Law, Book 4 · Chapter 12 – Chapter 15
CHAP. 12.
Of Debt and detinue, whereof a Writ of Annuitie.
THus farre of reall actions. A perſonall action is that where damages are to bee recouered, for at the Common Law neither ſhal (a)22. H. 6. 27.any but the Plaintife recouer damages, (b)Br. Coſts 29.nor damages lye but in perſonall and mixt actions, not in reall, as Dower writs of Entrie, ſur diſſeiſin, Ayell, Coſinage, &c. for in them damages are giuen by ſpeciall Statutes. Which being but once ſuſpended, or but againſt one, is gone for euer, and againſt all. As if the Creditor bee made an (c) 21. E. 4. 3.Executor to his debtor and once adminiſter, or take to wife one of the Executors of his (d) 11. H 4. 83.debtor, ſhe hauing adminiſtred before, the action of debt is gone for euer. So if two (e) 8. E. 4. 3.bee bound in an obligation to a fem ſole, and after ſhe taketh one of the obligors to husband, the whole dutie is extinct.
Erecutors bringing an action, muſt do 21 E. 4. 23. 16. H. 7. 4.it in all their names, as well of thoſe that refuſe adminiſtration, as of the reſt. But an action may bee brought onelyonly againſt 32 H. 6. 25.thoſe that do adminiſter.
Statutes.
9. E. 3. cap. 3. Stat. 1. In a writ of debt brought againſt diuers executors, they ſhal hauehave but one eſſoine before apparance, and one after apparance. He ot they that do firſt appeare in the Court at the grand diſtreſſe, ſhall anſwer to the Plaintife, and the Plaintife (if it paſſe for) ſhall hauehave iudgement and execution of the goods of the Teſtator againſt all named in the writ, as well as if they had all pleaded. In perſonell actions growing in reſpect of a poſſeſſion in Common, Tenants in Common are in all reſpects as Iointenants, for they muſt ioyne in an action of Treſpaſſe, for a treſpaſſe 22. H. 6. 12. 38 E. 3. 7.done vponupon their ground: in an action of account, againſt their Bailife of a wood, and if one of them dye, the ſuruiuor ſhall hauehave an action of the whole. So if Tenant for life 45. E. 3. 3.the reuertion to two ſiſters commit waſte, one ſiſter dyeth hauing iſſue, and the Tenant commit waſt againe, the iſſue and her Aunt ſhall ioyne in an action of waſt, and the Aunt ſole recouer treble damages for the waſt done in her ſiſters time.
In perſonell praecipes, damages onelyonly ſhall be recouered where the thing▪ cannot be had: for (a)1. E. 5. 6.damages ſhall not bee recouered in a Writ of Detinue, if the thing it ſelfe may be deliuered, damages (b)Br. Detin. 48.I ſay to the value of the thing demanded: but damages for the detaining ſhall.
Perſonell praecipe quod reddats are debt and detinue.
Debt, when any thing is due vponupon a contract.
Which if it be (a)50 E. 3. 16. …1 H. 7. 5.money due from one to another in their owne right, is in the Debet and Detinet, otherwiſe in the detinet onelyonly. As in debt, for the rent (b)50 E. 3. ibid.of Wheate, and Hens reſerued vponupon a leaſe for yeares, or of any Chattell, quicke or dead, in debt, (c)19 H. 8 8.by or (d)10 H. 7. 5.againſt an executour for rent, vponupon a leaſe of land, though it be behind after the Teſtators death: or (e)ibid.vponupon a former recouerie of debt or damages againſt executors, or for arrerages found in an action 15 El. Pl. 441.of account brought by them, for all is in the right of their Teſtator. But againſt an heire vponupon an obligation, &c. of his anceſtor, it lyeth in the debet and detinet, for the aſſets which he hath in his owne right, maketh it his proper debt. So for an (g)47 E. 3. 33.Abbot or Prior vponupon an obligation of the predeceſſor, and though he be behind himſelfe onelyonly, and againſt husband (h)ibid.and wife vponupon a recouerie of debt and damages againſt the wife whileſt ſhe was ſole.
Statutes.
Magn. Chart. cap. 8. The pledges ſhall bee free ſo long as the principall debtor is ſufficient. And anſwering the debt, ſhall hauehave the lands and rents of the principall till they be ſatisfied.
2. Ric. 2. cap. 12. No Wardein of the Fleet ſhall ſuffer any priſoner in execution to go out of priſon by mainpriſe, baile, baſton, without making gree to the partie, vnleſſe by Writ, or other commandement of the King, vponupon paine to loſe his office, and the party to hauehave a writ of debt againſt him.
33 H. 6. cap. 10. EueryEvery obligation taken by a Sherife or his miniſters by colour of their office, of any perſon in their Ward by courſe of Law, ſhall bee by the name of their office, and vponupon condition that the priſoners appeare at the day and place mentioned in the Writs, Bills and Warrants, taken in any other forme, it ſhall bee void.
32. H. 8. cap. 37. The Executors or Adminiſtrators of him that hath any rent or fee farme in fee in taile, or for life, ſhall hauehave an action of debt for the arrerages, in the Teſtators life time againſt the tenants that ſhould then hauehave paied it. Or may diſtreine (and make auowrie vponupon his matter) in the lands ſo long as they remaine in the poſſeſſion of the ſaid Tenant, or of any claiming onelyonly from him.
A husband ſeiſed of any ſuch eſtate … any rent or fee farme in his wiues right, ſhall (after her death) himſelfe, his Executors, or adminiſtrators, hauehave the ſame remedie for arrerages due in her life.
So of him his Executors and adminiſtrators, that hath a rent or fee farme during anothers life, & ceſti qui vi, die, the ſame being vnpayed.
Prerogatiue.
When any of the Kings goods come into a ſubiects hands, whether by matter of record 10. El. Pl 321.or enfait, ſo as hee is accomptant for them, his land all times after is chargeable for the ſame, and ſubiect to the Kings ſeiſure, into whoſe hands ſoeuer it come, whether by deſcent, purchaſe, or otherwiſe.
Statutes.
34. H. 8. cap 2. The land of the heires of high Collectors of any Taske, Subſedie, or lone, and of the receiuors of Courts, ſhal be chargeable therewith, as well that the heire hath by deſcent in fee taile, as in fee ſimple. And alſo that that is giuen him by the collector or receiuor couenouſly, and thereupon the heire may hauehave an action of debt againſt the Executors and adminiſtrators of his aunceſtor, wherein no eſſoine, protection, or wager of law is allowable. And hauehave execution of the goods of the aunceſtor, …eing in their hands at the time of the acti…n brought.
13. Eliz. cap 4. The lands, profits, and …ereditaments of eueryevery accomptant, or of …im that receiueth money for the Queene, …r her Succeſſors, to be imployed to the vſe …f the Queene, ſhall bee extended (in the …ature of a Statute Staple) for the payment of the arrerages. Or the Queen if he do not ſatisfie within ſixe moneths after the arrerage found, may ſell his land, and the party may hauehave the ſurpluſage to bee deliuered vntounto him, by him that receiued the money vponupon the ſale, without further warrant: this ſale to be of any land, whereof it is found by inquiſition, that the accomptant taketh the profits: which inquiſition, if it bee not true, the partie grieued after trauerſe of the office, and that found for himſelfe, ſhall hauehave his land againe without any petition, liuerie, or ouſter lemaine. If any ſuch buy land with the Queenes Treaſure, ſince the beginning of her raigne, and pay not the arrerages as before, the Queene ſhal ſeiſe & retaine the land according to the rate that the partie had it. This ſale extendeth not to to thoſe officers that hauehave vſed to disburſe the arrerages about their charge, or offices which continue, except the Queene command preſent payment to bee made, and then they ſhall hauehave ſixe moneths as before.
This Statute extendeth not to the accomtants, whoſe yearely rent, or whole receip… from the beginning exceedeth not C C C … nor to Sherifes, Eſchetors, Baylifes of liberties. Alſo the ſurerties ſhall bee ratable according to their habilities charged for the ſurpluſage onelyonly which remaines not ſatiſfied by ſuch ſale of the lands of ſuch officers.
39 Eliz. cap. 7. The former Statute of 13. of Eliz. ſhall extend to ſales to be made after the death of the Accomptant or debtor, and to an accompt made, or debt knowne within eight yeares after his death.
And none ſhall bee taken a debtor but ſuch officers and accomptants (in this act mentioned) as vponupon their accompts finiſhed (all reaſonable petitions being allowed) ſhall remaine debtor vponupon the foot of the accompt.
After one yeare after the accompt made or knowne (all reaſonable petitions allowed) the Queene may by her Letters Pattents ſell ſo much as ſhall ſuffiſe to ſatiſfie it, if any land which he had at any time ſince 2. April. 13 Eliz. or which otherwiſe are to be ſold by the entent of 13. Eliz. The ouerplus, if any bee, ſhall bee redeliuered without petition or fee. EueryEvery ſuch ſale ſhall bee as good as if the partie himſelfe had made it for money, or other valuable conſideration by bargaine, and ſale, deed enrolled, feoffement, or recouerie with voucher. And ſhall barre the partie and his heires, and all claiming vnderunder him, after he …hall be debtor or perſon accomptable, and …ll whom he might hauehave barred by any re…ouerie, and all whoſe lands are to be ſold …y the entent of 13. Eliz. And ſhall be good …gainſt the Queene and her Succeſſors, and …ll claiming vnderunder them for any charge or …combrance to the Queene or her Succeſ…ors by the partie.
Prouided, it ſhall not auoid any leaſe by …he Queene in other ſort then it ſhould at …he Common Law, if the Queene were ſa…isfied.
This act and 13. Eliz. ſhall extend to vn…er collectors of Tenthes and Subſedies of …he Clergie, ſhall not impeach any aſſu…ance made before this Parliament, bona fide nor any leaſe of xxj. yeares, or three liues whereupon ſo much yearely rent ſhall bee reſerued yearly payable, as hath been within xxj. yeares before, nor cuſtomarie eſtates made according to the cuſtome.
And of this nature is a writ of annuity, which lyeth for him that hath an annuitie (a)F. N. B. 152. ain fee for life, or though it bee but for yeares be (b)F. N. B. 152. b.it money or other things, as clothes, bread, &c. And is in the debet for them (c)F. N. B. 152 c.all: that is to ſay, for any other thing as well as for money, not in the detinet contrary to an action of debt Detinue Old N. B. 62.when any thing is withholden, which is called De catalis reddendis: if it be for writings, Old N. B. 65.it is called De chartis reddendis.
CHAP. 13.
Of an Action of account, and an action of Couenant.
PErſonall praecipe quod faciats are …n action of account, and an action of Couenant.
An action of accompt which is for an accompt to be made: as if one bee made a Baylife of a mannor, &c. then it is F. N. B. 116. p.againſt him as Baylife; if receiuors of his rents, debts, &c. then as receiuor: if both Baylife and Receiuor, then as Baylife and Receiuor.
Statutes.
Marleb. cap. 23. Attachment giuen in an action of accompt againſt Baylifes that withdraw themſelues, and hauehave no lands nor tenements to be diſtreined by.
Weſtm. 2. cap. 11. Hee to whom the accompt is to be made, may aſſigne Auditors to take it, who may immediatly commit to the next gaole the accomptant (beeing found in arrerages) till hee fully ſatisfie… whereupon the accomptant finding himſelfe grieued, may bring the matter by a Scire facias before the Barons of the Eſchequer.
Prerogatiue.
The King may hauehave it againſt executors. Lit. 118.And ſo can no other man.
An action of couenant which is for a couenant, that is to ſay, an agreement by deed to be holden.
CHAP. 14.
Of writs where the peace is not broken.
PErſonell Si fecerit te ſecurums are of things done without force, or where force is coupled with it.
Of thoſe without force, ſome goe not ſo farre as breach of the peace, others do breake it.
Thoſe that breake not the peace, are theſe that follow.
Rationabili parte bonorum, for the wife & children of one deceaſed to hauehave their part of the goods.
Ʋalore maritagij for gardein in Knight ſeruice, when the heire at full age refuſeth to ſatiſfie him for his marriage: and therefore F. N. B. 141. d. f.there in the writ are no words of the heires intruſion into the land.
A writ of forfeiture of marriage is to recouer the double value againſt ſuch an heire marrying himſelfe within age, without the F. N. B. 141: g.Lords aſſent, and at full age putting out the Lord.
Entruſion of word, when the heire of land by Knight ſeruice entreth, and putteth out the Lord, whether during his nonage or after his full age, if the heire both intrude and denie the value of the land alſo, then this writ of Intruſion of ward may be brought for both.
Eiectione cuſtodiae for any gardein by knight ſeruice or ſoccage, againſt a ſtranger, F. N B. 140.eiecting him of the land, or bodie of the heire, or both.
Quare eiecit infra terminum for leſſee for yeares, againſt the fe…e in fee, or for life F N. B. 197.of his leſſor, for in ſuch a caſe an Eiectione firme lyeth not againſt the feoffee or leſſee for life, becauſe hee is not the perſon that doth ouſt him, but his feoffor. And therefore was this writ deuiſed. And here the terme it ſelfe ſhall be recouered, if it be not paſt, as in an Eiectione firme that commeth after.
Treſpaſſe vponupon the caſe of things not againſt the peace, as Aſſumpſits for an aſſumption So is the Law now adiudged.to be performed, and ſuch like: and this lyeth not againſt Executors.
Here and in all other actions of Treſpaſſe vponupon the caſe, the writ muſt comprehend 38. H. 6 9.all the matter of ſubſtance, and which is trauerſable as clearly as the count, vnleſſe it be the day, quantitie of the land, or ſuch like.
CHAP. 15.
Of Treſpaſſes vponupon the caſe, againſt the peace, deceit, and conspiracie.
THe other that breake the peace but not vi, are called treſpaſſes againſt the peace.
And of this kinde ſpecially are an action of deceit and conſpiracie in the nature of ſuch a treſpaſſe. An action 22. H. 6. 4….of deceit is vponupon any deceit committed, where if it be vponupon a non ſommons in a plea of land, whereby he loſeth the land by default, or ſuch like, it muſt be brought during the life of the Sommoners, but not when all the Sommoners and veighors bee dead.
In a writ of deceit the Plaintife ſhall recouer all that hee hath loſt. As if it bee brought vponupon a recouerie in a quare impedit, 33 H. 6. 10.&c. then damages: if in a formdon then the land onelyonly, but no damages, for he loſt none in the formedon before.
Conſpiracie in the nature of a treſpaſſe is vponupon conſpiring by many to preiudice F. N. B. 116. a, b, ….a man wrongfully. As if men conſpire to endite one, becauſe he arreſted not a felon that paſſed by the Towne of M. And thereby they cauſe him to bee endited and amerced in the Leete of R. and F. and to bee taken and impriſoned for this amerciament till hee bee thereof acquitted in the Leet Or if men affirme and ſay to one A. that he hath right to ſuch land, and procure him to ſue B. tenant of the land, whereby B. is compelled to ſell other of his lands for defence of this. Or if men procure one to be endited for hunting in a Parke, whereby he is taken and impriſoned, and put to expences till hee hauehave acquitted himſelfe of this treſpaſſe.