Nat. br. 36. A.

If he recover in a Quare Impedit, 42 Edw. 3. 8. pl. 5.

3. He may alleadg seisin in the Procura­tor, Nat. br. 33. J. 17 Edw. 3. 60. et 75.

He that alleadges presentation, ought to shew that the Presentee was instituted, al­though that it was against a common Person. But against the King he ought to shew that he was inducted, Com. 528. Bickleys case. Coke 6. part. 49. Boswels case.

And such presentment ought to be within memory, 17 Edw. 3. 10.

Presenta­tion in his own name Devisee for life alleadges the presentation in himself, and good, Coke 5. part. 37. 8 Hen. 5. 10.

The presentation of Tenant for life, Coke 5. part. 97, 98.

For years, 7 Edw. 4. 20. 22 Edw. 4. 9. B.

In Dower.

Courtesie.

At Will, 5 Hen. 5. 3. pl. 6.

These are the presentments of him that hath Fee.

The King grants the Advowson to A. (the [Page 258] Church being void, and presents, 13 Eliz. Dye [...] 330. pl. 36. grants or presents by Lapse, 21 Eliz. Dyer 364. pl. 28.

But the Issue in Tayl ought to alledge pre­sentment in the Donor, because he derives his title from him, Com. Mauxels case, fol. 4. B.

Presenta­tion in him by which he claims. 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 onely traverseable, Coke 5. part 98. A. Northumber­lands case.

For the Lessee ought to alleadge it in the Lessor, Coke 5. part 98. A.

Yet Presentation by him is good, 8 Hen. 25. 4.

But in the Judgement of the Law, this is the Presentation of the Lessor, Coke 5. part 89.

Purchasor may alleadge that in whose Estate he hath, 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 although the Church become void, 5. Edw. 4. 72. B. for he may be removed out of the possession, by Spoliatious Disseisin, or be outed otherwayes, yet the Church is full.

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 [Page 259] Distress infinite, 11 Hen. 6. 3. Martin.

But per 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 Judgement in a quare Impedit, 14 Edw. 3. Quare Impedit. 5.

So if the Shrieve return 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 proces is determined, vide 27 Hen. 6. 5. pl. 32.

And this is for the mischief of the Lapse, 24 Edw. 3. 37.

But if a Nihil be returned upon the summons Attachment and distress, quaere, 11 Hen. 6. 3. a Writ to the Bishop 4. yet the better opinion there is that a Writ shall Issue to the Bishop.

And if a Quare Impedit be against two, one appears at the Grande▪ Distress the other makes Default, a Writ shall Issue to the Bi­shop pro querente against him that made De­fault, Nat. br. 39. B. 14 Hen. 7. 19.

Quare Impedit against the Bishop, and B. B. makes Default at the Grande Distress, the Bi­shop pleads that he claims nothing but as Or­dinary the Plaintiff shall have a Writ to the Bishop, after the Count made, 10 Hen. 6. 4. Writ to the Bishop, 3.

[Page 260] The Defendant appears, after appearance makes default, the Plaintiff shall have a Writ to the Bishop, 2 Hen. 4. 1. pl. 3. Nat. br. 38. S.

At the Grande distress the Defendant pleads to Issue, and makes default, a Writ shall Issue to the Bishop, without more for the Grande distress was Issueable, 16 Edw. 3. Writ to the Bishop, 17. 12 Edw. 2. Quare Impedit, 168.

Default at the Grande distress, the Plaintiff shall have Judgement, Lib. intra, 507. A. Sect. 1, 2, 3. Judgement.

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.

T. brought an Assize of Darrein Present­ment against P. and the Assize was taken by his default, and when the Assize was sworn, T. withdrawed himself, yet P. shall have a Writ to the Bishop, although he was not in Court, 9 Edw. 3. Darrein Present­ment, 17.

Bar in a Quare Impedit, 1. by the Ordina­ry, 2. by others.

Litigious. The Church was Litigious, and he Collates after the 6. moneths, 34 Hen. 6. 41. pl. 10. 5 Hen. 7. 19. 34 Hen. 6. 38. 2 Hen. 6. 44. 18 Edw. 3.

[Page 261] What shall be accounted Litigious. It shall be Litigious where there are two Presentations and two Commissions, and one found for one and another for another, 21 H. [...]. 44. A. Newton & Paston.

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.

If two Joynt-tenants, or Tenants in com­mon present severally it is not Litigious, Doct. & Student, 116. A.

If two present severally and neither the one nor the other pray Commission, the Church is Litigious, Lib. intra, 511. & 512. 35 Hen. 6. 18. pl. 27. 8 Edw. 3. 289. pl. 49.

Claiming nothing but as ordinary, Judge­ment, si, &c. without special disturbance, this is good, 5 Hen. 7. 19. 22 Hen. 6. 15. 33 Hen. 6. 12. 32.

But the Plaintiff upon this may pray Judg­ment, and have it with Cessat Ezecatio, un­til, &c. Crook. 17 Hen. 7, 43. pl. 9.

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.

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.

3. Blinde, Coke, 11. part 29. B.

4. Heretick, Coke, 11. part 29. B.

5. Homicide, 38 Edw. 3. 2.

[Page 262] 6. Infant, Coke 5. part 58. A. 6 Edw. 3. 184. pl. 6. Herle.

7. Jew, Coke 11. part 29. B.

8. Illiterate 12. Eliz. Dyer 293. pl. 3. Coke 5. part 58. A. Specotts case, 40 Edw. 3. 25. pl. 31.

9. Irreligious, 5 Hen. 7. 6.

11 Miscreant, Coke 5. part 58. A. Specotts case.

12. Not able upon examination, 39 Edw. 3. 1. pl. 5.

13. Premenire, 38 Edw. 3. 3. pl. 9.

14. Himself Patron, 31 Hen. 6. 621.

15. Saracen, Coke 11. part 29. B.

16. Scismatick, Coke 5. par. 58. A. Specots case.

17. Symonist, Lib. intra. 532. A.

18. Villein, 14 Hen. 7. 28. B.

19. Utlaw, Coke 5. part 48. A. Specots case.

These are good causes of Refusal.

Note. Where one having a Parsonage in Wales and could not speak Welsh, it was demurred to Trin. 27 Eliz. Albany versus Episcopum S. Assaf.

These are not causes of Refusal.

That he hath another benefice with Cure, 14 Hen. 7. 28. B.

Hunter of Taverns and a player at unlawful Gam [...]s, Coke 5. part 57. Specots case. 9 Eliz. Dyer. 254.

Criminosus, 34. Hen. 6. 39. A.

These are good causes of Refusal.

Attainted, 15 Hen. 5. 17. B. Keble. 2

Presentor which is. Excommunicated per 40. days 115 Hen. 7. 7. B. Keble.

Infant not of the Age of 14. year, Perkins, 4. A.

Joynt Tenant or Tenant in common not agreeing, Nat. br. 34. V.

The same Law is if one present alone, 14 Eliz. Dyer. 340. pl. 54.

Master of a Colledge presented by the Col­ledge, 14 Hen. 8. 23.

Utlawed, 15 Hen. 7. 17. B. Keble.

Presenta­tion. A Corporation ought to present in wri­ting, 14 Hen. 8. 2.

Body natural may present by word, 14 Hen. 4. 22.

The King may present by word, 19 Edw. 3. Quare Impedit. 60.

Abate­ment. No bar, to say that the other Writ was aba­ted, if it were for form or false Latine, Coke 7. part 27. B. Portmans case.

But that it abated, because the Plaintiff was made Knight, the Writ depending, this is a good bar, Coke 7. part 27. B. Portmans case.

Appen­dant. The Plaintiff Counts of the presentment to the Advowson in Gross and grants it to him; defendant pleads appendant, he cannot travers that it was not in gross, because by intendment there are several Advowsons, Crook 19 Hen. 7. 51. pl. 1. Arbitre­ment. Confir­mation.

Arbitrement a good bar. Lib. intra. 498. C. s. 1. Confirmation or ratification by the King to [Page 264] the Incumbent, a good Bar against the King, 7 Hen. 4. 13. 14 Hen. 4. 25. 837. Lib. intra, 531. Sect. 22.

But this ought to be after Induction, 11 Hen. 4. 9.

If the King be deceived he may repeal this confirmation, 31 Edw. 3. Quare Impedit, 161.

But then the repeal ought to be before In­duction, or Installation, 25 Edw. 3. 47.

If the King recover and confirm the In­cumbent, this is no bar to the next avoidance, because his Judgement 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, quaere, who shall have them.

Disconti­nuance. Where one brought a Quare Impedit and discontinued a good bar, althought that it was purchased afterwards within the 6. moneths, Coke 7. part 27. B. Portmans case.

Fine. Fine levyed by the Ancestor of the Plaintiff a good bar, Lib. intra, 532. C. Sect. 3.

Warranty Warranty and assets a good bar, against the Issue in Tayl, 43 Edw. 3. 24. pl. 31.

No Di­sturbor. Did not Disturb a good bar, Lib. Intra. 503. C. Sect. 2. 22 Edw. 3. 17. pl. 71.

This may be pleaded to the grand Distress, 22 Edw. 3. 17. pl. 71.

But 21 Hen. 6. 45. A. 2 Edw. 3. 32. pl. 7. that it is no bar because no title is made, 14 Edw. 3. Judgement, 158.

[Page 265] But if it be a good plea yet after Issue joyned it is not, because it is a delay, and so a disturbance, 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. B. è con­tra, after title made this is no plea, 5 Hen. 4. 20. Br. Quare Impedit, 62.

Against the King it is no bar, because the party there ought to make a title, 7 Hen. 4. 32. pl. 18.

Non-suit. Non-suit after appearance in another Quare Impedit, before, is a good bar: al­though the last be purchased within 6. months, Coke 7. part 27. B. Portmans case. 22 Hen. 6. 25. 27.

And so if the former Writ were brought by the Plaintiff and another, 5 E. 3. 157. pl. 10.

No such Church. No such Church in the same County, no bar. 8 Hen. 6. 37. pl. 69. 9 Hen. 6. 17.

But 45 Edw. 3. 36. pl. 2. è Contra.

Pardon. Pardon of the King by alienation no bar, if the Church be void before the pardon, 27 Edw. 3. 38.

Plenarty. Plenarty a good bar though the Patron had not notice of the Avoidance, for this is to stop the Collation, but not Presentation. Pasch. 39 Eliz. Com. Ban. Scriven against the Bishop of Lincoln.

Plenarty of a Frank Chappel is no bar, for he shall be put to his Quare Impedit, then it shall be presentative afterwards, 22 Hen. 6. 25. B.

The Church is full against a Common [Page 266] person by Institution, 22 Hen. 6. 27. A. 14 H. 8. 2. Brudnel. 12 Hen. 4. 38.

And against the King by Induction. 22 Hen. 6. 27. B.

He that pleads plenarty ought to say that it is full of his own presentment, for if the Defendant be disturbed he shall 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. moneths of his presentment before the pur­chase.

But if it be of a presentment of his prede­cessor of the Plaintiff, yet it is good. 8 Edw. 3. presentment. 5.

The 6. moneths shall be accounted accord­ing to the Kalender. Coke 6. part 61, 62. Cates­byes case.

Who shall plead plenarty, and who not.

Incum­bent. Incumbent pleads plenarty of him ex prae­sentatione B. Coke 6. part 48. B. 22 Hen. 6. 14. pl. 22. New. Lib. intra. 265. A. abs (que) hoc that it was void, for the Incumbent is not able to plead it, per 25. Edw. 3. cap. 7.

But 16 Edw. 4. 11. pl. 6. Com. 501. A. Man­wood e contra.

Because he that pleads this ought to say that the Incumbent is in of his own presen­tation. 2 Richar. 2. Incumbent 4. Belknap. [Page 267] 46 Edw. 3. 19. 18 Edw. 3. Quare Impedit 48.

But per 4 Edw. 4. 13. The Incumbent pleads that the Plaintiff, or his Predecessor, present­ed him.

Parson imparsonee cannot plead plenarty, because that he cannot say, that he is in per six Moneths 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.

Estranger or he that claims nothing in the Patronage cannot plead Plenarty, 7 Hen. 4. 34. per Fitz James.

Against whom Plenarty is no plea.

Against the Lord that enters for Mortmain, it is no Plea, because the Lord hath liberty 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 Edward. 3. 34. 26 Edw. 3. Quare Impedit. 163.

Quaere if it be good against the Lord by Escheat, 13 Hen. 8. 14. Brudnel.

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.

But against the Queen it seems to be good, 18 Edw. 3. 13. pl. 9. 44 Edw. 3. Br. Plenarty 4.

[Page 268] Presenta­tion. A good bar to say, that the Plaintiff pre­sented his Clerk, and was inducted before the Writ purchased, 12 Hen. 4. 11. pl. 21. vide Crooke. 12 Hen. 7. 20. pl. 6.

Recovery. Recovery in another, Quare Impedit no Bar against the King, for he may make ano­ther title, Nat. br. 35. P.

Recovery by the Plaintiff against another in a Quare impedit, no bar.

Recovery by a Stranger in another Quare Impedit no bar, Crooke 18 Hen. 7. 49. pl. 4.

Recusan­cy. That the Plaintiff is a Recusant Convict, a good bar, for the Presentment is given to the University, per 3. Jac.

Release. Release of Actions Personals a good Bar, 22 Hen. 6. 25, vel 27. Littleton fol. 116. A. 30 Hen. 6. Bar 59.

So of actions real, Littleton 116. A. 9 Hen. 6. 57. Martin.

Presentment alleadged in the Ancestry of the Plaintiff, is a good bar, to plead a Release and Quit claim of the Ancestry, pro fine 8 Ed. 2. Quare Impedit 166.

More Plaintiffs in a Quare Impedit, the Re­lease of one is no bar; but for him only that released, Coke 5. part. 97. B. Northumberlands case. 30 Hen. 6. Bar 59. Fortescue.

Judgement in a Quare Impedit. 1. When he shall have Judgement. 2. Of what things he shall have Judgement.

Upon De­fault. Upon Default after appearance the Plain­tiff [Page 269] shall have Judgement and damages, 2 Hen. 4. 1. pl. 3. Nat. br. 38. S.

But upon Default after continuance, Di­stress shall issue out only, 6 Rich. 2.

Upon Default at the Grand Distress the Plaintiff shall have Judgement, Lib. intra. 507. A. Sect. 1, 2, 3.

Quare Impedit against two, one makes De­fault, the Plaintiff shall have Judgement a­gainst him that makes default, Nat. br. 39. B.

Quare Impedit aganist three, one makes Default, and it is found against the Plaintiff for the others, they make title, and it seems they shall have a Writ to the Bishop, 31 Hen. 6. 15. pl. 5.

Defendant makes title by himself and o­thers, makes default, the Judgement shall be to have a Writ to the Bishop; but this is not before the Plaintiff have Counted, Nat. br. 38. J. 10 Hen. 6. 4. pl. 13.

Non-suit. Upon the Non-suit the Defendat 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.

Unless the Non-suit be after Bar pleaded, 33 Hen. 6. 1. pl. 2. & fol. 55. pl. 48.

Three sue a Quare Impedit, and two are Non-suited, 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.

[Page 270] A. sued divers Writs against B. of the same Church, and is non-suited in all, except one, the Defendant shall not have a Writ to the Bishop, until that be determined, Nat. br. 38. R.

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. Episc. 25.

The Shrieve returns a tardè, &c. the Plain­tiff makes default, he shall be non-suited, 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.

If an Infant be non-suited the Defendant shall have a Writ to the Bishop, 2 Mariae Dyer 104. pl. 13.

A brought a Quare Impedit against B. C. & D. and is non-suited, B. dyes, C. & D. shall not have execution alone, 11 Edw. 3. br. E­piscopo 55.

If one of the Coparceners be non-suited, yet the other may fine, and the Defendant shall not have a writ to the Bishop, upon this non-suit, 38 Edw. 3. 35. br. Episc. 126.

Discon­tinuance. The Plaintiff discontinued his suit, the De­fendant shall have Judgement to have a Writ to the Bishop, Coke 7. part. 27. B.

Composi­tion. A. brought a Quare Impedit against B. and sued a Ne admittas, and then they compound­ed to present by turne, there shall be a speci­cial writ out of the Chancery to the Bishop to admit the Clerk that ought first to be ad­mitted.

[Page 271] Disclaim­er. Quare Impedit the Defendant disclaims in the Advowson, the Plaintiff shall have Judge­ment and a Writ to the Bishop, 6 Edw. 3. 7. Error 78.

Abate­ment. Where a writ abates for forme, or false La­tine, 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.

The Defendent makes default, the Incum­bent abates the Writ by Plea, the Defendent shall not have a Writ to the Bishop, because he made default, Nat. br. 38. H.

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.

The Writ abates for Misnosmer, or non­sufficiency, the Defendant shall not have a writ to the Bishop, Nat. br. 38. M. 31 Hen. 6. 15.

If a Quare Impedit is brought in Com. M. and the Count of the Church in Com. O. the Writ shall abate, but the Defendant shall not have a Writ to the Bishop, 21 Rich. 2. 29.

Verdict. It was found by verdict that the Metropo­litan collated where the Ordinary ought, and when the yeer is passed, the Plaintiff shall have a writ to the Bishop, Nat. br. 38. P.

In a Quare Impedit between A. and B. if the title appear for the King, Judgement shall be given for him, Nat. br. 38. E.

The writ to the Bishop, to whom it shall be directed.

If a man recover against another as well [Page 272] as the Bishop, he ought to have a Writ to the Bishop of the Diocess, Nat. br. 38. C.

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

If a man recover against the Bishop, he shall have a Writ to the Bishop or Metropoli­tan, Nat. br. 38. B. & Q. 18 Eliz. Dyer 353. pl. 30. 38 Edw. 3. 12. B.

If it be once to the Metropolitan he shall never have it to an inferiour Bishop after­wards, ibidem.

Or to the Vicar general, if the Bishop be out of the Realm, Nat. br. 38. Q.

Or to the Gardein of the Spiritualities of the Arch-bishop, 7 Hen. 4. 36.

If there be no Bishop of the Diocess, then to the Metropolitan, if no Metropolitan, then to the Gardein of the Spiritualities; but if before the execution the Bishop be made, quae­re if the power of the Gardein be not deter­mined, 18 Eliz. Dyer 350. pl. 19.

If it be against the Arch-bishop of York, the Writ shall be to the Metropolitan, 15 Eliz. Dyer 328. pl. 7.

The King recovers a Prebendary or Sub­deconry, or dignity against the Bishop, and gives it by Letters Pattents to A. yet A. shall have a Writ to the Bishop. And if he dye be­fore induction, and the King grants this to B. he shall have a Writ out of the Chancery, and a Writ to the Bishop, Nat. br. 38. D.

[Page 273] The King recovers a Prebendary, and hath a Writ to two Bishops, because the Preben­dary was in one Diocess, and the Church in which the Prebendary is, in another Dio­cess, 24 Edw. 3. 37. pl. 56.

If a man recover a Chappel donative, he shall have a Writ to the Shrieve, Nat. br. 48. A.

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 Judgement.

1. A Writ to the Bishop and no damages.

Coke 6. part. 51. A. Boswels case. At the Com­mon Law were no damages in a quare Impe­dit.

Statute Westm. 2. cap. 5. is, Si tempus se­mestre transierit per impedimentum alicujus, ita quod Episcopus ad Ecclesiam conferat, & verus Patronus ea vice praesentationem amittat, ad­judicentur dampna ad valorem medietatis Ec­clesiae pro duobus annis, & si non transierit sed disrationetur praesentatio infra tempus praedictum tunc adjudicentur dampna ad valorem medieta­tis Ecclesiae per unum annum.

The King is not within this Statute to have damages, for at the Common Law the King is not in danger to lose his presentation, per plenarty, Coke 6. part. 51. A. Boswells case. [Page 274] 3 Hen. 6. Damages 17. 34 Hen. 6. 51. 14 Edw. 3. Quare Impedit 54. 33 Edw. 3. Br. 916. vide 7 Edw. 6. Dyer 236. pl. 28.

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 Damages, 24 Edw. 3. 35. pl. 42. & 75. pl. 97.

It is found that the Ordinary presented be­fore his time, the Plaintiff releases damages, and had a Writ to the Bishop, 11 Hen. 4. 79. pl. 22.

The Ordinary claims nothing but as Ordi­ry, the plaintiff had Judgement against him, the Disturber, and his Clerk dyes, the plain­tiff shall have execution, but it seems no Da­mages, Crooke 17 Hen. 7. 43. pl. 9.

The Defendant comes the first day, and confesseth the Action, there shall be a writ to the Bishop, but no damages, 4 Edw. 2. dama­ges 9. 5 Edw. 3. 133. pl. 13. 5 Edw. 3. 139. pl. 44.

Quare Impedit against the Incumbent, the King revokes his presentation, the plaintiff shall have no damages against the Incumbent, 44 Edw. 3. 35. B.

The plaintiff shall not have damages against the Incumbent, if he pleads not, or proved a Disturber, 45 Edw. 3. damages 39. but shall recover only the presentation, 5 Edw. 3. 13.

Single Damages. A writ to the Bishop and single damages, 17 Edw. 3. 5. pl. 12. 24 Edw. 3. 37. pl. 54. 26 Edw. 3. 75. pl. 25.

A. sues B. & C. and it is found that B. only [Page 275] had right, B. shall have damages, against A. and C. 45 Edw. 3. 14. pl. 12. & br. Episcopo.

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 damages, or double damages and no writ, 39 Edw. 3. 15. But shall not have both, 5 Edw. 3. 150. pl. 10.

The Defendant confesses the Action, the Plaintiff shews that the six Moneths are past, and had a Writ to the Bishop and damages, 21 Edw. 3. 55. pl. 8. 20 Edw. 3. Collusion 34. 6 Edw. 6. Dyer 76. pl. 35.

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 damages; for the admittance proves him able, 40 Edw. 3. 25. pl. 21.

A Writ to the Bishop, and a Writ to the Shrieve to enquire of damages, 19 Edw. 3. Quare Impedit 156. 24 Edw. 3. 37. Lib. intra. 507. C. Sect. 6, 7, 8.

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 damages, 11 Hen. 4. 80. Nat. br. 38. P.

The Bishop grants proximam praesentationem to B. and dyes, the Church voids, the Succes­sor collates, B. brings his Quare impedit within 6 Moneths, two years pass, the Plaintiff had judgment, and upon his payer to remove the [Page 276] Incumbent and single damages and a writ to the Bishop or Metropolitan at his election, [...], et 3, Mariae. Eliz. Dyer. 194. pl. 3 [...].

Quare Impedit against the Ordinary which Collates and pleads to the plaintiff that the 6 moneths are passed, the plaintiff recovers the presentation land single damages for where the Ordinary claims as [...]vowee where h [...] 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 recovery against ano­ther man if the plaintiff will at his perill 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 I. the Metropolitan and against G. his Clerk they make default at the grande distresse, and a writ of enquiry of the points, and damages, and found that the Church was void 2 years, and that the Metropolitan collated G. and Judgment that the plaintiff shall have a writ to the Bishop and single damages, and the de­fendant in misericordia, 7 Eliz. Dyer. 241. pl. 48.

A Writ to the Bishop and double damages.

Quare Impedit against the Ordinary and B. the 6. moneths passe the plaintiff shall have double damages although the ordinary did not collate because he had jus conferendi and also a writ to the Bishop, 43 Edw. 3. 10. pl. 33.

[Page 277] The plaintiff recovers double damages be­cause the 6 moneths 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.

A man mall recover double damages al­though he recover all before the 6 moneths passe, 13 Edw. 4. 3. Littleton.

Single damages and no writ to the Bishop.

Before the returne of the writ to enquire of damages the 6 moneths passe the Bishop collates yet but single damages, 24 Edw. 3. 35. pl. 13. 27 Edw. 3. Damages 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.

22 Hen. 6. 28. Damages but no writ to the Bishop. Quare Impedit against a Parson impar [...] parsonee and found for the defendant he shall shave damages but no writ to the Bishop. Nat. br. 38. L. 26 Hen. 6. bre Episcopo. 6.

Double damages and no wr [...]t to the Bishop.

Quare Impedit against the ordinary, and B. the ordinary confesseth the action and it is found against B. and the Church is full of the presentment of B. the plain [...]iff shal have double damages but no writ to the Bishop, or shal have single damages and a writ to the Bishop at his election, 39 Edw. 3. 15.

[Page 278] The Ordinary intitles himself by Lapse, the Patron and Incumbent confess the Acti­on, the Plaintiff shall have double damages against the Patron and Incumbent, 34 Hen. 6. 41. 34 Hen. 6. 39.

Quare Impedit against the Patron and In­cumbent, they traverse the title, the 6 months pass, the Plaintiff shall have double damages against both, 46 Edw. 3. 15. pl. 5.

Two Writs to the Bishop.

The Defendant in a Quare Impedit brought a Darrein presentment against the Plaintiff, the Plaintif is nonsuited in the Quare Impedit, the Defend. recovers in the Darrein present­ment, the Defendant shall have judgement to have two Writs to the Bishop, but shall not have damages twice, Nat. br. 39. D.

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 in Wales have not power, 36 Hen. 6. B. Fortescue, 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.

Lord in antient Demeasn hath no power to award a writ to the Bishop, 7 Hen. 6. 35.

The Five Ports cannot award a writ to the Bishop, 21 Hen. 7. 88. pl. 7. Crooke.

Ne Admittas.
What Person shall have it.

The Plaintiff in a Quare Impedit, or Dar­rein presentment shall have it, Nat. br. 37. F.

So the Defendant shall have it, Nat. br. 37. H.

In what Cases it lyes.

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 lyes, Nat. br. 37. F. Regist. orig. 31. A. 21 Hen. 44. Newton. Vet. Nat. br. 24. B.

If one of the Writs be not depending, then it lyes not, Nat. br. 37. H.

For if the right of Advowson is depend­ing, it lyes not, because the presentation is not recovered in it, Nat. br. 48. Q.

Note. But note, that this lies before any certifi­cate made, that a Quare Impedit or darrein presentment is depending, Nat. br. 37. H.

Yet the party grieved 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.

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.

Within what time this ought to be brought

Locum habet infra tempus semestre, & non postea, quia Dioceanus illam conferat per Lapsum temporis ad sex menses, quia Dioceanis illud spe­cialiter est inductum, Regist. orig. 37. F.

Yet for the King it alwayes keeps place, Regist. orig. 31. A. Nat. br. 37. F. & G. vi­de Br.

The Writ.

The Writ shall be allon [...], although the Bishop be party, tamen olim fuit, ne conferatis alicui Ecclesia & 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. Ban. because it issueth out of the Rolls, 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.

This may issue out of the Chancery in the Term also.

[Page 281] If the King recover in Com. Ban. in Quare. Impedit he may have this Writ in Ban. Regis, Nat. br. 47. D.

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.

Against whom it lyes.

It shall [...]e 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.

It was brought against the Gardein of the spiritualities, upon refusal of the Bishop which is dead, Vet. Nat. br. 26. A. Nat. br. 47. J.

But it was denyed against the Arch-bishops Gardein of the spiritualities.

And yet Quaere per 17 Edw. 3. 27. pl. 9. if the Metropolitan of Common right be not Gardein of the spiritualities.

It was maintained against the official of the Bishop, Nat. br. 47. N.

In what Cases this lyes.

When a man recovers his presentation, and 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 returne cause, 9 Eliz. Dyer [...]60. pl. 21. Coke 6. part. 52. A. Boswels case.

But if the Record be removed, it lyes not till Judgement be affirmed, Nat. br. 47. E.

[Page 282] The Bishop refuses, and afterward admits him, yet the party it seems shall have this Writ, Nat. br. 47. L.

The Writ.

1. It ought to rehearse the recovery in the Quare Impedit. Nat. br. 47 C.

2. It ought to be brought in the County where the refusal was, because he shall recover nothing but damages, 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.

The Count.

The writ was against the Bishop, and count­ed, although the Vicar general refused, and yet good, 13 Edw. 3. Quare non admisit 4. Vet. Nat. br. 26. A.

The King counted not upon what original or what title he recovered, and yet good, 20 Edw. 3. Quare non admisit 10.

The Bar.

That he admitted him, and made Letters to the Arch-Deacon, to induct him a good barre, 38 Hen. 6. 14. Nat. br. 47. H.

The Bishop collates by Lapse, a good barre, Nat. br. 47. M.

Or that it was litigious by the present­ment of a stranger, 9 Edw. 3. Quare non ad­misit, 12. 34 Hen. 6. Quare Impedit 89. 34 Hen. 6. 41. pl. 10.

[Page 283] But A. and B. contend by which the Bi­shop Collates by Lapse, and after the King re­covers in a Quare Impedit, this is no bar in a Quare non Admisit, brought by the King, 23 Edw. 3. 22. Quare non admisit. 11.

Excommunication cannot be pleaded in the Plaintiff, because the Writ supposeth a contempt that the Plaintiff hath presented his Clerk in the Writ named after Judge­ment; But a good plea that the Incumbent did not make request after Judgement, 21 Hen. 7. 71. pl. 14. Crook.

No such Record a good Plea, Coke 8. part Dreuries Case.

A good Bar that the Church was full be­fore the Recovery of one not named in the Recovery, Nat. 47. K.

The Bishop returned that it is seised into the hands of the King, by reason of Ward and so full of the Kings presentment, this is good, 9 Eliz. Dyer 260. pl. 21. tamen Coke 6. part 52. A. Boswels case, è contra.

The Judgement.

The Judgement is, but to have damages, 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.

But it shall be brought in Com. Ban. because it is a Common plea. Vet. Nat. br. 26. B.

[Page 284] And although the Record be removed, Nat. br. 48. F. because it is an Original Writ per Shard 17 Edw. 3. 55. A.

But the King may bring this in Ban. Regis although the Record be in Com. Ban. But a Common-person shall not, Nat. br. 48. F. 17 Edu. 3. 50. pl. 21.

What person shall have it.

The Plaintiff or Defendant in a Quare Im­pedit or Darrein presentment that Reco­vers.

Against whom it Lyes.

It lyes against the Bishop, Vet. Nat. Br. A.

In what Cases this Lyes not.

It lyes not in right of Advowson, Nat. br. 48. Q.

It lies not unless a Ne Admittas be first di­rected to the Bishop a Quare Impedit depen­ding, Vet. Nat. br. 26. B. Nat. br. 48. H.

Yet it was maintained although no other Writ was first attained, Vet. Nat. br. 27. A.

It lies not unless the party hath recovered before by Judgement of the Court, Nat. br. 48. E. 17. Edw. [...]. 50. pl. 21.

The Incumbring by his Collation ought to be alledged to be within [...] months. Nat. br. 48. L.

The Writ.

And if he admit the Clerk of the other person after the six moneths, which was pre­sented before the Action, the Writ lyes, Nat. br. 48. L.

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. [...]. 14. pl. 32.

It ought to make mention of the Recovery, Nat. br. 48. K. Regist. Orig. 32. B. But 18 Ed. 3. 17. by Wilby he ought not to mention.

The Writ needs not mention before what Justices the Recovery was and yet good, 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, because it is an Original Writ. 2. Nor that the Bishop In­cumbred it within the six moneths, for it shall be intended. 3. It is good although it bore Date within the six moneths, for it shall be maintained after the recovery, and the party shall have it. 4. It lyes in Com. Ban. although that the Record be removed, be­cause it is an Original.

The Count.

The Count ought to mention the Reco­very, Nat. br. 48. K.

It needs not to recite all the Record of the Recovery, although that it was recovered by Darrein presentment, 17 Edw. 3. 55. pl. 34.

The Count mentions that the Bishop did Incumber (the Writ depending) concerning the Church yet good, 17 Edw. 3. 74. pl. 109.

If one Writ be abated the Plaintiff in ano­ther Writ may vary from the Count, Nat. br. 48. M.

The Process.

It is Summons, Attachment and Distress, vet. Nat. br. 26. B.

The Barre.

The Church was Litigious, and that he did Collate by Lapse, 34 Hen. 6. 38. Quare Impe­dit, 89. A good bar.

No such Record, a good Bar. vet. Nat. br. 26. B.

Error brought and the Record removed, in Ban. Regis. no bar. vet. Nat. br. 26. B.

Did not Incumber after the prohibi­tion to him delivered a good bar. Nat. br. 48. M.

The Judgement.

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 Non-suted, yet it is not to him peremptory, Nat. br. 48. M.

Replevin.

In what Court it lyes.

In the County Court by plaint, per Marle­bridge, cap. 21.

And this may be before the day of the Count, 9 Edw. 4. 48. 21 Edw. 4. 66. pl. 46.

But by the Common Law the Shrieve can­not make a Replevin without a Writ, 8 Eliz. Dyer. 246. pl. 67.

In the 5. Ports, Regist. Orig. 79. A. Nat. br. 67. A.

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.

But Antient Demean is a good plea to out the Court, because the reality may come in debate, Coke 5. part 105. Aldens case, vid. 2 Ed. 3. 32. pl. 10. 17 Ed. 3. 52. pl. 28. & fol. 75. 40 Ed. 3. 4. pl. 9. 29 Ed. 3. 9. pl. 29. 4 Ed. 3. 123. pl. 34.

[Page 288] It lies not in the Marshalsey, Coke 10. part 74. Marshalsea.

Who shall have a Replevin.

Admini­strator. Administrator shall have a Replevin de bonis Testatoris, the Count. Lib. intra. 560. B. Sect. 2.

Husband and Wife. Husband and Wife shall joyn in a Replevin for Distress taken upon the Land of the Wife, 2 Edw. 2. Replevin. 42. Digest. brevium. 53. Sect. 2.

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.

Baylee. If goods be bayled to A. he shall have a Replevin of them against a stranger, 21 Hen. 7. 14.

Executor. Executor shall have it for goods taken in the Testators time, 17 Edw. 3. Executors, 106. 24 Edw. 3. Avowry, 257. 21 Hen. 6. 1. B. Mark [...]ham.

Executors shall have the goods that were Testators. Regist. Orig. 81. B. 5 Edw. 3. 133. pl. 14. 18 Edw. 2 Repleg. 24. 18 Edw. 3. Seve­rance, 28.

And when he brings it of his own possession he shall have it before the Probat of the Te­stament, Com. 281. A.

Joynt Te­nant or Tenant in Common. Joynt Tenant or Tenant in Common joyns in a Replevin. 11 Hen. 6. 31.

But if two others joyn the Writ shall [Page 289] abate, 11 Hen. 6. 31. 3 Hen. 4. 16. 21 Edw. 4. 23.

But in a Homine Repleg. Estrangers may joyn, Nat. 66. F. 8. Edw. 4. 16. pl. 19. Propter favorem libertatis, and yet 8 Hen. 4. 2. Is that they shall not joyn.

Parson. Parson shall have a Replevin of a Mortuary after Seisure, but not before, Com. 281. A. Foxes case, 10 Hen. 4. 1.

For he had not property before Seisure, 16 Hen. 7. 5. pl. 3. Brian.

Propri­etor. 1. He that hath not the property shall not have a Leplevin, 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. 2 [...]. 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.

2. But he that hath cattel by way of Agist­ment shall have a Replevin because he hath a Special property, 3 Edw. 3. 71. pl. 36. 42 Edw. 3. 18. pl. 32. [...]1 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.

4. So if one have goods bayled to him, 21 Hen. 7. 14.

Lord. The Lord of a Villein shall have it, for cattle of a Villein taken for the bringing of the Action is a sufficient claim, 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.

[Page 290] But he shall not have damages for the ta­king but onely for the Detainer. Nat. br. 69. F.

Successor. Successor of an Abby shall have it for ta­king any thing in the time of his predecessor, 9 Hen. 6. 25. pl. 21 Martin.

Against whom a Replevin lyes.

Baylee. It lies not against him that hath goods de­livered to keep, Lib. intra. 569. B. Sect. 1.

King. It lyes not against the King nor where he is party, nor where the taking is in right of the King, 3 Hen. 7. 1. Keble.

Lord. It lyes against a Lord that distreyns wrong­fully although the goods come again to the owner. Nat. [...]r. 69 H.

Shrieve. It lyes against the Shrieve, and the Writ shall be in the common form, and he shall be named by his proper name, Regist. Orig. 81. B.

Of what things a Replevin lyes.

Cattels. It lyes of Cattels, Regist. Orig. 81. Coke 1. part 141. Mayowes case, the Count. Lib. intra. 570. C. Sect. 123. 4. Coke 1. part 54. A. Capels case: and needs not mention the Colour or value, but onely the kinde and na­ture.

But ought to shew the place for the taking in another place shall abate it, 2 Hen. 6. 14. pl. 10. 35 Hen. 6. 40. pl. 1.

[Page 291] Wood. It lyes of wood within the forrest, Regist. orlg. 86. B.

Barge. Replevin lyes of a Barge, 2 & 3 Mariae. Dyer 117. pl. 73.

Mastiff. It lyes of a Mastiff, 12 Hen. 8. 3.

Of a Leveret, 2 Edw. 2. Distress 20.

Deeds. It lyes not of Deeds for Land, because they are Real, 4 Hen. 10. pl. 4.

Bees. It lyes of a Hive of Bees, Regist. orig. 81. A.

Ferret. It lyes of a Ferret, 2 Edw. 2. Avowry 142.

Grain. It lyes of Grain in a Waggon, Lib. intra. 560. B. Sect. 2. 562. D. Sect. 3.

Man. It lyes of a man if he be not committed by the command of the King or his Justices, or of the death of a man, Regist. orig. 77. B. Nat. br. 66. E.

Or by Justice of the Forrest outlawed, ap­prover, taken for Felony with the manner, breaking prison, known Thief, appeal by an approver, burner of un house, or counterfeit­ing the Money or Seal of the King, or taken by an Excommunicata Capienda, or for Trea­son, Convict of Redisseisin, Nat. br. 66. E.

But if a man be taken for trespass in a For­rest he shall be replevied, Regist. Orig. 80. A.

And the Writ shall be directed, Custodi Forrestae, and if he be not delivered, then a Replevin shall issue to the Shrieve, and an Attachment to attache the Gardein of the Forrest, per 1 Edward. 3. cap. 8. Sta­tute 1. Regist. Orig. 80. B. Nat. br. 67. A. B. & C.

And so for a Trespasse at the Kings Chase, [Page 292] Regist. So. B. because the Chase remains at the Common Law. Nat. br. 67. D.

And so if a man Rescues one Indicted and Convicted for a Trespass in the Forrest. Regist. Orig. 81. A.

Sheep and Lambs. If one takes Sheep which afterwards have Lambs, it lyes of all. Nat. br. 69. D. 18 Ed. 3. 48. pl. 55.

Park. It lyes of a Park seised into the hands of King, Regist. 80. B. Nat. br. 67. E.

Sow and Pigges. It lyes of a Sow and Pigges which were not pigged at the time of the taking, 12 Edw. 45. pl. 10. 18 Edw. 3▪ 48. Nat. br. 69. D.

Cows and Calves. It lyes of Cowes and Calves not Calved at the time of the taking. Nat. br. 69. D. 18 Ed. 3. 48. pl. 55.

Yarn. It lyes of Yarn, Mich. 39 & 40 Eliz. Com. ban. Burley versus Read.

The Writ.

If a live and dead thing be put in one Writ the live shall be put first, Regist. Orig. 81. B.

If it be of more live things ye shall say, A­veria, Regist. Orig. 81. B. Nat. br. 68. D. Com. 229. A.

And if the writ be Averia, and the Count be de bonis & Catallis it is not good, because the Count is more large, 2 Hen. 4. 25. pl. 28.

If it be of a live thing it shall be named particularly, Regist. Orig. 81. B. Nat br. 68. [Page 293] D. Com. 229. A. 20. Hen. 6. 4 [...]. pl. 21.

If it be of more dead things it shall be 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.

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.

County. Distress in one County and impounded in another County, Replevin lies in any of the Counties, Nat. br. 69. I.

Village. A good plea that the Defendant took the cattel in another village, 2 Hen. 6. 14. pl. 10.

The Proces 1. of a man Replevied. 2. of Chattels.

Repleg. alias plures & Attachment against 1 the Shrieve, Nat. br. 66. F. 167. B.

If the Shrieve return him not reprevable, a Capias in Withernam shall Issue, Regist. Orig. 79. A. 80. A. & B.

If upon the Capias in Withernam, a non est inventus be returned then a Capias in Wither­nam against his goods, Nat. br. 68. C.

Repleg. alias and plures. Nat. br. 68. E. F. G.

And an Attachment to the Coronors a­gainst 2 the Shrieve, Regist. Orig. 81. A.

Upon a return that the Baily of a Fran­chise makes not an answer or will not make deliverance, there shall be a Non omittas, but [Page] it seems that the Shrieve ought to do it with­out a Writ, Nat. br. 68. F.

  • If the Shrieve return
    • Fugavit, in another County.
    • That the Bayly of the Li­berty returns elongata.
    • Or that he cannot have the view.
    • Or that the Cattel elon­gata out of the County.
    • Or that the Bayly 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.

And upon this three Capias's and an Exi­gend. 5 Edw. 4. 18. A. Danby.

The Writ of Withernam ought to rehearse the Returne of the Shrieve, Nat. Br. 69. B.

The Writ, Regist. Orig. 82. A. No. Lib. in­tra. 611. B. Sect. 21.

If the Reply be in the County per plaint, and the Bayly returne elongata, the Shrieve ought to enquire by Inquest, and then Wi­thernam shall be awarded by him, and if he refuse the party shall have a Writ against him, and an Alias pluri [...]s, and an Attachment, Nat. br. 69. C.

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.

And yet if the Writ abate per plea or con­fession, there shall be another Replevin, 34 Hen. 6. 37.

But by Westm. 2. cap. 2. if one be non-suited in a Replevin, he shall have but a Second De­liverance out of the Rolls of the former Judg­ment, 19 Edw. 2. Repleg. 25. 4 Hen. 6. Return of Cattel 6. 21 Edw. 4. 6. 2 Hen. 4. 23. 30 Hen. 8. Dyer 41. pl. 4. 21 Edw. 4. 6. pl. 16. 32 Edw. 3. Return of Cattel 18.

But if Judgement be given against the Plaintiff in a Repleg. upon a demurrer or Ver­dict, no Second deliverance, 2 Hen. 4. 23. pl. 9.

And Second Deliverance shall not be, but in the same Court, Com. 206. B.

Yet if he be non-suited in the County Court, and it be removed in Ban. yet it shall issue out of the Ban. 13 Edw. 3. Repleg. 37.

And if he be non-suited in Second Deliver­ance, he shall not have another Writ, 4 Hen. 6. 8. Return of Cattel. 6.

Second Deliverance is one Writ judicial is­suing out of the former Record, per 2 Westm. cap. 2.

Vide the Writ Lib. intra. 572. B. Sect. 2, 3, 4.

[Page 296] 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 Declaration, the second deliverance ought to agree with the Replevin in day, place and number, &c. 3 Hen. 6. 9. pl. 10. 21 Hen. 7. 28. vid. 12. Hen. 7. 4. 49 Edw. 3. 29. Persay.

But 16 Edw. 3. Ayde 131. Thorpe, 17 Edw. 3. Repleg. 22. 26. Hen. 6. pl. 7. It may vary from the place.

And per 26 Hen. 8. 6. pl. 27. Fitz-Herbert, it may vary from the number and day.

Repleg. of a heifer the second deliverance was of a Cow and good, 26 Hen. 8. 6. pl. 27.

Upon a Non-suit in a Repleg. return agard and upon Withernam agard, and other cattel taken, yet the second deliverance shall be of the former Cattel, 36 Hen. 8. Dyer 59. pl. 14. 2 Edw. 3. 17. Avowry 171. 22 Hen. 7. 92. pl. 7. Crook, there shall not be a second deliverance be­cause the Plaintiff had Estrayed them.

Husband had aid of the Wife and makes de­fault, the Wife cannot joyn in the second de­liverance, 18 Edw. 2. Repleg. 23.

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 [Page 297] in a Court Leet Distress is incident, 5 Edw. 3. 139. pl. 43. 10 Edw. 3. 303. pl. 10.

For Fine imposed in a Leet, Coke 8. part 41. A. Griesleys 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. Gascoigne. 12 Hen. 7. 15. B. 4 Edw. 3. 95. pl. 24. 29 Edw. 3. 28. pl. 30. Doct. & Student, 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 Parishoners have assessed it, 22 Edw. 3. 10. pl. 52.

Amercia­ment in a Court Baron. A man shall be amerced for not doing of suit in a Court Baron, 9 Hen. 7. 22. Word & Read, Coke 4. part 95. A Slades case, 21 Hen. 6. 39. pl. 8.

And for such Amerciament he shall di­strain, 9 Hen. 7. 22. per 2. Justices special pre­scription, No. Lib. intra. 570. C.

For Amerciament in a Court Baron a man may distrain, 16 Hen. 7. 14. pl. 9. 21 Hen. 6. 39. pl. 8.

The Lord may prescribe to distrain for A­merciament in a Court Baron, 15 Eliz. Dyer. 322. Coke 11. part 45. A.

Yet Doct. & Student 74. è Contra.

Crooke if Amerciament was at the Court Leet he may distrain, otherwayes not, Crooke, 20 Hen. 7. 66. pl. 8.

[Page 298] Amercia­ment in Tourne. Special prescription in Tourne to A­merce, and for this there was speciall prescription, and Distress, 33 Hen. 8. 30. pl. 2.

Tax by the Inha­bitants. Suit to a Mill. Tax was made by the Inhabitants and a Di­stress and good, Doct. & Student. 74. B.

A man may distrain for suit to a Mill, 22 Hen. 6. 14. 9 Edw. 3. 356. Nat. Br. 122. M.

Rent-ser­vice. A man may distrain for Rent service, and all manner of services, Doct. & Student. 74. A.

A gives land to B. for him to serve when he shall be requested, he may distrain, 22 Hen. 6. 33. A.

Herriot. 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 custome he can but only seize, 2 Edw. 2. Herriot 7. 8 Hen. 7. 10. Doct. & Stud. 75. A.

For Herriot service a man may seize, 18 Edw. 3. 22. pl. 4. 38 Edw. 3. 7. pl. 27. 16 Edward. 3. Herriot. 2. 6 Edward. 3. 277. pl. 10.

For a cer­tain Leet. A man cannot distrain for a certain Leet without prescription, because it is against Common right, Coke 11. part. 44. Godfreys case. vide 6. Edw. 3. 10.

And the Tything man that pays it, and prescribes to have it of the Resiants ought to prescribe to distrain, 6 Edw. 3. 189. pl. 26. Coke 11. part. 44. B.

[Page 299] Ayd. A man may distrain for Ayde for mar­rying his Daughter, or making his Son Knight Glanvil, Lib. the 9. cap. 8. 5 Edw. 3. 138. pl. 38. 39 Edw. 3. 34. pl. 40. 40 Edw. 3. 22. pl. 21.

Suit to the Hundred. For suit to his Hundred 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.

Relief. The Lord may distrain for 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.

Agistment A man cannot distrain for Agistment, but shall have trespass if that they chace them out of the Land before the Agistment be paid, Regist. Orig. 92. A. 30 Edw. 3. 11. pl. 6.

Inholder. Inholder cannot distrain for his Victuals, 3 Edw. 3. Distress 19.

Estray. He that takes cattel as an estray, may di­strain them until he be satisfied for the meat, 44 Edw. 3. 13. pl. 25.

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. 29.

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.

But Trin. 28 Eliz. Ban. Regis. Rott. 963. the Village of Northampton distrained for Toll, and alleadged not a speciall Title, [Page 300] or prescription to have Toll, for this it was adjudged against them.

Damage feasant. A Commoner may distrain the Cattel of a stranger, damage fesant 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.

Forfei­tures. The Officers distrain for the forfeitures of Inne-keepers, and sell the Distress, 1 Jac. cap. 9.

The Lord may distrain for the forfeitures of Inmates, or for erection of Cottages, 31 Eliz. cap. 7.

Distress by Surveyors of Highwayes, 18 Eliz. Cap. 10.

Arrerages. Tenant in Dower cannot distrain for ar­rearages due before the Recovery, 40 Edw. 3. 22. pl. 19.

Rent. Lease of Tythes rendring rent, there shall be no distress, because the Tythes are the thing leased, 11 Hen. 4. 40.

Rent by prescripti­on. A person claims rent by prescription, and distrains for it, Lib. intra. 557. Charge 1.

Rent Charge. A. grants a rent Charge to B. in Tayl, and if the Bayly of the King distrained, that the party might distrain, 46 Edw. 3. 18.

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.

Of what things a man may distrain.

Money. Money cannot be distrained, unless it be in a bag sealed, 22 Edw. 4. 50. B. pl. 17. 41 Edw. 3. Distress 14.

Cattel in a waggon. Cattel in a Waggon may be distrained, but out of a Waggon not, 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 Returne, neither a Replevin lyes of them.

Lord. The Lord cannot seize the Cattel, and put them in a Waggon, and then distrain them, 18 Edw. 3. 4.

Horse. A Horse at the Smiths Shop, garment in a Taylors Shop, a Horse in an Hostrey shall not be distrained: but if the Saddle be on the back of the horse, when he is at the Shop, he may be distrained, 22 Edw. 4. 40. pl. 15. 15 Rich. 2. Avowry 19.

A horse upon which I ride over my ground, the Lord cannot pursue and take him as a Di­stress, 6 Rich. 2. Rescous 14.

A horse of any man shall be distrained through the whole Village for all the Fees of the Knights of the Parliament, 11 Hen. 4. 2.

If a man be taxed to Fifteens, having Cat­tel levant in another village, when they come within the Parish they shall be distrained, 1 [...] Edw. 3. 11. pl. 39.

A Horse of a stranger escapes in the land of him that hath lost Issues, he shall be di­strained [Page 302] as it seems, 5 Hen. 7. 1.

If the best beast be estrayed, the Lord may distrain any cattel in the Land, 27 Assize, pl. 24.

Goshawk. A Goshawk distrained, and the distress ju­stified, 16 Edw. 4. pl. 9.

Fishes. Fishes in a Pond cannot be distrained, Crooks Reports 188.

Hive of Bees. Hive of Bees shall be distrained, as it seems, for a Replevin lyes of them. Nat. br. 68. D.

Door, or Window. Door or Window is not distrainable, 11 Edw. 3. Cessavit, 21. 21 Hen. 7. 26. 14 Hen. 8. 25. Brudnel.

Milstone. Milstone that is severed for pricking shall not be distrained, 14 Hen. 8. 25.

Anvil. An Anvil shall not be distrained, 14 Hen. 8. 25.

Barge. A Barge was distrained by prescription, 3 Mariae. Dyer 117. pl. 73.

Lord. The Lord distrained cattel for services be­fore they were Levant and Couchant, 4 Edw. 3. 37. Issue joyned 8. 22 Hen. 6. 37. 15 Hen. 7. 17. Doct. & Stud. 15. A.

Sheep. Sheep shall be distrained if other distress cannot be found at the day of the distraining, 29 Edw. 3. 16.

Plough. Cattel of the Plough shall not be distrain­ed, if there be other Distress sufficient, 14 Eliz. Dyer 312. pl. 86.

Cattel in Dower. Cattell delivered by the Shrieve to the Tenant in Dower for seisin of Rent shall not be distrained for arrearages, 40 Edw. 3. 22. pl. 19.

[Page 303] Yarne. Yarn brought upon a horse to a neighbour to weigh, this the Lord cannot distrain for Rent, because it was brought for a special in­tent, Mich. 39 & 40 Eliz. Com. Ban. Burleigh versus Read.

Cattel. Cattel put into black Acre, and they stray into white Acre through default of enclosure, shall not be distrained, 22 Eliz. Dyer 365. pl. 33.

Default of Inclosure. A. ought to inclose against B. and leases to C. for 21 years, which leases to D. for ten years rendring Rent, the Cattel of B. for de­fault of enclosure escape, and 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.

What Person shall distrain.

Damage fesant. A Commoner shall distrain for damage fe­sant, and is not tyed 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.

Tenant at sufferance distrains, damages fesant, 4 Hen. 7. 3.

He to whose use before, 27 Hen. 8. could not distrain, because he had nothing in the Land, 15 Hen. 7. 2. pl. 4.

Sheep. Sheep bayled to a woman sole to dung her land, who takes a Husband, who commands the Owner to take them again, who refuseth the [Page 304] husband may distrain them, damage fesant, 43 Edw. 3. 32. pl. 3.

Lord. The Lord distrains cattel, because the Te­nant puts in more then he ought in the Com­mon, 46 Edw. 3. 12. pl. 13.

Common. A. sold 50 Acres of Moor 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, damage fesant, 23 Eliz. Dyer 372. pl. 10.

At what time a man may distrain.

For Rent-services he shall not distrain in Services and A. mercia­ments.the night, 11 Hen. 7. 5. pl. 8. 12 Edw. 3. Di­stress 17. 10 Edw. 3. 21. Coke 9. part. 66. A.

After the Terme ended no distress, 14 Hen. 4. 31.

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 arrearages.

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.

Husband and wife. Husband leases, the Wife dyes without Issue, the Husband cannot distrain, because the reversion goes to the Heir, 9 Hen. 6. 45. 28 Hen. 8. Dyer 28. pl. 191.

Reversion A. leases for years, and grants the reversion to B. yet if the Cattel of B. comes upon the Land, A. shall distrain during the Terme, 10 Edw. 4. 4. tamen Quaere.

[Page 305] Damage fesant. For damages fesant in the night, Assets good, Coke 9. part. 66. A. Mackally's case. 11 Hen. 7. 5. pl. 8. 12 Edw. 3. Distress 17. 10 Edw. 3. 21.

A. enters upon condition broken, and takes the Cattel of the Lessee, damage fesant, Quae­re. 5 Eliz. Dyer▪ 322.

A man distrains damage fesant although the owner makes fresh suit, 7 Hen. 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.

Leet. A man fined in a Leet, being one of the Deziners, shall be distrained through all the Jurisdiction of the Leet, although that he be of the other Dezin, Coke 11. part. 45. A. 11 Hen. 4. 89. 13 Hen. 4. 9.

A man shall distrain in any place within the precinct of the Court, 19 Edw. 3. 2. Avowry 225. 8 Rich. 2. Avowry 194. 47 Edw. 3. pl. 12.

Tourne of the Shrieve. For amerciament in the Shrieves Tourne he may distrain throughout the County, 12 Hen. 4. 24. pl. 17. 13 Hen. 4. 9. 8 Rich. 2. A­vowry 194.

If a man had a Leet within his Mannor, he cannot distrain out of his Mannor, 4. Edw. 3. 96. pl. 26.

For a [...]ax by the Parlia­ment. For ser­vice. For a tax by the Parliament a distress may be justified through out all the Village, 11 Hen. 4. 2. 18 Edw. 3. 11. pl. 39.

Fishing lying within tenure, a man may [Page 306] distrain in it, for it seems that the soyl pas­seth, 40 Edw. 3. 45.

Herriot Service. A man may seize his Heriot service in any place that he shall finde him although not within his Fee, 6 Edw. 3. 208. pl. 3.

House. The Lord may enter the House of his Te­nant to distrain, if the door be open, 38 Hen. 6. 26. pl. 4.

If the Lord finde the house fast with a bar, and he break it open and distrain, this is wrongfully, 8 Edw. 2▪ Distress 21.

Estranger The beasts of a stranger escape into an­others Land, and the Owner chaces them out before, and the Lord comes and distrains them, yet it is otherwise if they go out of their own accord, without chacing, 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.

Glebe. Yhe Lord distrains the Cattel of the Pa­tron within his Glebe, 33 Hen. 6. 35. Little­ton.

Lessee. A man cannot distrain but in the place leased, unless the Lessee grant it in other Land, 9 Hen. 6. 9.

Lords Fee The Lord distrains in his Fee, the Tenant chaces them out of his Fee, he may take them again, 44 Edw. 3. 20. pl. 18.

Fresh suit. Bayly attaches a horse, which is rescued and brought into another County, he shall make fresh suit, and take him again, 33 Hen. 6. 52. pl. 39. 33 Hen. 6. 550. pl. 46.

Pound. A. distrains and puts them in the pound, [Page 307] the owner takes them out, A. may take them again in any place, 34 Hen. 6. 18. pl. 33.

Rent-Charge. If one puts his Cattel in the Land charged, they shall be distrained, although they are neither Levant nor Couchant, otherwise if they escape, 15 Hen. 7. 17. pl. 13.

Quaere by the 18 Edw. 2. Avowry 219. if the cattel that escape shall not be distrained for damage fesant.

River of Thames. 2 & 3 Mariae. Dyer 117. pl. 73. Distress for an annual sum upon the river of Thames.

What Distress shall be sold.

Court Leet. Distress taken in Court a Leet shall be sold,

Although that a common person be Lord of the Leet, 3 Hen. 7. 4. pl. 15. Fairfax.

Inmate. Distress taken by a Bayly of a Lord of a Leet for forfeiture of Inmates, and sold by force of a grant of the Steward in nature of a Scieri facias, No. Lib. intra. 666. A. Sect. 14.

High Wayes. Distress taken for a Fine touching High wayes shall be sold, per 18 Eliz. cap. 10.

What shall not be said a Distress excessive.

Excessive No distress shall be said excessive for Ho­mage, 42 Edw. 3. 26. pl. 11. Belknap. 27. assize. pl. 51. Coke 4. part 8. B. Bevils case. 28 assize. pl. 50.

So likewise for fealty, 27 Assize. pl. 51. 28 Assize pl. 50. Coke 4. part. 8. Bevils case.

A man distrains four horses and a Cart for 2 s. rent, this is not excessive, because they are [Page 308] fixed to the Cart, otherwise if not fixed; so of a fold of Sheep, 20 Edw. 4. 3.

1. The Bar. 2. Justification. 3. Conu­sance. 4. Avowry.

1. Bar. No Bar that the Plaintiff is possessed of the Cattel, Nat. br. 69. H.

That he took them not, a good Bar, Lib. intra. 561. B. Sect. 1. 565. C. Sect. 1. 2. 19 Edw. 3. Ayde 28.

Claime property, 26 Hen. 8. 6. pl. 27. 31 Hen. 6. 12.

Grain. This may not be by way of Avowry, 31 Hen. 6. 12.

Replevin of grain a good Bar, it was his Wives, that the Plaintiff surrendred it to her, 30 Edw. 3. 9. pl. 3.

2. Justifi­cation. When a man cannot have the thing for which he distrains, then he may justifie, and not avow per Curiam, 19 Hen. 6. 41. pl. 83.

But 22 Edw. 4. 36. B. e Contra. Collow.

If a man distrains for services, and the Te­nant dye in Repleg. by the Executors he shall justifie, but not avow, 17 Ed. 3. Executors. 106.

Because he cannot have a return for the same thing, 22 Edw. 4. 36. B. Collow.

If a man distrain for services, he may justi­fie or avow, at his Election, 15 Edw. 4. 29.

For in every case where he may avow, he may justifie, sed non e contra. 5 Edw. 4. 6. Young.

A man may justifie for rent determined, but not avow, Mich. 33 & 34 Eliz. Com. Ban. God­dards case.

[Page 309] Tenant at sufferance may justifie a distress for damage fesant, 4 Hen. 7. 3. pl. 6.

Conusance for damage fesant in frank-te­nant of his Master, 10 & 11 Eliz. Dyer 280. pl. 15. 21 Eliz. Dyer 365. pl. 32.

Conusance as Bayly of A. and that he took them damage fesant, in the land that his Ma­ster had for years, 2 & 3 Mariae. Dyer 117. pl. 76.

Conusance as Bayly to the parson of D. which claims rent by prescription and a di­stress and good, Lib. intra. 557. Charge 1.

He cannot avow for rent determined, but may justifie, Mich. 33. & 34 Eliz. Com. Ban. God­dards case.

Quoru­plex. 1. Avowries for Rent-services are four, per Common Law, andby Statute Law, Coke 9. part. 134. B. Ascoughs case.

2. Upon one as upon his Veray, Tenant by the manner, scil. when the Tenant leased for life, or a gift in Tayl remainder over in fee, 20 Hen. 6. 9. B.

But then the Lord ought to shew this in his Avowry, 15 Edw. 4. 12. A. Catesby. vide 4 Hen. 6. 14. pl. 11.

3. Upon one as his Tenant per the manner, when the Lord hath but in Tayl, or a lesser estate in the Lordship, or when the Tenant hath a lesser estate then fee simple, 21 Hen. 6. 22. pl. 2. 2 Hen. 4. 24. pl. 13. Ha [...]kford.

4. Upon the matter in the Land as within his fee and signory, 38 Hen. 6. 23. pl. 7.

5. Upon the Land by any Lord, per 21 Hen. 8. Cap. 19. as in Land within his see and [Page 310] Signory without making Avowry upon any person certain, Coke 9. part. 136. Ascoughs case.

Who shall avow.

Admini­strator. An Administrator shall avow for rent due in the life of the Testator, per 32 Hen. 8.

Husband and Wife. Husband and Wife in right of the wife, for rent-service, Lib. intra. 555. D. Sect. 6.

Or for Rent due to the wife afore Cover­ture, 4 Hen. 6. 13.

But one cannot make Conusance as Bayly to the Husband and Wife, because a Feme co­vert cannot make a Bayly, 13 Hen. 4. Avow­ry. 198.

He to whose use. He to whose use before, 27 Hen. 8. cannot avow for damage 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.

But may justifie in the names of the Feof­fees, Crooke. 17 Hen. 4. pl. 7.

Commo­ner. Commoner for damage fesant, 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.

Although they be Coppy-holder or Te­nant for years, Coke 9. part. 112. B.

And needs not shew per quod amisit commu­niam, No. Lib. intra. 573. D. Sect. 4. but vide Coke 9. part. 113. A. who ought to shew it.

[Page 311] For rent reserved by the Testator upon a Lease for years he shall not be put to shew the Testament, 12 Rich. 2. 163.

Executor. Executor for Rent due in vita Testatoris, 32 Hen. 8. cap. 37.

Woman. Rent granted by Husband and Wife, the Arrearages incurre the Husband dyes, the Wife shall distrain for the Arrearages, 29 Edw. 3. 40. pl. 19.

Gardein in Soccage Gardein in Soccage may avow for damage fesant in his own name, for he hath the Go­vernance of the Land, Crooke. 17 Hen. 7. 46. B. Frowick.

Parson. Parson may avow for Rent-charge by pre­scription, Lib. intra. 557. B. Sect. 1.

King. The King having the profits by Outlary in a personal action may avow, 15 Hen. 7. 2. pl. 4.

Tenant at will. Tenant at will for damage fesant, Lib. intr. 561. B. Sect. 1. 15 Hen. 7. 2. pl. 4.

Tenant at sufferance. Tenant at sufferance cannot avow for da­mage fesant, Crooke 17. Hen. 7. 47. A. But vide 4 Hen. 7. 3. pl. 6. in Trespass he justi­fies for damage fesant, and good, for he ought to have the profits till him that hath right en­ter upon him.

For what things a man may avow.

1. Amer­ciament. Amerciament in a Leet, No. Lib. intra. 572. A. Sect. 2. Crooke 20. Hen. 7. 66. pl. 8.

In Tourne of the Shrieve, 28 Edw. 3. 95. 2

In a Court Baron it was by custome alleadg­ed 3 15 Eliz. Dyer 322. pl. 23. Crooke. 20 Hen. 7. 66. pl. 8. for amercement for the Tenants not coming he may distrain, if it be assessed by Ferrors, otherwise not.

[Page 312] Corrody. Corrody granted with distress, he may a­vow for, 27 Edw. 3. 81. pl. 13.

Damage fesant. Damage fesant, 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. Frances case.

If the Cattel be chased out before he di­strain, he cannot avow the distress, Coke 9. part. 22 Avowry. 16 Edw. 4. 10. 2 Edw. 3. 2. Avow­ry 182.

His frank-tenant, and avows for damage fesant, and it was found, that he was his frank-tenant, and his wife, the judgement shall be against him, for both were seized, Trin. 38 Eliz. Com. Ban. Walker versus Bonner.

The Plaintiff shews that A. was seized, and descended to him, and that he was seized in Fee, and avows for damage fesant, and good. Trin. 9 Jac. Newton versus Ansley.

Forfeiture For a Moyety of the value of the Land, upon 4 Hen. 7.

For maintenance of Husbandry, Lib. intr. 575. D. Sect. 1.

Herriot. Herriot Custome, No. Lib. 613. B. Sect. 22.

But he ought to shew the Certainty of the Land holden, for to say that he held two tenures is not sufficient, but claims it of the Lessee for life, he ought to shew which Lease he holds by, 21 Hen. 7. 79. pl. 27. Crooke.

Relief. For Relief, Lib. intra. 5 [...]5. C. Sect. 4.

But the Avowry shall not be for the double rent, but only the quantity of the single rent, 16 Hen. 7. 4. pl. 2.

[Page 313] Rent. 1. For a Rent Charge, No. Lib. intra. 585. A. Sect. 7. 8. 9.

2. For a Rent Charge by prescription, Lib. intra. 557. B. Sect. 1. & 2. C.

3. For Rent-service, but if he 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.

Services. 1. For Fealty, Lib, intra. 555. C. Sect. 4.

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 he shall avow accordingly.

For Bracton Lib. 2. Fol. 35. B. in hoc casu tenens habet electionem, & unum solvendo libe­ratur.

For rent service when the Cattel are chased out, Lib. intra. 557. A. Sect. 10.

Seisin in Avowry in whom it may be alledged.

Ancestor. It may be alledged in the Ancestor of the Avowant, 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. Feoffer.

In the Father of the Feoffor, Lib. intra. 556, B. sect. 8. Predeces­sor.

In the Predceessor good, 6 Edw. 3. 277. Com. 96. A.

By what hands Seisin shall be alleadged.

Ancestor. By the Ancestor of the Plaintiff, 34 Edw. 3. Avowry 258. 34 Hen. 6. 8.

Disseisor. By a Disseisor good, Coke 2. part. 67. A. Tookers case. Coke 6. part. 57. B. Bredimans case.

Unless it be by Covin, Coke 6. part. 58. A. Bredimans case.

Infant. By the hands of an Infant, good, 34 Edw. 3. Disclaimer 30. Coke. 9. part. 33. B. Bucknals case.

Feoffor of the tenant Joynt-te­nant. In the Feoffor of the Tenant, Com. 95. A. Mantels case.

By the hands of the Joynt-tenant only it is good, Coke 2. part. 67 A. Tookers case.

Resyants. Presciption to have rent of a Village, Seisin by Resyants is good, because all the Village is chargeable, 4 Hen. 6. 29, 30. Coke 6. part. 59. Bredimans case.

Tenant. By Tenant for years not good, because he hath not an estate out of which seisin may be gained, Coke 6. part. 57. Bredimans case.

By the hands of the Tenant for life, good, when the remainder is over to another, Coke 6. part. 58. A. Bredimans case.

By the hands of the Tenant by courtesie not good, to charge the Heir with Herriot Service because none may have his estate, 21 Hen. 7. 84. pl. 8. Crooke.

Tenant makes a Feofment and afore notice gives seisin, this is good, because he remains tenant to the Lord until notice, Coke 6. part. 58. A. Bredimans case.

[Page 315] By the hands of the tenant and needs not say Tenant of the land, 34 Hen. 6. 8.

By the hands of the tenant prevail good, Coke 6. part. 58 A. Bredimans case.

The Shrieve claims 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.

When it is not requisite to alledge Seisin.

Avowry. Avowry for an amerciament is not requi­site, 11 Hen. 4. 89. 13 Hen. 4. 9.

Avowry for rent charge, 44 Edw. 3. avow­ry 75. Coke 8. part. 56. A. Fosters case.

Avowry for rent upon a feofment by deed tendered of him because the deed is the title and the commencement of it appears, 2 Edw. 2. Avowry 185. Coke 8. part. 65. A. Fosters case.

So for Rent or Service upon a guift in Tayle or other particular estate, Coke 8. part. 65. A. Fosters case.

Superior. What Seisin shall be good.

Seisin of the Superior service is seisin of [Page 316] all inferiors, because they are incident to it, Coke, 4 part. 8. Bevils case.

Seisin of Escuage, is seisin of Homage, Coke, 4 part. 8.

Seisin of Homage, is seisin of Fealty, Coke, 4 part. 8.

Inferior. Seisin of Homage, is seisin of the Superior, or Inferior.

Seisin of Homage, is sesin of Escuage, 13 Edw. 4. 5. and is seisin of Relief, 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

Annuall. Seisin of annuall service, is seisin of every casuall service, Coke, 4 part. 8, 9. Bevills case. 20 Edw. 3. Avoury 121. 7 6. B. avoury 69.

Rent is seisin of fealty, 29 Edw. 3. 21. A. 3 Edw. 2. avowry 188.

Seisin of annual service is not seisin of other annual service, because it is the folly of the Lord, because he did not obtain that which is annuall, Coke, 4 part 9. A. Bevills case. 16 Eliz Dyer, 330.

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.

The Lord recovers damagefor suit, this is a good seisin of the suit, Coke, 4 part. A. Be­vills case.

1. Note that seisin in law is sufficient sei­sin within the statute, 35 Hen. 8. cap. 2. 1, be­cause [Page 317] the intent of the Feoffors 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 distjunctive make an actual seisin which referrs to the three former branches and seisin, this is actuall, or in Law, which referrs to the fourth branch, Coke, 4 part. 10. Bevills case.

Antient seisin. Measnalty extinct per purchase of the te­nant the old seisin doth suffice for the Rent­seck, Coke, 4 part. 9. A. 2 Edw. 2. extinguish 6.

A Signory granted upon condition which is broken the antient seisin sufficeth, for the distress is in lieu of the entry, Coke, 4 part. 9. B. Bevills case.

Amends. Bar to an Advoury.

Tender of amends for damage fesant be­fore distress or impounding is goodbut not af­terward, Coke, 5 part. 76. A. 8 part 147. A Doct. et student. 112. b. Nat. br. 69. G.

Tender amends after distress and afore im­pounding the detainer is wrongfull and not the distress, Coke, 8 part. 147. A. Carpenters case.

The tender of amends to the bayly is not good, Coke, 5 part. 76. A. Pilkingtons case, 1 Hen. 4, 15, pl. 17. Common.

A claims common appurtenant to such a house pro omnibus averiis magnis and verdict given, and it was resolved after verdict that although he doth not say (suis) it is good, [Page 318] 2. although he sayd not common appurte­nant, Pasch. 15. Jac. ban. Regis.

Disclay­mer. Disclaimer a good barr, Coke 9. part. 34. Bucknalls case. 15 Rich. 2. Avowry 214.

Grant by Tenant in tayl. Avowry because A. was seised in fee grants a rent to the avowant the other pleads that A. was seised in Tayl, this is not good if he traverse not the seisin in fee, 11 Eliz. Dyer 280. pl. 16.

Out of his fee. Out of his fee a good Bar, and every Stranger to the Advowry shall plead it, Cook 9. part 20. A. 34. 15 Rich. 2. Avowry.

Note. Note Feodum dum homagium & servitium & non tenementum in dominico, Bracton▪ lib. 2. fol. 46. B.

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.

Avowry for an Amerciament in Court ba­ron Injuria sua pro­pria. de injuria sua propria, a good bar for the Custom traversed, Mich. 13. Jac. com. Ban. Baker & Banks.

Ought to inclose and did not. The Plaintiff sayes that the Defendant ought to have inclosed and did not do it suf­ficiently, Vide the pleadings, 22 Eliz. Dyer 365. pl. 32.

Coparce­ner. Conusance for damage feasant, the other said that they are Coparceners, this is good, 10, & 11 Eliz. Dyer 280. pl. 15.

Nothing in arreare. Release. Nothing in arreare a good Bar, but no stranger shall plead it, Coke 9. part 20. A.

Release of Actions personals and reals [Page 319] pleaded in Bar of the Avowry for corrody granted with distress, a good bar, 27 Edw. 3. 81. pl. 13.

Seisin. When the Lord varies from the truth of the quantity of his services by reason of seisin, there he cannot traverse the seisin, Coke 9. part 33 A. Com. 94. B. Mantels case.

But if they vary of the quantity by reason of seisin, there the seisin is traversable, Coke 9. part, 33. A. Bucknals case, Com. 94. B. Mantels case, 18 Edw. 2. Avowry 217.

Not sei­sed. Not seised generally a good Bar, for by this he shall have no remedy of the Lord, Coke 9. part 34. B. Bucknals case, 22 Hen. 6. 3 A. 30. Henry 6. Avowry 15.

But if he avow and alleadg seisin by the hands of the Plaintiff or other, the Plaintiff shall say, never seised by his hands, Coke 9. part 35. A. Bucknals case, 22 Hen. 6. 3. A.

The seisin is not traversable, but for that only for which the Avowry is made, Coke 9. part 35. A. Bucknals case, 26 Henry 8. 1. pl. 1. unless seisin be alleadged of a superior ser­vice, as if tenure be alleadged per Homage fealty, and rent and avow for rent and sei­sin in all, the seisin of the rent is only traver­sable, Coke 9. part 34. A.

But if it be of Homage, fealty, rent, and escuage, and avow for Homage, and alleadg 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 Ed. 3. Avowry 103. 19 Edw. 2. Avowry 224. 16 Edw. 4. 11. pl. 11.

[Page 320] Tenure by homage, fealty, or escuage, or suit and other services and seisin of all he may tra­versethe seisin of Homage and escuage, 2. Edw. 3, 21. pl. 4.

Not sei­sed within [...]0 years. Not seised within 40 years a good bar, 32 Hen. 8, cap. 2. Coke 9 part. 36. Bucknalls case, 14 Eliz Dyer. 315. pl. 101.

But he that pleads this ought first to con­fesse 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. Bucknalls case.

But this is no plea in avoury for rent upon a grant or reservation by deed because the deed is the title, Coke 8 part. 65. A. Fosters case.

Or upon a gift in Tayle because the com­mencement 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.

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. Bevills case

So if land be conveyed toa Mayor and com­monality which was held by homage and feal­ty which conveyes this over, this is no plea because the Mayor and communality cannot do homage or fealty, Coke 4 part. 11. A. Bevills case.

[Page 321] Seisin a­voided in avowry. 1. The Issue in tayle shall avoid seisin by the hands of the tenant in tayle, Coke 9 part. 34. A. Bucknalls case, 34 Edw. 3. Avowry 131.

But this is intended when the tenant makes a gift in Tayle remainder in fee, for the te­nant in tayle shal himself avoid the encroach­ment between, by the donor because he ought to shew the commencement of the reservati­on, Coke 8 part. 65. A. Fosters case, 10. part. 108. Lofeilds case.

2 Successor of a Bishop shall avoid seisin be­tween by the hands of the predecessor, Coke 9 part. 34. A.

3 Veray tenant of the land if he have a deed and shew the contrary, Coke 9 part. 34. A. 10 Hen. 7, 11. Nat. br. 163, C. 22 Hen. 6, 5. 4 Edw. 2, avowry 201, 202.

4 Encroachment of seisin is not materiall where is no tenure, Coke 9 part. 34, B. Buck­nalls case.

5 Such seisin shall be avoided because it was by cohersion of distress, Coke 9 part. 34, B. Bucknells case, 12 Edw. 4, 7, pl. 18. 8 Hen. 6, 18, pl. 1. 47 Edw. 3, 4, pl. 8.

6 If rent be payable at one day in a year and the Lord encroach seisin upon two dayes of the year this being voluntary shall be a­voided in avowry for this that they agree in the Annuall summ, Coke 9 part. 34, B. Buck­nalls case, vide 21. Edw. 4, 64, pl. 36, et fol. 84, pl. 3 [...] ▪

Tenure. In avowry the seisin is traversable and not the tenure, Crooke, 13 Hen. 7, 31. B.

[Page 322] 1 When the Lord varies in Avowing of the verity of the quantity of the services by co­lour of seisin, the tenure shall be traver­sed, Coke 9. part 33. A. Bucknals case, 10 Henry 7. 11. pl. 31. Com. 94. Mantels case, Crook 13. Hen. 7. 31 B.

But then the tenant ought to confess the tenure in part, for he needs not traverse all the tenure, but 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.

But note 11 Hen. 4. 10. pl. [...]2. the Tenant said, that the Avowant did give the Lordship to A. in tayl, the remainder to B. in tayl, A. dies without issue, B. yet living, there he needs not suffer▪ a Disclaymer, or plead out of his fee, but there fol. 7. pl. 40. he had judge­ment of the Avowry and admitted.

2 When they agree in the quantity of the services, and vary in the quantity of the Land, there the Plaintiff may traverse als­que hoc, that he held modo & forma, or that he held one only, Coke 9. part 35. B. Bucknals case, 20 Henry 6. 20, & 21.

And so avow severally where it is a joynt Tenure, or to the contrary, Coke 9. part 35. B. Bucknals case, 9 Henry 6. 26 pl. 24. 2 Ed. 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, he traverseth modo & forma, or with one only, Coke 9 [Page 323] part 35. A. & B. Bucknals case, 5 Henry 5. 4.

3. When one distrayns for fealty, rent, and sute, and alleadges seisin in all, and avows for rent, the Tenant may confess that he held by fealty and rent, and to the rent no­thing arrear, without that that they held by fealty, rent, and sute, modo & forma, and good, and if upon issue joyned it be found, that he held by fealty and rent, and not sute, although that the Avowry be for rent, yet in so much that the tenure alleadged by the A­vowant was traversed and found against him, Judgement shall be given against the Avow­any, for in vain shall he make this traverse­able, and yet that he should have the return when it is found against him, Coke 9. part 35, & 36. Bucknals case.

Tender. Tender of Homage ought to be to the per­son of the Lord, ubicunque fuerit infra reg­num propter reverentiam, Bracton, Lib. 2. fol. 80. A.

Judgement.

If the Plaintiff counts upon a Detay­ner, and the Defendant appear and makes default, the other shall have judgemen for dammages and costs, and also for the va­lue of the Cattel, Nat. br. 69. L. No. Lib. intra. 610. C. sect. 20.

[Page 324] 1 The Defendant said that the place is anti­ent Retorno habendo Nul.demean, &c. if the issue be found for him he 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.

If one make a Conusance as Bayliff he shall have a return, No. lib. intra. 591. A. sect. 9.

3 The Plaintiff in a Recaption dies, the Lord shall have return if another writ be purchased, 11 Hen. 6. 14. pl. 3.

Returno habendo. If the Plaintiff be non-suited 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. Crook, and this although the other do make no Avowry, 16 Henry 6. return of Cattel, 1. 2 Hen. 5. 6.

But other wayes he may abate the writ, by Pl. 9 Hen. 6. 4. pl. 10. 11 Henry 6. 5. B. Dan­by, 35 Hen. 6. 40. pl. 1.

But if the Count abate or no, Count of the place or of the taking, yet he shall not have a retnrn before an avowry, 35 Hen. 6. 40. pl. 1.

The second Deliverance he shall not have it without Avowry, per Newton 16 Henry 6. return of Cattel 1.

The Defeudant cannot claym property in Repleg. to have a return, because he ought to claim at the time of the Repleg. sued, 31 Henry 6. 12. pl. 1.

[Page 325] The Plaint is removed, and it abates for default of the surname, there was a return awarded without an Avowry, 27 Hen. 6. 3. pl. 35.

Repleg. against C. & 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.

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 Henry 6. 35. pl. 47. Prisott.

One avows for rent at two daies, one is not come, the Plaintiff is non-suited; there shall be a return for one day, because he is not merely an Actor, per 4 Justices against 3.

But Newton said, he ought to have seve­ral Avowries.

Return irreplevi­visable, 1. At Com­mon-law. 2. At the Statute-law. At the Common-law return irreplevisable 1 was but when it was found against the Plain­tiff per une issue, 36 Henry 6. 8. pl. 24. Bab­bington.

If the Defendant doth not answer to the Avowry, there the Cattel shall be irreple­visable, Lib. intra. 571. A. sect. 4.

Return irreplevisable after Westm. 2. cap. 2. 2 is but upon a non-suit, in second Delive­rance, 2 Hen. 4. 23. pl. 9. Lib. intra. 571. A. sect. 4, 5.

Upon a Non-suit in Repleg. it shall not be, 24 Ed. 3. 33. pl. 22. if it be not after verdict, 14 Hen. 7. 6. pl. 14.

[Page 326] The Plaintiff non-suted in a Replevin, and after in a second deliverance, there shall be return irreplevisable before Avowry, but quaere if he shall have dammages before Avow­ry, 10 Eliz. Dyer 280. pl. 14.

If the Plaintiff be non-suted when the Ju­ry comes again, and gives their verdict, yet there shall not be a return irreplevisable, 34 Henry 6. 5. pl. 14. 14 Henry 7. 6. pl. 14.

The Plaintiff in Repleg. makes default at the Nisi prius, they shall not be replevyed, because it is out of the Statute, 3 Henry 6. 8. pl. 24.

The Plaintiff in a Repleg. is non-suted and returns a gard, the King devises, 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.

Or upon a judgement 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.

Demurrer upon a plea to the writ, and judgement for the Defendant, they shall not be irreplevisable, 34 Hen. 6. 37. B. Br. Repleg. 6.

Or upon issue tryed, 2 Henry 4. 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 Henry 6. 37. B. Br. Repleg. 6.

If the Plaintiff upon a second Deliverance [Page 327] suffer the plea to be discontinued, there it shall be irreplevisabe, 17 Henry Br. second De­liverance.

Note that at this day dammages are given where the Plaintiff is non-suted, or found against him, or otherwise barred in Conu­sance, Avowry, or Justification, for rents, customs or services, per 7 Henry 8. cap. 4. com. 82. B. Crokers case, 14 Mariae, Dyer 141. pl. 46. 19 Hen. 8. 11. pl. 7.

And for damage feasant, p. 21 Hen. 8. cap. 19. 2, & 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, Pasc. 34. Eliz. Ban. Regis, Rott. 292.

But at Common the Avowant shall not recover damages, 35 Hen. 6. pl. 12.

If one return irreplevisable upon a Non-sute in second Deliverance, it is doubted whe­ther he shall have damages before Avowry, 11 Eliz. Dyer 280. pl. 14.

Trespass.

In what Court Trespass lyes.

County Court. IN the County Court, but then it shall not say vi & armis, Nat. br. 85. G. neither a­gainst the peace, because the Shrieve cannot determine it, Regist. 92. A.

Note. Note Reg. orig. 111. B. Trespass vi & armis, shall not be sued in any Court but the Kings, or before his Justices, if otherwaies a Superse­dias shall be awarded, Coke 8. p. 120. A.

Marshal­sey. In the Marshalsey if the party be of the Houshold, but then it shall say vi & armis, for battery or carrying away of Goods, and no other, Coke 10. part 72. A.

For it shall not be Quare clausum fregit, Coke 10. part 76. A.

Chancery. In Chancery for one privileged, Regist. orig. 104. A. No. Lib. intra. 678. B. sect. 20.

And there shall be an Alias, &c. Regist. 104. A.

Com. Ban. Re­gis. In Com. Banc. or Banc. Regis, Nat. br. 86. G.

If Trespass be in the Court of the King Antient Demean.where the reality shall come in debate, An­tient Demean is a good plea, Coke 5. part 105. as trespass for Trees, where the Defendant claims Franktenement, 6 Henry 4. 1. pl. 6. otherwise it is no plea, 46 Edw. 3. 1. pl. 2.

In Trespass for a Pigeon-House with Pige­ons,

[Page] [Page]
TRESPAS.
 Quid. CorporateCastle.   
 Quotnplex. House.   
   Mill.   
 1. Court. Columbary.   
 2. Plaintiff. Toft.   
 3. Defendant. Gardein.   
 4. Thing. Land.   
 5. Writ. Meadow.   
 6. Process.Inheritance.Pasture.   
 7. New Assignement.Wood.   
 8. Barre.Parke.   
 9. Judgement.Forrest.   
 10. ExecutionChase.   
  Pond.   
  Tythes.   
  Trees.   
 Common Law upon the doing of wrong toIncorporateVillage.   
 Way.   
 Common.   
 Fishing.   
 Warren.   
 Game of Swans.  
 Tolle.   
  Wayfe.   
  Stray.ReallsSonne. 
  Bona felonum.Daughter. 
  Fair or Market.Neece. 
  Frank-foldage.Ward. 
Trespass is either by Returna Brevium.Woman. 
  ChattelsServant. 
  Prentice. 
  Tenants. 
  Prisoner. 
  Captive. 
   LivingAbducta.
   Capta & fugata.
   Capta fugata & impar­cata.
   Capta & interfecta.
  PersonalDistricta.
  Fugata.
  Imparcata.
  Interfecta.
  Percussa.
  Tonsa.
  Dead.Arrestata.
  Capta & arrestata.
BodyMenace. Capta & asportata.
Siege. Combusta.
Assault. Consumpta.
Battery. Depasta.
Wounding.Fine.Districta.
Imprisonment.Acquittance.Extracta.
  Statute.Extracta & asportata.
 Imprisonment till they makeObligation.Falcata & asportata.
   Finde Pledges.Fracta.
   Release.Impedita.
   Oath.Submersa.
  Against a Goaler for putting▪ Irons upon one. Succisa & asportata.
Statute LawMarlebridge, cap. 2. For distrayning 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.     
Im. com. strato.     
Cap. 28. For a Successor, of a thing taken in the time of his Predecessor.
Westm. 1. cap. 17. Distress by a Bayly not sworn.  
21 Edw. 1. De malefactoribus in parcis & vivariis, &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.  

[Page] [Page 229] it is no plea, 47 Edw. 3. 22. pl. 54.

So in Trespass upon the 5 Rich. 2. cap. 7. because damages are only to be recovered, 21 Edw. 4. 3. 2 Henry 7. 17. pl. 1. 47 Edw. 3. 22. pl. 54. 46 Edw. 3. 1. pl. 2.

Note. And note none may plead this but the Ter­retenant, 2 Hen. 7. 17. pl. 1.

In five ports the writ is Dilecto & fideli suo W. Constabular. Castri sui 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 hinc & inde earum rationibus eidem A. facias exhiberi celeris justiciae compl [...] ­mentum, prout de jure & secundum legem & con­suetudinem portuum praedict. fuerit faciend. ne clamor ad nos inde perveniat iteratus, &c.

Who shall have Trespass.

Note that he that taketh only the profit of the soyl of another shall not have a Quare clausum fregit, 15 Henry 7. 14 Henry 8.

He that hath certain acres annuatim shall have Trespass.

Admini­strator. Administrator shall have Trespass for goods of the Intestate taken out of the possession of the Administrator, Regist. orig. 94 A. 22 Edw. 4. 120. pl. 32. the Count, Lib. intra. 649. D. sect. 1.

Administrator shall have Trespass for goods taken out of the possession of the Intestat, Nat. br. 92. A. 14 Henry 7. 13. Tremaile. the [...] [Page] [...] [Page 229] [Page 330] Connt, Lib. intra 640. A. sect. 1.

Executer. An Executor shall have it, p. 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. Crook 24 Hen. 7. 101. B. pl. 2.

Admini­strator. An Administrator shall have an Action of Trespass before the administration commit­ted to him, but not against him that justifies under the Ordinary, 18 Henry 6. 22. pl. 7. 36 Henry 6. 8. A. Prisott. Register original 102. B.

But if the Administration be committed by word to A. who sells it to B. and dyes, and is committed to C. quaere if C. shall have Tres­pass for it.

Alien. Alien friend shall have all Actions perso­nals, 6 Henry 8. Dyer 2. pl. 8. Coke 7. part. 17. A.

But an alien Enemy shall have no Action, 6 Henry 8. Dyer 2. pl. 8. Coke 7. part 17. A. 14 Henry 8. 4.

Husband and wife. Husband and wife Executrix to B. joyn in Trespass for taking the Goods during cover­ture, 21 Edw. 4. 5. per Littleton.

Trespass done to the wife sole which takes a Husband, they shall have Trespass in their names, Nat. br. 87. H. Regist. orig. 95. A. 21 Hen. 6. 30. pl. 16. Lib. intra. 6. 50. C. sect. 3. and it shall be bona & catalla of the wife, 7 Henry 7. 2. vide 14 Elizabethae, Dyer 305. pl. 59. the Count, Lib. intra 650. C. sect. 3.

[Page 331] Husband and wife joyn in Trespass for the beating of the wife, 46 Edw. 3. 3. pl. 5. 22. Assise, 60. & 87 Regist. 105. B. Lib. intra. 612. & 668. C. sect. 4.

So for imprisonment of the wife, Coke 5. part. 59. A. Fosters case.

But if they joyn for battery of both, this abates for the battery of the Husband, 9 Ed. 4. 54. 3 Edw. 3. brev. 737.

And if they brought a Trespass for beating and taking away of Goods, the 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.

Trespass quare domum suam fregit & mare­mium inde, &c. good by the Husband a­lone, because he may pull it down and sell it, 43 Edward 3. 16. pl. 15. & fol. 26. pl. 6.

So for entring and chasing and carrying a­way of the Deed, although the wife had a joynt estate, yet it is a personal thing, 43 Ed. 3. 8. pl. 23.

So for Deeds concerning the Land of the wife, 8 Hen. 5. 9. pl. 13.

So in trespass upon the Statute. 5 Richard 2. cap. 7. because he only shall have dam­mages, 38 Henry 6. 3. pl. 9. 4. Edward 4. 13.

[Page 332] So for taking away of his wife and his goods, Nat. brev. 89. O. 14 Henry 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. 13. & Westm. 2. cap. 34.

Nota. Quando breve fertur de aliquibus ad liberum tenementum annexis fiat in nomine amborum, 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.

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.

Chaplain of A. Cha­pel. The King collates, and the Shrieve puts him in, he shall have Trespass, Nat. br. 37. D.

Commo­ner. Commoner shall not have Trespass for any thing in the Land, 4 Hen. 7. 3. 15 Henry 7. 13. pl. 1. & fol. 12. pl. 23.

He that hath not the soyl. A. lets Land to B. for to sow, and A. to have the moyety of the Corn, yet B. cannot have trespass Quare clausum fregit against him for wasting of the corn, Hill. 30 Eliz. Hare versus Oakley. And although this was not pleaded in abatement, yet the special matter being found, the Plaintiff shall not have judgement, because it appears to the Court they cannot be disjoyned to have an Action in such form.

He to whose use. He to whose use shall have Trespass in his own name, but in the name of the Feoffees, Crook 17 Hen. 7. 41. pl. 2.

[Page 233] Copyhol­der. Copyholder shall have trespass for the breaking his close, and cutting his Trees, 2 Hen. 8. 4. 12. Coke 4. part 21. B. No. lib. intra. 644. C. sect. 3. the pleadings.

He shall have it against the Lord, 20 Edw. 3. 80. Coke 4. part 22. A.

Disseisee. Disseisee shall have Trespass for the mean profits, and all other things after his entry, Coke 11. part 51. A. Liffords case, 3 Henry 4. 13. pl. 18. Gascoigne, 37 H. 6. 7. pl. 13.

But before his entry he shall not have Tre­spass for his former entry, 32 Hen. 6. 32. A. 38 Henry 6. 28. A. Fortescue.

Unless in case of necessity as Tenant for the life of another is disseised, and he that hath the life dyes, or Tenant for years ou­ted, and the years expire, they shall have Trespass afore the entry, and recover the mean profits, 38 Hen. 6. 28. B.

Executor. Executor shall have Trespass for goods ta­ken out of the possession of the Testator, Nat. br. 87. E. Regist. 98. A.

And the writ shall not say ad grave dam­num ne (que) in retardationem executionis testa­menti, Regist. orig. 98. A. the Count, Lib. intra. 640. A. sect. 2.

But this was given by the 4 Edw. 3. cap. 6. 14 Hen. 7. 13.

And at this day an Executor of an Execu­tor shall have such Action, Regist. 98. A. the rule there.

But he shall not have it before 25 Edw. 3. cap. 5. Com. 290. A. Chapmans case.

[Page 334] But an Executor shall not have such Action De clauso fracto, 11 Hen. 4. 3. pl. 8. 4 Edw. 4. 8. A. Catesby.

Ne (que) de Arboribus succisi tempore Testatoris 18 Edw. 4. 16. A. Pigott.

Executor shall have Trespass before pro­bate, unless it be for a thing taken out of his possession, Com. 281.

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.

But the 19 Henry 6. 65. to the contrary.

Executor shall have Trespass de bonis Te­statoris in custodia sua existen. Regist. orig. 94. A. 2 Henry 7. 15. 6 Edw. 4. 1.

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 lyes although the Administra­tion was not repealed, for the Administra­tion was void from the beginning, Mich. 12 Jac. Ban. Regis, Fisher & Young.

Executor shall have Trespass against the Lessor which cuts him, Regist. orig. 102. B.

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 within the land, the Writ shall be pone per vad. &c. Register origin. 102. B. in the Note.

Goaler. By a Goaler against one that takes a Pri­soner from him, but a good bar that he is [Page] not Goaler, because it is the ground of the Action, 4 Edward 4. 6. pl. 7. & fol. 44. pl. ult.

Church-wardens. Church-wardens shall have Trespass for the Goods of the Church taken in their time 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.

But ad damnum p arochianarum, 8 Edw. 4. 6. pl. 12 Hen. 7. 27. pl. 7.

But a good plea that he is not Church-warden, 4 Edward 4. 7. A.

But 19 Henry. 6. 66. sayes, that it is not good for Goods in the time of their Prede­cessors.

For making a Grant of Rent in fee to the use of the Parochians taken, Lib. intra. 7. D.

Heir. Ravish­ment. Every Ancestor male or female shall have Trespass for ravishing of his Heir apparant a­against 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 Ed. 6. pl. 7. & fol. 16. pl. 19. Regist. orig. 98. B. & 99. A.

A man shall have Trespass for his Son and Heir, Daughter and Heir, Nat. br. 98. H. 29 Assize 35. 21 Hen. 6. 14. pl. 29. 12 Henry 4. 16. pl. 9. 3 Edw. 4. 12. B. Danby.

And this of what age soever his Son be, 32 Edw. 3. Gard. 32.

Grantee. Grantee of Herbage shall have trespass, qua­re clausum fregit for the grass, but not for the other profits or Fruit-trees, 11 Elizabethae, [Page 336] Dyer 285. pl. 40. 3 Hen. 16. 13. A. 5 Henr. 7. 10. B.

Heir. The Heir shall have Trespass for taking of a Deed concerning Land to him descend­ed, 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.

But not against an Executor that taketh a box with Deeds, 1. because the box apper­tains to him, 2. he had not knowledge what was in the box, 3. the heir hath other re­medy, scilicet a Detinue, 43 Edward 3. 24. pl. 3.

But lyes against an Executor for taking a­way a Furnace, fixed or fates, fixed, or pales fastned, windows, doors, evidences, 21 Hen. 7. 26. pl. 4.

It lyes for an Heir against an Executor for taking fishes out of a pond, Mich. 36 Eliz. Banc. Regis, Rott. 25. Parlett versus Gray, Crook, 118. pl. 60.

So for Deer, or Pidgeons, vide Assize 27. pl, 29.

Lessor. The Lessor excepts the Trees he shall have Trespass Quare clausum fregit, 14 Henry 8. 1. 28 Henry 8. Dyer 19. pl. 48. 46 Edward 3. 22. pl. 3. Coke 8. part 63. A. Swaynes case.

Lessor at Will shall not have Trespass, al­though he determines his will, untill he en­ters, Crook 3. Henry 8. 163. pl. 4.

A. enters upon Tenant at will and sub­verts the soyl, he shall have one Action and [Page 337] the Lessor another, 19 Hen. 6. 45. pl. 94. so of a Copyholder and Lord, 2 Henry 4. 12. Coke 4. part 31. A.

Lessee. Lessee cuts Trees to the intent to repair, the Lessor takes them, the Lessee shall have Trespass, 44 Edw. 3. 44.

Estranger cuts Trees, the Lessee shall have Trespass and shall recover treble damages, Doct. & Stud. 34 A. 23 Hen. 8. Br. wast 138. 44 Hen. 8. 26.

But [...]if the Lessor dies the Lessee shall reco­ver but single damages, 44 Edw. 3. 26. Crook 3 Hen. 8. 163. pl. 4.

Master. 1. If the Servant be beat 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 Servant at will, 21 Hen. 6. 9. A. Newton, vide 11 Hen. 4. 2, 2.

2. For taking away his Prentise, Nat. br. 91. I. 8 Hen. 6. 28. 21 Hen. 6. 31. pl. 18.

3. The Lord of a Villain shall have trespass, 22 Henry 6. 30, 32. Ordinary.

The Ordinary shall have it for a thing ta­ken out of his possession, Nat. br. 91. M. 18. Hen. 6. 23. 7 Hen. 4. 18. pl. 22. 11 Henry 7. 12. 17 Edw. 2. brev. 822.

But not for a thing which was not in his possession, Nat. br. 92 A. Coke 9. part 39. A. Hensloes case, 7 Henry 4. 18. pl. 22.

Parson. Parson shall have Trespass for Tithes taken after severance of the 9 parts, 10 Hen. 4. 2. pl. 2. Gascoign, 21 Henry 7. 27. pl. 5. before any seisure, because it is certain by the se­verance, [Page 338] and the Law ejects the possession and propertie upon him, Com. 281. A. Foxes case.

But not of a Mortuary before seisure, Com. 281. A. 10 Hen. 4. 1.

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.

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. 21, & 27.

Protected person. He that hath protection shall have trespass against him that takes his Goods, Nat. brev. 92. B.

Possessor. If one hath the possessiou of a thing he shall maintain an Action against him that hath no right, Com. 546. A.

Note. But note that upon a possession in Law only he shall not have Trespass. 22 Henry 6. 49. 5.

But if A. gives Goods to B. B. shall have Trespass before possession, for he hath the pro­perty in Law, 2 Edw. 4. 25. per 2 Justices, Coke 3. part. 26, 27. Butler & Baker.

Trespas brought, it was found by office that the other was Tenant, and that it escheated to the King, this shall abate it as to the things upon the Land, Com. 488. B. Nichols case, & 546. A. 19 Edw. 4. 2. pl. 5.

[Page 339] 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.

Or upon a Farmor of the King, 2 Hen. 4. 7. pl. 29.

But he that outs the Farmor, the King shall have trespass, Com. 546. A. Paramors case.

King. The King shall have trespass, 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, 10 Hen 4. 3. pl. 7.

But for trespass in the Kings lands there use to be an information in the Chequer, Nat. br. 90. I.

And in such case the judgement is that the party shall be removed and put out of posses­sion although that it be but a personal sute, and the removal shall be by writ formed in the case, Com. 561. B.

But the King may have a Trespass Quare clausum fregit, Nat. br. 90. I.

Queen. The Queen shall have trespass without the King, Nat. br. 101.

Recusant. Recusancy shall be pleaded in disabi­lity for as many Hereditaments as are not seised into the Kings hands, 3 Jacobi, chap­ter 5.

Bishop. A Bishop shall not have an Action of Tres­pass made in the vacation, 39 Edw. 3. 12. pl. 18. 18 Edw. 2. traverse 237.

[Page 340] Vide tamen Regist. 101. A writ formed in such case for the succeeding Bishop.

Master of an Hospi­tal▪ Master of an Hospital shall have an Action of Trespass for a thing done in the time of his Predecessor, Nat. br. 89. G. Regist. orig. 196. B. the writ there.

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.

Copyhol­der. For entring his Close, and burning his hay, 35 Hen. 6. 5. pl. 7.

Copyholder shall have trespass. Coke 4. part 31. A. 2 Henry 4. 12. pl. 49. Coke 4 part 4. 21. Tenant in common. B. & 23. B. and this before his admission per discent.

The joyn in trespass touching Tenants, Littleton sect. 315. 18 Hen. 6. 5. 14 Hen. 6. 9. pl. 38. 12 Hen. 6. 4. pl. 11, 4 [...] Edw. 3. 13. 5 Hen. 4. 1. 14 Hen. 4. 31. 43 Edw. 3. 24. pl. 3. 22 Hen. 6. 12.

But if one dyes the other shall have an A­ction for all, 43 Edw. 3. 24. pl. 3.

They ought to joyn in Trespass, 5 Rich. 2. cap. 7. 34 Hen. 6. 32. pl. 16. 4 Edw. 4. 18. 21 Hen. 7. 22.

Note for battery they shall not joyn, Re­gist. orig. 105. B.

A. had male Swans, B. female, which ha­ving young ones, for the young ones they shall joyn, because they are Tenants in Com­mon, Coke, 7. part 17. A. 2 Richard 3. 15, 16.

One Tenant shall not have trespass de bonis [Page 341] asportatis against his companion that takes them, Lib. intra. 653. B. sect. 3.

Tenant for ano­thers life. Tenant for anothers life is disseised, he that had the life dyes, Tenant for anothers life shall have trespass without reentry, be­cause the Act of God shall not prejudice him, 19 Hen. 6. 28. B. Aschough, Coke 5 part Kniets case.

Tenant at sufferance. Tenant at sufferance shall not have tres­pass, Crook 17 Hen. 7. 47. A.

Outlaw­ed. If a man be outlawed or attainted in tres­pass or felony 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.

But for other trespass, quaere 5 Edward 3. 170.

But before Scire facias he cannot without doubt, because the pardon was conditional, 21 Edward 3. 55. pl. 7.

Against whom Trespass lyes.

Admini­strator. Administrator takes the goods of B. which proves as will, by which he was made Execu­tor, and brought Trespass, and it lyes al­though the administration were never re­pealed, for the administration was voyd, and the Administrator a Trespassor, Mich. 12 Jac. Ban. Regis, Fisher & Young.

A. makes a Trespass, B. agrees to it after­wards and avows, yet B. is no Trespassor, Agree­ment.9 Edw. 3. 35. pl. 17.

[Page 342] Alien. Trespass lyes against an Alien, Digest. br. 72. A.

Attainted person. Person attainted shall be sued, Mich. 38, & 39 Eliz. Com. ban. Banister & Trussell, No. lib. intra. 248. A.

Attorney. Infant makes a Letter of Attorney to A. to take a Livery for him, A. takes it, the Infant shall not have trespass, because it is for his advantage, 21 Hen. 6. 31. B. A­scue.

Husband and wife. Trespass De muliere abducta cum bonis, &c. gift against husband and wife, because the wife may assent to the Ravishment, and also to the carrying of the Goods, 43 Edw. 3. pl. 15. 44. Assize 13.

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 Crook agreed, yet q [...]aere what was done in it, Mich. 15 Jac. Ban. Regis, Ashewell against Opshard and his wife.

If the Woman beat another the Hus­band must be named in the Writ, Re­gister original, 105. B. Lib. intra. 612. A. sect. 11.

Comman­d [...]r. Trespass lyes against him that commands [Page 343] another to do a Trespass, Doct. & Stud. 19. A. tamen quaere.

Body po­lit [...]ck. It lyes against a Master of an Hospital, and his brethren, Register Original, 105. B.

Dean and Chapter. It lyes against a Dean and Chapter, 32 Hen. 6. 8. pl. 13.

Maior & Commu­nality. It lyes against a Maior and Communa­lity, Quare vi & armis, 38 Edward 3. 18. 8 Henry 6. 1. 9 Henry 6. 36. 20 Henry 6. 9. 15 Edward 4. 2. 4 Henry 7. 13. 32 Hen­ry 6. 10.

But no Capias lyes against them, be­cause they cannot appear in person, 45 Edw. 3. 2 & 3. 22 Assize, 67. 21 Edw. 3. 59. pl. 1.

Disseisor. Disseisee shall have trespass against his Disseisor before his entry, for the former entry, 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, 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.

Neither against the Feoffee or Feoffor of the former Disseisor, 34 Henry the 6th. 30. pl. 14. 13 Henry the 7th. 15. Coke 11. part 51.

[Page 344] Liffords case, 2 Edward 4. 18. pl. 12. per 2 Justices, Crook 12 Henry 7. 1. pl. 2.

But against a Coadjutor of a Disseisor it lyes, 21 Edw. 4. 5. & 19.

Infant. It lyes against an Infant, Digest. br. 72.

Executor. It lyes not against an Executor, quia actio personalis moritur cum persona, Doct. & Stud. 75.

Gardian. Gardian shall have trespass against his ward, 5 Hen. 4. 2. pl. 7.

Ideot. It lyes against an Ideot, Digest. br. 72. A.

Judge. Trespass and imprisonment lyes not a­gainst a Judge at Westminster, although he commit him without cause, 21 Hen. 6. pl. 9. in fine.

Auditors. But if Auditors commit not an Accomp­tant forthwith, but at another time, trespass lyes against them, 27 Hen. 6. 8. pl. 7.

Miller. It lyes against a Miller that takes of them that are toll free, 41 Edw. 3. 24. pl. 17. 44 Ed. 3. 20. pl. 16.

Queen. It lyes against the Queen sole.

Lord. Trespass lyes not against the Lord per Marlebridge, cap. 13.

Non ideo puniatur dominus per redemptio­nem, Coke 4. part 11. B. Bevils case.

But afore this Statute trespass lyes against the Lord, vi & armis, 48 Edward 3. 20. pl. 16. Thorp.

The reason that it lyes not against the Lord is insomuch that he cannot come within his fee against the peace, although he had not cause to distrain, 47 Ed. 3. 7. pl. 3. Finch­den.

[Page 345] This Statute is intended as well of every Lessor as of the Lord, 9 Hen. 6. 43. pl. 21.

If the Lord distrain where nothing is in arrear, yet trespass lyes not against him, Coke 4. part 11. B. Bevils case, 9 part, 76. A. because he may do this as Lord.

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 lyes against the Lord, Coke 9 part. 22. B. Case of Avowry.

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.

And if a Bayly 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.

When the Lord abuses his authority given him by the Law he shall be punished by tres­pass, Coke 8. part 146. the six Carpenters case.

If he labour or kill the distress, 8 Ed­ward 4. 15. 22 Edward 4. 5. pl. 16. & fol. 47. pl. 22. Coke 8. part 146. B.

If he tye the Cattel in the pound 27 As­size, 64.

If he break the hedges or gates, or such like, 20 Ed. 14. 3. pl. 11. 48 Ed. 3. 6. pl. 10.

[Page 346] If he cut the Trees, or stay all night, 11 Hen. 4. 75.

The Lessee cuts Trees to repair, the Lessor carryes them away, and Trespass lyes against him, 44 Edw. 3. 44.

If the Lessor distrayn dammage feasant, 5 Hen. 7. 10. pl. 2.

So if he out the Termor, 48 Edw. 3. 6. pl. 11.

Or the Executor of the Termor, Regist. o­rig. 102. B.

The Lessor excepts the Trees and roots them up, it seems Trespass lyes, Coke 11. part 49. B. Liffords case.

The Lord sells the Distress and buys it a­gain, Trespass lyes, 29 Hen. 8. Dyer 35. pl. 34.

It lyes by a Copyholder against the Lord that outs him, 21 Edw. 4. 80. Coke 4 part, 22. A.

The reason in all these Cases is when one hath authority, licence, or entry by the Law given him by the misusing it, or the not doing, he is a Trespasser ab initio, Coke 8. 146.

Deaf and dumb. It lyes against one that is deaf and dumb, Digist. br. 72. A.

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, and Trespass lyes without entry.

[Page 347] For Cutting underwood, 2 Edw. 4. 24. pl. 25. Tenant by suffe­rance.

It lyes not against Tenant by sufferance, because he comes lawfully to the possession, 22 Edw. 4. 13. pl. 3.

Tenant in Common. If two Tenants in common of a foldage by prescription, one shall have trespass against the other, for the breaking the fold, Nat. br. 91. A. H. Meer-stone.

For taking away the Meer-stones, 1 Hen. 5. 1. pl. 1. Shrieve.

Note, when the Court hath not Jurisdicti­on of the cause, the officer that makes the arrest shall be a Trespasser; but where the Court hath Jurisdiction, and proceeds erro­nice, there it is not punishable, Coke 10. part. 76. A.

The Shrieve takes one not named in the Writ, Trespass lies against the Shrieve, 11 Hen 4. 91. A. Haukeford. 13 Hen. 4. 2. Hank­ford & Thirning.

But if the Plaintiff shew another per­son to him, the Action lyes against them both.

A. procures the Shrieve to arrest B. with­out a Writ, and after purchased a Writ, and the Shrieve arrests him afterwards being in his custody, the Action lyes, 7 Eliz. Dyer 244. pl. 61.

The Shrieve takes B. upon a Capias, and returns not the Writ, B. shall trespass, 20 Hen. 6. 24. A. 21 Hen. 6. 5.

Otherwise upon a Capias ad sati [...]faciend. [Page 348] Coke 4. part. 67. A. Capias to the Shrieve of Middlesex. and he takes him in London, trespass lyes, 16. Edw. 4. 6.

So if he makesa Repleg. of cattel distrain­ed an estranger may have trespass against him 14 Hen. 4. 24. pl. 32. per Haukeford et Thir­ning, Doct. et Student 150. A.

So if he come to make a Repleg. and breaks the hedges and gates, 20 Henry 6. 28. pl. 19.

So if he attach the Horse of the Master in possession of the Servant for the debt of the Servant, Doct. & Student, 138. B.

So if he breaks the house for debt or tres­pass, 13 Edw. 4. 9. A. 18 Edw. 4. 4. A. Coke, 5. part, Semaynes case.

So if he makes a good return in Law, but false in deed, upon a Habeas corpus, Coke 9. part 99. B. Bags case, 9 Hen. 6. 44.

If he takes felons goods where another hath them within his Hundred Nat. br. 91. F.

One appeals for receiving felons, the Shrieve takes his Goods, and after he is ac­quitted, Trespass lyes against the Shrieve, for he ought to have seised 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.

Outlaw. It lyes against one out-lawed, Digest. br. 72. A. Mich. 38, & 39 Eliz. Com. Banc. Ba­nister against Trussell, No. lib. intra. 248. A.

For what matters Trespass lyes, viz. for doing of wrong to the damage of another, 1. touch­ing Inheritance, 2. touching Chattels, 3. touching the body.

Inheri­tance. The Plaintiff ought to shew the Towne where the Inheritance corporate lyes for o­therwise there can be no venue, Trin. 9 Jac. Note. Ban. Luke versus Sampter.

Castle. Quare vi et armis castrum ipsius E. apud D. fregit, &c. Regist. orig. 106. B.

Messuage. Trespass for the breaking of a house, Nat. br. 87. D. 88. A. Regist. orig. 94. A. the count, No. Lib. intra. 653. C. sect. 7.

Of Breaking a house, and the count was of a Church by a person and good, 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. et B.

For breaking the Door, and Windowes, of the house, Regist. orig. 99. A. Nat. br. 92. D. Mill.For breaking the Head of a Mill, Regist. 96. A. Nat. br. 88. M.

Piggeon-house. For breaking a Pigeon-house, Regist. orig. 104. B. 10 Hen. 6. 19. A.

Lane. For breaking my close the writ may be with a continuando, Nat. br. 91. L. the count, Lib. intar. 647. D. sect. 1. 642. A. sect. 6. Lib. intra. 619. A. sect. 1.

For breaking a Close the count was of a [Page 350] Church-yard, 8 Hen. 6. 9. pl. 20. and for digging in it, Regist. orig. 94. A. 2 Rich. 2. Barre 237. Nat. br. 87. B. 9 [...]. K.

The Count, No Lib. intra. 66 1. 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 Quarry, Regist. orig. 105. A.

For hindring my mine, Regist. orig. 104. A.

For breaking my Bridge, Regist. origin. 106. A.

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.

It was brought upon a Desseisin and De­tayner with force, although that the Statute is in the disjunctive, 6 Hen. 7. 12. 10 Edw. 4. 11. pl. 35.

It lies upon an entry with force, although the entry be congealable, 9 Hen. 6. 19.

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.

It shall not be vi & armis, without shewing that the entry was congealable, 34 Hen. 6. 26. pl. 4.

If the entry be supposed in A. and B. where [Page 351] B. is a Hamlet of A. yet good because dama­ges is only to be recovered, 5 Edw. 4. 8.

Meadow. For breaking of my Bank, 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.

Wood. For entring his Wood, and taking away an Airie of Hawks, Regist. orig. 96. B. 110. B. Nat. br. 86. L. 22 Hen. 6. 59. Nat. br. 89. K.

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 pulling young Trees, Regist. orig. 95. A.

For eating up his blades, and springs of his young Wood, Nat. br. 87. K.

Park. For breaking his Park, Regist. orig. 96. A. 109. B. 110. A. Nat. br. 87. A. 46 Edw. 3. 12. 18 Edw. 4. 14. pl. 12. Nat. br. 98. B. 6 Edw. 6. Dyer 7. pl. 37.

For entring his Park, 20 Hen. 6. 37. pl. 7.

De malefactoribus in Parcis, upon the Sta­tute, 21 Edw. 1. Regist. orig. 111. B.

The Count, Lib. intra. 650. D. Sect. 4.

Upon the Statute of Westm. 2. cap. 28. 7 Eliz. Dyer 238. pl. 34. for the King.

The Count, Lib. intra. 652. A. Sect. 9.

Upon Westm. 1. cap. 20. within the year, Nat. br. 67. D.

Forrest. The Grauntee of the herbage of a For­rest shall have trespass, quare clausum fregit [Page 352] against any that takes grass, 11 Eliz. Dyar 285. pl. 40.

Chase. For entring his Chase, 42 Edw. 3. 2. pl. 8. 43 Edw. 3. fol. 8. pl. 23. 43 Edw. 3. 8. pl. 23.

He needs not shew how he came to the Chase, 42 Edw. 3. 2. pl. 8. 43 Edw. 3. 8. pl. 23.

For hunting in his Chase, the Count, Lib. intra 650. C. sect. 1. Hunting.

Pond. For fishing in his pond, Regist. orig. 95. B. Nat. br. 87. A.

For breaking his pond, by which the wa­ter and fish went out, Nat. br. 87. L.

Tythes. For carrying away his Tythes, being se­vered from the ninth part, No. Lib. intra. 686. C. sect. 23. the Count, No. Lib. intra. 678. B. & C.

For hindring the Parson to carry away his tythes, Regist. orig. 105. A.

Trees. Inheri­tance. For cutting his trees where one had the Land and the other the Trees, Crook 12 Hen. 7. 16. B. Vavisour, Coke 8. part. 137. B. Bar­ringtons case, Coke 11. part, 49. B. Lyffores case.

Fishing. For fishing in his severed water, Regist. orig. 96. A. & B. 109. in fine Nat. br. 87. G. 89. B.

The Count, Lib. intra. 666. A.

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.

[Page 353] Warren. For entring his 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.

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 ad valentiam, 8 Edw. 4. 5. pl. 16. Lakin.

The Count, Lib. intra. 650. C. sect. 2, 3.

For breaking his Warren, and carrying away his Conies, 5 Edw. 53, 54.

Swans. For taking away his Swans, Coke 7. part 16, 17. 7 Hen. 6. 27.

Toll. For disturbing to take toll, Regist. orig. 103. A. Nat. br. 91. G.

But if he be disturbed in a Market or Fair, he ought to shew the place, 2 Edw. 3. 32. pl. 9.

If a Miller take toll of them that are toll­free it lyes, 41 Edw. 3. 24. pl. 17. 44 Edw. 3. 20. pl. 16.

Wreck. For taking a wreck, Regist. orig. 103. A. 5 Edw. 3. 174. pl. 91. without seisure, Nat. br. 91 D.

Waif. For taking a Waif, Regist. orig. 100. A. B. without seisure, Nat. br. 91. B.

But quaere 16 Eliz. Dyer 338. pl. 40. for the 21 Edw. 4. 16. pl. 7. it seems he may not.

Estray. For taking an Estray, Regist. orig. 100. B. the Count, Lib. intra. 638. B. sect. 1.

Without seisure, Nat. br. 91. B.

[Page 354] Tamen quaere for the 12 Hen. 8. 10. e contra. quaere 20 Hen. 7. 1.

The Count Lib. intra. 638. B. Sect. 1. is without seizure.

Fellons goods. For taking Felons Goods, Regist. orig. 101. A.

Felons goods within a Hundred, if the Shrieve takes them, the Lord shall have tres­pass, Nat. br. 91. F.

Fair or Market. Fair or Market disturbing, Regist. orig. 103. A. & B.

Frank­foldage. For breaking and hindring of the Foldage, 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.

Sonne. For taking away his son and Heir, and marrying him, Nat. br. 90. H. 29. Assize 35. 3 Edw. 4. 12. B. Danby. 21 Hen. 6. 14. pl. 29. Nat. br. 143. R.

The Writ is, quare filium & haeredem, and yet he is not heir during his life, 8 Edw. 3. 2. Travers. 235.

Daughter. For taking away his daughter, and marry­ing her, Regist. orig. 98. B.

Heir. Heir, Regist. orig. 99. A. Coke 3. part. 38. Ratcliffs case. 12 Hen. 4. 16. pl. 9. Consangui­neum & haeredem suum rap [...], 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.

[Page 355] Woman. For taking away a woman cum bonis viri, 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 lyes although they are divorced, 43 Edw. 3. 23. pl. 15. 4. Assize pl. 13.

Battery. Assault, Battery and wounding, the Count Lib. intra. 668. C. sect. 4. Imprison­ment.

Imprisonment until fine be made, 6 Edw. 3. 208. pl. 2.

Servant. For threatning my servant, per quod, Re­gist. orig. 94. B.

The Plaintiff needs not count upon the Retainer, 21 Hen. 6. 31. pl. 18. 22 Hen. 6. 30. B. & 43. B. 31 Hen. 6. 12. pl. 2.

Assault and Battery per quod, &c. 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, Cike 9. part. 113. A. 18 Edw. 4. 27. pl. 24. 2 Hen. 4. 12. pl. 49. 20 Hen. 6. 1 [...]. and there it was Quod servitium amisit, and good without this word [per.]

Battery, Mayheme and imprisonment, per quod, &c. Trespass lyes, 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 judgement, 21 Hen. 7. 71. pl. 15. Crooke.

For enticing my servant to depart, Tres­pass lyes not, but an action upon the case, 11 Hen. 4. 3. pl. 46. Appren­tice.

For taking away his Prentice, Regist. orig. 109. A.

[Page 356] Prisoner. Per Goaler for taking away his pisoner, Regist. orig. 104. A. 4 Edw. 4. 6. pl. 7.

Captive. For taking his Captive from him, Regist. orig. 95. A. 102. B. Vat. br. 88. A.

Chattels personals. Living. Si quis di [...]ringit ordine non observato facit transgressionem, Bracton Lib. 4. fol. 217. A.

Averia cepit, & abduxit, Regist. origin. 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.

And the Writ for live cattel shall be Averia s [...]a, or shew the thing in certain, 21. Hen. 6. 39. pl. 5.

And if the thing be dead or alive, it is not material if the writ be pretii seu ad valentiam, Nat. br. 88. [...].

Boare. For taking away his Boar, Regist. orig. 110. B.

Oxen. For taking away his Oxen, Regist. orig. 110. B.

Mastiff. For taking away his Mastiff, Coke 7. part. 18 A. 12 Hen. 8. 3. Regist. orig. 109. A. but he shall not say pretii or ad valentiam, 12 Hen. 8. 5. A. Elliot. Regist. orig. 109. A.

Capons. For taking away his Capons, the Writ was bona & catalla, and good▪ 17. Edw. 3. 41. pl. 19.

Conies. For taking away his Conies out of his Close, the Writ shall be s [...]os, Nat. br. 87. A. Regist. orig. 93. B. 102. A.

[Page 357] So if it be in a Park, Regist. 110. [...].

But if it be for entring in to his Wa [...]r [...]n▪ and taking his Conies, he shall not say s [...]o [...], for he hath them but ratione privilegii, 3 Hen. 6. 55. pl. 34. Regist. orig. 110. A. Coke 7. part. neither the value, 8 Edw. 4. 5. pl. 16. Lakin.

The Writ was, Quare Warrennam intravit, & cunic [...]los cepit & asportavit, without say­ing ibidem, and yet good▪ 43. Edw. 3. 13. pl. 7.

If Conies go out of a Warren, any may kill them in his own land, and no action lyes, Coke 5. part. 104. 43 Edw. 3. 13. pl. 7.

Deer. Deer if they be tame, he shall say suas, but then he ought to shew that they were tame, 43 Edw. 3. 24. pl. 2.

But if it be in a Park or Chafe he shall not say su [...]s, because he hath them but ratione privilegii.

Hawks. For taking away young Hawks, he shall say suos, because he hath a property posses­sorie, Coke 7. part. Regist. orig. 93. B. 96. B. 110. B. Nat. br. 89. K.

So if they be reclaimed.

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.

Fish. For his Sheep, Regist. orig. 110. B.

For taking his 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.

[Page 358] But the Count ought to shew the nature and number of the Fishes, Coke 5. part. 35. 31 Hen. 6. 39.

Bull. Capta & fugata. Hogges. De tauro suo libero, 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, Regist. orig. 97. A. Nat. br. 89. L.

Capta fu­gata & imparcata. There he shall say the price, 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, because it may be he was seised of the Cattel.

Capta & interfecta. Cepit in S. & interfecit at W. contra pacem, &c. nought, because Cepit implies a property, and then contra pacem is not good, 27 Assiz. 64.

Districta. Averia ad loca incognita fugata upon the Statute 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 Statute of Marlbridge, 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 so doing, 1. he cannot give them meat, 2. they cannot be replevyed, 22 Edw. 4o. 11.

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.

The Action was of a Cow, the Count, Lil. intra. 464. C. Pound.

[Page 359] 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 lyes well, because it is there cattel or goods.

The Count was of taking in one Country, 1 Eliz. Dyer 168 pl. 20.

In this action the place of the taking is ma­terial, because the distance of the place 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, 1 Hen. 6. 3. pl. 9. 30 Edw. 3. 6. Com. 204. B. 14 Edw. 3. 275. 22 Ed. 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.

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.

In via Regia, upon the Statute, Marlbridg cap. 15. 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, Regist. orig. 97. B. in nota.

In communi strato upon Marlebridge cap. 15. Regist. orig. 97. B. although that it be within his fee, 17 Edw. 3. 43. pl. 31.

[Page 360] This Writ is contra pacem, and not vi & armis, 7 Edw. 3. 1. pl. 2.

Excessive distress upon the Statute of Marl­bridge, cap. 4.

Averia districta per Ballivum non [...]vat 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. [...]. pl. 2.

The Counts needs not show that the Di­stress should▪ be reasonable, but shall say ge­nerally▪ contra▪ formam▪ Statute, 14 Eliz. [...]12. pl. 86.

This action lyes, although that agreement [...]e made, 4 Edw. 5. 1. pl. 2.

Oves [...] upon Statue [...] Edw. 1. Bra­cton fol. 217. Regist▪ orig. 97. b. Nat. br. 90. B.

But if [...] 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.

Catalla districta quousque [...]nem fecit▪ Nat. br. 87. C.

Impercata Catalla. Averia impercata, per quod terrra remansit inculta, Nat. br. 88. J.

Equo impercato & mortuo sine alimento, Re­gist. orig. 94. B.

If they dye in a pound over [...], the party had no remedy, 46 Edw. 3. 3. pl. 4.

But if it be a pound close, he shall have trespas, 46 Edw. 3. 3.

[Page 361] Percussa Catalla. Equo percusso, the Count Lib. intra. 614. A. Sect. 22.

Equo percussa per quod the Master is hurt, Regist. orig. 96. B. Nat. br. 89. E.

Tonsa Ca­talla. Oves to [...]sa [...] ▪ Regist. orig. 96. A. Nat. br. 88.

Bracton, Lib. 3. fol. 102. B. Si quis rem mo­bilem vendicaverit ex quacunque causa ablatam, Chattels dead.vel commodatain, debet in Actione sua definire protium, & sic proponere actionem suam, quia ille a quo res petitur non tenetur precise ad rem restituendum, sed sub disjunctione, vel ad rem, vel ad pretium.

The Writ for dead Cattel 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 live Chattels shall be cepit & asporta vit, ad valent. Nat. br. 88. B. 21 Hen. 6. 39. pl. 5.

Arrestata. Wooll. Wooll distrained until C. and D oblige themselves to make deliverance, 43 Edw. 3. 6. pl. 18. the writ is, 1. vi & armis, and good, 2. ad dampnum, [...] the value is not shewed, yet good, because it is not in demand.

Arrested quousque commodum [...] did it, &c. Regist. orig. 102. A. 105. A.

Capta & asportata. A [...]gentum cepit & asportatis, Regist. orig. 108. B. 110. A. Nat. br. 87. M. [...]4. Hen. 6. 10. pl. 21. 2 Edw. [...]. 12 [...]. shall not say pretii, Regist. orig. 102. B. 108. B.

Money. For the Money comprehends the value, [Page 362] 46. Edw. 3. 16. pl. 12. per Moubray. 46 Edw. 3. 10. pl. 1.

Money out of a Chest, the Count, Lib. intra. 614. A. Sect. 1.

Auri tot Fl [...]renos, there it shall be said pre­tii, Regist. orig. 102. B.

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 lyes not, Mich. 40 & 41 Eliz. Com. Ban. Britton versus the Countess of Shrewsbury, but if I remove them, or seize them to my use, it lyes.

Coles. Carbones maritinos asportat, Regist. orig. 94. A. Nat. br. 87. B.

Plough & horses. Carucam & equos capt.

The Count Lib. intra. 607. C. Sect. 1.

Carucam capt. ad cariand. upon Westm. 1. Cap. 1. Regist. orig. 98. A.

Writings. For taking away writings in a Box, 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. origin. 110. B.

Hay. Corn. For taking away Hay, Regist. orig. 102. B.

Frumentum, the Writ was bona & catalla, and good, 46 Edw. 3. 16. pl. 12.

Tymber. Tymber and Wood, capt. & asport. the Count, Lib. intra. 676. A. Sect. 7.

[Page 363] Ship. Navem capt. & abduct. Regist. orig. 95. A. 102. B. Nat. br. 87. I.

Navem capt. ad faciend. cariag. upon the Statute of Westm. 1. cap. 1. Regist. orig. 98. A. Nat. br. 90. C. Obliga­tion.

Scriptum obligatorium delivered in nature of an Acquittance, 5 Hen. 4. 2. 1 Hen. 7. 14. 3 Edw. 3. 72. pl. 1. Will.

Testamentum abstulit & asportavit, Regist. orig. 107. B. Coat.

Tunicam, scilicet Coate armor, 9 Edw. 4. 14. pl. 8. VVine.

Five Tuns of Wine, the Writ was bona & catalla, Wine taken and carryed away, 39 Edward [...]. 18. pl. 17. Lib. intra. 684. A. sect. 1.

The Count Lib. intra. 684. A. sect. 1.

Vestimenta 11 Hen. 4. 31. pl. 57. Cloath [...].

Th [...]rn [...]. Trespass, Quare spinas suas Crescent. cepit & asportavit ad valen. &c. Good without shewing the loads, for this is special and the value reduces it to a certain, Mich. 15 Jac. Ban. Regis, Jones & Wilson.

Shocks of wheat▪ But if it be quosdam garbas tritici, it is not good for the incertainty, Trin. 7 Jac. Ban. Regis.

Upon Judgment in Court out of the Realm. Ireland. Error.
In what Court Error shall be redressed.

IUdgement given in Ban▪ Regis in Irelund error lyes in Ban. Regis in England, 1 [...] Edw. 3. Error 72. 37 Assize, pl. 7. 5 Edw. 2. Error 89. 36 Assize 5. Nat. br. 22. E. Coke 7. part. 18. Calvin [...] A. case.

But not upon a judgement given in another Court in Ireland, 5 Edw. 2▪ Error 89. Nat. br. [...]2 E.

VVales. Dodde­ridge De priucipa­litate [...] [...]iae, fol▪ 18▪ Erroneous judgement in Wales shall not be redressed in Ban. Regis in England, because Wales was not parcel of the Crown, 27 Hen. 7. 33. pl. 32.

But Crook 11 Hen. 8. 20 [...]. [...] 1 [...]. è contra, for there it is said it is parcel of England.

But in Parliament this ought to [...] 19 Hen. 6. 12. [...].

And also before Justices i [...]ene [...]ant there, 19 Hen. 6. 12. Newton.

But at this day judgement given at the Grand Sessions in Wales in plea real or mi [...] 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 Counsel in Wales by bill.

But judgement in the Assizes in Wales can­not be redressed in Com. Ban. 8 Eliz. Dyer 250. 87. [Page]

[Page]
ERROR.
   1. Out of the Realm1. Ireland.  
  1. Judge­ment in court of Record   
  2. Wales.  
   1. Superiour1. Parliament.  
 1. Common Law 2. Ban. Regis.  
 3. Com. Ban.  
 4. Chancery.  
 5. Exchequer.  
 2. In the Realm1. Parliament, the Sheriff in Redisseisin. per Merton cap. 3.
  1. Assizes.  
  2. Oyer and Terminer.1. Village.
  3. Conusance of pleas2. Single person.
Error is either by  4. Forrest.  
  5. Stannaries.  
 2. Inferiour Prescription1. In him and his Successors.
 2. In him and his Heirs.
  3. In him & whose estate he hath.
2. AgardExecution 4. Custome1. London. 
   2. Cinque ports. 
   3. In any village. 
   5. Common Right1. Pypowders in Fair or Market. 
3. Other RecordFine Grant of the King2. Marshalsey, Coke 10. part. 69. B. 
    3. Tourne. 
    4. Leete. 
 Westm. 1. 2. cap. 30. Upon a Bill of Exception.   
2. Statute Law.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 Judge­ment against Tenant for life, &c. and by equity he in Remainder.
34 Hen. 8. cap. 16. Error upon Judgement 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 Counsel in Wales.
23 Eliz. cap. 3. False Latine, rasing, interlining, mis-entring of a Warrant [...] Attor­ney, or Proclamation, Mis-return, or not Return of the Shrieve, or fault of [...]orm 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. cap. 3. 12. Error redressed in the Chequer chamber before the Chancellor and the Thesaurer, calling to them the Barons of the Chequer and Justices.
 31 Eliz. cap. 1. The not coming of the Chancellor shall not make a Discontinuance of the Error in the Chequer chamber.
 And for Error therein sued upon a Judgement in Ban. Regis, 3 of the Justices or Barons may adjourn it, and it shall be no Discontinuance.

[Page] [Page 364] Ile of Man. Erroneous judgement 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.

2. VVith­in the Realm in Court su­perior as Parlia­men [...]. Ban. Re­gis. Judgement given Ban. Regis, Error lyes in the sane Court per Common law, if it be error in proces, or default of Clarks, 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.

But error in process or default of Clarks ought to be redressed in the same Term; or otherwise it lyes not in the same Court as it seems by the Justices, Trin. 7 Jac. Ban. Regis, Prowse & Skeynner.

But one case was Mich. 41 & 42 Eliz. Rot. 639. which is a rule that error lyes in another Term upon Error in Proces, when the party cannot have error in the Chequer Cham­ber.

But by the 27 Eliz. cap. 8. if judgement be given in Ban. Regis, upon a sute commen­ced, there the writ of error lyes in the Che­quer Chamber, before the Justices of the Common ban. and Barons of the Chequer, or fix of them, Coke 3. part 7. B. 4. part 7. B. 4. part 53, & 86. A. 5 part 18. B. 28. A. 43 A. 97. B.

[Page 366] But then it ought to be in Debt, Detinue, Account, Covenant, Ejectione firmae, Trespass upon the case.

And also nothing shall be assigned for Error in Jurisdiction of the Court, or form of the Writ, Return, Plaint, Bill, Declara­tion, Pleadings, Process, Verdict, or Pro­ceedings.

And also a writ of Error lyes upon this in Parliament.

Judgement given in Chancery, according to the Common-law shall be redressed in Parliament, 37 Hen. 6. 13. 11 Edw. 4. 8. Choke.

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 in Chancery upon Error and good, 4 [...] Assize 22.

If Letters Patents are inrolled in Chancery there shall be a Scire facias to reverse it there, 16 Edw. 3. bre. 651. 2 Rich. 3. 1. A.

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 lyes 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. Knightley.

Com. Ban. Judgement given in Com. Ban. if it be Er­ror in Process, or in default of Clarks, it [Page 367] shall be redressed in the said Court the same Term, without a writ, Nat. br. 21. I. 15 Edw. 4. 7, & 8. 7 Hen. 6. 28. pl. 22. 19 Henry 6. 2. pl. 2.

But for Error in Law in the same Term, or other Error in another Term, this shall be redressed in Ban. Regis only, Nat. br. 21. I. Coke 8. part 5. A. 5 Mariae, bre. Com­mission 25.

It shall not be reformed at the Counsel-Table, 39 Edw. 3. 14. pl. 28.

Exche­quer. Judgement given before the Barons of the Chequer chamber shall be redressed in the Chequer chamber before the Chancellour of England, Thesaurer, 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.

Inferiour Court▪ The Statute of Merton cap. 3. makes the Shrieve judge of Record in redisseisin, and Error lyes upon this in Ban. Regis, Coke 6. part 12. a Gentlemans case. Assises.

Judgement given at the Assises in the Country 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 judgement given at the assises in Com. Monmouth shall be redressed only in Ban. Regis, and not in the Com. Ban. because the other Ju­stices at the assises are by letters patents, 8 El. [Page 368] Dyer 250. pl. 87. and if the Assises be adjourn­ed in Ban. and judgement given there it shall be redressed in Ban. Regis, 8 Hen. 6. 17.

And if judgement be given at the Assises in a Quare impedit, Error lyes in Ban. Regis, 6 Edw. 6. Dyer 76. pl. 34.

But Judgement given at the Assises shall not be redressed at the Counsel-Table, 39 Edw. 3. 14. pl. 28.

Oyer & Terminer. Commissions of Oyer & Terminer by Ju­stices of the peace, the judgement shall be redressed in Ban. Regis, 29 Edw. 3. 30. [...] Mariae, brev. Commissions 25.

But Error lyes not upon a thing done be­fore the Justices of the peace, 4 Hen. 6. 24. Martin.

But error was brought upon an Utlawry upon Indictment taken before Justices of the peace, 11 Hen. 4. 53.

Conu­sance granted to a City or Village corporate. Judge­ment. Conusance of pleas granted to a City or Village corporate, there judgement shall be redressed in Ban. Regis.

Or to a body Natural.

Judgement in Chester Error lyes in Ban. Regis, Coke 2. part 89. B. 19 Hen. 6. 12. 6 Hen. 4. 8. pl. 30.

Note. But note in a writ of Error upon a judge­ment 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 usage of the said County, Regist. orig. 17. A.

[Page 369] But in a Writ of Error upon a Writ of Er­ror they have no such power, but the Record and the Proces ought to be remanded at the first County into Ban. Regis, Regist. orig. 17. A. Lib. intra. 290. A. sect. 1. Chester.

And by usage in the same County, nine Countyes shall be held one year, and eight another year, &c. Regist. orig. 17▪ A.

The usage is to have a Writ out of the Chancery retornable in Ban. Regis, for Writs of Error are excepted in Charters granted at Chester.

And in this Error there the Justices may award a Scire facias against the Defendant, returnable at the next County, and if the judgement be affirmed the party may have a Special Writ of Error, reciting the former Writ, and have the Records and Process of both judgements removed in Ban. Regis, there to be examined, and a Scire facias awarded against the Tertenant, 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 judgement be reversed the party shall be re­stored▪ and the Judges there forfeit to the King 100 l. although the judgement was given by their Predecessors.

But then it is not intended of Error in deed, but only of Error within the Record or Process, No. Lib. intra. [...] A. sect. 2.

[Page 370] Forest. Claym allowed by the Justices of the Fo­rest, error upon it in Ban. Regis, 21 Edward 3. 48. pl. 70.

Stanna­rie [...]. If erroneous judgement be given in the Stannaryes, it shall be redressed before the Warden of the Stannaryes and after, before the counsel of the Prince, and after before the King himself.

Pasc. 7. Iac. Regis per Flemming chief Ju­stice, a writ of Error or false judgement lyes not upon judgement given in the Court of the Stannaryes, as was resolved by all the Justices, and it seems the reason is because it is but an English Court,

Judgement in the County Palatine of Durham shall be redressed by a Writ of Error there, and upon Error in this judgement in Ban. Regis, or in Com. Ban. Nat. br. 21. G. 14 Edw. 3. Error 6. 8 Eliz. Dyer 250. pl. 86.

Custom. Judgement in London shall be redressed in Com. Ban. or Ban. Regis, Nat. br. 20. E. 23. A. & B.

London. But judgement before the Shrieves of London, shall be redressed before the Maior and Aldèrmen in their Hustings, Nat. br. 22. H.

And judgement before the Maior and Shrieve shall be redressed by Commission directed to certain persons at Saint Mar­tins the Great, Nat. br. 23 E. 18 Edw. 3. 8.

But by 34 Hen. 6. 42. pl. 14. the Maior and [Page 371] Aldermen have forty dayes to advise of their Judgement, and then the Recorder certifies it forthwith.

Note. Note this manner is given by the 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. Cinque-ports.

Judgement given in the 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 Shepeware, & si falsum fuerit revocabitur, & Maior & Jurati qui dederunt Judicium fecerunt fines, & Maior deponitur ab officio, 29 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 Henry 6. 6. the Barons of the five Ports are Judges there.

Village. A Custome in village or Town to hold all manner of pleas, error lyes in Ban. Re­gis, 21 Edward the 3d. 40. 37 Assize, pl. 5. Nat. brev. 20 D. 2 Henry the 7th. 19. pl. 4. 18 Edward the 4th. 12. Mich. 10 Jacob. Ban. Regis Godsen versus Duf­frild. Common right. Marshal­sey.

Or in Com. ban. Nat. br. 20. D.

Judgement in the Marshalsey shall only [Page 372] be redressed in Ban. Regis, per 5 Edw. 3. cap. 2. 10 Edw. 3. cap. 3. Lib. intra. 297.

Pypow­der. Judgement in Court of Pypowders shall be redressed in Ban. Regis, or Com. Ban. Nat. br. 20. D.

Who shall have a Writ of Error.

Parties. He that confesses the Action shall not have a writ of Error against his confession, Nat. br. 21. K. 34. Hen. 6. 41.

Conusor. Conusor of a Statute shall have a writ of Error if execution be not well sued, 18 Edw. 3. 25.

And although he were outlawed, (if he be pardoned) 29 Assize 47. Nat. br. 22. B.

Corpora­tion. Corporation shall have a writ of Error, but no single person of them, 21 Edw. 4. 58. Townesend.

Disclaym. He that disclayms shall not have it, Nat. br. 22. C. Coke 8. part 6. B. & 62. A.

Non-te­nure. But if one plead Non-Tenure, and it be found against him, yet he shall have it, 6 Edw. 3. 188. pl. 17. Nat. br. 22. C.

A. brought a Praecipe against B. which in­feoffs C. judgement given for A. yet B. shall have Error, 21 Edw. 3. 53. 12. Assize 41. 20. of Assise, 2. 50 Assise 3. Coke 1. part 111 Al­banies case.

Judgement given against the Defendant in debt, and after because he paid not, nor ren­dred his body, &c. judgement was given upon a Scire facias against the bayl, and they all [Page 373] joyn in a writ of Error, therefore not good, because one is not party to the judgement gi­ven against the other, Mich. 9 Jac. Regis, Wildegoose against Duport.

Trespass against two where one was within age and appears by Attorny, and judgement Quod cap. they joyn in a writ of Error, be­cause the judgement is entire, Hill. 9. Jac. Ban. Regis, Orme & Bird.

Survivor. Surviving Joynt-tenant shall have error of all, 19 Edw. 3. Error 1. 19▪ Assize, pl. 8.

Outlawed Two outlawed upon a Capias in Redisseisin with force, one shall have Error sole, 8 Hen. 4. 3.

Conspira­cy. Judgement against two in conspiracy, one dyes, the other shall have a writ of Er­ror, 24 Edw. 3. 76. pl. 99. Infant.

Mich. 30, & 31 Eliz. ban. Regis, Pegot be­ing an Infant, and another levyes a fine, P. sole brought error, and good, for this is er­ror in deed, therefore it shall be brought by him it most concerns.

Retraxit. If one makes a Retraxit, yet he shall have Error, Coke 8. part 62. A. Beechers case.

Reversion The King shall have Error, 15 Ed. 3. Error. 72.

He in Reversion disseises Joyntenants, and suffers an eroneous recovery, the wife releases with warranty and dyes, this warranty is a bar to the writ of Error, because by his own Act he hath disabled himself to take benefit of the forfeiture, Coke 3. part 61. A. Lincoln Coledge case.

Heir. A recovers a moyety of a Mannor against B. [Page 374] which infeoffs C. B. and C. make partition, B. dyes, his heir shall have a writ of Error, and by Newton. A. had issue a Son and a Daughter by one venter, and another Daugh­ter by another venter, and dyes, the Son en­ters, and dyes, 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.

Prey in Ayde. Prey in Ayde shall have a writ of Error, Nat. br. 21. C. Coke 3. part 3. B. 4 Assise, pl. 7.

Patron. Patron after ayde, Pryor shall have Error, 12 Hen. 8. 8. Pollard.

Garnishee 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 in London upon an Attachment according to the Custome, shall have Error, 22 Edw. 4. 30, & 31.

Tenant. Tenant per Receipt shall have Error, Coke 3. part 3. 4 Assise 7. 20 Edw. 3. Error 2.

Vouchee. Vouchee shall have a writ of Error, 8 Hen. 4. 3. Nat. br. 21. C. 4. Assise 7. 17 Edw. 3. Error 90. Nat. br. 21. M. & 108. A.

And the Tenant shall have another writ of Error, 8 Hen. 4. 3. & 21. Nat. br. 21. C.

But if the Vouchee release before Error brought, the Tenant shall not have it, 17 Edw. 2. Recovery in value, 32.

Heir ge­neral. Heir general shall have a writ of Error, 20 Edw. 4. 13. Lib. intra. 296. A. sect. 1.

And if the Ancestor be outlawed of Felony, [Page 375] he shall have it, Nat. br. 21. N.

But not for High Treason, per 28 Eliz. cap. 2.

Heir spe­cial. The Heir special shall have it for the Lands to which he is heir, 3 Hen. 4. 19. Nat. br. 21. K. 9 Hen. 6. 47. 1 Mariae Dyer 90. pl. 5.

Executor. Executor shall have error upon judgement for debt or dammages, Nat. br. 21 M.

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.

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, 11 Hen. 4. 65. pl. 22. 5 Edw. 4. 7.

Although that the Outlawry be for felony, Coke 5. part 111. A.

Admini­strator. Administrator shall have error in the same manner as Executor shall have, Nat. br. 21 M. 6 Edw. 6. Dyer 76. pl. 31.

Successor. Successor shall have Error for a thing which toucheth the succession, Nat. br. 22. A. 16 Edw. 3. Error 69. 8 Hen. 6. 25. A. Martin.

King. The King collates A. to a Chapel, against whom an Action is brought, A. resigns, the King collates B. Judgement is given pro que­rente, B. shall have Error, 15 Edw. 3. Error 7. 15 Assize 8.

Bishop But for Debt or Dammages recovered a­gainst a Bishop, &c. or any secular sole Cor­porotion, the Successor shall not have Error, Nat. br. 22. A.

[Page 376] Reversi­on. He in Reversion after the Estate ended shall have Error at common Law, 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.

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 by equity he in remainder shall have it▪ Nat. br. 108. A. 1 Mariae, Dyer 90. pl. 5.

But at common Law the Donor shall not have it altogether, com. 241. B.

And yet he shall not have Error during the Estate tayl, because he is not within the Sta­tute, 9 Rich. 2. cap. 3. Coke 3. part 61. A. Lin­coln colledge case, & 10. part 44. B. Portingtons case.

But after the Estate tayl ended he shall have it, because the Law rayses the reversi­on in the Donor, Coke 3. part 3. B.

And although Tenant in tayl suffered a Recovery, and released Errors, yet brings er­ror and is barred, and dyes without issue, yet the Donor or he in Remainder shall have Er­ror, 3 Eliz. Dyer 188. pl. 9.

Estranger. Note regularly no Stranger shall have Er­ror, 22 Edw. 4. 31. per Brian.

Conusor. Conusor aliens, execution is sued er­roneously, the Alienee shall have Error, Nat. br. 22. B. 4 Hen. 8. Dyer 1. pl. 5. 17 Assize, 24. 18 Edw. 3. 25. pl. 17. Crook. 6 Hen. 8. 169. A. Pollard.

[Page 377] Tenant. A. clayms wood in the Forest, and this al­lowed before two Justices of the Forest, B. & C. which clayms Estovers, brought a writ of Error in Ban. Regis, 21 Edward 3. 48. pl. 70.

Tenant in Praecipe enfeoffs B. Judgement given pro quer. B. shall have Error for the mis­chief, 21 Edw. 3. 53. 21. Assise 41. 20. Assize 2. 50. Assise 3.

But quaere 50 Assise 3. if Tenant in Precipe aliens to B. which releases to the Feoffor for life, and judgement if B. shall have Error, per 9 Rich. 2. cap 3.

King. Where the King is party to the judgement 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.

The writ of Error.

The writ ought to make mention of him which was summoned and severed, 9 Hen. 6. 38. 13.

Covenant against A. as Assignee and Judgement given against him, he brought Error, the Writ needs not mention him as Assignee, because this Addition was not of substance, 19 Elizabethae, Dyer 356 pl. 41.

The Process in Error, 1. upon Judgement in Ireland, 2. upon a bill sealed, 3. Judgement in another Court.

Ireland. Error brought upon a Judgement given in Ban. Regis▪ in Ireland, there shall be a Scire facias in the writ of Error; for by Sharde this is the usage and in no other manner, 34 As­size, pl. 7.

Bill sea­led. Error upon a 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 Henry 4. 92.

But the Justices may deliver it in Court by their own hands, 11 Hen. 4. 52. 92.

Process. The Process in a writ of Error against the Judges, to whom the Writ is directed is Alias, Plures, and Attachment, Nat. br. 22. G.

Errors as­signed. When 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 Ed. 4. 13. 3 Eliz. Dyer 195. pl. 38. & 201. pl. 63. 17 Edw. 3. 5.

And upon two Nihils, nec est inventus, the Court shall come to examination of the er­rors, 3 Eliz. 201. pl. 63.

But untill error assigned the party shall not have a Scire facias, 24 Edw. 3. 31. pl. 8.

And if he assign that for error which the Court takes to be no error, he shall not have a Scire facias, 18 Hen. 6. 17.

[Page 379] But in Error brought against the King, there shall be no Scire facias, because the King is alwayes in Court, Nat. br. 21. H.

Against whom a Scire faci­as in er­ror shall be sued. The Writ needs not mention the names of the Tertenants, because it is of common form used, 8 Hen. 4. 17. pl. 3.

If the Shrieve return that the Heir is not in his Baly-wick, and the Tertenant shews that he is in another County, there shall go a Other County. Scire facias into another County, 8 Hen. 4. 18. pl. 3.

If a Recoveror makes a Feoffment, and dyes without Heir, it seems there that a Scire facias lyes against the Tertenant only, and a Writ Terrete­nant.of Error, 8 Hen. 4. 17. pl. 3. 9 Hen. 6. 49. B. pl. 30. Quaere.

Former Judge­ment. But the 9 Hen. 6. 46. B. pl. 30. a Writ of Error lyes against none but the party, or them that are privy to the former Judgement.

Cardein in right. Gardein in right recovers in a Quare Im­pedit, and dyes, the other brought error, and a Scire facias against the Heir of the Recove­ror, 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.

False Judge­ment. Error upon false Judgement in Oxford, the party being dead, there shall go a Scire facias as well against the Heir, as against the Terte­nant, 8 Hen. 4. 18. pl. 3.

A Scire facias needs not be sued against the [Page 380] Tertenant before the Judgement be reversed, 47 Edw. 3. 7.

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.

Feofment But if the Recoveror make a Feofment to his use, and then the judgement be reversed, there needs no Scire facias against the Feoffee, for this is Ayded per 1 Rich. 3. 26 Hen. 8. 2.

Scire faci­as in Fel­lony. Error upon an Outlary in Fellony, the Plaintiff ought to have a Scire facias to all the Lords, mediate and immediate, 7 Hen. 7. 5. 11 Hen. 4. 53. 4 Edw. 4. 10.

And also against the party and the Terte­nants, Lib. intra. 308. B. sect. 3.

And in a Writ of Error, if the Plaintiff Delay.hasten not his suite, 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.

And such case two Nichils returned, the Defendant shall have execution, but after this the Plaintiff shall have a Scire facias, 9 Hen. 6. 13.

Diminution in Error, 1. by whom, 2. in what cases, 3. at what time.

1. The Plaintiff in Error may alleadge Di­minution, Nat. br. 25. A.

The Defendant may, 28 Hen. 6. 11. 15 Eliz. Dyer 321 pl. 21.

[Page 381] Error in London. 2. Error upon a Judgement in London, the Recorder certifies it, yet he is held to do ac­cording to the custome, Quaere if Diminution shall be alleadged, 34 Hen. 6. 42.

When all the Record is not removed Di­minution may be alleadged, Nat. br. 25. A. vide the Writ there.

Diminution alleadged in

1. Essoine, 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.

Diminution shall not be alleadged upon a bill sealed, because the bill is not of Record, 11 Hen. 4. 52. Hull. & 65.

Diminu­tion. 3. After in nullo est erratum pleading in an­other Terme, the Plaintiff may not alleadge Diminution, 28 Hen. 6. 11.

But the Defendant may, 28 Hen. 6. 11.

But per 7 Edw. 4. 25. Error 45. the Defen­dant may not.

But Coke 5. part. 37. B. Bishops case, after in nullo est erratum pleaded, no Diminution shall be alleadged.

The Plaintiff to the Writ before that he assigne Errors, or a Scire facias ad audiend. er­rores, and by this means the Defendant may not afterwards alleadge Diminution, 16 Eliz. Dyer 330. pl. 18. vide 13 Hen. 4. Error 92.

Note. But note, that the Defendant after that he had rejoyned, alleadged Diminution, No. Lib. intra. 232. B.

[Page 382] The Plaintiff may not alledg Diminution for any Error in Deed after a Scire facias a­warded, 22 Edw. 4. 45.

The Assigment of Errors, 1. by whom, 2. at what time, 3. upon what Record, 4. of what things.

Assigment of errors is in place of a Decla­ration, 9 Edw. 4. 32.

Assign er­rors. If one brings a Writ of error, and he and another assigne errors, this is good, as to him that brought error, and void as to the other; but if two brought error, and one assigne errors, this is not good to either, Mich. 9 Jac. In the Chequer chamber. Shakley versus Porter.

Conusor. Conusor of a Fine shall not assigne error in the Conusance, neither the Conusee in the Grant, and Render, neither the Recoveror in the Recovery, Coke 5. part. 39. B.

Executor. Executor in error by him upon a Judge­ment given against him, shall not assigne for error, that the debt was but upon a simple contract, Com. 182. A. 10 Hen. 6. 24.

Party. Party shall not shew error in process, un­less he shews that it is for his advantage, 7 Edw. 3. 25. Coke 8. part. 59. A. Nat. br. 21. F.

But may afterwards shew that the Judge­ment is erronious, Coke 8. part. 59. A. Beech­ers case. 14 Eliz. Dyer 315. pl. 99.

R vertio­ner. Revertioner not being made a party shall not assigne for Error, that the Shrieve made a warrant to the Bayly to make a pannel [Page 383] where the party was guildable, 3 Henery 4. 6.

Successor. The Successor shall assigne for error, that his Predecessor was but named Gardein, 15 Edw. 3. Error 7.

Sci. fa. Error shall be assigned before a Scire facias shall be awarded, 24 Edw. 3. 31. pl. 8.

For after a Scire facias awarded the Plain­tiff cannot assigne error in deed, 22 Edw. 4. 45.

Demur­rer. Judgement given upon a Demurrer in Law, and Writ to enquire of dammages awarded, a Writ of error was brought, and he assign­ed errors, 17 Edw. 3. 5.

Record. If the Record, and the Writ of error do not agree, error cannot be assigned upon the Record, 9 Hen. 6. 4. 2 Eliz. Dyer 180. pl. 48. 28 Hen. 6. 11.

New writ of Error. If the Writ of error be faulty in substance, errors shall not be assigned, but shall have a new Writ, Qu [...]d coram nobis residet, 3 Hen. 6. 3. & 26. 5. Mariae. Dyer 164. pl. 58.

False Judge­ment. But if it▪ be false Judgement, then there must be a new Writ, to the Suitors, 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. br. 20. G.

Bill sealed Upon a Bill sealed a man shall assinge er­ror, per Westm. 2. cap. 31. 11 Hen. 4. 52. 27 Hen. 8. 15. 25. Coke 9. part. 13. B. Dowmans case. 9 Assiz. 8. 14 Hen. 4. 15. 4 Hen. 6. 15. A. Martin [Page 384] 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; for otherwise it shall not be sealed.

Chal­lenge. Challenge in Assize was put in a bill sealed, and good, 9 Assize 8. 21 Edw. 4. 11. 20 Edw. 3. 63. Lib. intra. 346. C. 27 Hen 8. 24. 25.

Priviledg. Priviledg claimed, and not allowed there may be a bill sealed, 22 Edw. 4. Priviledg. 1.

Conu­sanee. Conusance claimed if the plea be challen­ged by one that is not party, there cannot be a bill sealed, 20 Edw. 3. Conusance 46.

Pattent. A Patent to three to take an Assize, where two take it, there may be a bill sealed, and Error upon it, 29 Assize, 42.

Bill sealed 11 Hen. 92. Assize, the Tenant shews that the Shrieve 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.

4. A Writ to the Justices ad cognoscenda sigilla.

5. Two Justices seal it, yet one may de­liver it.

6. The party brought a Scire facias ad [Page 385] cognoscend. sigilla, before the Justices come in Court, yet good, for after that they come the bill was of Record ab initio.

Transcript Upon a transcript of the note of a Fine error shall be assigned, and if Error appears, they shall send the note and reverse it, 21 Ed. 3. 24. 16 Edw. 3. Record 35. 40 Assize, pl. 29.

For otherwise per chance the Fine may not be ingrossed, 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.

But 1 Mariae, Dyer 89. pl. 4. e contra.

Upon transcript in Parliament error is as­signed, for the chief Justice brought the Re­cord, and reported it in ban. Regis, 8 Hen. 5. Error 88. 28 Eliz. Dyer 375. pl. 19. 22 Edw. 3. 3. pl. 25.

But in another Court it is otherwise, 40 Assize 29. Nat. b. 20. F.

Priviledg. Upon award by the Justices upon returne, upon a Writ of Priviledge, no writ of error lyes, Coke 8 part. 127. B. case of the city of London.

Claim. Upon allowance of claim by the Justices of the Forrest, 21 Edw. 3. 48. pl. 70.

Record removed. Judgement in annuity, and after in a Scire facias, Error brought upon the former Judge­ment, the Record shall be removed, 11 Hen. 4. 4.

Proclama­tions. Error upon a Fine, and proclamations, the proclamations shall be certified, Com. 265. A. Fishes case.

[Page 386] Award. Error shall not be awarded until the final Judgement be given, Coke 11. part. 40. A. Metcalfs case. 7 Rich. 2. Error 68.

Unless the Award be ad grave dampnum, Coke 11. part 41. A. Metcalfs case.

As in Debt against many by several pre­cipes, and judgment 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.

Account. Judgement in an Account, quod computet, error lyes not until the final Judgement, Coke 11. part. 38. B. 21 Edw. 3. 9. 1. Hen. 7. 2. B.

Trespass. When an action of Trespass is in part de­termined, error lyes not until it be determined all, 32 Hen. 6. 5. pl. 5. 36 Hen. 6. Coke 11. part 39. B.

Form [...]don. So in Afformedon, 12 Eliz. Dyer 291. pl. 67. Coke 11. part 39. B.

Trespass. So in Trespass against two, 34 Hen. 6. 41. pl. 9.

Quare impedit. Partition. So in a Quare impedit, 34. Hen. 6. 41.

So in Partition, Mich. 40, & 41 Eliz. Com. Ban. Countess of Warwick against Henry Lord Barkley.

Day. If error be brought before the fourth day in Com. Ban. yet it is good, because of Record at the Commencement, 34 Hen. 6.

Assise of Darrein presentment, a writ a­warded to the Bishop, and the Assise is for dammages, error brought and allowed, 17 Edw. 3. 5. pl. 12.

[Page 387] Record. Error upon a Judgement in a Scire fa­cias upon a Fine, and no Record remo­ved, but the proceedings, upon the for­mer judgement, and yet good, 20 Edw. Er­ror 2.

Praecipe quod red­dat. Praecipe quod reddat, error brought, the Original nor the judicial writ, nor the es­soyne shall be removed, 2 Edw. 3. Error 2. Thorp 37. Assize 5.

Unless Error be assigned in the Original, 24 Edw. 3. 24.

Transcript And then the Transcript only shall be re­moved, 34 Assize 7. 36 Hen. 6. 13.

Statute Merchant Error upon an execution upon a Sta­tute. Merchant, error in process, the O­riginal shall be removed, 18 Edwrad the 3. d 24.

Antient Demean. And if it be of antient Demean the Origi­shall be removed, 34 Assize 7.

Ireland. But Error upon a judgement in Ireland, the Original shall not be removed, 74 Assize 7. 37 Assize 15. Finchden.

Fine & Recovery. Eror lyes not upon a Fine or Common re­covery for false Latine, rasure, interlyning, misentry of the warrant of Attorney, pro­clamation mis-returned, or not return of the Shrieve, or default of form in words, 23 Eliz. cap. 3.

And by the 27 Eliz. cap. 9. this extends to Fines in Wales and Recoveries.

But before the Kings Silver be entred it is Error, No. Lib. intra. 231. A. sect. 2.

[Page 388] A Writ of Covenant returned before the Teste, this shall be amended, Coke 5. part 45. B. Gages case

The Caption before the Teste of the De­dimus, no error, No. Lib. intra. 255. C. sect. 11.

Pasc. 1. Jacobi Regis, Rot. 426. Countess of Bedford against Foster, 1. Error assigned, because the Writ of Covenant was of 8 Mes­suages, and 2 Tofts, the Fine certified is of 8 Messuages, 2 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 scedula, sed non allocatur, because in substance it is the same.

Mich. 30 Eliz. Ban. Regis, Austein & Steede versus Conaway & Webbe, a Fine was levyed of two Tenements, and void, because a pre­cipe lyes not of it, this case is entred, Hill. 30 Eliz. Rot. 165.

Infancy. Infancy good Error in a Fine, Nat. br. 21. D. 3 Hen. 6. 16. B. 2 Rich. 3. 1. 17 Edw. 3. 53. pl. 33. 27 Assise, pl. 53.

But if he come to full age it is not, for then he is not in the same condition as he was when he levyed the Fine, 17 Edw. 3. 53. pl. 33. Greene 17. Assize pl. 17.

And although the other eject the 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.

[Page 389] Feme Covert. Feme Covert as Feme sole levyes a Fine, this shall bind all but the Husband, Coke 7. part 8. Bedfords case, 17 Edw. 3. 52. & 78. 7 Hen. 4. 23.

Husband. But if the Husband enters and dyes the Fine is void without more, Coke 7. part 8. Bedfords case, 7 Hen. 4. 2. 23.

But if living the former Husband, and she take a second, and they levy a Fine, this is utterly void, because the second mariage is so, 7 Hen. 4. 24. B. Gascoign, 9 Hen. 6. 34. B. pl 3.

Note. Note when a thing is a mendible before the Writ of Error brought, it is amendible as well after, and this by a Superiour Court, as well as an Inferiour, Coke 8. part 162. A. Blackamores case▪

Note. Note that those things that are not amen­dible are Errors at this day.

When Judgement is given, but not upon verdict of 12. upon Issue joyned there are se­ven Errors not amendible, Coke 8. part 162. A. Blackamores case.

1 Origi­nal. Fault of the Original, No. Lib. intra. 246. D.

2 Form. Misprison of the form of the Original, false Latine, or variance from the Register.

3 Count. Material variance between the Original and the Count, as C. W. in the Writ, and W. W. in the Count, Coke 5. part 37. Bishops case.

4 Plead­ing. Jeofayl, fault of Collour, insufficient plead­ing, or some default of the person, or of his Counsell.

[Page 390] 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.

6 War­rant. 7 Appeal. Fault of warrant of Attorney.

Error in pleas of the Crown and Appeals, 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.

What things are amend­able after verdict. [...] Mate­rial va­rience. When judgement is given upon verdict of twelve, upon issue joyned there are twelve misprisions not to be remedyed, 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.

Waste brought in Burrum Appleby, and Flackebridge, and the Account is of waste made in Burrum Appleby & Flackbridge Park in Langton, and it is variance, because there is more in the Count, then in the Writ, Hill. 12 Jac. Com. ban. Countess of Cumber­lands case.

When the Original of 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 ayded [Page 391] by the Statute, and good after Verdict, Trin. 9 Jac. Ban. Regis, Poore versus Boule.

Hill. 36 Eliz. Ban. Regis, Rot. 610. Griffin versus Elliot.

Ejectione firmae, fault (vi & armis) yet this is but a form, and shall not stay judge­ment 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 Edward 3. 1.

3 Mispri­on 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, demiseable 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 otherwayes, Mich. 11. Ia [...]. Ban. Regis in the same case.

1. Trin. 11 Iac. Ban. Regis, Morton versus Orde resolved in Error 1.

Infancy during Non-age shall be tryed by the Justices, Coke 9. part 30. 17 Edw. 2. Account 122. 46 Ed. 3. 8. 48 Edw. 3. 11. 14 Hen. 4.

2. If it be doubtfull to the Justices, the Infant and the Witnesses shall be examined, 25 Edw. 3. 42. 50 Edw. 3. 5.

3. If he be of full age in Actions reals it shall be tryed where the Land lyes, 21 Edw. 3. 28. 38 Edw. 3. 17. 44 Assise, [Page 392] 10. 46 Edward 3. 7. 13 Hen. 4. 3. 19 Hen. 6. 51.

4. If it be an Action personal as Ejectione firmae, it shall be tryed where the Action is brought, 21 Edw 3. 7. 3 Hen. 6. 40. 34 Hen. 6. 50. and so it was adjudged.

4 Shreives Return. When the Return is by the Shrieve, where it ought to be by the Commoners, or e converso.

5 Jury. When the Shrieve puts not his name to the Return of the Jury.

6 Venire facias. When there is no return indorsed upon the Venire facias, so if the name of the Shrieve be not put to the Writ of Inquiry, Damma­ges, Mich. 9 Jac. in the Chequer Chamber, Shackly versus Porter.

7 Verdict. When one gives the Verdict that was not returned in the Venire facias.

8 Action. When it appears by all the Record, that the Plaintiff had no cause of Action.

9 Crown. In Appeal, or Pleas of the Crown, or in any proceedings upon them.

Or to the Writ, Bill, or Action, Informa­tions, upon popular or penal Statutes.

10 Law. Iudge­ment. Error in Law by misprision of the Jud­ges in the judgement entred in another term, Coke 5. part 57. B. Specots case.

Action upon the case in Cur. Wallingford, the judgement was, quod deft. capiatur, this is error being but an Action upon the Concessum est pro [...] eratum est.case, Trin. 9 Iac. Ban. Regis, Northcot ver­sus Heywood,

Concessum est, where it should be Consi­deratum [Page 393] est, this is error although there are 21 Presidents in my Lord Cooks Reports, for by Man Secondary the Books are false prin­ted, Mich. 18 Iac. Ban. Regis, Rot. 641. and by Williams, if it be videbitur Curiae, this is erroneous.

If it be Capiatur against the Defendant in Ejectione firmae, Mich. 8 Iac. Ban. Regis, Rot. 232. Dolby versus Holbrook.

Jurisdicti­on of Court. It is ordeined per 27 Eliz. cap. 8. that if Er­ror be brought in the Chequer upon a judge­ment in Ban. Regis, they shall not assign in the Jurisdiction of the Court, or in form of the Writ, Return, Plaint, Bill, Declaration, Pleading, Process, Verdict▪ or Proceedings.

And also there is a Proviso if it be in debt, detinue, account, covenant, ejectione firmae, traverse, action upon the Case.

In proces. The party cannot shew Error in Process in delay, unless he shew that it is for his disad­vantage, 7 Edw. 3. 25. Coke 8. part 59. A. Beechers case.

Iudge. Nothing that is contrary to the Office of a Judge shall be assigned for Error, Nat. br. 21. B. 7 Hen. 7. 4.

Granting of Ayde where it shall not be is not Error, so of Receit, 7 Edw. 4. 12. 21 Edw. 4. 65. B. 5 Hen. 7. 8. 8 Hen. 7. 9. 11. 14 Hen. 6. 5. pl. pl. 25.

So of Garnishment, 14 Edw. 4. 1. pl. 3.

So of making Attorney, Nat. br. 22. D. 21 Edw. 4. 77.

Visne. But denyal of Ayde or Receit where it [Page 394] ought to be is error, Edw. 4. 65. B. 5 Hen. 7. 8. 8 Hen. 7. 9.

Visne. When the Visne is mistaken.

In Reple­vin. Replevin, the Defendant prescribes to have all the Pasture of such a place in 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 a good rule in Er­ror, because the exception to the Inhabi­tants of D. was voyd, therefore this was not in issue, Trin. 11 Iac. Ban. Regis, Wicker versus Stockeman.

In waste. 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 Er­ror, Hill. 12. Iac. Com. ban. the Countess of Cumberlands case.

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 Judgement, sed non allocatur, and Error upon it brought, and it seems that by Williams and Yel­verton Justices, that it is Error, for it shall be of Coventry, for Vicinetum is of the Neighbours, and excludes the City, and the Shrieve of the County ought to make it out, 7 Hen. 6. 36. B. 4. Ed­ward 4. 39. 7 Henry 4. 12. 80. Enquest. 36. quaere tamen, for the Court did ad­vise [Page 395] about bringing a new Action, Pasc. 9. Iac. Ban. Regis, Procter versus Clyf­ton.

Trespass. Trespass for lopping of Wood in Hurs­lay, the Defendant pleads that the place is parcel of the Mannor of Mam­den in the Parish of Hurslay, and the Cu­stom is, that the Copyholder 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 certayn, because it may comprehend more Villages, but it was good per Curiam, because Hursley shall be taken to be a Village and Parish, and shall not be in­tended, that there are more Villages in one Parish, 5 Edw. 3. 20. Mich. 9 Iac. Ban. Regis, Brocke versus Spencer. Conditi­on to pay mony.

Hill. 9 Jac. Ban. Regis, Savil & Ca­vendish Condition to pay mony 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.

Obligati­tion. Debt upon an Obligation, and shews the breaking of the Condition, because a stranger recovered the Land at Westminster upon a good Title, where the Land lyes in Com. Berks, the Defendant said that it was by Covyn, without this, that it was a good Ti­tle, [Page 396] the Plaintiff said that it was upon a good title, the Visne shal be of the County of Berks where the issue is joyned upon the good, Title, and where the Land lyes: but contrary if the issue be joyned upon the County, but it was said, if it were a personal Action it shall be where the Recovery is alleadged, Mich. 9 Iac. Ban. Regis, Hausaker versus Kirby.

Eeject­ment. Ejectione firmae of Land in S. & T. the De­fendant pleads Feoffment of the Land by Deed at S. the Plaintiff said non feoffavit, &c. the Visne was of S. and T. and good, and the alleadging of the feoffment at S. is idle, for it cannot be but upon the Land, Mich. 9 Iac. Ban. Regis.

Debt. Debt for 20 l. Defendant pleads that at a­nother time, the Plaintiff sued him in Lon­don in such a Parish and shews the Record certain, &c. and that he had exectution in a­nother Parish, &c. the Plaintiff said that it was in debt for another 20 l. for the which execution was awarded absque 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. which vouches C. and after issue tryed the former Voucher dyes, this shall not be pleaded in arrest of Judgement, but it is Error, 21 Hen. 7. 80. pl. 1. Crooke, but if A. dye he shall abate the sute in facto ibidem.

[Page 397] In detinue against A. he prayes garnishment against B. which comes and pleads, and are at issue, A. dyes, the sute abates, ibidem.

Bar in Error.

Feofment. No bar to say the former Writ depending, that the Plaintiff did infeoff another, for he remains Tenant notwithstanding, 21 Edw. 3. 53. 20 Assize 2. 12 Assize 41. Coke 1. part 111. Albanyes case.

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.

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. Release.

Release of Errors a good Bar, 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.

But a Release of Actions reals and perso­nals it is no Bar in error of an Outlawry, Coke 8. part 152. Littleton 116. B.

If the Defendant be outlawed in Redissei­sin a release of all demands is no bar, because the Original and the Judgement are the process of 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.

Release of Errors by Tenant in Tayl, no bar to the issue, although it be tryed against [Page 398] the Tenant in Tayl, 3 Elizabethae, Dyer 188. pl. 9.

But if he in reversion in Tayl disseises Tenant in Dower, and suffers an erroneous Recovery, and Tenant in Dower releases with warranty and dyes, this is a good Bar, Coke 3. part 60. 61. Lincolne Colledge case.

A Release of one bars another, when two are to recover a personal thing, but when they are to discharge themselves it is otherwayes, Coke 6. part 25. Ruddocks case.

Seisure. The King brought Error, it is no plea, that his Ministers have seised the Land, unless the King agree to it, 39 Assize, pl. 18.

The Judgement 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 Judgement, 2. That the par­ty be restored to all that he lost, 9 Henry 6. 47. B. Martin, Coke 5. part 39. B. Tayes case.

Assize. The judgement was that the Plaintiff should not be restored to the Land, with the mean profits, 11 Henry the 4th. 93 pl. 49.

And 8 Hen. 6. 2. A. Rolfe, that he shall re­cover the Land and the Issues.

[Page 399] Informa­tion upon intrusion. The Judgement was, Quod judicium re­vertetur & adnulletur & quod Defendant de intrasione, intrusione, transgressione, & contemptu, convincatur & a possesione amo­veatur & capiatur, &c. quodque recordum mittatur in Scaccarium pro executione haben­da, &c. Coke 1. part 40. A. Altonwoods case. Quare▪ impedit.

In Quare impedit, that the former judge­ment should be void, 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 other at full age of the Ward brought Error, and a Scire facias against the Ward, the Ward entitles him­self by his antient right and found for him. 1. The judgement shall be rever­sed against the Gardein, and yet the o­ther shall not be restored, because he is bar­red by the plea of the Ward, 9 Hen. 6. 47. B. Newton.

Redissei­sin. The Judgement was, that the judgment shall be reversed, and that the Plaintiff be restored to the Land, and to the is­sues in the mean time, 9 Henry the 4th. 6. pl. 19.

Utlawry. The Judgement was upon an Utlawry in felony, 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 [Page 400] the Common-law to that he had lost, 3 Eliz Dyer 196. pl. 39.

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, seised by reason of it, 11 Hen. 4. 65. pl. 22.

It shall be Quod judicium reditum staret in omni robore per Coke Chief Justice, Pasc. 12. Iac. Ban. Regis, Sir Iohn Heydons case, and yet 21 Edw. 4. 44. A. was quod judicium redi­tum remanebit stabile in perpetuum.

Et ulterius concessum est quod praedictus A. re­cuperet versus praefat. 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 dom. Domini Regis de errore, &c. No. Lib. intra. 244. B. sect. 8. and 292. B.

Statute 3 Hen. 7. cap. 10. if Error be sued before Execution, and afterwards be discon­tinued by default of the party, or he be non­suted or judgement affirmed, the other reco­vers his costs and dammages by the discreti­tion of the Judges, before that the Writ of Error be sued.

An Infant and another levye a Fine, this may be reversed as to the Infant, but it shall be good against the other, Coke 1. part 76. B. Bredons case, No. Lib. intra. 255. C. sect. 11.

[Page 401] But if the Husband and Wife levye a Fine of the Land of the Wife, and reverse it for Error, they shall be restored forthwith, be­cause the Husband is joyned but for confor­mity, Coke 2. part 77. B. Cromwels case.

Execution reversed, the judgement is yet good, Coke 5. part 32. Pettifers case.

Fine reversed for the Proclamations only, and yet remain good, for the other is but a Discontinuance, 4 Eliz. Dyer 216. pl. 54.

Execution in Error.

Lib. intra. 307. C. sect. 1.

FINIS.

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